No. 05-09-00901-CR
Opinion Filed June 2, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F08-60452-KI.
Before Justices RICHTER, LANG-MIERS, and MYERS.
Opinion By Justice RICHTER.
A jury convicted Calvin Lee Dixon of aggravated assault with a deadly weapon, a metal bar. The trial court assessed punishment at four years' imprisonment, and made an affirmative finding of family violence. In two issues, appellant contends the evidence is legally and factually insufficient to support his conviction and the affirmative finding of family violence. We affirm.
Background
On September 8, 2008, appellant assaulted Jean Wilson, the complainant, by hitting her in the back of the head with a metal bar. Wilson sustained several injuries, including a skull fracture, intra-cranial hemorrhage, and bleeding and loss of hearing in the right ear. On the date of the assault, both appellant and Wilson were homeless and living together in "the shed," the office of an abandoned car wash. Wilson testified the shed was a six-foot-by-six-foot room with "metal bars" that were in front of the entry door. Appellant had put a lock on the metal bars for "security" so other homeless people could not go "in and out." On the day of the assault, Wilson and appellant argued because Wilson would not share her drugs with appellant. Wilson had brought a man to the shed with her to engage in sex and to "smoke" drugs. After the man left, appellant cursed Wilson and called her names. Wilson cursed appellant. They argued for several minutes, then Wilson "walked off." She went out into the parking lot, picked up a beer bottle, and threw it at appellant. The bottle smashed against the metal bars, but it did not hit appellant. As Wilson walked away, something hit her "across the head." Wilson was in the hospital for one week. Wilson testified she was living in a vacant house when she first met appellant sometime in 2008. She invited appellant to stay there to "get out of the cold." Wilson had the owner's permission to be in the house. When the owners said they were going to rent the house, Wilson had to move out. She and appellant began living in the shed. They had lived there for about two weeks prior to the date of the assault. Wilson testified she did not have a sexual relationship with appellant, he was not her boyfriend, and they were "roommates" when they lived together in the vacant house and in the shed. Wilson allowed two other people to live in the vacant house with her and appellant, but no one else lived in the shed except for her and appellant. Wilson testified she was a drug user, and that she had several misdemeanor convictions for prostitution. At 11:30 p.m. on September 8, 2008, Dallas police officer Kenneth Gardner responded to a call involving a man dragging a woman into a shed at an abandoned car wash. Gardner testified that when he arrived at the scene, the front door to the shed was "ajar" as he approached, then someone slammed the door shut. Gardner ordered the person to open the door and come outside. After about one minute, appellant opened the door and came out. Wilson stood behind appellant holding her head. She was bleeding from her right ear. Gardner got appellant on the ground, handcuffed him, them summoned paramedics. At the scene, appellant said he had an argument with his girlfriend and "hit her upside the head" because she threw a bottle at him. Appellant said he was defending himself. When Gardner asked appellant what he used to hit Wilson with, appellant "nodded his head" toward a metal bar that lay on the ground a few feet from him and said, "[T]hat bar on the ground." Gardner retrieved the metal bar. After paramedics arrived and began treating her at the scene, Wilson started to "regain herself." Wilson referred to appellant as her boyfriend, and she identified the metal bar retrieved by Gardner as the one appellant used to hit her. Gardner testified that during his investigation, he learned appellant and Wilson were living together in the shed. The metal bar taken from the scene was admitted into evidence. Appellant admitted he hit Wilson in the back of the head with a metal bar, but he maintained he did so in self-defense. Appellant denied he had a dating relationship with Wilson or was a member of her family or household. According to appellant, the shed was being used by "people in the neighborhood" and not just him and Wilson. Appellant testified that on the date of the assault, Wilson had "come and gone" several times during the day. Each time she left and came back, appellant had to "get up and unlock the cage," which were the metal bars covering the actual door. Appellant had put a lock on the cage to keep people from going in and out. Appellant testified he opened the door each time for Wilson because "she lived there as well, as she said." Sometime during that day, Wilson came back to the shed with a man. She smoked crack with the man and had sex with the man in front of appellant, who remained inside. Wilson left the shed and came back a few times while the man remained there. At one point, Wilson left the shed and did not return right away. The man she had brought to the shed waited for her, but he eventually left when Wilson did not come back. Shortly before the assault, Wilson returned to the shed and knocked on the cage to be let inside. Appellant got up and opened the door. Wilson "just stood there" near the cage with a beer bottle in her hand. Wilson threw the bottle at appellant, then ran away. The bottle shattered against the cage, almost hitting appellant. Appellant checked himself for bleeding; he saw cuts on his arms and hands. After a few minutes, appellant walked outside the shed, picked up a metal bar, and hit Wilson "in the back of the head." Appellant said Wilson was laying down on the ground when he hit her. According to appellant, the metal bar admitted into evidence was not the one he used when he hit Wilson. Appellant testified the bar he used was about the size of his "pinkie finger" and it was not heavy. Appellant testified that after he hit Wilson with the metal bar, he tried to help her get up. Wilson began kicking at him. Appellant pulled Wilson toward the shed by her feet. When he got close to the broken glass near the cage, he "lifted her and set her inside the shed." A police officer came and eventually arrested him. When asked what he had used to hit Wilson, appellant told the officer he used a metal bar that was inside the shed in a corner. During cross-examination, appellant testified he hit Wilson in self-defense, stating, "[I] feared for my life." Appellant told the jury he hit Wilson in the "back of the head" because she tried to murder him when she threw the bottle at him. According to appellant, he told the officers that he was bleeding, but they told appellant he was not bleeding. Appellant said when Wilson had come back to the shed right before the assault, she kicked the cage door and threw a beer bottle at him. Because appellant was in a "squatted down" position, the cage door hit his arm and the shattered bottle cut his arms and hands. Appellant admitted that Wilson ran off after throwing the bottle. 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). In a factual sufficiency review, we consider all of the evidence in a neutral light and determine whether (1) the evidence supporting the conviction is too weak to support the fact-finder's verdict or, (2) considering conflicting evidence, the fact-finder's verdict is against the great weight and preponderance of the evidence. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). We may only find the evidence factually insufficient when necessary to prevent manifest injustice. Id. 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 State was required to prove beyond a reasonable doubt that appellant intentionally, knowingly, or recklessly (1) caused bodily injury to Jean Wilson, (2) used a deadly weapon, a metal bar, during the commission of the assault, and (3) had a dating relationship with Wilson or was a member of Wilson's family or household. See Tex. Penal Code Ann. §§ 22.01(a)(1), 22.02(a)(2) (Vernon Supp. 2009). Discussion
In two issues, appellant contends the evidence is legally and factually insufficient to support the jury's verdict and their finding that the offense involved family violence. Appellant asserts there was no dating relationship between him and Wilson, he was neither Wilson's boyfriend nor a member of her household, and there is no evidence he and Wilson lived together as a unit, as defined in section 71.005 of the Texas Family Code. Appellant argues that because he and Wilson were homeless and only occasionally used an abandoned shed to get out of the weather, as did other homeless individuals in the area, there is no evidence the offense involved family violence. The State responds that the evidence is both legally and factually sufficient to support the jury's finding that appellant and Wilson were members of a household. The trial court was authorized to make an affirmative finding of family violence, and enter such finding in the judgment of the case, if it determined the offense involved family violence as defined by section 71.004 of the Texas Family Code. See Tex. Code Crim. Proc. Ann. art. 42.013 (Vernon 2006). "Family violence" is defined as an "act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault. . . ." See Tex. Fam. Code Ann. § 71.004(1) (Vernon 2008). "Household" means a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other. Id. § 71.005. The jury heard Wilson's testimony that she and appellant lived together in the shed at the time of the assault. Wilson said only she and appellant stayed in the shed, and appellant had put a lock on the cage door to keep others out. Wilson told the jury the bottle she threw at appellant hit the cage door and not appellant, and that she had walked away after throwing the bottle. The jury also heard appellant's testimony admitting that both he and Wilson lived in the shed, but that the shed was also used by "people in the neighborhood." Appellant admitted he had put a lock on the cage door to keep others from going "in and out." Appellant also told the jury that he hit Wilson in the head with a metal bar in self-defense because she was trying to "murder him" when she threw the bottle. The jury was free to accept or reject any and all of the evidence presented by either side. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). From the evidence presented, the jury could rationally conclude that appellant and Wilson were living together in the shed at the time of the offense and, thus, were members of a household. The jury could also rationally conclude that appellant did not act in self-defense when he hit Wilson in the back of the head with a metal bar as she was laying on the ground. Viewed under the proper standards, we conclude the evidence is legally and factually sufficient to support appellant's conviction and the affirmative finding of family violence. See Laster, 275 S.W.3d at 518; Vodochodsky, 158 S.W.3d at 509. We resolve appellant's two issues against him. We affirm the trial court's judgment.