No. 05-07-00491-CR
Opinion filed July 31, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.1
On Appeal from the County Court at Law No. 3 Collin County, Texas, Trial Court Cause No. 003-84026-06.
Before Justices MORRIS, WHITTINGTON, and O'NEILL.
MICHAEL J. O'NEILL, Justice.
A jury convicted appellant Jason Charles Kelsey of assault with an affirmative finding of family violence. The trial court sentenced him to eighteen months of community supervision and an $800 fine. In two points, appellant contends the evidence is legally and factually insufficient to prove he committed the assault as alleged in the information. In a third point, he asserts the trial court erred in denying his motion to exclude testimony of a police officer who violated the rule. We affirm the trial court's judgment.
In his original brief, appellant asserted three other issues for review; however, he failed to adequately brief them. On our own order, we allowed appellant time to supplement his briefing or withdraw the unbriefed issues. Appellant supplemented briefing on one point and withdrew his remaining points. Thus, we will not consider appellant's original, unbriefed points that the trial court erred in denying a motion to quash, the trial court erred in failing to exclude testimony of an officer who committed perjury, and the trial court erred in denying his request for additional time in voir dire.
Background
On the evening of June 10, 2006, appellant and his ex-wife Erica Kelsey attended a pool party at a friend's house where they both consumed alcohol. When Erica decided to leave the party, she discovered appellant had left her without a way to get home. She started walking home alone around 2 a.m., but then decided to call a taxi. Because of the time, a taxi refused to come get her. She then decided to call the police. Officer Christopher McEntire picked her up and drove her home. Despite leaving before her, appellant was not home when Erica arrived. She later learned he totaled his car in a wreck and also had to walk home. When he finally arrived, he yelled at Erica to leave; however, when she tried to pack her things and go, he would not let her leave. He grabbed her arm with his hand and forcefully took away her bag. When she tried to gather a few things for their daughter to take with her, he grabbed her again and pushed her away. She tried to use the home phone and a cell phone to call for help, but he threw both against a wall and broke them. Erica ran to a neighbor's house; however, no one answered the door. She returned home and discovered the door was locked. She then used a shovel to break a kitchen window to get inside, but before she got in, appellant ran after her. Erica eventually flagged down a woman and asked if she had a cell phone, but the woman did not. By this time, appellant had caught up to her. He grabbed her hair and pushed her to the ground again. She was able to run away from appellant and flagged down Officer McEntire, who had been dispatched to the scene. Appellant was later arrested for assault. Officer Chad Blumrick took Erica's statement. Although her written statement was not as detailed as her testimony to the jury, Officer Blumrick testified it was common for people to omit details, especially when they are upset. He testified in his opinion, Erica's injuries resulted from appellant dragging her. The scratches she had on her knees and legs were not the kind one gets from a fall. He also noted she had injuries on both sides of her body, which were consistent with dragging across carpet or concrete. Officer McEntire also testified Erica's injuries were consistent with being pulled or dragged across the ground. Although Erica testified appellant grabbed her arm and hair and pushed her to the ground, she said appellant did not drag her across the ground, despite her injuries. The jury found appellant guilty as charged in the information. This appeal followed. Sufficiency of the Evidence
In two points, appellant argues the evidence is both legally and factually insufficient to prove he committed the assault as alleged in the information. The information charged appellant with "intentionally, knowingly, and recklessly caus[ing] bodily injury to Erica Kelsey by grabbing, pulling and dragging Erica Kelsey's body across the ground with defendant's hand . . ."; however, appellant claims Erica's testimony negates that any of her injuries occurred while her body was crossing the ground. The State contends it was not required to prove the precise manner and means of the assault because it is not an element of the crime. Further, the evidence from Erica's injuries supports she was grabbed, pulled, or dragged across the ground. The standard of review for legal and factual sufficiency of the evidence is well established. When deciding whether evidence is legally sufficient to support a conviction, we must assess all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Prible v. State, 175 S.W.3d 724, 729-30 (Tex.Crim.App. 2005). When reviewing the factual sufficiency of the evidence, we look at all of the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 416-17 (Tex.Crim.App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417; Johnson v. State, 23 S.W.3d 1, 12 (Tex.Crim.App. 2000). In making a factual sufficiency review, a reviewing court is permitted to substitute its judgment for the jury's when considering credibility and weight determinations, but only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). The sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997); Clement v. State, 248 S.W.3d 791, 796 (Tex.App.-Fort Worth 2008, no pet.). Under either standard, the fact finder is the sole judge of witnesses' credibility and the weight given their testimony. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000) (legal sufficiency review); Johnson, 23 S.W.3d at 7 (factual sufficiency review). Appellant argues the evidence is legally and factually insufficient to show Erica sustained any of her injuries while her body was crossing the ground, as alleged in the information, because Erica testified appellant never dragged her across the ground. Despite her testimony, two officers from the scene testified her injuries were consistent with someone dragging her across the concrete or carpet. Officer Blumrick specifically testified the injuries on both sides of Erica's body were consistent with being dragged rather than a simple fall. The jury was free to consider this testimony against Erica's testimony. Wesbrook, 29 S.W.3d at 111; Johnson, 23 S.W.3d at 7. Further, the jury saw pictures of Erica's injuries and could consider for themselves whether appellant dragged her across the ground. Hooper v. State, 214 S.W.3d 9, 15 (Tex.Crim.App. 2007) (noting juries are permitted to draw multiple reasonable inferences as long as each inference is supported by the evidence presented at trial). This testimony, along with the pictorial evidence, is also consistent with appellant pulling her across the ground as alleged in the information. Erica herself also testified appellant grabbed her hair and pushed her causing her to fall to the ground and later experience neck pain and soreness. Thus, the evidence is legally and factually sufficient to establish appellant caused bodily injury to Erica regardless of the specific method and means. See Phelps v. State, 999 S.W.2d 512, 518 (Tex.App.-Eastland 1999, pet. ref'd) (allegation of manner and means in assault case offered to satisfy due process but was not an actual element of the offense). We overrule appellant's first and second points. Violation of the Rule
Appellant contends the trial court abused its discretion in allowing the testimony of Officer Blumrick in violation of the rule. Texas Rule of Evidence 614 states "at the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses. . . ." Tex. R. Evid. 614. A violation of the rule is not itself reversible error. Guerra v. State, 771 S.W.2d 453, 475 (Tex.Crim.App. 1988). A violation of the rule may not be relied upon for reversal of a case unless it is shown that the trial court abused its discretion in allowing the alleged violative testimony to be elicited at trial. Id. (citing Archer v. State, 703 S.W.2d 664 (Tex. 1986)). We conclude appellant failed to properly preserve his argument for review. To preserve error for appellate review, the complaining party must make a specific objection and obtain a ruling on the objection. Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995). In addition, the objection must be made at the earliest possible opportunity. Id.; see also Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). Here, the State called Officer Blumrick and questioned him about events surrounding appellant's arrest. Appellant's counsel then thoroughly cross-examined Officer Blumrick and asked him specific questions about the rule and whether he discussed his testimony with Officer McEntire. Appellant made no objection regarding a rule violation during any of this testimony. He finally objected to Officer Blumrick's testimony after the court dismissed the witness and the State rested its case. Under these facts, appellant failed to object at the earliest possible opportunity. By waiting until the witness had been dismissed, he did not allow the trial court an opportunity to timely rule on the issue and correct any alleged error. See Young v. State, 137 S.W.3d 65, 69 (Tex.Crim.App. 2004) (noting an objection serves as a preemptive measure because it informs the judge and opposing counsel of the potential for error and conserves judicial resources by prompting the prevention of foreseeable, harmful events). Because appellant failed to preserve his argument for review, we overrule his final point. Conclusion
Having overruled all of appellant's points, we affirm the trial court's judgment. MICHAEL J. O'NEILL JUSTICE Do Not Publish Tex. R. App. P. 47.1 070491F.U05