No. 05-10-00196-CR
Opinion Filed January 26, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Court at Law No. 2 Collin County, Texas, Trial Court Cause No. 002-85703-9.
Before Justices RICHTER, LANG, and MYERS.
Opinion By Justice RICHTER.
A jury convicted appellant of assault and the court assessed punishment at 365 days confinement in the county jail, probated for twelve months, with no finding of family violence. In two issues on appeal, appellant argues the evidence was legally and factually insufficient to support his conviction. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
Background
The Plano police responded to a 911 call placed by Angel Lupe, who reported that her husband hit her in the face several times. When the police arrived, Lupe was crying hysterically, had blood on her face and clothing, and looked as though she had been assaulted. The officers observed that Lupe had a black eye, a cut over her eye, a swollen and bleeding lip, a swollen nose, and scratches on her face. Officer John Gardner, one of the responding officers, opined that Lupe had been struck several times. Photographs of these injuries were admitted into evidence. Officer Christer Mathews, the other officer responding to the 911 call, asked appellant what had happened, but appellant refused to speak. Instead, appellant stood and placed his hands behind his back in anticipation of being handcuffed. Officer Mathews observed that appellant had an abrasion on his right knuckle, and during trial, identified a photograph depicting the abrasion. Officer Mathews testified that the abrasion looked like a boxer's cut, which occurs when someone's fist strikes another's face. Lupe testified that she and appellant argued on the night in question, but insisted appellant never struck her with his hand. According to Lupe, appellant was attempting to leave the house and his elbow accidentally struck her above the eye when she grabbed him. Lupe claimed that her black eye and swollen bloody lip were caused by her anemia. Lupe further claimed that the mark on appellant's hand was caused by surgery to remove a cyst. The 911 recording was admitted into evidence as a prior inconsistent statement for the purpose of impeaching Lupe's testimony. After the recording was admitted, Lupe testified that the statement she made to the 911 operator about her husband hitting her was false and made for the purpose of revenge. Appellant's testimony was consistent with Lupe's. Appellant stated that he and Lupe were arguing and his elbow accidentally struck her eye as he attempted to get away from her. Appellant denied striking Lupe with his hand or fist. Discussion
In his first issue, appellant challenges the legal sufficiency of the evidence that he struck Lupe in the face with his hand. The State responds that it was not required to prove the specific manner and means of the assault. In his second issue, appellant maintains the evidence is factually insufficient to establish that he acted with the requisite level of intent. The State responds that a jury could reasonably have inferred that appellant's conduct was intentional, knowing, or reckless. As to both issues, we agree with the State. The Texas Court of Criminal Appeals has overruled Clewis v. State, holding that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.). This standard requires the reviewing court to determine whether, considering all of the evidence in the light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt. Id. at 899 (citing Jackson v. Virginia, 443 U.S. at 319). We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Id. Therefore, we will conduct a single review of appellant's sufficiency complaints under the Jackson standard. During our review we remain mindful that jurors may draw reasonable inferences from basic to ultimate facts and that any inconsistencies are resolved in favor of the verdict. Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). The sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. See Hardy v. State, 281 S.W.3d 414, 421 (Tex. Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily restrict the State's theories of liability, and adequately describes the offense for which the defendant was tried. Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001). The law as authorized by the indictment means the statutory elements of the charged offense as modified by the factual details and legal theories contained in the charging instrument. See Curry v. State, 30 S.W.3d 394, 404-05 (Tex. Crim. App. 2000). As applicable to the offense of assault causing bodily injury to a spouse, the hypothetically correct jury charge would ask whether appellant intentionally, knowingly, or recklessly caused bodily injury to his spouse. See Tex. Penal Code Ann. § 22.01(a)(1) (West Supp. 2009). "Bodily injury" means physical pain, illness, or any impairment of physical condition. Tex. Penal Code Ann. § 1.07(8) (West Supp. 2009). The manner and means of the bodily injury alleged is not an essential element of the offense and therefore is not included in the hypothetically correct jury charge. See Thomas v. State, 303 S.W.3d 331, 333 (Tex. App.-El Paso 2009, no pet.); Phelps v. State, 999 S.W.2d 512, 515 (Tex. App.-Eastland 1999, pet. ref'd). Therefore, with regard to the injury element of the offense, the State was only required to prove that appellant caused Lupe to suffer bodily injury; whether he did so with his hand or fist was immaterial. Appellant contends that his testimony and Lupe's testimony is the only evidence of what transpired, and therefore any other explanation is speculative. We disagree. Both Lupe and appellant testified that there was an argument between them and a physical altercation. Both police officers testified that Lupe had numerous injuries to her face, photographs of which were admitted into evidence. Photographic evidence of appellant's injury, which was consistent with a physical altercation, was also admitted into evidence. Viewing this evidence in a light most favorable to the verdict, a rational fact-finder could infer that appellant inflicted bodily injury. Although not essential to proof of the State's case, the evidence also supports the conclusion that such injury resulted from appellant striking Lupe with his fist or his hand. Likewise, this evidence is sufficient to support an inference concerning appellant's mental state. A jury may infer intent from any facts that tend to prove its existence, such as the acts, words, or conduct of the defendant. See Guervara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). In addition to the evidence of Lupe and appellant's physical injuries, the evidence showed that when the officers asked appellant what had occurred, he refused to say anything. Instead, he stood up, turned around, and placed his arms behind his back to facilitate being handcuffed. Thus, on this record, the jury was rationally justified in finding that appellant acted intentionally, knowingly, or recklessly when he caused Lupe to suffer bodily injury. Both of appellant's issues are overruled. The judgment of the trial court is affirmed.