No. 05-08-01210-CR
Opinion issued September 18, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 401st Judicial District Court, Collin County, Texas, Trial Court Cause No. 401-80838-07.
Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.
Opinion By Justice FITZGERALD.
A jury convicted Roy Cardenas of retaliation, and made an affirmative finding that appellant used a deadly weapon, his hands, during commission of the offense. The trial court assessed punishment, enhanced by a prior felony conviction, at seventeen years' imprisonment. In two issues, appellant contends the evidence is legally and factually insufficient to support the jury's verdict and insufficient to support a deadly weapon finding. We affirm the trial court's judgment.
Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict, and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). It is not necessary that every fact point directly and independently to an accused's guilt, but it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.), cert. denied, 128 S.Ct. 282 (2007); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S.Ct. 87 (2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to give to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). The jury was instructed it could find appellant guilty if it found he intentionally or knowingly harmed the complainant by assaulting her in retaliation for and on account of the service of the complainant as a person appellant knew intended to report the occurrence of a crime. The jury was asked to answer a special issue determining if appellant used or exhibited a deadly weapon, his hands, during the commission of the offense. See Tex. Penal Code Ann. § 36.06(a)(1) (Vernon Supp. 2008). Evidence Presented
Jane Doe, a pseudonym used by the complainant, testified that at about 6:30 a.m. on January 14, 2007, appellant assaulted her after a traffic accident. Doe was returning home after getting coffee and a newspaper before beginning her 8:30 a.m. nursing shift. She saw a silver Honda Civic swerving outside its lane of traffic. Doe believed the driver was drunk, so she got into the left lane. When Doe made a left turn at an intersection, the Honda cut across all of the lanes and got behind her. Doe activated her blinkers to signal she intended to make a left turn. The Honda "bumped" Doe's car, a 2003 Volkswagen, from behind. The Volkswagen spun across the lanes and went into a dirt field. The Honda's driver, whom Doe identified as appellant, walked over to Doe's car, opened the driver's side door, and leaned into the car. Appellant had his left hand on the rearview mirror and his right hand at his side as he leaned over Doe. Doe testified she smelled a strong odor of alcoholic beverage on appellant's breath. Appellant slurred his words when he asked if Doe was okay. Doe told appellant to get away from her while at the same time reaching for a cell phone that was on top of her purse in the passenger seat. Appellant said, "[Y]ou're gonna get me in trouble, bitch," then he hit her in the face with a closed fist. Doe tried to push appellant away, but he leaned even farther into her car and continued hitting her in the face. The rearview mirror broke, after which appellant used both hands to hit Doe in the face. Doe struggled to push appellant out of her car. Appellant said, "[S]top fighting. You want me to stab you?" Doe repeatedly told appellant to get away from her. Appellant pulled Doe's left leg out of the car, then tried to pull down her pants. When Doe asked appellant what was he doing, appellant said, "[Y]ou're gonna suck my dick." Doe struggled with appellant, and eventually pushed him out of the car with her foot. Appellant became angry, leaned back into Doe's vehicle, and began hitting Doe harder and faster. After a short time, appellant got out of Doe's vehicle and walked towards the Honda. Doe got out of her vehicle and screamed for help. She did not see any other cars on the street. Appellant walked back to Doe, put her in a headlock, and hit her again. Appellant wrestled Doe to the ground, got on top of her chest, and repeatedly hit her in the face with both of his fists. Doe continued screaming for help. She eventually pushed appellant off to the side. When Doe saw a truck coming down the street, she screamed louder. The truck stopped. Appellant walked back to his car and drove away. Doe testified the man in the truck called 911. Paramedics treated Doe at the scene, and she went to the hospital the next day. Doe testified she sustained facial fractures, cuts on her nose, and a "split" ear from the assault by appellant. About forty-five minutes after the police arrived at the accident scene, an officer drove Doe a short distance to where the silver Honda had been pulled over. Doe identified appellant as the person who had assaulted her. Photographs of Doe's injuries and the accident scene were shown to the jury. Kenneth Colwell testified he saw a car stopped in the street with its front end resting against the curb, and saw a second car stopped in a dirt field. As he drove by the scene slowly, he heard a woman screaming for help, but he could not see anyone. He stopped his truck and parked. Colwell saw a man running toward the car that was against the curb. The man got into the vehicle and sped away from the scene. Colwell testified the woman he heard screaming was crying as she got out of the car that was stopped in the dirt field. Colwell called the police. Wylie police sergeant Curtis Smith testified that while en route to the accident scene, he received a description of the suspect vehicle, a silver Honda Civic with tinted windows and no visible front or back license plate. Smith talked with Doe at the scene. Smith determined Doe's car had been rear-ended on the passenger side, had spun around and left the roadway, then stopped in a muddy field. While talking with Doe, Smith received a message that the suspect vehicle had been located about a mile from the accident scene, and that the same vehicle had also been involved in an earlier collision with another vehicle. An officer drove Doe to the Honda's location. Doe identified appellant as the person who was driving the Honda and who had assaulted her. Officer Chad Hermes testified that he was responding to the accident call when he heard the dispatcher broadcast a description of the suspect vehicle. Another officer radioed that he was following the suspect vehicle, and gave their location. Hermes drove to the location of the suspect vehicle. He saw a silver Honda Civic that had stopped parallel to another vehicle in the road. Hermes pulled the Honda over to the shoulder. Appellant was the lone occupant in the Honda. Hermes handcuffed appellant and waited for other officers to arrive with the alleged victim, who identified appellant as the person who had assaulted her. Hermes testified he smelled the odor of an alcoholic beverage on appellant's person. Appellant said he had consumed "four or five beers." Hermes transported appellant to jail, where he administered field sobriety tests to appellant. Hermes testified that based upon appellant's performance, he believed appellant was intoxicated. After appellant gave a blood sample, Hermes charged him with driving while intoxicated. Gary Anderson testified appellant was driving the silver Honda Civic when he collided with Anderson's car before the accident involving Doe. Anderson was making a left turn when appellant bumped him from behind. Anderson drove to a nearby convenience store to get appellant's information, but appellant drove away. Anderson called the police and reported the accident. A short time after police officers left the scene, Anderson saw appellant again driving the Honda. Anderson attempted to follow appellant to get a license plate number, but he lost sight of the Honda. Then appellant drove back towards Anderson, stopped next to him, and asked why Anderson was following him. Anderson told appellant he needed to pull over so Anderson could get appellant's information because appellant had hit the back of his car. While appellant denied hitting Anderson's car, a police officer pulled up behind appellant. Appellant turned into a driveway and parked. The police officer arrested appellant. Detective Dave Larocca interviewed Doe and took her written statement. Larocca interviewed appellant the day after the accident and assault. Appellant initially denied any contact whatsoever with Doe, but after further questioning, appellant admitted striking her vehicle with his vehicle and admitted hitting Doe. Larocca testified that based upon his investigation of the incidents, he initially charged appellant with aggravated sexual assault and assault causing bodily injury. Larocca changed the charges, however, because he did not believe there was probable cause to support an aggravated sexual assault charge. Discussion
Appellant argues the evidence is legally and factually insufficient because there is no evidence appellant knew Doe was intending to report a crime, appellant was intoxicated when his vehicle collided with Doe's vehicle, and his behavior in leaving the scene is not consistent with someone concerned about the reporting of an offense. Appellant also contends the evidence is insufficient to support a deadly weapon finding because Doe's medical records do not show serious injury, she refused treatment the day of the assault, and Larocca charged appellant with retaliation only because he had no probable cause to charge appellant with an aggravated assault. The State responds that the evidence is legally and factually sufficient to establish that appellant assaulted Doe because he believed she intended to report him for the offense of driving while intoxicated, and he used his hands as deadly weapons during the assault. The jury heard Doe's testimony that Doe smelled alcohol on appellant's breath and believed he was driving while intoxicated. Appellant began hitting her immediately after she reached for her cell phone, and he told her, "[Y]ou're gonna get me in trouble, bitch." From this evidence, the jury could have inferred rationally that appellant hit Doe because he believed she would call the police. The jury could have also concluded that appellant left the scene because he was afraid Doe would call the police to that location. A "deadly weapon" is anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury, or anything that in the manner of its use or intended use was capable of causing death or serious bodily injury. See McCain v. State, 22 S.W.3d 497, 502-03 (Tex. Crim. App. 2000). A deadly weapon finding may be made, if otherwise supported by the evidence, regardless of whether any injury was inflicted. See Villarreal v. State, 255 S.W.3d 205, 209 (Tex. App.-Waco, 2008, no pet.); McCain v. State, 22 S.W.3d 497 at 503. Here, the evidence shows appellant assaulted Doe with his hands. Doe testified appellant repeatedly hit her with his closed fists, and that she sustained facial fractures, cuts and bleeding, and a "split" ear. The jury was able to see photographs of Doe's injuries, it was able to resolve any conflicts in the testimony, and it could freely accept or reject any or all of the evidence presented by either side. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). Thus, the jury could conclude appellant's hands, in the manner of their use, caused Doe serious bodily injury. Viewed under the proper standards, we conclude the evidence is legally and factually sufficient to support the jury's deadly weapon finding and the conviction. See Roberts, 220 S.W.3d at 524; Lane, 151 S.W.3d at 191-92; McCain, 22 S.W.3d at 502-03. We resolve appellant's two issues against him. We affirm the trial court's judgment.