Nos. 05-03-00684-CR, 05-03-00685-CR
Opinion issued May 19, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 401st Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 401-80871-02; 401-80872-02. Affirmed.
Before Justices MORRIS, WHITTINGTON, and JAMES.
Opinion By Justice JAMES.
Pedro Hernandez Hernandez appeals two convictions for aggravated assault with a deadly weapon. In a trial before a jury, appellant pleaded not guilty. The jury found appellant guilty in cause number 401-80871-02, for which the jury assessed punishment at confinement for seven years, and in cause number 404-80872-02, for which the jury assessed punishment at confinement for fifteen years. Appellant argues the evidence was legally and factually insufficient in each case to support his convictions. We affirm the trial court's judgments.
Background
The State's Evidence On the evening of March 2, 2002, Jose and Guillermo Izaguirre were at their apartment with several friends including Juan Mata, and Raul ("Ronnie") Flores. Guillermo had been talking on the phone with his mother and his girlfriend in Mexico, but he had ended his conversations in order to recharge the battery of his phone. While the phone was charging, appellant called Guillermo's phone and asked for a friend; Guillermo told appellant that person was not at the house and that he needed to hang up to recharge his telephone battery. Appellant started "teasing" Guillermo in a rude way; Guillermo said it sounded like appellant had been drinking. Appellant and Guillermo ended the conversation, and several hours later, around 12:30 a.m., appellant called Guillermo's phone again; appellant asked for the same friend. Guillermo identified himself using a nickname, and appellant began to insult Guillermo and curse Guillermo's mother. According to Guillermo, appellant said he was "going to come after [him] right now." An hour or two later, there was a knock on the door, and one of Guillermo's friends answered the door, letting appellant into the apartment. When Guillermo saw it was appellant, Guillermo asked appellant why he had cursed Guillermo's mother. According to the State's witnesses, appellant never sat down in the apartment; instead, he approached Guillermo as if "ready to fight." The two began fighting, and Guillermo knocked appellant down. Either Jose (Guillermo's brother) or Juan Mata tried to pull Guillermo away from appellant. No one saw appellant being kicked in the head. Guillermo got away from his brother, and grabbed appellant, pushing him out of the door. Jose tried to close the door, but appellant placed his foot in the doorway, preventing it from closing. Guillermo saw appellant reach his arm through the opening in the door and motion with his arm. Juan Mata saw someone's hand reach through the opening; the hand was holding a knife and made stabbing motions. Juan Mata did not know whose hand it was that he had seen. Jose, however, saw that it was appellant who was holding a knife and reaching through the opening in the door. Jose grabbed a baseball bat and hit appellant on the leg, and Guillermo's friends were able to close the door. Once the door was closed, the occupants of the apartment heard loud "blows" on the door and several loud voices outside. According to Juan Mata, the men outside were throwing bottles at the apartment and were yelling they were going to kill the men inside the apartment. The apartment occupants heard appellant shouting for the occupants to open the door and to come outside. Someone also tried to break the window from outside of the apartment. Guillermo went to look for a baseball bat but was unable to find one. The persons outside continued to yell, and Jose, who had been drinking heavily, went outside. He was carrying the baseball bat he had used to hit appellant's leg in the doorway. Guillermo, worried about his brother, picked up two beer bottles and followed Jose outside. Once outside, Jose and Guillermo saw three men-appellant and two others. Jose held the bat with both hands, holding it horizontally in front of him. Appellant was motioning at Jose with a knife, and the other two men began approaching Jose. One of those men carried a knife also. Jose swung the bat at the men, and Guillermo came outside, telling the men to leave. Guillermo threw the beer bottles at appellant and the other two men. Appellant approached Guillermo, and the two began to fight. Appellant was swinging his arms toward Guillermo in a stabbing motion, and the two continued fighting until they fell to the ground. At that time, Guillermo saw that appellant was holding a knife. Appellant again made a stabbing motion toward Guillermo, cutting him. Meanwhile, Jose ran after the second man who had a knife, and that man ran around the building. Jose returned to where Guillermo and appellant were fighting and saw appellant on top of Guillermo, cutting Guillermo with the knife. Jose hit appellant on the head with the bat, and one of the other two men approached Jose from behind and stabbed Jose. He cut Jose at least three times-from behind, on the arm, and in his chest near his heart. Jose saw appellant approach him, and appellant grabbed Jose by his hair and cursed at him. The third man took away the bat Jose had been holding. While Jose was fighting, Guillermo ran inside the apartment, looking for something to use in the fight. He found nothing, ran back outside, and found Jose lying on the ground, bleeding. By this time, appellant and the two men with him had fled. Guillermo went to a neighbor's house, asking them to call 911. Jose went into the apartment bathroom, saw his wounds, and "fainted." Ronnie tried to help clean Jose's wounds. The police and paramedics arrived, and Jose and Guillermo were transported to the hospital. Jose was taken to Plano Medical Center. Dr. Robert Genzel, the emergency physician at Plano Medical Center, stated that Jose's chest stab wound created a substantial risk of death for Jose, and he determined that Jose's stab wound was the highest priority at the hospital at that time. Jose was operated on at Plano Medical Center, and he remained in the hospital for more than a week. Once he was out of the hospital, Jose was unable to work at his roofing job for three months. Guillermo was also taken to the Plano Medical Center. According to Dr. Genzel, Guillermo's injuries also had created a substantial risk of death. However, because there was only one operating room there, Guillermo was flown by helicopter to Parkland Hospital in Dallas where Guillermo required surgery to repair internal tears. When Guillermo awoke in the hospital, he discovered he had been stabbed in the stomach and the neck while he had been fighting with appellant. After he was released from the hospital, Guillermo was unable to work for three months. Plano police officer Antonio Arrendondo testified that he and his partner were dispatched to the apartment complex where the fighting had taken place. While on their way to the complex, they saw two men who were running. The officers asked the men to stop and asked them what had happened; the men said they had been involved in an altercation at the apartment complex. Officer Arrendondo's partner proceeded to the apartment, and Officer Arrendondo stayed with appellant and the other man. Officer Arrendondo noticed that the men had blood on their clothing and hands and that appellant had a contusion on his head and face. Officer Arrendondo conducted a pat-down search of appellant and found a pocket knife that was stained. Appellant was taken to a hospital for medical attention where he stayed for a few hours before being transported to jail. Appellant's Testimony Appellant testified and provided a different account of the events of that night than what Jose, Guillermo, and Juan Mata had provided. According to appellant, he had not been drinking that night, and when he first called the apartment, Guillermo told him that if he wanted "some brews," that they had some at the apartment. Appellant denied having insulted Guillermo's mother or cursing at Guillermo. Around 2:30 a.m., he and another man, Leonel Mendez, walked over to Jose and Guillermo's apartment. Appellant knocked on the door, Ronnie opened it, and appellant went inside. Leonel waited outside. Once appellant went inside, he greeted the people there, and either Jose or Guillermo told him he was "worthless." Appellant said, "That's fine," and he sat down on the sofa. According to appellant, Guillermo lunged at him, telling him to defend himself. The two struggled for a bit, appellant landed on top of Guillermo, and Jose kicked appellant in the head. When appellant stood up, Jose had a baseball bat and was swinging it like a sledgehammer. Jose told appellant if he did anything to Guillermo, Jose would hit him with the bat. Appellant walked toward the door, went out, and said he was going to call the police. As appellant walked out of the door, Guillermo followed immediately behind him, and the two began fighting. Appellant denied having a knife in his hands while he was fighting with Guillermo. Guillermo knocked appellant's phone away, and appellant began searching for it. He found a knife on the ground, picked it up, and ran away. Leonel ran with him. Appellant looked back as he was running, and he saw people he did not know continuing to fight. Appellant said he did not stab Guillermo or Jose. During cross-examination, appellant stated neither he nor Leonel kicked or banged on the apartment door and neither of them broke the window. Appellant admitted Jose's blood had been found on appellant's boot, but he did not know how it got there. Standard of Review
Legal Sufficiency The standard of review for legal sufficiency is to view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). The jury is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984). The jury is free to accept or reject all or any part of a witness's testimony. Id; Dumas v. State, 812 S.W.2d 611, 615 (Tex. App.-Dallas 1991, pet. ref'd). This Court is only to ensure that the jury reached a rational conclusion, not to re-evaluate the weight and credibility of the evidence. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993). Factual Sufficiency The court of criminal appeals recently revisited the language that addresses the standard of review for factual sufficiency challenges. See Zuniga v. State, No. 539-02, 2004 WL 840786 (Tex.Crim.App. Apr. 21, 2004). The court, attempting to resolve any confusion created by the development of the standard over the past four years, synthesized the concepts that have developed since its decision in Clewis v. State, 922 S.W.2d 126 (Tex.Crim. App. 1996). See id. at * 7 (discussing Zuliani v. State, 97 S.W.3d 589 (Tex.Crim.App. 2003); Goodman v. State, 66 S.W.3d 283 (Tex.Crim.App. 2001); Johnson v. State, 23 S.W.3d 1 (Tex.Crim.App. 2000)). The court narrowed the question asked in a factual sufficiency challenge by linking the "beyond a reasonable doubt" burden from trial to the standard of review on appeal and by using language that would not suggest a lesser burden of proof. See Zuniga, 2004 WL 840786, at *7. We will apply this clarified standard of review. When conducting a factual sufficiency review, we are to consider all of the evidence in a neutral light. Id. The question before us on appeal is whether, viewing the evidence neutrally, a jury was "rationally justified in finding guilt beyond a reasonable doubt." Id. The evidence may be factually insufficient either: (1) if considered by itself, the evidence that supports the verdict is too weak to support a beyond a reasonable doubt guilt finding; or (2) if there is conflicting evidence, that evidence contrary to guilt is strong enough that the beyond a reasonable doubt standard "could not have been met." Id. In announcing this standard in Zuniga, the court of criminal appeals recognized that evidence of guilt can weigh more heavily in favor of conviction but still be factually insufficient to support a beyond a reasonable doubt finding of guilt. Id. If there are reasonably equal competing theories of causation, it is up to the jury, not the reviewing court, to accept or reject each theory, for the trier of fact is the exclusive judge of the witnesses' credibility and the weight of their testimony. See Goodman, 66 S.W.3d at 277; Johnson, 23 S.W.3d at 7. Applicable Law
The State was required to prove beyond a reasonable doubt that appellant intentionally, knowingly, or recklessly caused bodily injury to another and used or exhibited a deadly weapon during commission of an assault or that appellant caused serious bodily injury to another. See Tex. Pen. Code Ann. §§ 22.01, 22.02 (Vernon Supp. 2004). The Texas Penal Code defines "bodily injury" as physical pain, illness, or any impairment of physical condition. Id. § 1.07(a)(8) (Vernon Supp. 2004). "Serious bodily injury" is bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of a bodily member or organ. Id. § 1.07(a)(46). "When a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, . . . the verdict stands if the evidence is sufficient with respect to any of the acts charged." Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991) (quoting Turner v. United States, 396 U.S. 398, 420 (1970)). A person may be guilty of an offense as a principle or as a party. See Tex. Pen. Code Ann. § 7.01(a) (Vernon 2003). Evidence is sufficient to support a conviction under the law of parties where the actor is physically present at the commission of the offense and encourages the commission of the offense either by words or other agreement. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App. 1994). In determining whether a defendant participated in an offense as a party, the court may examine the events occurring before, during, and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to commit the offense. Id. Discussion
Cause No. 404-80872-02: Aggravated Assault of Guillermo Izaguirre Appellant was convicted of aggravated assault of Guillermo Izaguirre in cause number 404-80872-02. In his second and fourth points of error, appellant argues there was neither legally nor factually sufficient evidence that appellant knowingly or intentionally caused bodily injury or serious bodily injury that was not invited during mutually consensual fighting. Specifically, appellant asserts that because Guillermo's blood was not found on the knife found on appellant's person, the physical evidence does not corroborate Guillermo's account that appellant stabbed him. Appellant argues there was no opportunity to "wipe or wash the knife after running from the apartment." Appellant does not direct us to any such testimony presented at trial, and after reviewing the record, we find none. Both Guillemo and Jose testified they saw appellant holding a knife. Jose testified he saw appellant cut Guillermo, and Guillermo said that while he and appellant fought, appellant cut him, causing injury. Although appellant testified he never stabbed Guillermo, the jury was the exclusive judge of the witnesses' credibility and the weight of their testimony; the jury was free to reject appellant's conflicting theory of events that unknown parties fought with Guillermo after appellant fled. See Bonham, 680 S.W.2d at 819; Goodman, 66 S.W.3d at 277. Dr. Genzel testified that Guillermo's stab wounds created a substantial risk of death, and appellant does not contest this fact. Viewing the evidence in the light most favorable to the verdict, we conclude a rational jury could find beyond a reasonable doubt that appellant committed aggravated assault against Guillermo Izaguirre by committing assault and causing serious bodily injury. See Young v. State, 14 S.W.3d at 753. Furthermore, viewing the evidence in a neutral light, and given there is conflicting evidence, we conclude that the evidence contrary to guilt is not strong enough that the beyond a reasonable doubt standard "could not have been met." See Zuniga, 2004 WL 840786, at *7. We resolve appellant's second and fourth issues under cause number 404-80872-02 against him. In his first issue, appellant argues there was no evidence that would support a finding that he knowingly or intentionally threatened Guillermo. In his third issue, appellant contends there was factually insufficient evidence that appellant threatened Guillermo and that the State "wholly failed to prove this very critical element." However, an assault occurs if a person threatens imminent bodily injury or if a person causes bodily injury. See Tex. Pen. Code Ann. § 22.01. We have already determined the evidence was both factually and legally sufficient that appellant caused serious bodily injury to Guillermo. Accordingly, we resolve appellant's first and third issues under cause number 404-80872-02 against him. See Kitchens, 823 S.W.2d at 258. Cause No. 404-80871-02: Aggravated Assault of Jose Izaguirre In cause number 404-80871-08, appellant was convicted of the aggravated assault of Jose Izaguirre. Because the jury was authorized to convict appellant of the aggravated assault of Jose either as a principal or party and returned a general verdict, we will uphold the verdict if the evidence is sufficient to show guilt under either theory. Rabbani v. State, 847 S.W.2d 555, 558 (Tex.Crim.App. 1992). In his second and fourth issues, appellant argues the evidence was legally and factually insufficient to show he knowingly or intentionally caused bodily injury or serious bodily injury to Jose. Appellant contends that neither he nor his companions caused injury to Jose. Appellant also asserts that because Jose's blood was not found on the knife found on appellant's person, the physical evidence does not imply that appellant caused any of the injuries suffered by Jose. Appellant, however, ignores the law of parties. Dr. Genzel testified that Jose's stab wounds created a substantial risk of death, and appellant does not contest this fact. Jose and Guillermo both testified appellant was outside with two other men. Although it was one of the other men who stabbed Jose, appellant grabbed Jose afterward and cursed at him. Also, appellant, standing with the other two men, motioned at Jose with his knife when Jose first went outside. The jury could conclude from these acts that appellant was encouraging the commission of the aggravated assault against Jose. See Ransom, 920 S.W.2d at 302. Further, the testimony indicated the men and appellant were shouting threats at the occupants of the apartment, and this showed an understanding and common design to commit the offense. See id. Although appellant argues Jose's blood was not found on the knife found in appellant's possession, testimony showed that two knives were present that night. Further, regardless of appellant's argument there was no opportunity to "wipe or wash the knife after running from the apartment," appellant does not direct us to any such testimony presented at trial, and after an extensive review of the record, we find none. Viewing the evidence in the light most favorable to the verdict, we conclude a rational jury could find beyond a reasonable doubt that appellant committed aggravated assault against Jose Izaguirre by acting as a party to an assault that caused serious bodily injury to Jose. See Young, 14 S.W.3d at 753. Furthermore, viewing the evidence in a neutral light, and given there is conflicting evidence, we conclude that the evidence contrary to guilt is not strong enough that the beyond a reasonable doubt standard "could not have been met." See Zuniga, 2004 WL 840786, at *7. We resolve appellant's second and fourth issues under cause number 404-80872-02 against him. In his first issue, appellant argues there was no evidence that would support a finding that he knowingly or intentionally threatened Jose. In his third issue, appellant contends there was factually insufficient evidence that appellant threatened Jose. However, an assault occurs if a person threatens imminent bodily injury or if a person causes bodily injury. See Tex. Pen. Code Ann. § 22.01. We have already determined the evidence was both factually and legally sufficient that appellant, as a party, caused serious bodily injury to Jose. We resolve appellant's first and third issues under cause number 404-80871-02 against him. See Kitchens, 823 S.W.2d at 258. We affirm the judgments of the trial court.