Opinion
No. 05-14-01075-CR
04-06-2016
JORGE GUTIERREZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1247178-M
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Schenck
Opinion by Justice Lang-Miers
The trial court found appellant Jorge Gutierrez guilty of felony assault against a family member. The trial court assessed punishment at four years in prison, then suspended the sentence and placed appellant on four years of community supervision. In five issues on appeal appellant argues that the evidence is insufficient to support his conviction and that the trial court's judgment should be modified to correct clerical errors. We modify the judgment and affirm as modified.
BACKGROUND
Appellant was charged with strangling his estranged wife, Micaela Gutierrez, by using his hands to impede her normal breathing and blood circulation. Appellant and Micaela have two children together and were married for eighteen years. On the date of the offense they had been separated for about a month. In addition to appellant and Micaela, three other people witnessed the event at issue—their son, their nephew, and appellant's girlfriend. Micaela, the son, and the nephew testified for the State. Appellant and his girlfriend testified in appellant's defense.
Certain facts are undisputed. For example, it is undisputed that on the date of the offense, appellant and his pregnant girlfriend arrived at Micaela's home to pick up a set of keys and a truck. When appellant arrived, Micaela answered the door. An argument ensued, and the two of them ended up outside fighting about the set of keys.
There was conflicting testimony about what occurred during the fight. According to the State's witnesses, appellant put his hands around Micaela's neck. Micaela testified that appellant choked her, which hurt and made it somewhat difficult to breathe:
Q. And when [appellant] had his hands around your neck, did it hurt?
A. Yes.
Q. And at this time, did you have difficulty breathing?
A. A bit.
Q. Were you breathing normally?
A. I was scared, I was not doing well, I was almost like in shock. Micaela identified State's Exhibits 1, 2, and 3 as pictures of her taken by the police after the offense showing that her neck was red and her shirt was ripped. In contrast, appellant and his girlfriend both testified that Micaela attacked appellant and that appellant never put his hands around Micaela's neck.
SUFFICIENCY OF THE EVIDENCE
In his first issue appellant argues that the evidence is insufficient to support his conviction for felony assault against a family member by impeding normal breathing or blood circulation.
In evaluating whether the evidence presented in a case was sufficient to support a conviction, we examine the evidence in the light most favorable to the trial court's finding of guilt and determine whether any rational trier of fact could have found each essential element of the crime beyond a reasonable doubt. Nowlin v. State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We defer to the factfinder's determinations on witnesses' credibility and the weight to be given to their testimony and do not substitute our judgment on these matters. Id. If there are conflicting inferences that could be supported by the evidence in the record, we assume that the factfinder resolved the conflict in favor of the prosecution, even if that resolution is not explicitly within the record. Id.
Under section 22.01 of the Texas Penal Code, a person commits the offense of assault if the person "intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse." TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2015). Assault under section 22.01 is a class A misdemeanor, except that the offense is elevated to a third-degree felony if, for example, it is committed against a family member by "intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth." Id. § 22.01(b)(2)(B). It is undisputed that the claimant in this case, Micaela, was married to appellant at the time of the offense. The indictment in this case alleged that appellant impeded Micaela's breathing or blood circulation by using his hands to apply pressure to Micaela's throat and neck.
On appeal appellant acknowledges that the evidence is sufficient to support a conviction for misdemeanor assault causing bodily injury. But he argues that the evidence is not sufficient to support a conviction for felony assault against a family member. More specifically, appellant argues that "no rational trier of fact could have found the evidence in this case persuasive beyond a reasonable doubt that [a]ppellant impeded Micaela's normal breathing." Appellant contends that Micaela's testimony that she had "a bit" of difficulty breathing, combined with her next statement that she was scared and "in shock," shows that "she was simply surprised or scared, not choked or strangled." Appellant also contends that Micaela's actions before and after the assault do not support an inference that appellant obstructed her breathing because (1) she struggled with him to take the keys prior to the assault, and (2) she stood up immediately after the assault. Appellant also notes that there was no evidence that Micaela was "breathless, fighting for air, or choking." In response, the State argues that the evidence is sufficient to support appellant's conviction for felony assault against a family member. We agree with the State.
Three witnesses testified that appellant put his hands around Micaela's neck and Micaela testified that it caused her to have some difficulty breathing. Viewing all of the evidence in the light most favorable to the trial court's finding of guilt, we conclude that a rational trial of fact could have found beyond a reasonable doubt that appellant committed felony assault against a family member. See, e.g., Marshall v. State, 479 S.W.3d 840, 845 (Tex. Crim. App. 2016) (noting under section 22.01 "any impediment to normal breathing is a bodily injury" and concluding evidence was legally sufficient to support conviction for felony assault against a family member because, even though complainant never lost consciousness and was never completely unable to breathe, complainant testified she was unable to take deep breaths when the defendant smothered her with a pillow).
CLERICAL ERRORS IN THE JUDGMENT
In his remaining issues appellant argues that the judgment should be modified to correct multiple clerical errors. The State agrees with appellant. First, the judgment is titled "ORDER OF DEFERRED ADJUDICATION" and states "ADJUDICATION OF GUILT DEFERRED." The record demonstrates, however, that the trial court found appellant guilty after a nonjury trial, assessed punishment at four years in prison, then suspended the sentence and placed appellant on four years of community supervision. Second, the judgment indicates that appellant pleaded guilty pursuant to the terms of a plea bargain agreement. The record demonstrates, however, that appellant pleaded not guilty. Third, the judgment states that appellant was assessed a fine of $1,000. The record demonstrates, however, that the trial court orally pronounced a fine of $750. Finally, the judgment lists the name of appellant's attorney at trial as Winston Udeh. The record demonstrates, however, that appellant's attorney at trial was Kenneth Onyenah.
There are two conflicting references in the judgment. In one place the judgment states "Fine: $ 1000.00," and in another it states "FINE $750." --------
We have the power to modify the trial court's judgment when we have the necessary information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref'd). We modify the judgment to reflect that (1) it is a judgment adjudicating guilt, (2) appellant pleaded not guilty, (3) appellant was assessed a fine of $750, and (4) appellant's attorney at trial was Kenneth Onyenah. We order the trial court to enter a new judgment reflecting these modifications.
CONCLUSION
As modified, we affirm the trial court's judgment. We order the trial court to enter a new judgment reflecting the modifications noted above.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE Do Not Publish
TEX. R. APP. P. 47 141075F.U05
JUDGMENT
On Appeal from the 194th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1247178-M.
Opinion delivered by Justice Lang-Miers. Justices Bridges and Schenck participating.
Based on the Court's opinion of this date, we MODIFY the judgment to reflect that (1) it is a judgment adjudicating guilt, (2) appellant pleaded not guilty, (3) appellant was assessed a fine of $750, and (4) appellant's attorney at trial was Kenneth Onyenah. We order the trial court to enter a new judgment reflecting these modifications.
As MODIFIED, the judgment is AFFIRMED. Judgment entered this 6th day of April, 2016.