No. 01-04-00209-CR
Opinion issued February 17, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 351st District Court, Harris County, Texas, Trial Court Cause No. 961019.
Panel consists of Justices NUCHIA, JENNINGS, and ALCALA.
SAM NUCHIA, Justice.
Appellant, Dale Roy Kyles, pleaded not guilty to the felony offense of assault on a public servant. A jury found him guilty, found two enhancement allegations of prior felony convictions to be true, and assessed punishment at 99 years in prison. Appellant asserts factual and legal insufficiency of the evidence. We affirm.
BACKGROUND
On September 3, 2003, appellant, a prisoner housed in the Harris County Jail's double door lock-down section, requested that he be allowed to attend recreation. Harris County Sheriff's Deputies Roy Pantoya and Duane Jones came to appellant's cell to escort him to a recreational area. Jones opened appellant's cell door and Pantoya entered in order to handcuff and shackle appellant for transport. Pantoya testified at trial that appellant was aggressive and said "Just handcuff me, bitch; do your job Mexican." Pantoya stated that, when he told appellant to stop his aggressive behavior or his recreation would be cancelled, appellant struck him in the right eye. Pantoya testified that a struggle ensued during which appellant put him in a headlock and bit him twice, leaving bite marks and causing him pain. Appellant testified that, when Pantoya opened his cell door, he went to his bunk and placed his hands on the wall "[like] they tell us we supposed to do." Appellant said that Pantoya taunted him after entering his cell, but that he did not respond to Pantoya's taunts other than to tell him, "I'm not going to trip with you man" and "go on with that bullshit," and that he stepped away from Pantoya. Appellant stated that he saw Jones come into his cell, heard him say "I ain't seen shit, "and then saw him leave the cell. Appellant testified that Pantoya wrapped handcuffs around his fist "like brass knuckles," struck appellant, and then the two men "tussled." Appellant stated that Pantoya repeatedly hit him, causing his forehead to bleed, until he got Pantoya in a "choke hold," punched him in the right eye and bit him. Appellant said he was handcuffed by Jones and later treated by a nurse for his injuries. Jones testified that he was standing outside the cell after Pantoya entered and could only hear muffled sounds until the sounds "escalated to yelling," at which point he entered the cell and saw that appellant had Pantoya in a headlock. Jones subdued appellant and handcuffed him. Jones said he saw no visible injuries on appellant, but saw a mark under Pantoya's right eye. Sergeant Forest C. McGee testified that he went to the clinic where Pantoya and appellant were taken and that appellant was uncooperative with the nursing staff, appeared to have no injuries, wasn't bleeding, and received no medical treatment. DISCUSSION
Appellant challenges the legal and factual sufficiency of the evidence. In reviewing the evidence on legal sufficiency grounds, we view the evidence in the light most favorable to the prosecution to 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, 318-19, 99 S. Ct. 2781, 2788-89 (1979); King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). In a factual sufficiency review, we view all the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004), petition for cert. filed, (citing Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App. 2004)). We should not substitute our own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1996). In support of both challenges, appellant argues that the only witnesses to the fight were himself and Pantoya and admits that his testimony that he acted in self-defense conflicts with Pantoya's testimony, but asserts that his testimony was "more persuasive." The jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the witnesses' testimony. Jaggers v. State, 125 S.W.3d 661, 672 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). The jury may believe all, some, or none of any witness's testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986) (stating that the jury "could choose to believe or not believe the witnesses, or any portion of their testimony"). A jury decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). Viewing the evidence in the light most favorable to the prosecution, we hold that a rational trier of fact could have found, beyond a reasonable doubt, that appellant assaulted Deputy Pantoya. Viewing all the evidence in a neutral light, we hold that the evidence that appellant assaulted Deputy Pantoya is not so weak that the verdict is clearly wrong and manifestly unjust, nor is the contrary evidence so strong that the standard of proof beyond a reasonable doubt could not have been met. We overrule appellant's third and fourth points of error. CONCLUSION
We affirm the judgment of the trial court.