No. 05-10-00356-CR
Opinion Filed April 11, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Criminal Court No. 10, Dallas County, Texas, Trial Court Cause No. MA09-60383-L.
Before Justices O'NEILL, FITZGERALD, and LANG.
Opinion By Justice LANG.
Edward Houston waived a jury and pleaded not guilty to assault involving family violence. After finding appellant guilty, the trial court assessed punishment at 300 days' confinement in the county jail and made an affirmative family violence finding. In two points of error, appellant contends the evidence is insufficient to support his conviction and the written judgment should be modified to show he entered a not guilty plea. We modify and affirm the trial court's judgment.
Evidence Presented
On July 31, 2009, Debra Howard called 911 and reported that appellant had assaulted her. At trial, Howard testified she and appellant had lived together for about three years. On the night before the assault, appellant came home from work and wanted to sleep. Howard left the house so as not to make any noise while appellant slept. When she returned later that evening, she answered appellant's cell phone because he was asleep. A woman said that appellant needed to bring her $100 or she would "come through the window." Howard waited until the next morning to tell appellant about the call. When she questioned appellant about the woman, appellant demanded that Howard return a cell phone he had purchased for her a week ago. Howard told appellant she had left her cell phone at a friend's house. Appellant demanded that Howard go get the cell phone. Howard refused and said, "[Y]ou can't tell me what to do. You can't even tell your children what to do." She walked away from appellant, went into the bedroom, and prepared to lay down on the bed. Appellant grabbed Howard around the neck and choked her. When Howard fell back onto the bed, appellant continued choking her. Appellant threatened to kill Howard and said he wanted the cell phone. Howard testified she passed out for a short time. When she looked up, she told appellant he was crazy. Appellant repeated his demand for the cell phone and then he choked Howard again. Howard threw a pair of nail clippers at appellant, which caused him to remove his hands from her neck and back away. Howard ran past appellant and went out the front door. She went to a friend's house, retrieved her cell phone, and called 911. The police arrived and took photographs of her neck. Howard testified she did not cut appellant with the clippers or intend to do anything to him except make him stop choking her. An audiotape of Howard's 911 call and photographs of bruises on her neck were admitted into evidence. Dallas police officer Michael Holguin responded to Howard's 911 call. When he arrived on the scene, he met Howard outside the house. Holguin testified Howard was scared, trembling, and "shaken up." Holguin saw red bruising and scratches on Howard's neck that appeared to be fresh injuries. Howard said she and appellant lived together, they had an argument that morning, and during the argument appellant grabbed her and choked her. Howard said appellant was still inside the house. Holguin testified Howard's injuries were consistent with what she said had occurred. Applicable Law
In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326 ("a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution"). The State was required to prove beyond a reasonable doubt that appellant intentionally, knowingly, or recklessly caused bodily injury to Debra Howard, and that appellant had a dating relationship with Howard and was a member of her family and household. See Tex. Penal Code Ann. § 22.01(a)(1) (West Supp. 2010); Tex. Fam. Code Ann. § 71.004(1) (West 2008). Discussion
Appellant contends the evidence is insufficient to prove he committed the offense in the manner alleged in the information. Appellant asserts there is no evidence he grabbed and pulled Howard's arm with his hand or forced her against a bed as alleged. The State responds that the evidence is sufficient to support appellant's assault conviction. The information alleged appellant assaulted Howard by (1) grabbing and pulling her arm with his hand, (2) by forcing her to and against a bed with his hand, and (3) by choking her with his hand. The manner and means of the bodily injury alleged is not an essential element of the offense. See Tex. Penal Code Ann. § 22.01(a); see, e.g., Thomas v. State, 303 S.W.3d 331, 333 (Tex. App.-El Paso 2009, no pet.). Different modes of commission of an offense may be presented in the disjunctive when the charging instrument, in a single count, alleges different means in the conjunctive. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991); see also Pizzo v. State, 235 S.W.3d 711, 715 (Tex. Crim. App. 2007). The trial court heard Howard's testimony that appellant choked her neck with his hands during an argument. She sustained bruises to her neck. The trial court also heard Holguin's testimony that when he arrived on the scene, he saw visible bruises and scratches on Howard's neck that were consistent with her complaint that appellant choked her. Photographs Holguin took of Howard's neck show bruises and scratches. Viewing the evidence under the proper standard, we conclude a rational trier of fact could find beyond a reasonable doubt that appellant assaulted Howard causing bodily injury. Thus, the evidence is sufficient to support the verdict. See Brooks, 323 S.W.3d at 895. We overrule appellant's first point of error. Modify Judgment
In his second point of error, appellant contends the written judgment should be modified to show he entered a not guilty plea before the trial court. The State agrees that the judgment should be modified as appellant proposes, and that it should be further modified to reflect the correct name of the attorney representing the State. The record shows appellant pleaded not guilty to the charges in the information. The trial court's judgment recites he pleaded guilty. Thus, the written judgment is incorrect. We sustain appellant's second point of error. Likewise, the record shows Farheen Jan represented the State during the proceedings, but the trial court's judgment recites Melinda Edwards as the attorney for the State. We modify the trial court's judgment to show appellant entered a plea of not guilty, and the attorney for the State was Farheen Jan. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). As modified, we affirm the trial court's judgment.