Opinion
NO. 02-18-00152-CR NO. 02-18-00153-CR
05-17-2018
MICHAEL RAMIREZ APPELLANT v. THE STATE OF TEXAS STATE
FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY
TRIAL COURT NOS. CR-2016-07772-A, CR-2016-08358-A MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant Michael Ramirez appeals from his convictions for assault involving family violence and interference with an emergency request for assistance. In two issues, he argues that the evidence was legally insufficient (1) to support the assault conviction because there was no proof the complainant suffered physical pain or (2) to support the interference conviction because there was no proof the complainant attempted to call 911, that Appellant knew she was attempting to call 911, or that Appellant prevented her from calling 911. We affirm.
I. BACKGROUND
Appellant and his girlfriend Elisabeth Tuttass attended a party at their friend Nada Haroun's apartment. During the party, a group that included Appellant and Tuttass left the apartment to get food. At the restaurant, Tuttass ran into a male friend and had a short conversation with him. During their ride back to Haroun's apartment, Haroun heard Appellant question Tuttass about her relationship with the man at the restaurant and ask to see the text messages she had exchanged with the man.
Appellant and Tuttass left Haroun's apartment at about 2:00 a.m. Around 5:00 a.m., Haroun received a phone call and several texts from Tuttass, which prompted Haroun to call 911 out of concern for Tuttass's safety. Haroun went to Tuttass's apartment, where police had already arrived. Haroun saw bruises on Tuttass's arms and scratch marks on her arms, legs, and back. Pictures of Tuttass taken that day showed red marks on her neck, arms, chin, stomach, and knee.
The State charged Appellant by information with assault involving family violence and with interference with an attempt to request emergency assistance. Appellant pleaded not guilty to both.
Tuttass, who was still dating Appellant at the time of his trial, testified that after she and Appellant arrived at her apartment, Appellant held her down on her bed and would not allow her to leave. Appellant then tore a Wi-Fi router from the wall and when Tuttass told Appellant that she was going to call the police, Appellant told her to "go ahead." Tuttass stated that she tried to call 911 and that Appellant grabbed her phone and threw it in the toilet. But she further testified that she did not want to see Appellant get into trouble and that she had signed an "affidavit of nonprosecution" with the district attorney, asking that the charges against Appellant be dropped. On cross-examination by Appellant's counsel, Tuttass averred that Appellant's actions did not cause her any physical pain and that the marks on her arm were the result of a nervous habit of scratching herself. She testified that she was sure she had called 911, but admitted that it was possible Appellant did not know she was calling the police.
Detective Bryan Holdegraver testified that on the morning in question he went to Tuttass's apartment in response to a "domestic situation" dispatch. Tuttass told him that when she attempted to call 911, Appellant threw her phone in the toilet and pinned her to the bed, leaving marks on her neck. He saw that the apartment was in disarray and that a wireless router had been pulled from the wall.
Police Detective Shawn Keohen testified that he interviewed Tuttass four days after the incident and that he recorded the interview by video, which the State admitted into evidence. During the interview, Tuttass described Appellant's actions that led to her injuries and her call for police assistance:
Tuttass: [Appellant] jumped up to my bed and started pouting and was like, "I'm not going anywhere." Like, "You can't make me leave."
Keohen: Were you in bed at that time?
Tuttass: No. No, no. And then . . . at that point, I told him, "Well, great. You've made your choice. So I guess I'm going to have to leave." So I grabbed my backpack with all my stuff in it and was really about to leave. And then I grabbed the doorknob. And he jumps from the bed and grabs me and has like, gives me this weird mixture of like anger and like I guess like sweet talk . . . and being just really like, I don't know. I don't know what to call it.
Keohen: Aggressive?
Tuttass: Yeah, aggressive.
Keohen: When you say he grabbed you, what do you mean by that?
Tuttass: Just like grabbed me by my arms and like—
Keohen: Hard?
Tuttass: —was holding me. I mean, it was bothering me. It wasn't like I was crying in pain, but still. . . . And he like pushed me down on the bed and like put his entire weight on me; I remember that.
. . . .
Tuttass: I think I waited a few minutes; I don't know how long. And then . . . I ended up calling 911. And he saw that I called someone. I'm pretty sure he knew that I called 911 because he saw my phone; it was pretty obvious. And he stopped the phone call.
Keohen: How did he do that? Did he—
Tuttass: He just grabbed my phone—
Keohen: Okay.
Tuttass: —and stopped it.
Keohen: Like pressed the—pressed the—
Tuttass: Yeah.
Keohen: Hang-up button? You have an I-phone?
Tuttass: Yeah. And I was in complete shock because that was, like, my last resort.
. . . .
I didn't know if the 911 call went through, and even if it went through, there's no way of them calling me back because he has my phone. . . . So I told him I was just going to start screaming and yelling because that way at least the people that live around me would notice something and hopefully, you know. . . . And as soon as I said that, he was like go ahead, and he threw my phone in the toilet.
. . . .
Keohen: So you don't think that he caused any of those injuries on you?
Tuttass: What do you mean?
Keohen: The ones that the photographs [inaudible].
Tuttass: He didn't cause this one [indicating arm]. He caused the neck one [indicating back of neck].
Keohen: Okay. And how did that happen?
Tuttass: Probably when he threw me on the floor.
Keohen: Okay. So with his hands?
Tuttass: Yeah.
Keohen: Did he grab you—
Tuttass: Yeah.
Keohen: Behind your neck with his hands and then threw you down on the floor?
Tuttass: Uh-huh [nodding].
Keohen: Okay.
Tuttass: Throwing is a very strong word.
Keohen: What would you say?
Tuttass: It's like, yeah, throwing.
Keohen: You would say throwing?
Tuttass: You can't really say that and be nice or—
Keohen: So he used force to put you down on the ground.
Tuttass: Yeah.
A jury found Appellant guilty of both charges. The trial court assessed Appellant's punishment for each offense at 300 days' confinement, suspended imposition of the sentences, and placed Appellant on community supervision for 18 months. The trial court also imposed a $500 fine in the assault conviction. Appellant now challenges the sufficiency of the evidence to support each conviction.
II. LEGAL SUFFICIENCY
A. STANDARD OF REVIEW
In our due-process review of the sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). The trier of fact is the sole judge of the weight and credibility of the evidence; thus, we may not re-evaluate those determinations and substitute our judgment for that of the fact-finder. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim. App. 2016). We must presume that the fact-finder resolved any conflicting inferences in favor of the verdict and defer to that resolution. Murray v. State, 457 S.W.3d 446, 448-49 (Tex. Crim. App. 2015); see Blea, 483 S.W.3d at 33. In other words, a fact-finder is entitled to "believe all, some, or none of the testimony presented by the parties." Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
B. ASSAULT INVOLVING FAMILY VIOLENCE
A conviction for assault involving family violence requires proof that the defendant intentionally, knowingly, or recklessly caused bodily injury to a person with whom the defendant had a dating relationship. See Tex. Penal Code Ann. § 22.01(a)(1), (b)(2) (West Supp. 2017); Tex. Fam. Code Ann. § 71.0021(b) (West Supp. 2017). Appellant challenges only the bodily-injury element of the offense.
"Bodily injury" means "physical pain, illness, or any impairment of physical condition." Tex. Penal Code Ann. § 1.07(a)(8) (West Supp. 2017). This definition is purposefully broad and includes relatively minor physical contacts so long as the contact is more than mere offensive touching. Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989). The terms "physical pain," "illness," and "impairment of a physical condition" are terms of common usage that a person of ordinary intelligence is capable of understanding; therefore, a fact-finder may reasonably infer that a person felt physical pain because people of common intelligence understand what naturally causes pain. See id. at 787; Blevins v. State, No. 02-09-00237-CR, 2010 WL 5395836, at *3 (Tex. App.—Fort Worth Dec. 30, 2010, pet. ref'd) (mem. op. on reh'g, not designated for publication); Wingfield v. State, 282 S.W.3d 102, 105 (Tex. App.—Fort Worth 2009, pet. ref'd). Accordingly, the existence of a cut, bruise, or scrape on the body is sufficient evidence of physical pain necessary to establish a bodily injury within the meaning of the statute. See Bolton v. State, 619 S.W.2d 166, 167 (Tex. Crim. App. 1981); Arzaga v. State, 86 S.W.3d 767, 778-79 (Tex. App.—El Paso 2002, no pet.); Goodin v. State, 750 S.W.2d 857, 859 (Tex. App.—Corpus Christi 1988, pet. ref'd).
At trial, Tuttass denied that Appellant caused her to suffer physical pain. But when Keohen interviewed her four days after the incident, Tuttass told him that Appellant had pushed her down on the bed and put his entire weight on her; that Appellant had caused the injury to the back of her neck (but not the ones on her arms); and that Appellant had grabbed her by the neck and threw her to the floor or "used force to put her down on the ground." The jury saw photographs of red marks on the back of Tuttass's neck and viewed the video statement she gave four days after the incident. Holdegraver, who saw the marks on Tuttass after responding to the 911 call, described them as the type of injuries that would cause someone pain based on his training and experience as a police officer.
From this evidence, a reasonable fact-finder could infer that Tuttass suffered physical pain when Appellant grabbed her neck with enough force to leave a mark and threw or forced her to the ground. Although Tuttass testified that she felt no pain, the jury as fact-finder and sole judge of the weight and credibility of the witnesses' testimony could have discredited that testimony. See Chambers, 805 S.W.2d at 461; Apodaca v. State, No. 01-10-00067-CR, 2011 WL 1326816, at *3 (Tex. App.—Houston [1st Dist.] Apr. 7, 2011, no pet.) (mem. op., not designated for publication). Viewing the evidence in the light most favorable to the verdict, the jury could have reasonably concluded beyond a reasonable doubt that Appellant caused bodily injury to Tuttass. See, e.g., Fang v. State, No. 14-16-00973-CR, 2018 WL 1528326, at *3-4 (Tex. App.—Houston [14th Dist.] Mar. 29, 2018, no pet.); Shah v. State, 403 S.W.3d 29, 34-35 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd). Accordingly, we hold that the evidence was sufficient to support Appellant's conviction for assault involving family violence, and we overrule Appellant's first issue.
C. INTERFERENCE WITH AN EMERGENCY REQUEST FOR ASSISTANCE
In his second issue, Appellant argues that the evidence was insufficient to support his conviction for interference with an emergency request for assistance. Specifically, Appellant contends there was no evidence that Tuttass ever attempted to call 911, that Appellant knew she was attempting to call 911, or that Appellant prevented her from calling 911. A person commits the offense of interference with an emergency request for assistance if the person "knowingly prevents or interferes with another individual's ability to place an emergency call or to request assistance . . . in an emergency from a law enforcement agency." Tex. Penal Code Ann. § 42.062(a) (West 2016).
At trial, Tuttass testified that when Appellant cornered her and blocked her from leaving her own apartment, she told him she was going to call the police. Appellant told her to "go ahead." When Tuttass tried to call 911, Appellant grabbed her phone. She averred that it was possible Appellant did not know she was calling 911. But during Keohen's interview four days after the incident, Tuttass told Keohen, "I'm pretty sure he knew that I called 911 because he saw my phone; it was pretty obvious. And he stopped the phone call. . . . He just grabbed my phone . . . and stopped it."
Viewing the evidence in the light most favorable to the verdict, the jury could have reasonably concluded beyond a reasonable doubt that Tuttass warned Appellant she was calling the police, that Appellant saw her phone and knew she was calling 911, and that he stopped the call by grabbing her phone. See, e.g., Ofurum v. State, No. 02-17-00134-CR, 2018 WL 1865877, at *5 (Tex. App.—Fort Worth Apr. 19, 2018, no pet. h.) (mem. op., not designated for publication); Nolen v. State, No. 13-08-00526-CR, 2009 WL 4051980, at *6-7 (Tex. App.—Corpus Christi Nov. 24, 2009, pet. ref'd) (mem. op. on reh'g, not designated for publication). Accordingly, we hold that the evidence was sufficient to support Appellant's conviction for interference with an emergency request for assistance, and we overrule his second issue.
III. CONCLUSION
Having overruled both of Appellant's issues, we affirm the trial court's judgments. See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE PANEL: SUDDERTH, C.J.; GABRIEL and PITTMAN, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: May 17, 2018