No. 08-05-00222-CR
April 26, 2007. DO NOT PUBLISH.
Appeal from the 409th Judicial District Court of El Paso County, Texas (TC# 20040D05773).
Before CHEW, C.J., McCLURE, and CARR, JJ.
DAVID WELLINGTON CHEW, Chief Justice.
OPINION
Ernesto Rodriguez appeals his conviction for injury to an elderly individual. A jury found him guilty and assessed punishment at 5 years' imprisonment. In one issue, Appellant challenges the legal and factual sufficiency of the evidence to support his conviction. We affirm. In the early morning hours of October 17, 2004, El Paso Police Officer German Ponce was dispatched to a family assault in progress at 2626 Savannah. When he arrived at the residence he heard "a big old scuffle and some yelling towards the rear of the house." Officer Ponce rang the doorbell and was let in by the complainant's daughter, Graciela Rodriguez. Graciela led the officer into a back bedroom where her brothers were fighting. Officer Ponce observed Javier Rodriguez, Appellant's brother, sitting on top of Appellant, trying to hold Appellant down to the ground. Appellant and Javier were still yelling at each other and Appellant was moving around. Sixty-seven year old Maria Rodriguez, the complainant and Appellant's mother, was kneeling beside them, trying to calm them down and to separate them. Officer Ponce saw Appellant trying to kick his brother in the back of the head. As he swung his legs, his knee and shin hit Ms. Rodriguez. She was moved to the side by the force of the kicks. It looked to the officer as if Ms. Rodriguez was in discomfort from the kicks. Officer Ponce ordered Javier to get off of Appellant and Javier immediately let go of Appellant's hands. Appellant then started swinging his arms and punching at Javier. Some of the punches struck Javier in the face and in the chest area. Officer Ponce could not recall if some of the strikes towards the brother actually hit Appellant's mother, but he was more than sure that they did because she was so close to the brother in her effort to separate them. These strikes would have hit her in the temple area of the face. When Officer Ponce saw that Appellant intended to pull Javier down and bite him, he placed his foot on Appellant's shoulder to hold him down. Officer Ponce pushed Javier away and told him to lay down on the floor. Ms. Rodriguez managed to get away and took a seat on the edge of the sofa. At that point, Officer O'Quinn, the backup officer arrived. With Officer O'Quinn's assistance, Officer Ponce was able to turn Appellant over unto his stomach and handcuff him. Appellant was escorted out of the house and placed into a patrol unit. After Appellant was taken away, Officer Ponce spoke with Ms. Rodriguez. He saw that she was holding the right side of her face as if in discomfort and that the area she was holding was red. This, the officer testified, was consistent with where Appellant would have struck her when he was swinging his arms and the redness was consistent with being struck in the face. Ms. Rodriguez told Officer Ponce that she had been awakened by a loud commotion coming from Javier's room. She explained that her sons were always arguing and fighting and that Appellant could become very violent. Ms. Rodriguez tried to separate them, as she had done in the past. This time, however, when she got in between them, Appellant pushed her down to the floor. She told Officer Ponce that she felt pain as a result of the fall. On cross-examination, Officer Ponce testified that he thought Appellant's kicks were being aimed or directed at his brother. He denied pushing or shoving Ms. Rodriguez out of the way during the altercation. Officer O'Quinn did not witness the kicking or punching, but testified that she observed Ms. Rodriguez was holding the right side of her face, which was red and puffy, while the rest of her face had a normal color. Ms. Rodriguez also appeared shaken, distressed, and angry. Officer O'Quinn spoke with Javier, who told her that Appellant came into his room and they started arguing. When their mother stepped in to break them up, Appellant pushed their mother, which led to the fighting. Officer O'Quinn observed that Javier's nose was bleeding profusely and it appeared to be broken. Maria Rodriguez was called by the State and initially denied that there had been an argument or any sort of struggle in her home that morning. She then agreed that police arrived at her home because Javier and Appellant were arguing. She heard them arguing in English and went in to Javier's room. She talked to them and was able to calm them down. When the police arrived, she was embracing and hugging Appellant. She claimed that she was talking to him and he was no longer upset. Ms. Rodriguez also claimed that the officer yelled at her and threw her to the floor. Then he ordered her to leave the room and she went into the kitchen. Ms. Rodriguez denied seeing any physical struggle between Javier and Appellant. She denied that Appellant ever struck, pushed, or kicked her in any way. She denied that she felt any pain that morning or that her face had any swelling. She also denied telling any of the police officers that Appellant had pushed her. Ms. Rodriguez stated that the only thing that happened was she hurt her arm when the police officer threw her on the floor. Upon examination by defense counsel, Ms. Rodriguez admitted that Javier was restraining Appellant on the ground and that Appellant was trying to get loose from Javier. She denied, however, that Appellant was kicking Javier or that Appellant ever made contact with her or struck her, intentionally or accidently. Ms. Rodriguez testified that Appellant was accused of something that he did not do and that he never hit her near the face or the body. Further, she stated that Appellant never intentionally struck her or caused her injury. On re-direct examination, contrary to Officer Ponce's testimony, Ms. Rodriguez denied requesting or accepting an ex parte protective order against Appellant. Graciela Rodriguez testified on behalf of the defense. Graciela stated that her brothers Javier and Appellant were arguing loudly and the argument turned into a physical fight. Her mother was in the room first and then she followed. She and her mother got in between the brothers. Graciela was talking to Javier trying to calm him down and her mother was talking to Appellant and trying to do the same, but the brothers ignored them and continued arguing. With tempers flared, the brothers attacked each other. Quickly, the brothers ended up on the floor, with Javier on top of Appellant, holding Appellant down. Graciela acknowledged that she was the person that called the police because she was scared and because that kind of physical altercation had never taken place before in her home. She showed the officer to the room, but was not permitted to re-enter. Instead, she was taken into the living room. According to Graciela, Appellant did not kick, strike, or bite Javier. She did not see Appellant in any way make contact with her mother, not even accidently, nor did she hear her mother ever state that she had been injured. Graciela did not recall her mother holding her face or cheek nor did she remember seeing that one of her mother's cheeks was red. Afterwards, her mother told her that one of the police officers pulled her away and threw her down, but that otherwise her mother was not injured. Graciela denied that she or her mother ever expressed any fear of Appellant. On cross-examination, Graciela admitted that she did not see the entire altercation because she left the room to call the police when the brothers started hitting each other. She explained that she was out of the room for three or four minutes, but could hear her mother yelling at them to stop. When she returned, her mother was trying to separate them. When the brothers continued fighting on the floor, Ms. Rodriguez was on her knees in between, still trying to separate them. Graciela then left the bedroom to answer the doorbell. She denied telling the police officers that Appellant pushed her mother or that this was the reason the brothers started physically fighting. SUFFICIENCY OF THE EVIDENCE
In his sole issue, Appellant challenges the sufficiency of the evidence to sustain his conviction. Specifically, Appellant asserts the evidence was legally and factually insufficient because the State failed to prove that Appellant pushed, hit, or kicked Ms. Rodriguez or that she was injured. Standards of Review
In reviewing the legal sufficiency of the evidence, we must view 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 offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). More particularly, sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). The trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). In conducting our review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000); Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). Any inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000). In reviewing the factual sufficiency of the evidence, we must determine whether considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004), overruled on other grounds by Watson v. State, 204 S.W.3d 404 (Tex.Crim.App. 2006). Evidence can be factually insufficient if the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, or contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Id. at 484-85. Our evaluation, however, should not intrude upon the fact finder's role as the sole judge of the weight and credibility given to any witness's testimony. See Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). We will not set aside the judgment unless the evidence supporting the verdict is so weak as to be clearly wrong and manifestly unjust. Zuniga, 144 S.W.3d at 481. A clearly wrong and manifestly unjust verdict occurs where the jury's finding "shocks the conscience" or "clearly demonstrates bias." Zuniga, 144 S.W.3d at 481. An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant's complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Bodily Injury to an Elderly Individual
In this case, the State was required to prove beyond a reasonable doubt that Appellant intentionally or knowingly caused bodily injury to Maria Rodriguez, an elderly individual, by pushing her and causing her to fall or by striking her on or about the face with his hand, or by kicking her on or about the head with his foot. See Tex.Pen. Code Ann. § 22.04(a)(3), (c)(2) (Vernon Supp. 2006). Under the Penal Code "bodily injury" is defined as "physical pain, illness, or any impairment of physical condition." See Tex.Pen. Code Ann. § 1.07(a)(8) (Vernon Supp. 2006). In this case, the evidence shows that when Officer Ponce entered the bedroom, Javier was trying to restrain Appellant on the ground. The brothers were yelling at each other and Appellant was squirming around. Ms. Rodriguez was kneeling beside them, trying to separate them. Appellant was swinging his legs and kicking Javier in the back of the head. Officer Ponce saw Appellant's knee and the lower portion of his leg make contact with Ms. Rodriguez. Officer Ponce described the contact as "pretty strong hits," such that the force moved Ms. Rodriguez to the side. Officer Ponce stated that it looked as if she was in discomfort from the kicks. When Officer Ponce ordered Javier to get off of Appellant, Appellant started swing his arms and punching at Javier. After Appellant was subdued, handcuffed, and escorted out of the house, Officer Ponce saw Ms. Rodriguez holding the right side of her face as if in discomfort and that area of her face was red. Officer O'Quinn also noticed that Ms. Rodriguez was holding the side of her face and that it appeared red and puffy. According to Officer Ponce, he was more than sure that some of Appellant's punches hit Ms. Rodriguez because she was so close to Javier and that these strikes would have hit her in the face. Officer Ponce also testified that the portion of the face that Ms. Rodriguez was holding was consistent with the area where the swings were occurring and the redness was consistent with being struck in the face. Based on Officer Ponce's testimony, the jury could have reasonably concluded beyond a reasonable doubt that Appellant struck Ms. Rodriguez in the face with his hand and that she suffered pain, and thus, bodily injury from this assaultive contact. See Goodin v. State, 750 S.W.2d 857, 859 (Tex.App.-Corpus Christi 1988, pet. ref'd) (fact finder may infer victim suffered physical pain based on his or her understanding of pain and some of its natural causes); Wawrykow v. State, 866 S.W.2d 96, 100 (Tex.App.-Beaumont 1993, no pet.) (rational fact finder could have inferred that blows from appellant's fist to police officer's head area hurt the officer or caused her physical pain beyond a reasonable doubt); see also Kitchens v. State, 823 S.W.2d 256, 258-59 (Tex.Crim.App. 1991), cert. denied, 504 U.S. 958, 112 S.Ct. 2309, 119 L.Ed.2d 230 (1992) (when jury returns general guilty verdict on an indictment charging alternative theories of committing the same offense, the verdict stands if evidence supports any of the theories alleged). Appellant does not specifically challenge the intent element of the offense, but under the law of transferred intent, of which the jury was instructed, even if Appellant intended only to strike his brother, that intent would transfer to Ms. Rodriguez as the ultimate victim. See Tex.Pen. Code Ann. § 6.04(b)(2) (Vernon 2003). We conclude the evidence is legally sufficient to sustain Appellant's conviction. After viewing all the evidence in a neutral light, we also find that it was not too weak to support the finding of guilt beyond a reasonable doubt. While Ms. Rodriguez and her daughter Graciela refuted the officers' testimony, and in particular, Ms. Rodriguez denied that Appellant made any assaultive contact or that she suffered any pain from the alleged contact, the jury as fact finder and sole judge of the weight and credibility of the witnesses' testimony could have discredited that testimony. See Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). Therefore, we conclude the evidence is both legally and factually sufficient to sustain Appellant's conviction. Appellant's sole issue for review is overruled. We affirm the trial court's judgment.