Opinion
No. 05-15-00833-CR
04-04-2016
KOBEY WAYNE KELLY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court Dallas County, Texas
Trial Court Cause No. F13-16775-V
MEMORANDUM OPINION
Before Justices Fillmore, Stoddart, and Schenck
Opinion by Justice Schenck
Kobey Wayne Kelly waived a jury and pleaded not guilty to assault on a security officer. The trial court found appellant guilty and assessed punishment at two years' imprisonment, probated for five years. In a single issue, appellant contends the evidence is legally insufficient to support his conviction. For the reasons stated below, we modify the trial court's judgment and affirm as modified.
EVIDENCE PRESENTED
Rafaila Rodriguez, the complainant, worked as a security officer for Dallas Area Rapid Transit (DART). On December 9, 2013, she observed appellant on surveillance monitors at the City Place station. Rodriguez testified she recognized appellant from an incident two nights earlier when he refused to leave the station at closing time. On that occasion, Rodriguez called for DART police officers to remove appellant. After again seeing appellant on the monitors at about 10:45 p.m., Rodriguez-wearing a uniform that clearly identified her as a DART security officer-went out to the platform and asked him to show her his ticket, which was one of her duties as a security officer. Rodriguez testified there was only one other person on the platform waiting for the train at that time. Appellant insulted her with "very dirty language," told her that she was "going to die," grabbed the name badge from her uniform, and tried unsuccessfully to grab her gun. When appellant ran up the escalator stairs, Rodriguez called for DART officers and followed him up the escalator. Rodriguez nearly caught appellant, but he pushed her down the escalator. Rodriguez sustained injuries to her neck, back, waist, leg, and both hands. After the escalator took her back up, Rodriguez saw that a man had stopped appellant and asked appellant why he was pushing Rodriguez. When Rodriguez approached appellant, he grabbed her hair and pushed her down the escalator again. DART officers arrived and apprehended appellant. At some point Rodriguez fainted, regaining consciousness later at the hospital.
DART police officers Harold Reeves and J. Howard testified they were dispatched to the City Place station on an assault call. When they arrived at the station, they saw appellant, who matched the suspect description, running up the escalator stairs. They apprehended appellant and handcuffed him. When they initially approached appellant, he appeared to be nervous and out of breath. Appellant told the officers he had not done anything and wanted to go home. When Rodriguez shortly thereafter came up the escalator, she appeared to be "hysterical and in pain." Reeves learned from Rodriguez that appellant had been loitering on the platform. Rodriguez asked appellant to leave; appellant refused and snatched her name badge and radio. They began to scuffle and Rodriguez was pushed down the escalator stairs. According to Reeves, Rodrigues never lost consciousness, but he called for an ambulance because she complained that her back was hurt.
Appellant testified, and denied he had grabbed Rodriguez's name badge, tried to grab her gun, pulled her hair, or pushed her down the escalator. Appellant said that when he tried to tell Rodriguez the ticket machine had malfunctioned, she immediately "put her hands on me." Rodriguez grabbed appellant's head with both her hands. He moved away from her and asked for her badge number and supervisor's name. Appellant testified there were at least ten other people waiting for the train at that time, including several children. Appellant testified Rodriguez "physically assaulted" him by "punching" him on his head with her fist. Appellant testified he did not recall if Rodriguez chased him as he fled up the escalator, but the DART officers "caught him" at the "middle platform."
APPLICABLE LAW
In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a 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); Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326.
To obtain a conviction, the State had to prove beyond a reasonable doubt that appellant intentionally, knowingly, or recklessly caused bodily injury to Rafaila Rodriguez, a person appellant knew was a security officer while she was performing a duty as a security officer. TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(4) (West 2011). "Bodily injury" means physical pain, illness, or any impairment of physical condition. Id. § 1.07(a)(8). The gravamen of assault with bodily injury is an injury, a result of conduct. See Jefferson v. State, 189 S.W.3d 305, 312 (Tex. Crim. App. 2006).
DISCUSSION
In his sole issue, appellant contends the evidence is legally insufficient to support his conviction because, he asserts, Rodriguez's testimony was not credible. Appellant asserts the evidence showed Rodriguez was not a licensed peace officer when she confronted him, and her testimony was inconsistent. The State responds the evidence is legally sufficient to prove appellant, rather than Rodriguez, committed the assault.
It was the trial court's role, as the fact finder in this case, to weigh the credibility of witnesses, to believe or disbelieve any witness' testimony, and to reconcile any conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). Rodriguez and appellant presented conflicting evidence regarding what happened, and the trial court resolved the conflicts against appellant.
Viewing the evidence under the proper standard, we conclude a rational trier of fact could find beyond a reasonable doubt that appellant caused bodily injury to Rodriguez by assaulting her while she was performing the duties of a security officer and that appellant knew she was a security officer. Thus, the evidence is sufficient to sustain appellant's conviction for assault on a security officer. We overrule appellant's sole issue.
Nevertheless, we note several errors in the trial court's judgment. The record shows appellant pleaded not guilty without a plea agreement. The judgment, however, incorrectly states appellant pleaded guilty and that terms of a plea bargain are "2 years TDCJ, probated 5 years." Also, the trial court placed appellant on five years' community supervision, but the judgment states "N/A" for community supervision. Accordingly, we modify the trial court's judgment to show the plea to the offense is "not guilty," the terms of plea bargain are "N/A," and to add the notation that "the sentence of confinement suspended, defendant placed on community supervision for five years." 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).
As modified, we affirm the trial court's judgment. Because of the number of changes made, we order the trial court to enter an amended judgment reflecting these modifications.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE Do Not Publish
TEX. R. APP. P. 47 150833F.U05
JUDGMENT
Appeal from the 292nd Judicial District Court of Dallas County, Texas (Tr.Ct.No. F13-16775-V).
Opinion delivered by Justice Schenck, Justices Fillmore and Stoddart participating.
Based on the Court's opinion of this date, the trial court's judgment is MODIFIED as follows:
The section entitled "Plea to Offense" is modified to show "Not Guilty."
The section entitled "Terms of Plea Bargain" is modified to show "N/A."
The section entitled "Sentence of Confinement Suspended" is modified to show "Sentence of Confinement Suspended, Defendant Placed on Community Supervision for Five Years."
As modified, we AFFIRM the trial court's judgment. We ORDER the trial court to enter an amended judgment reflecting these modifications.
Judgment entered April 4, 2016.