Opinion
No. 06-04-00101-CR
Submitted: February 24, 2005.
Decided: February 25, 2005. DO NOT PUBLISH.
On Appeal from the 124th Judicial District Court, Gregg County, Texas, Trial Court No. 31503-B.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Troy Randall Owen, Jr., appeals his conviction by a jury for felony assault on a family or household member. See Tex. Pen. Code Ann. § 22.01(b)(2) (Vernon Supp. 2004-2005). After hearing conflicting testimony, the jury found that Owen assaulted his girlfriend, Alice Craven, who was residing with Owen at the time of the incident, during an argument over a soda she had spilled. The jury assessed punishment at ten years' imprisonment. As his sole issue on appeal, Owen alleges the evidence is factually insufficient to support the jury's verdict. We affirm the conviction. In our review of the factual sufficiency of the evidence concerning matters where the State has the ultimate burden of proof or persuasion, we employ the standards set forth in Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). We view all the evidence in a neutral light and determine whether the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex.Crim.App. 2004) (citing Zuniga, 144 S.W.3d at 486). If the evidence is factually insufficient, then we must reverse the judgment and remand for a new trial. Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App. 1996). Although Owen and Craven presented conflicting accounts of the events to the jury, the State presented factually sufficient evidence of Owen's guilt. Section 22.01 provides that a person commits an offense if the person "intentionally, knowingly . . . causes bodily injury to another, including the person's spouse" and that the offense is a felony of the third degree if it is committed against "a member of the defendant's family or household, if it is shown on the trial of the offense that the defendant has been previously convicted of an offense against a member of the defendant's family or household under this section." Tex. Pen. Code Ann. § 22.01 (Vernon 2003 Supp. 2004-2005). The State introduced evidence showing that Owen intentionally or knowingly caused bodily injury to Craven, that Craven was residing with Owen at the time of the incident, and that Owen had previously been convicted of assault on a family or household member. After spending several days in the woods illegally hunting deer, Owen returned home on the evening of February 4, 2004, and Craven prepared dinner. After Craven finished her meal, she scraped her remaining food onto Owen's plate and in the process accidentally knocked over Owen's glass of soda. A heated discussion ensued. After an exchange of words, Craven testified she attempted to leave to return some videotapes to Blockbuster. When Craven attempted to leave, Owen grabbed her by the hair and pulled her to the floor. Craven testified she hit her head on the kitchen floor and was briefly "stunned." When Craven got up and attempted to run to the bedroom, Owen picked her up and threw her across the playpen. Craven testified her back hit the playpen and bent it. At this point, Craven picked up her infant daughter and attempted to leave again. Owen chased her around the house, dragged her back into the living room, and hit her in the face while she was holding her daughter. Craven testified Owen then bit her in the face "like [he was] trying to take a hunk out of [her] face." Craven attempted to run away again, and Owen put his arm across her neck and started to choke her. When Owen let go, he picked up a hammer and threatened to kill her and her daughter. Craven testified she then kicked him, grabbed the hammer, threw it at him, and ran out of the house. Craven went to a neighbor's house and called the police. Deputy Tony Monsivais, with the Gregg County Sheriff's Department, testified Craven had a bloody lip, dried blood on her lip, and a bite mark on her left cheek. "Matters of credibility and conflicts in the evidence fall within the exclusive purview of the fact finder." Obigbo v. State, 6 S.W.3d 299, 305 (Tex.App.-Dallas 1999, no pet.). From Craven's version of the incident, a rational juror could have concluded Owen caused bodily injury to Craven. In addition, the State introduced evidence that Craven was residing with Owen and that Owen had been previously convicted of assault on a family member. Craven and Owen began their intimate relationship in September of 2003. Although Craven had moved out at least once during the relationship, she testified she was residing with Owen at the time of the incident. The State introduced a "pen packet" of the prior conviction of assault on a family or household member, and Owen admitted to the prior conviction during his testimony. Viewed in a neutral light, the evidence is not too weak to support the finding of guilt beyond a reasonable doubt. While Owen testified that Craven attacked him armed with a hammer and he then was forced to defend himself, the contrary evidence is not so strong that the State could not have met its burden of persuasion concerning self-defense. Owen testified Craven became angry when he received a text message reading "I love you" on his cell phone from another woman. According to Owen, Craven threw a soda can at him. Owen testified he then "dumped" his drink in her face and threw his cell phone with the text message against the stove. According to Owen, Craven went "ballistic" and struck him several times with a closed fist. Owen testified Craven then grabbed the hammer off the counter and hit him in the shoulder with the hammer. During the struggle over the hammer, Owen claims he bit Craven in the face to try to prevent her from swinging the hammer at him. Once she relinquished the hammer, Owen testified Craven then picked up her daughter and left. The jury is the sole judge of the credibility of the witnesses and the weight given their testimony. Id. at 304; see Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim.App. 1998). Viewed in a neutral light, the evidence contrary to the verdict is not so strong that the State could not have met its burden of persuasion. The evidence is factually sufficient. We affirm the judgment of the trial court.
We note Owen argued that his girlfriend attacked him and he only defended himself. Self-defense is a justification, which is a defense rather than an affirmative defense. See Tex. Pen. Code Ann. §§ 2.03, 9.02, 9.31 (Vernon 2003); Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003). A defendant bears the burden of production concerning self-defense. Zuliani, 97 S.W.3d at 594. The defense must introduce some evidence in support of the claim of self-defense. Id. Once the defendant meets his or her burden of production, the State has the burden of persuasion. Id. The State is not required to produce evidence, but must rather disprove the offered defense beyond a reasonable doubt. Id. We note, however, that the defendant bears the ultimate burden of proving an affirmative defense by a preponderance of the evidence. Id. at 594 n. 5. We review a jury's finding concerning an affirmative defense in a neutral light and determine whether the verdict is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. See Howard v. State, 145 S.W.3d 327, 335 (Tex.App.-Fort Worth 2004, no pet.).