No. 05-06-00745-CR
Opinion Filed February 21, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
Appeal from the 291st Judicial District Court Dallas County, Texas, Trial Court Cause No. F05-71317-KU. AFFIRM.
Before Justices MORRIS, WRIGHT, and FITZGERALD.
CAROLYN WRIGHT, Justice.
A jury convicted Artis Lee Harris of aggravated assault with a deadly weapon. The trial court assessed punishment, enhanced by two prior felony convictions, at twenty-five years' confinement. In a single point of error, appellant contends the evidence is factually insufficient to support the conviction. We affirm.
Background
Appellant and his wife, Opal Harris, had been separated for about sixteen years, but were not divorced. Sometime in 2004, appellant and Harris resumed their relationship. On the evening of January 19, 2005, appellant assaulted Harris. At trial, Harris testified that as she was laying in bed watching television, appellant came into the bedroom and began arguing and cursing her. Appellant looked "like he was high on something." Appellant and Harris began physically fighting and during the fight, appellant tried to choke Harris. When she pushed his hands away, appellant left the bedroom and walked towards the kitchen. He then returned to the bedroom carrying a "black gun with brown on the handle." Appellant said, "[B]itch, I'll kill your ass," and hit Harris in the head with the butt of the gun. Harris fell to the floor. When appellant turned his back to her, Harris ran outside to a neighbor's house and called the police. Harris testified she felt pain when appellant hit her, and the right side of her face and eye were swollen. The police arrived about thirty minutes later. An audiotape of Harris's call to the police, photographs of Harris's face, and a written statement Harris gave to the police were admitted without objection and shown to the jury. Harris's oldest daughter Marvina testified she and her siblings drove to their mother's house after she called them crying. Marvina testified her mother was crying, appeared "panicked and scared," and her face and eye were swollen. Marvina testified her mother said she and appellant got into an argument and appellant hit her in the head with the butt of a gun. Dallas police officer Lonnie Howard was dispatched to Harris's house on a domestic disturbance call. When he arrived, he saw Harris standing in the front yard of a neighbor's house with her daughter and the neighbor. Harris appeared "upset and afraid," and the right side of her face and right eye were swollen. Harris told Howard the injuries to her face were the result of her husband hitting her with the butt of a gun. Howard testified appellant was not there when he arrived, and there was no gun found at the scene. Appellant admitted he assaulted Harris, but testified he did not use or exhibit a gun during the assault. According to appellant, he and Harris had an argument about the fact that she was being pressured by "somebody" to move appellant out of the house. On the night of the assault, appellant had already decided he was going to move out of the house. When he and Harris started arguing, appellant pushed Harris "up side the door. That was all." Appellant denied hitting Harris. Appellant testified that when he pushed Harris, she fell to the floor. Appellant testified he never had a gun that day, did not own a gun, and never hit Harris in the head with a gun. Appellant testified that although he was in drug treatment at the time he and Harris got back together, he had not used any drugs on the day of the assault. According to appellant, Harris's face had been "swollen for years" due to a previous car wreck. Appellant further testified he had prior felony convictions for possession of drugs and retaliation on Harris. Applicable Law
In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006); see also Marshall v. State, No. AP-75048, 2006 WL 3733198, *5 (Tex.Crim.App. Dec. 20, 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). To obtain a conviction for aggravated assault, the State was required to prove beyond a reasonable doubt that appellant intentionally, knowingly, or recklessly caused bodily injury to Opal Harris and appellant used or exhibited a deadly weapon, a firearm, during the commission of the assault. Tex. Pen. Code Ann. §§ 22.01(a)(1), 22.02(a)(2) (Vernon Supp. 2006). Discussion
Appellant argues the evidence is factually insufficient to prove beyond a reasonable doubt that he used or exhibited a deadly weapon. Specifically, appellant asserts nothing corroborated Harris's claims that he used a gun during the assault, and appellant expressly denied he used or exhibited a gun. The State responds that the evidence is factually sufficient to prove appellant used or exhibited a firearm when he assaulted his wife. There was conflicting evidence presented. Harris testified that during a physical fight with appellant, he left the room and returned carrying a gun. Appellant hit her in the head with the butt of the gun, and she fell to the floor. Harris fled the house and called the police, telling the operator that her husband had a gun and hit her in the head with it. That same evening, Harris told her daughter and the responding police officer that her swollen face and eye were the result of appellant hitting her with the butt of a gun. Appellant admitted he assaulted Harris, but denied he used or exhibited a gun during the assault. Appellant testified he never got a gun and did not own a gun. It was the jury's function to resolve any conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 9. The jury was free to accept or reject any and all of the evidence presented by either side. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). We may not substitute our own determination for that of the jury. Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002); Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). Viewing the evidence under the proper standard, we conclude it is factually sufficient to support appellant's convictions for aggravated assault with a deadly weapon. See Watson, 204 S.W.3d at 415. We overrule appellant's point of error. We affirm the trial court's judgment.