Opinion
09-22-00277-CR
11-06-2024
GREGORY KEVIN CLINE, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Submitted on May 28, 2024
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 20-06-07416-CR
Before Golemon, C.J., Wright and Chambers, JJ.
MEMORANDUM OPINION
KENT CHAMBERS JUSTICE
Gregory Kevin Cline was charged by indictment with aggravated assault. See Tex. Penal Code Ann. § 22.02(a)(1). The indictment alleged that Cline "intentionally, knowingly, or recklessly cause[d] serious bodily injury to Luke, by hitting Luke with defendant's hand or an object[.]" After a jury trial, the jury found Cline guilty of the offense of aggravated assault. The trial court sentenced Cline to four years in the Texas Department of Criminal Justice - Institutional Division.
To protect the identity of the victim of the indictment and the members of his family, we use pseudonyms for their names. See Tex. Const. art. I, § 30(a)(1) (granting crime victims "the right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process"). The first time a pseudonym is used for a person's name we indicate a pseudonym is being used with italics.
In three issues, Cline complains that the trial court reversibly erred in permitting the State to present evidence that was not timely presented to the defense, that the trial court erred when it allowed a detective to give a forensic medical opinion, and that the trial court erred when it denied his motions for a directed verdict. Because we conclude Cline's arguments lack merit, we will affirm.
Background
Luke was a successful musician in a band with his brothers since when he was around sixteen years old until 2019. Luke met Misti Thomas through music and developed a strong friendship with her. Luke moved onto Misti's property and, in place of paying rent, he agreed to do chores and upkeep on the property. On the property was a barn where Luke would practice his music.
Luke had problems with drugs and alcohol throughout his twenties that began to affect his musical performance and caused tensions with his brothers. In 2019, Luke left the band and went to rehab for three months for alcohol, methamphetamine, cocaine, and Adderall use. Misti also used drugs with Luke.
After Luke got out of rehab in September 2019, he moved back in with his parents, George and Rose, for about three or four months. Luke then moved back in with Misti in December 2019. Misti welcomed Luke back with "open arms" but the two did begin to bicker like a "brother and sister spend[ing] a lot of time together" during the COVID lockdowns.
Luke helped manage a local bar called Tut's. That's where he met Eric Thompson, Misti's ex-boyfriend, who was on a podcast/documentary to promote the bar's renovation. Luke also met a man named Mario Aguirre through the podcast about Tut's bar.
In May 2020, Luke relapsed when he used methamphetamine that fell out of the barn wall as he was remodeling it. On May 12, Misti told Rose that she was thinking of having Luke move out.
On the morning of May 13, 2020, Misti's discussions became very heated with Luke. He had installed security cameras on the property after three men showed up in the back of the property on four-wheelers. When Luke woke up that morning, he noticed Misti carrying one of the cameras in her hand. She told Luke he could no longer have the cameras, threw the camera on the table in front of Luke, and went to her car to leave the house. Luke called his parents and went to the barn to meditate.
That same day, Lee Ann Pool, owner of the local Corner Pub bar and music venue, contacted Misti to inform her that the bar would be open from 11:00 a.m. to 3:30 p.m. Lee Ann was opening the bar for the first time since the March 2020 Covid lockdowns began and was inviting her regular customers. Lee Ann knew Misti was a frequent customer of the Corner Pub. Lee Ann also knew Eric as her neighbor and knew Cline as Eric's friend who would visit Eric at his apartment. Cline would occasionally visit the Corner Pub. Lee Ann knew Mario as a friend of Eric's.
Misti arrived at the Corner Pub around 12:30 p.m. or 1:00 p.m. Another friend named Rebecca joined Misti. At around 1:30 p.m., Eric and Cline arrived at the pub and spoke with Misti. Mario arrived at the pub a little later. While at the pub, Misti called Joel Bilyeu, her ex-boyfriend. Joel said Misti was "excited" that Luke was being evicted.
After Misti, Eric, and Cline were talking, Eric and Cline left the pub to go help Luke move. Eric and Cline returned to the pub with Mario about an hour later at around 2:30 p.m. At around 3:00 p.m., Misti, Eric, Mario, and Cline left the Corner Pub. Lee Ann never saw Eric again.
In the afternoon of May 13, 2020, Luke heard banging on the barn door. Luke assumed it was Misti. When he opened the door, three men were standing there: Eric was in the front, a large man who was later identified as Cline was behind Eric, and Mario was behind Cline. Upon opening the door, Eric grabbed Luke by the throat and started pushing him toward the wall. Eric hit Luke with his fist at least once, and then Cline followed with a wooden object of some kind and started hitting Luke over the head. Luke then blacked out. The next memory Luke has of the assault is being on his knees in the front driveway. Cline grabbed Luke by the collar and Cline threatened him that if Luke survived the attack, Cline would murder his family in front of him and make him suffer and murder him if Luke told anyone. Luke blacked out again and woke up laying on the ground hunched over. Mario, who had something in his hands like a bleach container, sprayed Luke with water.
After waking up from the second blackout, Luke drove about thirty minutes to his parents' house. His parents did not recognize Luke because of the injuries and the amount of blood on Luke. George and Rose, along with their other son, placed Luke into George's truck and drove him to a nearby freestanding emergency room. After being evaluated in the emergency room, Luke was transferred to a hospital.
Detective Brian Fleming with the Montgomery County Sheriff's Office responded to a call of a potential assault at a local hospital on May 13, 2020. Fleming met briefly with Luke at the hospital. Luke named two suspects in the assault: Eric and Misti. Luke also gave consent to police to search his apartment.
Sergeant Margarito Rosales, Deputy Franklin, and Deputy Thompson went to the property on the evening of May 13, 2020, to investigate the crime scene and look for signs of a disturbance. Outside the barn, deputies found a soiled glove and green colored stick of wood with blood on it. They also found a pool of blood on the property and suspected that the area had been cleaned. Sergeant Rosales noted that an area of the property was wet, but it did not rain that day.
On May 14, 2020, Detective Charles Sullivent and his partner, Detective Brandon Bartoskewitz, met at Luke's parents' residence to get more information about the assault. Sullivent spoke with George and Rose while Bartoskewitz assisted a crime scene investigator with processing Luke's vehicle. Based on his training and experience, Bartoskewitz did not believe that Luke sustained serious injuries in an automobile accident. Bartoskewitz opined that the injuries Luke received were consistent with the wooden object found outside the barn.
Sullivent spoke with Misti at the property where they seized her cell phone, fearing that she might delete evidence. He then submitted the phone to the crime lab and later obtained a warrant to search the phone.
As part of his investigation, Sullivent began searching for information on Eric Thompson. He located social media that he believed was Eric's social media and identified other people he believed were involved in the incident. One of those individuals was Eric's Navy SEAL friend, who was identified as Greg Cline, and the other individual was Mario Aguirre.
Billy Ballard, an investigator with the Montgomery County Sheriff's Office, completed the extraction of Misti's cell phone. He knew both Eric and Cline as he graduated high school with both individuals. Sullivent asked Ballard about his relationship with Eric. It was through Ballard that Sullivent found that Cline was friends with Eric.
According to Ballard's extraction report, Misti had multiple text conversations on May 13, 2020. Misti texted her mother, Charlotte Thompson, that she found a camera on the property and that she and Luke had a "flip out" about it. Misti told her mother that she was "about to call E. Joel called too &said he would help, but E &Greg would be better to help with this." Charlotte suggested that Luke had broken the agreement by doing drugs and to call the police. Charlotte asked Misti, "how much will you have to pay E?" Misti responded, "Nothing. He has a team of 3[.]" At 2:18 p.m., Misti texted her mother that "They are likely there now." Charlotte texted Misti at 4:30 p.m., "I sure would put stuff in garbage bags before putting in dumpster." She texted Misti again at 5:29 p.m., "What about washing towels with bleach?" and a few minutes later told her "May be difficult if wet. Where doing it? Any guys there?" Charlotte again texted Misti at 7:21 p.m., "3 cop cars sitting up at your house. Gate open[.]"
At 2:13 p.m., Misti sent a text to a contact named "Tonya new" in her phone. She stated, "I called your brother. Think the team of 3 are there now. This will break bad[.]" "Tonya new" asked Misti, "Did you tell him to leave and he wouldn't?" Misti replied at 4:02 p.m., "Yep, &now I am cleaning up blood spatter. Super." Tonya asked, "Is he gone?" Misti replied, "Yep. They told me to stay gone &he &Greg and the Little came over."
At 1:26 p.m., Misti texted the contact "Rebecca New #" and told her, "I just spoke with a 3rd party entity &think I am going to go with that option, although it won't be pretty." Rebecca asked Misti at 1:32 p.m. if she was still at the pub, to which Misti responded at 1:51 p.m. "Yes."
Detectives also obtained cell phone data and Texas Ranger Derek Leitner was able to conduct cell phone mapping of Misti' s, Eric's, Mario' s, and Cline's cell phones. Leitner's mapping of the cell phone data showed that Eric's and Mario's phones were located in the area of the crime scene at the time of the assault. Cline's cell phone was in the Conroe area at 2:53 p.m. the day of the assault.
On May 26, 2020, Bartoskewitz administered two photo arrays to Luke. Luke identified Cline as one of the men who assaulted him with a "5/6 certainty level" and identified two other individuals in the photo array with a "3 out of 10." Luke identified Eric with a "9/10 certainty level[.]"
As a result of the assault, Luke suffered two broken jaws and severe pain that resulted in an infection inside his mouth. He suffered numerous facial fractures as well as fractures to his back, rib, and arm and "was in a lot of pain." Luke also saw a doctor for a brain injury resulting from head trauma. After the assault, Luke had to move back in with his parents and has issues with performing certain daily tasks as well as memory issues.
Analysis
Untimely-produced Evidence
In his first issue, Cline complains that the trial court reversibly erred when it allowed the State to present evidence that was not disclosed to the defense in a timely manner in violation of the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 19 of the Texas Constitution. Cline argues that, per the trial court's discovery order, the State needed to disclose all relevant evidence to him by July 5, 2022. Because the State disclosed witnesses' criminal histories, a report on Mario's phone, other extraneous offense reports, an extraction report from Misti's cell phone, and a cell phone mapping report after this deadline, Cline argues he was unable to adequately challenge the witnesses' credibility and properly review the State's cell data. Cline complains that this delay prevented him from filing motions to suppress and Daubert motions, from hiring an investigator to look into criminal histories and an expert to refute the States's evidence. He further complains that his defense counsel could not adequately prepare to respond to the State's case, craft an adequate defense, or effectively use the evidence at trial.
At a pretrial conference, Cline complained to the trial court that he received discovery late in violation of the trial court's standing discovery order, objected to the timeliness of the discovery, and asked that the late provided discovery be excluded. His main complaint focused on the Cellbrite extraction data. The State clarified that the extraction contents provided after the discovery order deadline were merely the relevant portions of cellular data that the prosecutor intended to introduce at trial, and that the entirety of the cellular data was previously provided to Cline over a year prior to trial. The State also noted that all the mapping of the call detail records, except for one, were provided to Cline prior to the discovery deadline. Upon discovering the remaining mapping report, the State provided it to Cline prior to trial but after the discovery deadline. The State also stated that although this excluded mapping report was not produced independently, it was included in the expert report provided prior to the discovery order deadline. The record further shows that the cell phone was available to Cline for examination prior to trial.
The trial court observed that "it seems like the phone was available, and from March 2020 and through October 2021, it seems like some of the - some of the phone dump, if not all, was provided." The trial court treated Cline's request as a motion in limine and granted Cline's motion in limine, barring the State from discussing the contents of the extraction until Ranger Leitner could testify as to what was provided to Cline before and after the discovery order deadline. Cline agreed and stated that he would take Leitner on voir dire and do a Daubert challenge.
During Ballard's testimony, the State offered a report prepared by Ballard of the data obtained from Misti's cell phone for the relevant time period. Cline objected to the admission of the report because it was provided to him after the discovery deadline. The trial court overruled Cline's objection. During Leitner's testimony, Cline did not take Leitner on voir dire or do a Daubert challenge.
Courts have held "evidence willfully withheld from disclosure under a discovery order should be excluded from evidence." Francis v. State, 428 S.W.3d 850, 854-55 (Tex. Crim. App. 2014) (quoting Hollowell v. State, 571 S.W.3d 179, 180 (Tex. Crim. App. 1978)). "Extreme negligence or even recklessness on the prosecutor's part in failing to comply with a discovery order will not, standing alone, justify the sanction of excluding relevant evidence." Francis, 428 S.W.3d at 855 (citing State v. LaRue, 152 S.W.3d 95, 97 (Tex. Crim. App. 2004)).
A prosecutor has an affirmative duty to turn over material, favorable evidence to the defense. Brady v. Maryland, 373 U.S. 83 (1963); Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999). To determine whether a prosecutor's actions violate a defendant's due process rights, we employ a three-part test. We consider whether: (1) the prosecutor failed to disclose evidence; (2) the evidence is favorable to the accused; and (3) the evidence is material (i.e., whether a reasonable probability exists that the result of the proceeding would have been different if the evidence had been disclosed to the defense). Little, 991 S.W.2d at 866. When the disclosure of evidence occurs at trial, the issue becomes whether the tardy disclosure prejudiced the defendant. Id. If the defendant received it in time to use it effectively at trial, his conviction should not be reversed just because it was not disclosed as early as it should have been. Id.
When disclosure of previously withheld evidence occurs at trial, the defendant preserves error by requesting a continuance. Cohen v. State, 966 S.W.2d 756, 763 (Tex. App.-Beaumont 1998, pet. ref' d). "The failure to request one waives any Brady violation, as well as any violation of a discovery order." See Young v. State, 183 S.W.3d 699, 705-06 (Tex. App.-Tyler 2005, pet. ref' d) (citing Gutierrez v. State, 85 S.W.3d 446, 452 (Tex. App.-Austin 2002, pet. ref' d)); Williams v. State, 995 S.W.2d 754, 761-62 (Tex. App.-San Antonio 1999, no pet.). "It is only when a trial court denies a request for continuance based on a Brady violation that a defendant may follow with a request for a mistrial." Cohen, 966 S.W.2d at 764-65.
In the instant case, Cline failed to request a continuance at any time after the State disclosed the complained-of evidence. Therefore, assuming arguendo that the State had a duty to disclose the challenged evidence, Cline waived any violation of Brady or the trial court's discovery order. Cline's first issue is overruled. Opinion Testimony
In his second issue, Cline complains that the trial court reversibly erred when it allowed Detective Bartoskewitz to give an unqualified forensic medical opinion in violation of Texas Rule of Evidence 702. He specifically complains that Bartoskewitz was not qualified to testify that the pattern injury on the complainant was consistent with an injury that was caused by a piece of wood found outside of Misti's barn. According to Cline, "The implication of Detective Bartoskewitz's statement was that the Appellant used the wood found outside the barn to assault the Complainant." Cline argues he was harmed by the admission of this testimony because it "left the jury with a false impression that direct evidence tied Appellant to the alleged assault on the Complainant."
Bartoskewitz testified that during his thirteen years at the Montgomery County Sheriff's Office he has served in many different roles. In his current role as a homicide detective, he is responsible for the entire investigation outside of the initial response. In the homicide unit, Bartoskewitz investigates equivocal or unattended deaths, but also investigates any upper-level violent offense, including aggravated kidnapping, aggravated robberies, and aggravated assaults.
Bartoskewitz testified he was notified of the aggravated assault against Luke on the evening of May 13, 2020, sometime after Luke arrived at the emergency room. The following day, Bartoskewitz visited Luke in the hospital and observed "very significant injuries about his face and body, on one of his arms." He observed Luke in "a lot of visible pain" and "was surprised to see him alive, looking at the injuries he had. That's the worst I've ever seen somebody sustain an injury and still live." Bartoskewitz, who was trained in accident reconstruction, opined that the injuries Luke received were not from a vehicle crash.
As part of his investigation, Bartoskewitz visited the crime scene, where he observed some apparent blood and a furniture leg of some sort on the ground near the barn door. Inside the barn, Bartoskewitz observed three intact green chairs that were consistent in coloration with the fragment of furniture he found just outside the barn. He testified that the furniture pieces were important to his investigation because "[t]he coloration was nearly identical.. .in natural light and their natural condition they were - they matched in size, shape. They were consistent with that intact chair." It appeared that the pieces were "the lower cross strut of that chair."
Bartoskewitz then testified that Luke's injuries were "patterned" and "[o]n these injuries, you'll see raised edges which show a pattern, and it's a long object, a long, straight object." Cline objected, arguing that Bartoskewitz was not qualified to testify to give medical opinions about patterns of injuries.
Cline took Bartoskewitz on voir dire regarding his opinion about Luke's injuries. When asked where he learned the phrase "patterned injuries," Bartoskewitz testified he was an autopsy assistant at the Travis County Medical Examiner's Office for roughly nine months. During that internship, he was able to observe patterned injuries versus nonpatterned injuries. During his time as a detective, he attended several trainings discussing patterned and nonpatterned injuries as well as observing injuries to individuals on numerous occasions. Bartoskewitz explained that his statement regarding "patterned injuries" was based on his visual perception and was not meant as a definite conclusion that the injuries were caused by that object because any such conclusion would be supported by medical records. His opinion was that Luke's injuries were "consistent with injuries that could have been caused by a strike of part of that chair." Cline objected that Bartoskewitz's opinion was conclusory, unsupported by proper medical training, and would mislead the jury. The trial court overruled Cline's objections.
Bartoskewitz then explained to the jury that a pattern injury is "an injury that's caused by another object that has distinct shape to it." He opined that the injuries on Luke's back were patterned injuries. Bartoskewitz also testified that the shape of the injuries were "long, straight, with sharp - sharp edges." Bartoskewitz testified, "There are numerous surfaces on that chair that could have caused injuries consistent with what we see on his back."
Generally, trial courts are "in the best position to make the call on whether certain evidence should be admitted or excluded." Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Therefore, we review a trial court's evidentiary rulings under an abuse of discretion standard. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). Under this standard, we must uphold a trial court's decision to admit or exclude evidence if the ruling falls within the zone of reasonable disagreement. Id.
Texas Rule of Evidence 702 governs the admissibility of expert testimony and provides, "A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." Tex. R. Evid. 702. Rule 701 governs the admissibility of lay opinion testimony and provides, "If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness's perception; and (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue." Tex. R. Evid. 701. The Court of Criminal Appeals has explained:
A distinct line cannot be drawn between lay opinion and expert testimony because all perceptions are evaluated based on experiences. However, as a general rule, observations which do not require significant expertise to interpret and which are not based on a scientific theory can be admitted as lay opinions if the requirements of Rule 701 are met. This is true even when the witness has experience or training. Additionally, even events not normally encountered by most people in everyday life do not necessarily require the testimony of an expert. The personal experience and knowledge of a lay witness may establish that he or she is capable, without qualification as an expert, of expressing an opinion on a subject outside the realm of common knowledge.Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002). "An opinion is rationally based on perception if it is one that a reasonable person could draw under the circumstances." Wade v. State, 663 S.W.3d 175, 187-88 (Tex. Crim. App. 2022). "A host of courts of appeals have upheld trial court rulings allowing police officers to testify, based on their experience, regarding what had made physical marks on a body or what those marks indicated." Smith v. State, Nos. 02-21-00201-CR, 02-21-00202-CR, 2022 Tex.App. LEXIS 5314, at *9 (Tex. App.-Fort Worth July 28, 2022, no pet.) (mem. op., not designated for publication) (collecting cases).
Here, the evidence established Bartoskewitz personally observed Luke's injuries when he visited Luke in the hospital. Photographs of Luke's injuries were introduced without objection. Bartoskewitz also personally observed pieces of a broken chair when he visited the crime scene. Without objection, an intact chair and two pieces of a broken chair, all obtained from the scene, along with several photographs of broken chair pieces, were introduced. Bartoskewitz was a homicide detective with training in patterned and nonpatterned injuries, and he had experience observing patterned and nonpatterned injuries during his career. Bartoskewitz's history of dealing with violent crimes enabled him to opine the marks on Luke's body were consistent with the size and shape of the broken pieces of chair. See Tex. R. Evid. 701; Osbourn, 92 S.W.3d at 538.
Based on the record, the trial court may have reasonably concluded that Bartoskewitz's observations did not require significant expertise to interpret, that his opinions did not rely on any scientific theory, that he was capable, without qualification as an expert, to express an opinion on a subject outside the realm of common knowledge, and that his opinions were rationally based on his perceptions and would be helpful for a clear understanding of his testimony. See Osbourn, 92 S.W.3d at 537; Tex. R. Evid. 701. Therefore, Bartoskewitz's lay opinion testimony was admissible under Rule 701 without regard to his qualifications as an expert. The trial court ruled within the zone of reasonable disagreement and, therefore, did not abuse its discretion in allowing Bartoskewitz's testimony.
That said, later in the trial, the jury heard Luke testify, without objection, that Cline hit him on the head with some sort of wooden object just before Luke passed out. Chair pieces along with photographs of chair pieces and photographs of Luke's injuries were admitted without objection, and the jury could have compared the sizes and shapes of the chair pieces to Luke's injuries. Based on our review of the record, it would have been reasonable for the jury to find a connection between the chair and Luke's injuries based on evidence other than Bartoskewitz's opinions. Therefore, even if the trial court erred in admitting Bartoskewitz's opinions, any such error was harmless. See Thomas v. State, 505 S.W.3d 916, 927 (Tex. Crim. App. 2016) ("If, after a review of the record as a whole, the appellate court can say that it has fair assurance that the error did not influence the jury, or had but a slight effect, then the error is harmless.") (internal quotation marks omitted); see also Tex.R.App.P. 44.2(b). We overrule Cline's second issue.
Sufficiency of the Evidence
In his third issue, Cline complains there was insufficient evidence to sustain a conviction against Cline and the trial court reversibly erred in denying Cline's motions for directed verdict. Specifically, Cline argues the State did not prove Cline had the culpable mental state and that there was a "dearth of reliable evidence tying Cline to the assault."
At trial, the defense portrayed Luke as a less than credible witness, emphasizing his substance abuse, arguing that Luke gave multiple statements that contradicted each other, and implying he had a financial incentive to see Cline convicted because of a $15 million civil suit he filed against the alleged perpetrators of the assault. The defense also highlighted that there was no physical or DNA evidence tying Cline to the scene of the assault and that there was an absence of any connection between Cline and Luke. Additionally, the defense called Alan Fordyce, Cline's friend and business partner, who testified that Cline was likely with him that day in Conroe because the pair made almost $2,000 trading stocks on May 13, 2020.
The jury is the exclusive judge of the credibility of the evidence and the weight to be given to that evidence. Metcalf v. State, 597 S.W.3d 847, 855 (Tex. Crim. App. 2020). As such, the jury is responsible for resolving conflicts in the testimony, is free to believe some, all or none of a witness's testimony, and may assign as much or as little weight to a witness's testimony as it sees fit. Id. Jurors may also draw reasonable inferences from the evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) "[A]n inference is a conclusion reached by considering other facts and deducing a logical consequence from them." Id. at 16.
When examining whether a criminal conviction is supported by legally sufficient evidence, we compare the evidence to the elements of the offense as defined by a hypothetically correct charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). We consider all the evidence, viewed in the light most favorable to the verdict, along with the inferences that could reasonably be drawn from the evidence. Hooper, 214 S.W.3d at 13. We do not assess the credibility of the evidence, reweigh the evidence, nor substitute our judgment for that of the jury. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
The evidence is legally sufficient to support the conviction if any rational trier of fact could have found each of the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). "Each fact need not point directly and independently to a defendant's guilt, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016) (citation omitted); see also Garcia v. State, 667 S.W.3d 756, 761-62 (Tex. Crim. App. 2023) (citation omitted) ("A proper review of evidentiary sufficiency considers the cumulative force of the evidence."). We treat a point of error challenging the trial court's denial of a motion for directed verdict as a challenge to the sufficiency of the evidence. See Canales v. State, 98 S.W.3d 690, 693 (Tex. Crim. App. 2003); Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996).
The indictment alleges that Cline committed the offense of aggravated assault against Luke on or about May 13, 2020, by intentionally, knowingly, or recklessly causing serious bodily injury to Luke, by hitting Luke with the defendant's hand or an object. See Tex. Penal Code Ann. § 22.02(a). A person commits the offense of aggravated assault if he intentionally, knowingly, or recklessly causes serious bodily injury to another. Id. §§ 22.01(a), 22.02(a)(1). A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. Id. § 6.03(a). A person acts knowingly, or with knowledge, with respect to the nature of his conduct when he is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b). "Recklessness" is defined, in part, as conduct committed by a person who "is aware of but consciously disregards a substantial and unjustifiable risk" that his conduct will cause a prohibited result. Id. § 6.03(c).
First, we address Cline's argument that the State failed to prove he had the culpable mental state. At trial, Luke testified that just before he blacked out, he saw Cline raise a wooden object and hit him over the head. Luke also testified that when he came to, Cline threatened to murder him and his family if he told anyone about the attack. Viewing the evidence in the light most favorable to the jury's verdict, we conclude a rational jury could have found beyond a reasonable doubt that Cline was aware that his conduct was reasonably certain to cause serious bodily injury to Luke.
Next, we turn to Cline's argument about the identification of Cline as the actor who committed the assault. The identity of the person committing the offense is an element of the crime that must be proved. See Miller v. State, 667 S.W.2d 773, 775 (Tex. Crim. App. 1984) (holding State has burden of proving defendant committed charged offense). Identity may be proven by direct or circumstantial evidence. Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009); Greene v. State, 124 S.W.3d 789, 792 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd).
Luke identified Cline as one of his attackers in a photo array. While Luke did not recognize the "large man" that was with Eric and Mario at the time of the assault, he testified at trial that he now knows that man to be Cline. Luke specifically testified Cline hit him over the head with some kind of wooden object just before he lost consciousness. Misti's text messages refer to a "team of three" who were going to take care of her problem. Several of her texts messages reference "Greg" as being a member of this team. Social media helped to identity Cline as Eric's Navy SEAL friend. Lee Ann Pool testified that Cline was at the Corner Pub with Eric shortly before the assault, that he left with Eric, and that he returned to the pub about an hour later with Eric and Mario. Leitner explained that through cell phone mapping he was able to determine that Eric's and Mario's cell phones were near the crime scene during the time of the assault and returned to the area of the Corner Pub about an hour after Cline and Eric left. Although there was no evidence indicating where Cline's cell phone was when the assault occurred, there was evidence from which a rational jury could conclude beyond a reasonable doubt that Cline was present and participated in the assault.
We conclude the evidence was sufficient to allow a reasonable jury to convict Cline of aggravated assault. Accordingly, we overrule Cline's third issue.
Conclusion
The judgment of the trial court is affirmed.
AFFIRMED.