Opinion
No. 05-11-01157-CR
07-19-2012
ALEJANDRO MIGUEL GALBAN, Appellant v. THE STATE OF TEXAS, Appelle
AFFIRM; Opinion issued July 19, 2012
On Appeal from the County Court at Law No. 1
Grayson County, Texas
Trial Court Cause No. 2010-1-0506
MEMORANDUM OPINION
Before Justices FitzGerald, Murphy, and Fillmore
Opinion By Justice FitzGerald
A jury found appellant Alejandro Miguel Galban guilty of one count of deadly conduct and assessed his punishment at 365 days' confinement in the Grayson County Jail and a fine of $4,000. Both the confinement and fine were suspended-as the jury recommended-and appellant was placed on community supervision. In a single appellate issue, appellant contends the evidence was insufficient to support the jury's verdict. The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled. See Tex. R. App. P. 47.4. We affirm the trial court's judgment. Appellant and the complainant lived together in November 2009. The complainant was four months pregnant with appellant's child at that time. On November 10, appellant and the complainant argued at their home concerning the complainant's addiction to prescription medications. At the time of the argument, both parties' children were present, as was Yolanda Duran (a friend of the complainant's), and Cole Busby (Duran's twelve-year-old son). After the argument, appellant left the home in his truck with his daughters. The complainant called 911; she told the dispatcher that appellant "came after" her with a hammer while her son was in her arms. When a police officer arrived at her home to follow up on the 911 call, the complainant told him appellant was approximately two or three feet from her when he swung the hammer and put a hole in a nearby table. Appellant was arrested and charged with deadly conduct, specifically with recklessly engaging in conduct that placed the complainant in imminent danger of serious bodily injury by approaching her with a hammer as if to strike her. At trial, the complainant recanted her earlier charges concerning appellant's conduct. Nevertheless, the jury found him guilty of this offense. The jury assessed his punishment at 365 days in county jail and a fine of $4,000, with a recommendation that both the term of confinement and the fine be suspended while appellant was placed on community supervision. The trial court signed its judgment in accordance with the jury's recommendation.
Appellant had possession of his two young daughters, and the complainant had a young son.
Appellant was also charged with a second offense of deadly conduct, specifically with placing the complainant in imminent danger of serious bodily injury by driving a vehicle towards her as if to strike her. The jury found appellant not guilty on this charge, and it is not before us.
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In this Court, appellant challenges the sufficiency of the evidence supporting his conviction. We review such a challenge by considering the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offenses beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). We defer to the jury, as trier of fact, to resolve any conflicts in testimony and to weigh the evidence and draw reasonable inferences from it. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). The jury, as sole judge of a witness's credibility, may choose to believe some testimony and disbelieve other testimony. Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). And the jury is entitled not only to reconcile conflicts in a witness's testimony, but also to disbelieve any recantation she makes. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
Appellant's argument focuses on the trial testimony of the complainant and appellant, both of whom testified that appellant merely swung the hammer in frustration at the table, while the complainant was somewhere between ten and twenty-five feet away from him. Both testified there was no intent to harm her in the forceful display. Appellant stresses the complainant's testimony acknowledging that she lied to the police and her delay in calling the police after appellant left the house the day of the argument. But the jury also heard the complainant's 911 call and testimony from Duran, Busby, and the police officer who took her statement following the 911 call. All of that evidence was consistent with the complainant's original charge that appellant came after her with the hammer and that she was afraid he would hurt her. It was the jury's function to resolve any conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); see also Isassi, 330 S.W.3d at 638. Moreover, the jury was free to disbelieve the complainant's recantation. See Chambers, 805 S.W.2d at 461. We may not substitute our own determination for that of the jury. Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex. Crim. App. 2002). We conclude the jury could have disbelieved the complainant's testimony that appellant did not approach her with the hammer as if to strike her; we further conclude a rational jury could have found that appellant did exactly that. The evidence is sufficient to support the jury's verdict.
We overrule appellant's single issue. We affirm the trial court's judgment.
KERRY P. FITZGERALD
JUSTICE
Do Not Publish
Tex. R. App. P. 47
111157F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ALEJANDRO MIGUEL GALBAN, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-01157-CR
Appeal from the County Court at Law No. 1 of Grayson County, Texas. (Tr.Ct.No. 2010-1- 0506).
Opinion delivered by Justice FitzGerald, Justices Murphy and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 19, 2012.
KERRY P. FITZGERALD
JUSTICE