Opinion
No. 05-04-00923-CR
Opinion Issued June 21, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 5, Collin County, Texas, Trial Court Cause No. 005-80266-03. Affirmed.
Before MORRIS, WHITTINGTON, and MAZZANT.
MEMORANDUM OPINION
Antonio Zapata Jr. appeals his conviction for assault casing bodily injury to a family member. A jury found appellant guilty, and the court made an affirmative finding of family violence. The court assessed punishment at one year confinement and a $500 fine, suspending appellant's sentence for two years and placing him on community supervision. In four issues, appellant argues the evidence was factually insufficient and that the court erred in allowing an officer to testify as an expert regarding the complainant's injuries, refusing to charge the jury on the defense of consent, and failing to sustain appellant's objections to closing argument. We affirm the trial court's judgment.
Factual Sufficiency
In his first issue, appellant argues the evidence was factually insufficient to support the conviction. Appellant does not raise specific issues regarding sufficiency but merely argues that a review of the evidence shows the verdict was contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We disagree.Standard of Review
The standard of reviewing the factual sufficiency of the evidence is well established. See Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)). As the reviewing court, we view all the evidence in a neutral light and ask whether the evidence of appellant's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. The fact finder is the sole judge of the weight and credibility of witness testimony. Jones v. State, 944 S.W.2d 642, 647, 648 (Tex.Crim.App. 1996). The State was required to prove beyond a reasonable doubt that appellant intentionally, knowingly, or recklessly caused bodily injury to Wendy Schuster, a member of appellant's family or household. See Tex. Pen. Code Ann. § 22.01 (a)(1) (Vernon Supp. 2004-05). Physical pain is included in the definition of "bodily injury." Id. § 1.07(a)(8) (Vernon Supp. 2004-05).Applicable Facts
Wendy Schuster, the mother of appellant's one-year-old child, told the jury about the assault. She, appellant, and their daughter lived together in Plano, but Schuster and appellant were planning to separate soon. On New Year's Eve in 2003, against Schuster's wishes, appellant left the apartment to go out. He returned to their apartment some time after midnight-after Schuster called appellant and asked him to come home; she wanted the two of them to spend the holiday with their daughter. Upon appellant's return to the apartment, he repeatedly asked Schuster to have sex with him. She said no, but eventually agreed to some sexual contact and to lie naked with him in bed. Schuster described what happened after they were in bed together: "He kept touching me, and I kept telling him, `No. You promised you wouldn't do this.' He flipped me over and held me down. He put my arms up like this and held me and had my throat with his other hand." Schuster stated that she felt pain from both his holding her hands and holding her throat. During this time, appellant tried to penetrate Schuster, and she responded "no" more loudly, waking their daughter. Their daughter was screaming and crying, and Schuster asked appellant to let her go so she could get the baby. Appellant "flipped" Schuster again, turning her onto her stomach, and she eventually pinched his penis, trying to make him get off of her. Appellant then got up and grabbed their daughter before Schuster could reach her. Schuster begged appellant to give her their daughter, but he told her he planned to leave with her. Schuster told appellant she was calling 9-1-1. But after she picked up the telephone and dialed, appellant knocked the phone from her hand, breaking it on the floor. He then gave Schuster the baby, and Schuster prepared a bottle to help calm her. Schuster said she had planned to call the police again once she calmed her daughter. Before Schuster could make another phone call, though, the police arrived. According to Officer Robert Jackson, he received a "911 welfare concern call" because a 9-1-1 operator had received a phone call during which the caller hung up almost immediately. He and his backup officer arrived, and they met Schuster. Jackson said Schuster was visibly upset and crying. Schuster told Jackson that appellant had attempted to rape her and had injured her. Jackson saw that Schuster's neck and wrists were red. He said it appeared consistent with someone who had been struggling or wrestling. Jackson talked to appellant, and appellant told him he had knocked the phone out of Schuster's hand in an effort to calm her. Appellant believed Schuster wanted to have intercourse with him, and he tried. He admitted to Jackson to having held Schuster's wrists, explaining that she usually held him tightly, so he did not think anything was wrong with his actions. Jackson concluded that Schuster's injuries did not require hospitalization, and Schuster declined any treatment. Jackson asked if she wanted to have the crime scene department come photograph her injuries, but Schuster, explaining to the jury that she misunderstood his question, declined because she thought she would be required to leave the house to be photographed. She did not want to leave her daughter. Appellant presented two witnesses-Schuster's sister, Stormie Keen, and Schuster's ex-boyfriend's mother, Darlene Warr. Although Keen testified she did not see red marks on Schuster's wrists, Keen did not arrive at the apartment until six hours after the incident. Warr testified that Schuster's reputation for truth and veracity was bad. Warr opined that Schuster was capable of having made red marks on her wrists herself.Discussion
We have reviewed all of the evidence. Schuster testified that appellant held her hands and throat, causing her pain. Jackson testified he saw that both areas were red. The jury was free to believe or disbelieve the witnesses' testimony, and it was free to disregard Warr's opinion that Schuster's reputation for truth and veracity was bad. We do not find the evidence of appellant's guilt, taken alone, too weak to support the finding of guilt beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484-85. Nor is the evidence contrary to the verdict so strong that the beyond-a-reasonable-doubt standard could not have been met. See id. We conclude the evidence was factually sufficient, and we resolve appellant's first issue against him.Jackson's Testimony
In his second issue, appellant contends the court erred in permitting Jackson to testify "as an expert as to the causation" of Schuster's injuries. Jackson testified that he had "practical experience" on which he based his opinion that red marks on the skin could be consistent with a struggle or wrestling. Appellant argues this testimony required the application of a scientific theory to qualify Jackson as an expert. However, even if we were to assume the testimony needed such a predicate, any error in admitting the testimony was harmless. Schuster testified that appellant held her wrists and throat and caused her pain. Jackson's testimony only supported Schuster's statement; it did not provide new information. A non-constitutional "error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." Tex.R.App.P. 44.2(b). A substantial right is not affected, and the error is harmless if, after reviewing the entire record, we determine that the error did not influence, or had only a slight influence, on the trial outcome. Montez v. State, 975 S.W.2d 370, 373 (Tex.App.-Dallas 1998, no pet.). We conclude that any alleged error was harmless, and we resolve appellant's second issue against him.Jury Charge
In his third issue, appellant complains the trial court erred by refusing to charge the jury on the defense of consent. Jackson testified that appellant told him that Schuster usually held appellant tightly. Appellant told Jackson that because of that, he believed it was alright to hold Schuster's wrists. Appellant now argues that testimony raised a defensive issue. We disagree. A defendant is entitled to an instruction on every defensive issue that is raised by the evidence-regardless of the strength of the evidence. Brown v. State, 955 S.W.2d 276, 279 (Tex.Crim.App. 1997). The testimony that appellant complains raised a defensive issue, however, did not raise a defensive issue. The testimony showed that Schuster usually held appellant-not that she had ever consented to him holding her tightly. Appellant directs this Court to no other testimony indicating consent. Because the evidence did not raise a defensive issue, the trial court was not required to submit such an instruction to the jury. We resolve appellant's third issue against him.Closing Argument
In his fourth issue, appellant complains the trial court erred in failing to sustain his objection to the prosecutor's closing argument. Appellant complains first of the following statements made by the prosecutor:If I had known in advance-which I don't have the right to know what witnesses they are going to call. If I would have known in advance, which I didn't know, that they were going to call up some people to say she was untruthful, I could have found some people that would say she was truthful.Appellant objected "as to speculating outside the record," the court sustained his objection, appellant requested an instruction to disregard, and the court gave the jury an instruction to disregard. After this exchange, the State asked to explain the rule of sequestration and began to explain the rule, stating, "We have a rule that if someone sits in the courtroom and either side asserts the rule of sequestration, that the person is not allowed to testify in the case if they have been sitting here listening to the testimony." Appellant objected, complaining the prosecutor was "talking outside the Court's Charge concerning the law." The court replied, "I think he's rebutting why they didn't call Ms. Schuster's friend." Appellant complains of these remarks as well. Initially, we note appellant's complaint regarding the initial remarks by the prosecutor has not been properly preserved for appellate review. To preserve error for appellate review, a party must make a timely specific objection and obtain an adverse ruling from the trial court. See Tex.R.App.P. 33.1(a)(2); Owens v. State, 96 S.W.3d 668, 673 (Tex.App.-Austin 2003, no pet.). Appellant's objection to the prosecutor's initial remarks was sustained, and the trial court instructed the jury as requested by appellant. Appellant did not seek any further relief from the trial court and failed to obtain an adverse ruling. Turning to the second complained-of remarks, and assuming the trial court's reply to appellant's objection implicitly overruled that objection, thereby preserving appellant's complaint, we do not find error. When reviewing alleged error in a jury argument, we must analyze the statement in light of the entire argument and not on isolated instances. See Drew v. State, 743 S.W.2d 207, 220 (Tex.Crim.App. 1987). Proper jury argument must encompass one of the following: (1) a summation of the evidence presented at trial; (2) a reasonable deduction drawn from that evidence; (3) an answer to the opposing counsel's argument; or (4) a plea for law enforcement. Dooley v. State, 65 S.W.3d 840, 843 (Tex.App.-Dallas 2002, pet. ref'd) (citing Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim.App. 1996)). We have reviewed the argument and that of both appellant and the prosecutor. We conclude the prosecutor's comments about sequestration in the present case was a response to appellant's counsel's argument placing emphasis on the witness who testified that Schuster's reputation for truth and veracity was bad. Accordingly, we conclude the argument an answer to opposing counsel's argument and thus not objectionable. We resolve appellant's fourth issue against him. We affirm the trial court's judgment.