Opinion
No. 05-01-01887-CR
Opinion issued June 20, 2003 Do Not Publish
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-01952-NM. AFFIRMED
Before Chief Justice THOMAS AND Justices WHITTINGTON and O'NEILL.
OPINION
A jury convicted Rutilio Rolando Matus of aggravated assault and assessed punishment at ten years' imprisonment. In two points of error, appellant claims the trial court erred in overruling his objection to the jury charge and that the evidence is factually insufficiency to support his conviction. We affirm. On March 6, 2001, Felicia Stoker heard a loud noise and found a Miata car crashed on her street. While Stoker was reporting the incident to the 9-1-1 operator, two young Hispanic men approached her. Stoker asked if the Miata belonged to them, and they said no. One of the men, later identified as appellant, then walked behind Stoker, grabbed her shoulder, and stabbed her twice in the back. Stoker did not see the weapon, but when she turned around immediately after the attack, she could clearly see appellant's face. Both men fled. When police arrived, Stoker gave a detailed description of her attacker. Police found an abandoned disabled truck nearby and determined it had hit the Mata head on. After searching the truck, police discovered appellant's name. Investigator R. L. Herrington traced appellant to the high school he attended, got his yearbook photograph, included it in a photo lineup, and presented the array to Stoker who unequivocally identified appellant as her attacker. Police arrested appellant who gave a written statement admitting he was in the truck when it hit the Miata but denying he stabbed Stoker. Appellant was subsequently tried and convicted for Stoker's attack. This appeal followed. In his first point, appellant argues the trial court erred in overruling his objection to the jury charge because it did not require the State to make an election as to the manner and means of the aggravated assault which, appellant contends, had implications as to whether the conviction was based on an article 42.12, section 3(g) offense. Appellant claims that if convicted of a section 3(g) offense, he would be required to serve at least one-half of his sentence before he would be eligible for parole. A person commits an aggravated assault by causing serious bodily injury to another or by using or exhibiting a deadly weapon during the commission of an assault. See Tex. Penal Code Ann. § 22.02(a) (Vernon 2003). Felonies involving the use or exhibit of a deadly weapon are section 3(g) offenses. See Tex. Code Crim. Proc. Ann. art. 42.12 § 3(g)(2) (Vernon Supp. 2003). An inmate serving a sentence for a section 3g(a)(2) offense is not eligible for parole until the inmate's actual calendar time served equals one-half of the sentence. See Tex. Gov't Code Ann. § 508.145(d) (Vernon Supp. 2003). Absent few exceptions, inmates are otherwise eligible for parole when the inmate has served one-fourth of the sentence. See id. § 508.145(f). In this case, the indictment charged that appellant did:
unlawfully then and there intentionally, knowingly and recklessly cause bodily injury to [Stoker], hereinafter called complainant, by stabbing and by cutting said complainant with a knife and with an object the exact nature of which is unknown to the Grand Jury, and said defendant did use and exhibit a deadly weapon, to-wit: a knife and an object the exact nature of which is unknown to the Grand Jury, during the commission of the assault, and further, said defendant did then and there intentionally, knowingly and recklessly cause serious bodily injury to [Stoker], hereinafter called complainant, by stabbing and by cutting said complainant with a knife, a deadly weapon, and with a deadly weapon the exact nature of which is unknown to the Grand Jury.(Emphasis added.) The jury charge mirrored the indictment. Because both paragraphs alleged appellant used a deadly weapon, even with a return of a general verdict, appellant knew that if convicted, he would receive a punishment for a 3(g)(a)(2) offense under government code section 508.145(d). In other words, with both paragraphs demanding a deadly weapon finding, the State was not required to make an election of the manner and means for the purpose of ascertaining whether appellant committed a 3(g) offense. Accordingly, the trial court did not err in overruling appellant's objection to the jury charge. We overrule appellant's first point. In his second point, appellant contends the evidence was factually insufficient to support his conviction because the jury could not have found beyond a reasonable doubt that he was the assailant. In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The fact finder is the exclusive judge of the facts proved and of the weight to be given to the testimony. See Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997); Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984). Here, appellant conceded he was in the truck when it hit the Miata. Stoker unequivocally identified appellant as her assailant in the photo lineup and again at trial. She testified that on the night of the attack, she got a clear look at appellant as he walked up to her and stood directly in front of her for a few minutes. She focused on appellant's face and the clothing he was wearing. She also maintained some eye contact with appellant. Immediately upon being stabbed, Stoker turned around and saw appellant standing directly behind her, backing away while performing a "prancy dance like he was very proud of what he had done." When interviewed, she assured Herrington she could identify her assailant if she saw him again. In contrast, appellant's written statement provides the only evidence refuting he was the assailant. According to appellant, it was someone else who wore the clothing Stoker described. He also denied stabbing Stoker. The jury was free to believe Stoker's testimony and not believe appellant's. Faced with this record, the proof of guilt was not so obviously weak as to undermine confidence in the jury's determination, and the proof of guilt, although adequate when taken alone, was not greatly outweighed by contrary proof. We overrule the second point. We affirm the trial court's judgment.