No. 05-08-00735-CR
Opinion Filed March 31, 2009. DO NOT PUBLISH TEX. R. APP. P. 47.
On Appeal from the County Court at Law No. 6, Collin County, Texas, Trial Court Cause No. 006-85676-07.
Before Justices BRIDGES, O'NEILL, and FITZGERALD.
Opinion By Justice O'NEILL.
Appellant David Garcia-Hernandez was charged by information with assault causing bodily injury to a member of his family or household. He waived trial by jury, and the trial court later found him guilty and sentenced him to ninety days confinement, probated for a year, and a $300 fine. In his first two points, he challenges the legal and factual sufficiency of the evidence supporting his conviction. In his third and fourth issues, he claims the trial court erred by allowing certain testimony in violation of the Confrontation Clause and rules of evidence regarding hearsay. In a cross-issue, the State asks this Court to reform the trial court's judgment to include a finding of family violence. As reformed, we affirm the trial court's judgment.
Background
In the early evening of July 15, 2007 McKinney Police Officer Darrell King received a dispatch to respond to a domestic disturbance, specifically a 9-1-1 hang up call. When he arrived at the home, an older gentleman answered the door. He also observed appellant, an older female, and a toddler inside. He also noticed a closed door to the left inside the home, and he heard crying from its general direction. He asked if anyone called the police, and the adults pointed in the direction of the room. Officer King talked to the woman briefly and learned she was appellant's girlfriend and the mother of his child. He then turned his attention back to appellant, who admitted the two had fought because he wanted to take the child somewhere. When Officer King asked if he got physical, appellant responded "I slapped her." Officer King then detained appellant for further investigation and put him in the back of his squad car. He continued talking with the female, whom he later identified in court as Rocio Martinez. He observed redness on her upper right arm, which he photographed. These photographs were entered into evidence, along with a portion of the audio recording of the conversation between appellant and Officer King where appellant admitted to slapping Martinez. Appellant was charged with "intentionally, knowingly, and recklessly causing bodily injury to Rocio Martinez by striking Rocio Martinez's arm with defendant's hand, and Rocio Martinez was then and there a family member of the defendant's family or household, or was in a dating relationship with defendant." He waived trial by jury. The trial court found him guilty, without an affirmative finding of family violence, and sentenced him to ninety days' imprisonment, probated for one year, and a $300. His probation also included community service and anger management classes. This appeal followed. Sufficiency of the Evidence
Appellant claims the evidence is legally and factually insufficient to support his conviction because there is no direct evidence linking appellant's statement that "I slapped her" to the red marks on the victim's arm. He asserts there is no evidence he actually slapped Martinez that day or even where the red marks on her arm came from because the only State witness was Officer King and not Martinez herself. In a legal sufficiency review, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). The standard is the same for both direct and circumstantial evidence cases. Burden v. State, 55 S.W.3d 608, 613 (Tex.Crim.App. 2001); Bates v. State, 155 S.W.3d 212, 215 (Tex.App.-Dallas 2004, no pet.). In a factual sufficiency review, we view all of the evidence in a neutral light to determine whether the fact-finder's guilty verdict was rationally justified. Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning the weight to be given contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). Under both standards of review, the fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). The information charged appellant with intentionally, knowingly, or recklessly causing bodily injury to Martizez by striking her arm with appellant's hand and that Martzinez was a member of appellant's household or in a dating relationship with appellant. The penal code defines "bodily injury" as "physical pain, illness, or any impairment of physical condition." Tex. Penal Code Ann. § 1.07(a)(8) (Vernon Supp. 2008). Courts have determined this encompasses even relatively minor physical contacts, so long as they are more than offensive touching. See Arzaga v. State, 86 S.W.3d 767, 778-79 (Tex.App.-El Paso 2002, no pet.). Here, appellant does not challenge that the redness observed by Officer King on Martinez's upper arm amounts to bodily injury. Rather, his whole argument hinges on a lack of evidence between his statement of slapping her and her injury. We disagree with appellant's argument. While we acknowledge there is no direct evidence in the record that appellant specifically slapped Martinez's upper right arm, there is circumstantial evidence to support his conviction. Under a legal sufficiency review, the lack of direct evidence is not dispositive of the issue of a defendant's guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor and such evidence is legally sufficient to establish guilt. Id. Here, the circumstantial evidence shows Officer King received a domestic dispute dispatch at approximately 6:25 p.m. When he arrived and inquired about who had called the police, the people in the house motioned toward a closed door where he could hear someone crying. Appellant shortly thereafter admitted to slapping "her" because she would not allow him to take their child somewhere. Appellant further stated that he and the woman had been fighting, she threatened to call the police, and he told her "Okay, do it." When Officer King later talked to Martinez, he observed redness on her upper right arm. He photographed her injury at approximately 6:40 p.m., a mere fifteen minutes after he first responded to the call. Thus, it was reasonable for the trial court to conclude that the original call to police was because of the argument between appellant and Martinez, which escalated into appellant slapping her and causing red marks on her arm. Thus, based on the circumstantial evidence and reviewing the evidence in the light most favorable to the judgment, we conclude the evidence is legally sufficient to support appellant's conviction. Reviewing the evidence in a neutral light, we recognize one could reach another conclusion from the presence of the red mark on Martinez's arm; however, that is true of nearly all circumstantial evidence cases. Even when there are two equally reasonable interpretations of the evidence, the evidence supporting a guilty verdict will not be clearly wrong or unjust. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001) (noting the trier of fact, not a reviewing court, accepts or rejects reasonably equal competing theories of causation). But most importantly, here, appellant does not argue any other equally reasonable interpretation of how Martinez came to have the red mark on her arm at a time when appellant admitted to slapping her. Thus, the causal relationship between the incident and Martinez's injuries was for the trial court to resolve, and we cannot say the causal connection is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Therefore, the evidence is factually sufficient to support appellant's conviction. We overrule his first and second issues. Confrontation Clause and Hearsay Testimony
In his third and fourth issues, appellant contends the trial court erred in allowing Officer King to identify Martinez as the victim because it violated his right to confront her under the Confrontation Clause, and the testimony was impermissible hearsay. We conclude appellant has failed to preserve his arguments for our review. Although appellant first objected when Officer King testified about Martinez's identity, he failed to continue objecting when Officer King testified to the same information on several later occasions. In order to preserve error, the objecting party must continue to object each time the objectionable evidence is offered. Fuentes v. State, 991 S.W.2d 267, 273 (Tex.Crim.App. 1999); Teague v. State, 268 S.W.3d 664, 672 (Tex.App.-Fort Worth 2008, pet. ref'd). This he failed to do. Therefore, appellant has not preserved anything for our review. We overrule his third and fourth issues. Reformation of Judgment
In a cross-point, the State asks this Court to reform the judgment to include an affirmative finding of family violence. Although not argued in a reply brief, appellant argued during oral argument the judgment should not be reformed because (1) the State did not file a notice of appeal and (2) the court did not make a finding of family violence but only a finding of guilt. Article 42.013 provides that if the court determines the offense involved family violence, the court shall make an affirmative finding of that fact and enter the affirmative finding in the judgment of the case. Tex. Code Crim. Proc. Ann. art. 42.013 (Vernon 2006). The State argues the trial court had the necessary evidence before it to enter an affirmative finding. We agree. The record shows that the information contained an allegation that appellant committed an assault against a member of his family or household or someone in a dating relationship. The trial court also heard testimony that appellant and Martinez were in a relationship and had a child together. Further, although it contains no specific finding, the judgment recites the court found appellant guilty of "assault causes bodily injury/family member . . . as charged in the information." See State v. Eakins, 71 S.W.3d 443, 444 n. 1 (Tex.App.-Austin 2002, no pet.) (stating that although the designation "assault causes bodily injury-DV" suggests the assault involved domestic violence, the passage did not constitute an affirmative finding of domestic violence). Thus, the trial court had the necessary information to enter an affirmative finding as required under article 42.013. We disagree with appellant's argument that we cannot reform the judgment because the State failed to file a notice of appeal. This Court has authority to correct a judgment so it "speaks the truth" when we have the necessary information to do so. French v. State, 830 S.W.2d 607, 609 (Tex.Crim.App. 1992); Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd). This authority is not dependent upon a request from any potential party, and we may reform a judgment sua sponte. Asberry, 813 S.W.2d at 529. Therefore, we reform the trial court's judgment to reflect an affirmative finding of family violence. The State's cross-point is sustained. Conclusion
As reformed, we affirm the trial court's judgment.