No. 01-05-00506-CR
Opinion issued June 1, 2006. DO NOT PUBLISH. Tex.R.App. 47.2(b).
On Appeal from the 180th District Court, Harris County, Texas, Trial Court Cause No. 1024256.
Panel consists of Justices KEYES, ALCALA, and BLAND.
EVELYN V. KEYES, Justice.
A jury convicted appellant, John Christopher Hall, of aggravated assault. See Tex. Pen. Code Ann. § 22.02 (Vernon 2005). After appellant pleaded true to one enhancement paragraph, the jury assessed his punishment at 22 years' confinement. In one point of error, appellant contends that the evidence was factually insufficient to sustain his conviction. We affirm.
BACKGROUND
The complainant, Jarrett Gutter, and Hall shared an apartment together until Gutter was evicted in September 2003. Gutter borrowed Hall's car to move his belongings from the apartment on September 21, 2003. Upon returning Hall's vehicle, Gutter was shot in the arm by Hall. Soon after, Hall's brother appeared and began shooting Gutter with a different gun. In the meantime, Hall got into his car and drove to where Gutter lay wounded. Hall reached out the vehicle's open window and shot Gutter again. Gutter suffered seven bullet wounds from the gunfire. Hall was convicted of aggravated assault, and this appeal followed. DISCUSSION Factual Sufficiency of the Evidence In his sole point of error, Hall argues that the evidence against him was factually insufficient to sustain the jury's verdict. Hall asserts that the State's case relied almost entirely upon the testimony of Gutter, whose credibility was undermined by Gutter's extensive criminal history. Further, Hall alleges that Gutter's history of drug use fatally compromised his ability to recall accurately the events in question. We begin a factual sufficiency review with the presumption that the evidence supporting the jury's verdict is legally sufficient. Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). We view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 483 (Tex.Crim.App. 2004)). Our evaluation may not intrude upon the fact finder's role as the sole judge of the weight and credibility to be accorded any witness's testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). What weight to give contradictory testimonial evidence is within the sole province of the fact finder because it turns on an evaluation of credibility and demeanor; the fact finder may choose to believe all, some, or none of the testimony presented. Id. at 407-09. We must defer appropriately to the fact finder to avoid substituting our judgment for its judgment. Zuniga, 144 S.W.3d at 481-82. Here, Hall contends that the State's case was factually insufficient because it relied almost entirely on Gutter's allegedly unreliable testimony. The State, however, provided substantial evidence in addition to Gutter's testimony. This additional evidence included: (1) testimony by Thelma Guevara, an eyewitness to the shooting, who positively identified Hall in a photo line up and (2) testimony by two officers from the Houston Police Department that corroborated Gutter's testimony. In light of this, we cannot say that the evidence supporting Hall's conviction depended solely on Gutter's testimony. Hall further argues that it is not factually sufficient to rely on Gutter's testimony to support Hall's conviction due to Gutter's past criminal history and drug use. According to Hall, reliance on Gutter's testimony was clearly wrong and manifestly unjust. We disagree. First, as noted, the jury had additional evidence before it when considering Hall's culpability. Therefore, it is erroneous to state that Hall's conviction was sustained solely by Gutter's testimony. Second, the jury, as the trier of fact, is the sole judge of the credibility of witnesses. Zuniga, 144 S.W.3d at 481. Here, the jury judged Gutter to be a credible witness despite his prior criminal history and drug use. We are in no position to second guess the jury's assessment of the respective witnesses' credibility. See id. Hall cites Ward v. State, 48 S.W.3d 383 (Tex.App.-Waco 2001, pet. ref'd) and Drost v. State, 47 S.W.3d 41 (Tex.App.-El Paso 2001, pet. ref'd) in support of his argument. The facts in both Ward and Drost, however, are clearly distinguishable from the facts presented here. In Ward, the court reversed an aggravated robbery conviction when both an eyewitness and four alibi witnesses testified that the accused was not the perpetrator. Ward, 48 S.W.3d at 389-91. Here, Hall did not put on any similar controverting evidence. In Drost, the court reversed a conviction for theft of over $500 but not more than $1,500, because witness testimony contradicted the value element of the crime. Drost, 47 S.W.3d at 46. In the present case, no evidence was presented to contradict any element of the aggravated assault. Accordingly, we conclude that the evidence was factually sufficient to support the jury's verdict and we overrule Hall's sole point of error. CONCLUSION
We affirm the judgment of the trial court. See Tex. R. App. 47.2(b).