No. 05-03-01820-CR
Opinion Filed November 30, 2004. DO NOT PUBLISH. Tex.R.App.P.47.
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause No. F02-53555-JH. Affirm as Modified.
Before Justices WRIGHT, FITZGERALD, and LANG-MIERS.
KERRY P. FITZGERALD, Justice.
A jury convicted Alvin Jackson of aggravated assault. During the punishment phase, appellant pleaded true to one enhancement paragraph. The trial court found the enhancement paragraph true and sentenced appellant to fifteen years' confinement. In a single point of error, appellant contends the evidence is factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
At 10:00 p.m. on August 3, 2002, Dallas police officers Yolanda Cotton and Martin Rodriguez responded to a disturbance call at an apartment in Oak Cliff shared by appellant and his common-law wife Della Dewberry. Upon arrival, Cotton saw cuts on Dewberry's left hand and a bruise on Dewberry's mouth. Dewberry told Cotton that appellant assaulted her in their bedroom at about 9:00 p.m. Dewberry stated that she and appellant were arguing when appellant hit her on top of the head with a glass picture frame. Appellant forced Dewberry to the ground and punched her in the face several times, then he went to the kitchen and got a knife. When he came back to the bedroom, appellant said he would "cut [sic] her head and hand it to the police officer when he came." Dewberry stated she put her hand up to protect herself and appellant cut her hand. Cotton testified that Dewberry's injuries were consistent with her statements. Officers found a knife with blood on the handle in the kitchen sink. Cotton further testified that in cases involving domestic violence, it is very common for the victim to become uncooperative at some point. Rodriguez testified he saw an injury to Dewberry's lip and cuts on her left hand. Rodriguez spoke briefly with Dewberry and asked her to write out a statement. Dewberry told Rodriguez that appellant had broken a picture frame over her head, shattering the glass; appellant threw her to the ground and punched her in the face; and appellant got a knife from the kitchen and tried to cut her, but she put up her hands to defend herself. Dewberry also made a written statement. Photographs of Dewberry's injuries that were taken by Rodriguez at the scene were published to the jury. Dewberry testified on appellant's behalf. She recanted the oral and written statements she had made to police officers on the night of the assault. Dewberry testified she had lied to the police because she was mad at appellant and wanted him to go to jail. Dewberry testified she and appellant had an argument about him taking the car to go out. Dewberry and appellant "tussled" over the car keys, but appellant never hit her or got a weapon. Dewberry testified that she was the one who got a hatchet-type knife and put it in the bathroom. She believed the police would only take appellant to "detox." Dewberry testified she told the officers about the knife in the bathroom and that is where the police found the knife. Dewberry claimed neither she nor appellant ever went into the kitchen. Dewberry testified she purposefully lied to the police, but she never said appellant had come after her with a knife or that she put up her hands in a defensive move. Dewberry testified she bumped her mouth while "tussling" with appellant over the car keys, and a glass picture framed fell off a table by the bed and shattered on the floor. She purposefully touched the broken glass to cause injury to her hand. Dewberry testified that appellant was a "very quiet person," was never violent with her, and that she had pulled a knife on appellant in the past. Dewberry admitted she knew appellant had been previously convicted of assault and aggravated robbery with a deadly weapon. Dewberry testified she signed an affidavit of non-prosecution two months after appellant was arrested because she did not want the case against him pursued. Dewberry further testified she visited appellant forty-one times while he was in jail. Appellant told her, "Della, you put me here, you need to try to hurry up and get me out because you the one that put me here." Appellant did not testify during the guilt/innocence phase of trial. Applicable Law
In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Evidence can be factually insufficient when: (1) considered by itself, the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt; or (2) contrary evidence exists that is strong enough the beyond-a-reasonable-doubt standard could not have been met. See id. at 484-85. The State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly threatened Dewberry with imminent bodily injury and used or exhibited a deadly weapon during the commission of the assault. See Tex. Pen. Code Ann. §§ 22.01, 22.02 (Vernon Supp. 2004-05). A "deadly weapon" means a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury, or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Id. § 1.07(a)(17). The statute covers conduct that threatens deadly force, even if the actor has no intention of actually using deadly force. McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000). Discussion
Appellant argues the evidence is factually insufficient to prove he used a deadly weapon to threaten Dewberry because Dewberry recanted her statements made to the police. Appellant complains that Dewberry signed an affidavit of non-prosecution a few months after the alleged offense and her testimony at trial established that she lied to officers because she was angry with appellant. Appellant asks us to find Dewberry's sworn testimony at trial to be more credible than the unsworn statements she made to the police. The State responds the evidence is factually sufficient to support the conviction, and the jury could believe or disbelieve Dewberry's recantation at trial. We agree with the State. The jury is the exclusive judge of the facts provided and of the weight to be given to the testimony, and it was the jury's role to resolve the conflicts in the evidence. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); see also Johnson, 23 S.W.3d at 9. We may not substitute our own determination for that of the jury. See Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002), cert. denied, 538 U.S. 998 (2003); Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). The jury is not only entitled to resolve conflicts, but may disbelieve any recantation. See Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). Therefore, the jury could have disbelieved Dewberry's testimony at trial that appellant neither threatened her nor cut her with a knife. After conducting a neutral review of the record, we conclude the evidence of guilt is not too weak to support a finding of guilt beyond a reasonable doubt, nor is the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. See Zuniga, 144 S.W.3d at 484-85. Accordingly, we overrule appellant's sole point of error. In two cross-points, the State asserts the trial court's judgment erroneously states appellant entered a guilty plea and there was no deadly weapon finding. The record shows the indictment alleged appellant used a deadly weapon, a knife, during the commission of the aggravated assault. The jury found appellant guilty of aggravated assault "as charged in the indictment." Therefore, the judge should have entered a deadly weapon finding in the judgment. See Polk v. State, 693 S.W.2d 391, 394 (Tex.Crim.App. 1985). We have the power to modify incorrect judgments when we have the necessary information to do so. 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). Accordingly, we modify the trial court's judgment to show appellant pleaded not guilty and to show an affirmative deadly weapon finding. As modified, we affirm the trial court's judgment.