Opinion
No. 05-05-00225-CR
Opinion Filed October 31, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 422nd Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 22591-422. Affirm.
Before Justices WRIGHT, RICHTER, and FRANCIS.
OPINION
Jon Nolan Davis appeals his conviction for burglary of a habitation. After the jury found appellant guilty, it assessed punishment at twenty-eight years' confinement. In two points of error, appellant contends (1) the evidence is legally and factually insufficient to support his conviction; and (2) the trial court erred by denying his request for a jury instruction on the lesser-included offense of criminal trespass. We overrule appellant's points of error and affirm the trial court's judgment. In his first point of error, appellant contends the evidence is legally and factually insufficient to support his conviction. When reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). When reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether 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); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Under either review, the jury is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). Here, the State was required to show appellant intentionally or knowingly entered Cynthia Nefstad's habitation without her consent, and that he attempted to or committed an assault against Nefstad. See Tex. Pen. Code Ann. § 30.02(a)(1) (Vernon 2003). A person commits assault if the person intentionally, knowingly, or recklessly causes bodily injury to another. See Tex. Pen. Code Ann. § 22.01 (Vernon Supp. 2004-05). Appellant claims that because the State failed to show bodily injury to Nefstad, the evidence is legally and factually insufficient to support his conviction. We disagree. "Bodily injury" means physical pain, illness, or any impairment of physical condition. Tex. Pen. Code Ann. § 1.07(8) (Vernon Supp. 2004-05). The definition of bodily injury is purposefully broad and will encompass any minor physical contact that constitutes more than an offensive touching. Lane v. State, 763 S.W.2d 785, 786 (Tex.Crim.App. 1989). The jury may infer that a victim actually felt or suffered physical pain because people of common intelligence understand pain and some of the natural causes of it. Randolph v. State, 152 S.W.2d 764, 774 (Tex.App.-Dallas 2004, no pet.). Here, Nefstad testified that appellant came into her home without her permission. She was on the telephone attempting to call 911. He grabbed the telephone from her hand, "ripped the phone cord in half and proceeded to get in my face and scream and yell." Nefstad told him repeatedly to leave. When she tried to push him out of the door, he hit her in the face with his fist, knocking her backwards three or four feet and into a table. As she struggled with appellant, Nefstad's son-in-law came into the room with a rifle and told appellant the police had been called and he needed to leave. As appellant and his friends left, they told her "they were gonna burn [Nefstad's] house to the ground with [her and her] children in it." Thomas Glass, Nefstad's son-in-law, testified that appellant and two men came onto Nefstad's property. Appellant came into the house and was struggling with Nefstad. When Glass saw appellant push Nefstad down and one of the other men come onto the porch with a crowbar, he picked up Nefstad's rifle and told the men the police were on the way. Danielle Nefstad, Glass's wife and Nefstad's daughter, testified to substantially the same story. She saw Nefstad fall backward into the table. According to Danielle, her mother could not have just fallen or tripped into the table because of the force with which she went backwards. Viewed under the appropriate standards, this evidence is legally and factually sufficient to show appellant intentionally or knowingly entered Cythnia Nefstad's habitation without her consent, and committed an assault against Nefstad. Although appellant contends there is "no evidence" of bodily injury because the State did not present evidence that Nefstad "sought medical assistance, suffered pain, had bruises or marks on her face, or any other type of physical impairment," we cannot agree. The jury was free to infer Nefstad suffered pain when appellant hit her in the face with his fist, knocking her backward onto a nearby table. Moreover, Nefstad explained that although her "back was hurt" she did not seek medical attention because she did not have insurance and she did not feel medical attention was necessary. We overrule appellant's first point of error. In his second point of error, appellant contends the trial court erred by failing to instruct the jury on the lesser-included offense of criminal trespass. To determine if a defendant is entitled to a lesser-included offense instruction, we consider whether: (1) the lesser-included offense is included within the proof necessary to establish the offense charged, and (2) some evidence exists in the record that would permit the jury to rationally find that if the defendant is guilty, he is guilty only of the lesser-included offense. See Lofton v. State, 45 S.W.3d 649, 651 (Tex.Crim.App. 2001); Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994). Here, we focus on the second element because criminal trespass may be a lesser-included offense of burglary. See Daniels v. State, 633 S.W.2d 899, 900 (Tex.Crim.App. 1982); Day v. State, 532 S.W.2d 302, 306 (Tex.Crim.App. 1975). For an instruction on a lesser-included offense to be warranted, the record must contain some evidence directly germane to the lesser-included offense. Bignall, 887 S.W.2d at 21. It is not sufficient that the jury may disbelieve crucial evidence pertaining to the greater offense. Bignall, 887 S.W.2d at 24; see Banda v. State, 890 S.W.2d 42, 60 (Tex.Crim.App. 1994) (credibility of evidence and whether it conflicts with other evidence or is controverted may not be considered in determining whether instruction on lesser-included offense should be given). Appellant maintains that the trial court was required to give the requested instruction because there was conflicting testimony about whether an assault occurred. Appellant did not present any evidence at trial and does not point to any evidence on appeal that directly shows he did not assault Nefstad. Rather, appellant argues only that because the police officer did not recall Nefstad having any injuries, and his companion standing outside on the front porch did not see appellant hit her, the jury could have disbelieved Nefstad's testimony that appellant hit her in the face with his fist. Because no evidence was presented directly germane to the possibility that appellant, if guilty at all, was guilty only of criminal trespass, we conclude the trial court did not err by failing to give the lesser-included offense instruction. We overrule appellant's second point of error. Accordingly, we affirm the trial court's judgment.