Opinion
No. 05-05-00286-CR
Opinion Filed April 6, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 1, Collin County, Texas, Trial Court Cause No. 001-84767-04. Affirm.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
OPINION
Appellant appeals his conviction for misdemeanor assault involving family violence. After a jury found appellant guilty, the trial court assessed punishment at 180 days' confinement and a $1000 fine. In four issues, appellant contends (1) the evidence is legally and factually insufficient to support his conviction, (2) the trial court erred in refusing to instruct the jury on self-defense, and (3) the trial court erred in excluding evidence of the victim's prior assaults on appellant. For the following reasons, we affirm the trial court's judgment. The grand jury indicted appellant for assaulting his wife Shelly Ross. The indictment alleged appellant committed the offense by pulling Ross's hair, by pushing her against a wall, and by striking her with his hand. At trial, Ross testified appellant attacked her after an argument about money. He jumped on top of her and started pulling her hair. Appellant then banged her head against the wall and swung his fists at her face. According to Ross, the assault did not end until appellant's friend Dustin and his brother Matt arrived and pulled appellant off of Ross. Ross suffered a bruised cheek and "busted lip" as a result of appellant's attack. Photographs of Ross's injuries were presented to the jury. After the assault, Ross ran next door to appellant's aunt's house and called police. A recording of the 911 call was admitted into evidence. The recording shows that Ross was highly agitated. Because the 911 operator could not understand Ross, she passed the phone to appellant's aunt, Nancy Davis. Davis told the operator that Ross banged on her door and told her that appellant had attacked her. Davis told the operator that appellant had come to the door looking for Ross's keys and threatened to run over Ross's car. Davis promised to try to keep appellant away from Ross until police arrived. Deputy Brad Mitchell responded to Ross's 911 call. When Mitchell arrived at the location, appellant was angry, uncooperative, and claimed he did not know why the police were there. Mitchell questioned Ross, who was crying and upset. Ross told Mitchell that appellant had assaulted her. Mitchell arrested appellant, handcuffed him, and walked him to his patrol car. Appellant asked the officer why he was being arrested instead of Ross. The officer explained that he was arresting him because of what the victim and other witnesses had told him. Appellant then yelled to several people standing in the yard "whoever testifies against me, when I get out, I am going to kick their ass." At trial, appellant denied striking Ross or grabbing her hair. He claimed that, after an argument about money, Ross became enraged and jumped on his back. He said he and Ross "fell" onto a chair because he was attempting to avoid his children who were sitting on the floor. When appellant got up, Ross was still on his back and they "scuffled across the couch" before he "got her off" his back. Appellant's best friend and roommate Dustin Souls testified and denied that he pulled appellant off of Ross as she had alleged. Souls acknowledged that he did hear an argument between Ross and appellant on the day of appellant's arrest. Souls and appellant's brother Matt went to appellant's house to see if everything was okay. According to Souls, when he and Matt entered, appellant and Ross were seated and appellant told Ross to get off his property. According to Souls, Ross did not have a bloody lip or swollen eye. Appellant's brother Matt also testified and confirmed he was with Souls when he went to appellant's house on the day of the offense. Matt denied pulling appellant off of Ross. In his first and second points of error, appellant contends the evidence is legally and factually insufficient to support his conviction. In reviewing the legal sufficiency of the evidence, we review the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Turner, 805 S.W.2d at 427. The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). As such, the jury may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). When reviewing the factual sufficiency of the evidence, we view all the evidence, but not in the light most favorable to the prosecution. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The question is whether, considering all of the evidence in a neutral light, the trier of fact was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence can be factually insufficient if (1) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. Appellant alleges generally that the evidence is both legally and factually insufficient to support his conviction because the evidence proves Ross was angry with appellant and "concocted" her story to retaliate against him. Ross testified before the jury that appellant committed the offense as alleged in the indictment. In determining the legal sufficiency of the evidence, we will not reevaluate the credibility of the witnesses. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). The evidence is legally sufficient to support appellant's conviction. With regard to the factual sufficiency review, we have reviewed all the evidence in a neutral light. At trial, Ross and appellant presented very different pictures of what occurred on the day of the offense. Appellant presented the testimony of several witnesses that supported his version of the offense. However, the jury could consider that each of these witnesses were appellant's friends and family members. After reviewing the record as a whole, we cannot conclude the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. We resolve the first and second issues against appellant. In the third issue, appellant contends the trial court erred in refusing his request for an instruction on self-defense. An accused has the right to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of the evidence. Granger v. State, 3 S.W.3d 36, 38 (Tex.Crim.App. 1999); Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App. 1996). To raise self-defense, there must be some evidence in the record to show appellant reasonably believed force was immediately necessary to protect himself from another's unlawful use of force. See See Tex. Pen. Code Ann. § 9.31(a) (Vernon 2003). Moreover, to be entitled to an instruction on self-defense, a defendant must essentially admit the conduct charged in the indictment and then offer evidence justifying the conduct. See Jackson v. State, 110 S.W.3d 626, 632 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). On appeal, appellant wholly fails to argue that he presented evidence to show he reasonably believed force was necessary to protect himself from Ross. Instead, appellant discusses only whether he admitted the conduct charged in the indictment. We conclude this issue is inadequately briefed and presents nothing to review. See Tex.R.App.P. 38.1(h). Further, we disagree that appellant admitted the charged conduct such that submission of the self-defense issue was warranted. According to appellant, he admitted the offense because he admitted "hitting the furniture, walls and couch in an effort to dislodge [Ross] from his back." Appellant directs us to the portion of the record in which he claimed that after Ross jumped on his back, he ran into a chair in an effort to avoid his son who was lying on the floor thereby causing Ross to fall onto a chair. In this portion of the record, appellant does not admit intentionally using any force against Ross. Furthermore, reviewing the entirety of the record, it is apparent that appellant was denying commission of the offense. Although appellant speculated in a conclusory manner that Ross might have been injured by "scuffling," he also presented evidence that Ross was not injured at all or that, if she was, her injuries were self-inflicted. Further, appellant did not admit pushing Ross against the wall and specifically denied pulling Ross's hair or striking her as alleged in the indictment. While a defensive issue can be raised by any source, we will not look at the record in a vacuum. Under the facts of this case, we conclude appellant did not admit the underlying conduct. Thus, he was not entitled to a charge on self defense. We resolve the third issue against appellant. In his fourth issue, appellant contends the trial court erred in excluding extraneous offense evidence showing Ross had attacked him in the past. According to appellant, this evidence was relevant to support his claim of self-defense. Having concluded appellant has not shown self-defense was raised, appellant has failed to establish Ross's prior acts were relevant. We resolve the fourth issue against appellant. We affirm the trial court's judgment.