Opinion
No. 10-04-00235-CR
Opinion delivered and filed September 14, 2005. DO NOT PUBLISH.
Appeal fromthe 411th District Court, San Jacinto County, Texas, Trial Court No. 8638. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
A jury convicted Wayne Burton of aggravated assault, assessed his punishment at ten years' imprisonment, and recommended that he be placed on community supervision. In accordance with the verdict, the court sentenced Burton to ten years' imprisonment, suspended imposition of sentence, and placed him on community supervision for ten years. Burton contends in two points that the evidence is legally and factually insufficient. We will affirm. The indictment alleges that Burton committed the aggravated assault by "intentionally, knowingly, or recklessly caus[ing] bodily injury to Reyna Burton by striking her in the face and head with his hand, and [by] then and there us[ing] or exhibit[ing] a deadly weapon, to-wit: a machete, during the commission of said assault." Burton contends in his first and second points respectively that there is legally and factually insufficient evidence to prove that Reyna suffered bodily injury or that he exhibited a machete. The Penal Code defines "bodily injury" as "physical pain, illness, or any impairment of physical condition." TEX. PEN. CODE ANN. § 1.07(a)(8) (Vernon Supp. 2004-2005). A deadly weapon is "exhibited" when it is "consciously shown, displayed, or presented to be viewed during `the commission of a felony offense or during immediate flight therefrom.'" Searcy v. State, 115 S.W.3d 628, 631 (Tex.App.-Waco 2003, no pet.) (quoting Patterson v. State, 769 S.W.2d 938, 941 (Tex.Crim.App. 1989)). Reyna testified that Burton and she had married in December 2001, but she left him about two months later because he "attacked" her. Reyna and Burton encountered each other again some months later at a new church Reyna had begun attending. According to Reyna, Burton came to her house on a daily basis thereafter because he wanted her to come back to him. She testified that on the date in question Burton presented her a bracelet, which she declined to accept because she was still unsure if she wanted to return. After some discussion, she told him she did not want to return. Reyna testified that he then "grabbed a machete . . . and grabbed me by my hair and put it on my neck and told me he was going to kill me. He dragged me through the back door. . . ." The State offered a machete in evidence which Reyna identified as the weapon he had threatened her with. Reyna testified that Burton later threw the machete down after they talked. When she tried to get it (presumably to throw it out of his reach), Burton "grabbed [her] and threw [her] in the bed and hit [her] in the head with his fist." He told her he wanted to have sex, and when she refused, "[h]e started hitting [her] in the head." She testified that he then sexually assaulted her. According to Reyna, she did not seek medical treatment after the assault because no one was available to take care of her children. She testified on cross-examination that Burton hurt her when he hit her in the head with his fist. Viewed in a light most favorable to the verdict, Reyna's testimony is legally sufficient to prove that Burton caused bodily injury to Reyna by hitting her in the head with his fist and that he exhibited the machete during the course of the assault. See TEX. PEN. CODE ANN. § 1.07(a)(8); Searcy, 115 S.W.3d at 632; Salley v. State, 25 S.W.3d 878, 881 (Tex.App.-Houston [14th Dist.] 2000, no pet.); Rangel v. State, 747 S.W.2d 32, 33 (Tex.App.-San Antonio 1988, pet. ref'd). Accordingly, we overrule Burton's first point. Burton contends in his second point that the evidence is factually insufficient because: (1) there are inconsistencies between Reyna's testimony and the statements she made to investigators; (2) she did not seek medical attention after the assault; (3) photographs taken the day after the assault do not reveal bruising or other signs of injury; and (4) she had a motive to allege that Burton had assaulted her so that she could apply for naturalization under the Violence Against Women Act. We also observe that Burton testified in his own defense and denied that he assaulted Reyna on the date in question or that he threatened her with the machete. These disparities all concern credibility. In closing argument, Burton's attorney asked the jury to acquit him because the State had failed to present "credible evidence" and called these various inconsistencies to the jury's attention. The jury is the ultimate fact finder on issues of credibility, and by its verdict, the jury chose to believe Reyna. See Parker v. State, 119 S.W.3d 350, 355 (Tex.App.-Waco 2003, pet. ref'd). We must defer to the jury in its resolution of such issues. Id. Accordingly, we cannot say that the evidence is factually insufficient. Thus, we overrule Burton's second point. We affirm the judgment.
The indictment also charged Burton with aggravated sexual assault, but the jury acquitted him on this count.
Burton states in his first point that "there are insufficient facts to show the alleged injuries which [Reyna] claimed to have suffered." We construe this as an assertion that there is insufficient evidence to prove that she suffered "bodily injury" as alleged in the indictment.
42 U.S.C.A. § 13981 (West 1995 Supp. 2005) (held unconstitutional in U.S. v. Morrison, 529 U.S. 598, 627, 120 S. Ct. 1740, 1759, 146 L. Ed. 2d 658 (2000)).