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observing that "Rule 3.09[(d)] is a codification of the holding in Brady"
Summary of this case from Risener v. StateOpinion
No. 08-18-00172-CR
11-13-2020
RAFAEL MORALES, Appellant, v. THE STATE OF TEXAS, Appellee.
Appeal from the 41st District Court of El Paso County, Texas (TC# 20160D01493) OPINION
Appellant Rafael Morales was convicted of assault family violence/household member with a previous conviction and punishment was assessed to confinement in the Texas Department of Criminal Justice for ten years. Appellant challenges the admission of three items of evidence: (1) a recording of a 911 call, (2) the computer-aided dispatch ("CAD") transcript of the call, and (3) the event chronology of the call. Appellant further asserts the trial court erred in permitting the State to submit the case to the jury without calling the complaining witness to testify at trial, and contends the evidence is legally and factually insufficient to support his conviction. We affirm.
BACKGROUND
Factual Background
On March 15, 2016, Sujei Roque drove the complaining witness, Ruby Herrera, to Appellant's apartment to discuss their relationship. In the car were Roque, Herrera in the passenger seat, and two of Roque's daughters in the backseat—Brianna and Bianca. Upon arrival, it became readily apparent to Roque and her passengers that Appellant was angry, and as Appellant approached, Herrera locked the vehicle doors. Appellant demanded Herrera get out of the vehicle as he struck the passenger window and kicked the passenger door.
Herrera exited the vehicle and Appellant began to physically assault her by hitting her about the head and face with a closed fist. Roque's eldest daughter, Delacruz, dialed 911 and passed her phone to Roque. Roque spoke to the 911 operator for the entirety of the call.
Roque immediately requested assistance and remained on the phone with the 911 operator for twenty-one minutes—the duration of the assault. From the outset of the call, Roque told the 911 operator Appellant was "hitting" Herrera. At around 02:43 time stamp of the call, Roque shouts "he's hitting her! I need the cops now!" At approximately the 05:10 time stamp of the call, when asked by the 911 operator if Appellant was still hitting Herrera, Roque confirms "yeah he's hitting her in front of her face." About the 06:10 time stamp of the call, Roque states, "he doesn't wanna let her go" and about twenty seconds later states "he's still hitting her." Nearly two minutes later, Roque again confirms, "he's hitting her. Still hitting her." Around the 10:20 time stamp of the call, Appellant and Herrera entered the apartment and Roque was unable to see them until 18:18 time stamp of the call when Roque regained a visual of the couple stating, "look, I could see him. He's already yelling at her." At 20:05 time stamp of the call, Roque can be heard shouting "why does he keep hitting her, why does he keep hitting her? We're not gonna leave her. I'm gonna wait for her!" The phone call ends roughly one minute later when police arrive on scene.
Throughout the 911 call, Roque's daughters are heard crying and screaming in the background. The owner of the residence where the assault occurred—who identified himself as "Turkey"—approached Roque's vehicle and a conversation between Roque and Turkey ensued, which can also be heard in the background of the 911 call.
Procedural Background
On April 6, 2016, Appellant was indicted of one count of assault family violence/household member with a previous conviction. Following a trial, the jury returned a unanimous guilty verdict and the trial court assessed a punishment of ten years' confinement in the Texas Department of Criminal Justice Institutional Division. This appeal followed.
DISCUSSION
In three issues, Appellant challenges the admission of the 911 recording, the CAD transcript of the call, and the event chronology of the call. In Issue One, Appellant contends the trial court erred in admitting the aforementioned exhibits, asserting the alleged unidentified voices within the 911 call are the functional equivalent of testimonial statements in violation of the Confrontation Clause. In Issue Two, Appellant further asserts a Confrontation Clause violation on grounds that the complaining witness was not called to testify by the State. In Issue Three, Appellant contends the evidence presented at trial is legally and factually insufficient to support his conviction. We disagree.
CONFRONTATION CLAUSE
In his first issue, Appellant argues the 911 recording, the CAD transcript, and the event chronology contained testimonial statements and were admitted in violation of the Confrontation Clause of the U.S. Constitution.
Standard of Review
The legal ruling of whether a statement is testimonial under Crawford is a question of law that an appellate court reviews de novo. Lilly v. Virginia, 527 U.S. 116, 137 (1999); see also Davis v. State, 268 S.W.3d 683, 704 (Tex.App.—Fort Worth 2008, pet. ref'd)(whether a statement is testimonial is reviewed de novo, as "trial judges are no better equipped than are appellate judges, [because] the ruling itself does not depend upon demeanor, credibility, or other criteria peculiar to personal observation" of the trial court).
Law
The Confrontation Clause of the Six Amendment affords an accused the right to confront witnesses in all criminal prosecutions. U.S. CONST. AMEND. VI. The Confrontation Clause bars the admission of a declarant's out-of-court statements that are "testimonial" in nature unless the declarant is unavailable to testify at trial, and the defendant had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 53-54 (2004). Crawford drew a distinction between testimonial and non-testimonial statements that the Fort Worth Court of Appeals recognized, explaining the "threshold question" under a Crawford analysis is whether the statement was "testimonial in nature." Rangel v. State, 199 S.W.3d 523, 532-33 (Tex.App.—Fort Worth 2006), pet. dism'd, improvidently granted, 250 S.W.3d 96 (Tex.Crim.App. 2008); see also Woods v. State, 152 S.W.3d 105, 113 (Tex.Crim.App. 2004).
Although the Court in Crawford did not provide a bright-line definition of the term "testimonial," the test is objective and the fundamental inquiry is whether the primary purpose of the call was to "enable police assistance to meet an ongoing emergency." Davis v. Washington, 547 U.S. 813, 822 (2006). Statements that describe past events are likely to be considered testimonial, as opposed to statements made contemporaneously as events are occurring. See Davis, 547 U.S. at 830 (noting the distinction between questions seeking to determine "what is happening," as being less likely to be testimonial than statements made in response to being asked "what happened"). Statements made to resolve an ongoing emergency—such as those in 911 calls—are not typically considered testimonial in nature; however, once the emergency ends, statements made thereafter may become testimonial. See id. at 829. Hence, key to the testimonial analysis is determining "whether the questions asked by the responding call taker were intended to 'elicit[] a response from the caller that would enable him to take steps to resolve the emergency,' or whether they were 'directed at eliciting information about the defendant's actions to be used in a future prosecution.'" Knight v. State, No. 08-16-00123-CR, 2018 WL 3867570, at *7 (Tex.App.—El Paso Aug. 15, 2018, no pet.)(not designated for publication)(citing Ford v. State, No. 08-14-00093-CR, 2016 WL 921385, at *3 (Tex. App.—El Paso Mar. 9, 2016, pet. ref'd)(not designated for publication)).
Issue One: 911 Recording, CAD Transcript, Event Chronology
In Issue One, Appellant contends the trial court erred in admitting three pieces of evidence—the 911 recording, the CAD transcript of the call, and the event chronology of the call—asserting these exhibits contained testimonial statements in violation of the Confrontation Clause of the Sixth Amendment.
As a preliminary matter, a Confrontation Clause claim must be preserved and a defendant's failure to object to the admission of evidence on Confrontation grounds at trial waives that complaint for appellate review. See Lovill v. State, 319 S.W.3d 687, 691 (Tex.Crim.App. 2009)(citing TEX.R.APP.P 33.1 "[t]o preserve a complaint for appellate review, the record must show that a specific and timely complaint was made to the trial judge and that the trial judge ruled on the complaint."). The State concedes Appellant properly preserved error on Confrontation grounds as to the 911 call, but argues Appellant failed to object on Confrontation grounds as to the CAD transcript and the event chronology, asserting that Appellant's failure to do so renders his first issue meritless. We disagree. Here, the record shows Appellant objected to the 911 call, the CAD transcript, and the event chronology on the basis of hearsay and the Confrontation Clause. Thus, we disagree and find that Appellant did preserve error on Confrontation grounds.
911 Call & Confrontation Clause Requirements
In analyzing whether the primary purpose of the interrogation, when viewed objectively, was to enable police assistance to meet an ongoing emergency, the Court in Davis established what we refer to as the "Davis factors." See Davis, 547 U.S. at 827. In Ford v. State, we utilized the Davis factors in determining whether a statement is testimonial: (1) whether the caller was describing events as they were actually occurring; (2) whether a reasonable listener would recognize the caller was facing an ongoing emergency; (3) whether the 911 dispatcher's questions were meant to elicit responses in order to resolve the present emergency, rather than to simply learn what had happened in the past; and (4) whether the call took place in an environment that was not tranquil or was unsafe. Ford, 2016 WL 921385, at *3 (citing Martinez v. State, 236 S.W.3d 361, 371-72 (Tex.App.-Fort Worth 2007, pet. dism'd, untimely filed).
Analysis
On appeal, Appellant's brief does not address the Davis factors. Instead, Appellant seemingly acknowledges Roque was describing events as they occurred and primarily focuses on the 911 call being "fraught with hearsay" problems as the basis of the violation of the Confrontational Clause. Appellant argues the 911 call is the "functional equivalent of testimony" because it contains hearsay statements from witnesses who were not called to testify, and the 911 call does not identify the complaining witness.
A caller's voice—and background voices within a telephone recording—may be authenticated or identified by numerous methods. See, e.g., Mosley v. State, 355 S.W.3d 59, 69 (Tex.App.—Houston [1st Dist.] 2010, pet. ref'd)(noting the identity of a telephone caller may be authenticated by "self-identification of the caller coupled with additional evidence such as the context and timing of the telephone call, the contents of the statement challenged, internal patterns and other distinctive characteristics, and disclosure of knowledge and facts known peculiarly to the caller"). Rule 901 of the Texas Rules of Evidence also allows for a witness to offer an "opinion identifying a person's voice—whether heard firsthand or through mechanical or electronic transmission or recording—based on hearing the voice at any time under circumstances that connect it with the alleged speaker." TEX.R.EVID. 901(b)(5).
Here, it is undisputed the 911 caller is Roque who testified for the State. Appellant asserted at trial and now on appeal claims there were unidentified voices on the 911 call and that the victim was never identified on the call. However, Roque identified the victim more than once by her correct first name. Additionally, Roque and Delacruz testified that the background voices were Roque's two daughters who were present in the vehicle, and the male voice who identified himself as "Turkey" during the 911 call. The State argues the voices in the 911 call were properly identified and any unidentified voices on the 911 call, if any, affect the weight and credibility of the 911 call, not its admissibility. We agree with the State and find that unidentified voices within a properly admitted recording are not grounds for reversible error, but instead, is a question for the jury. Manemann v. State, 878 S.W.2d 334, 338 (Tex.App.—Austin 1994, pet. ref'd)(noting that it is ultimately up to the trier of fact to determine whether the voices on a recording have been accurately identified). Appellant has cited to no authority, nor are we aware of any, that would render the 911 call and its documents—the CAD transcript and the event chronology—inadmissible. Moreover, the exhibits were properly authenticated by Wilmarie Andino, the custodian of records of the 911 call, and were properly admitted as present sense impressions. This sub-part of Issue One is overruled.
Confrontation Clause Analysis
Appellant, further, contends the voices of witnesses that are present in a properly admitted 911 call and who thereafter are not called to testify at trial amounts to the functional equivalent of testimony. However, the proper test for rendering a statement testimonial is an analysis under the Davis factors that this Court utilized in Knight v. State. See 2018 WL 3867570, at *7. The State argues the 911 call satisfies all four Davis factors and we agree.
As soon as the call begins, Roque immediately shouts, "I need the cops right here now!" Throughout the entire twenty-one-minute call, Roque relayed the sequence of events to the 911 operator in the present tense as they unfolded in front of her. Roque provided detailed information as to Appellant's repeated assaults on Herrera, specified exactly how he was assaulting her, and from the beginning to the end of the call, Roque stated at least eight times that Appellant was "still hitting" Herrera. [Emphasis added]. The 911 call began soon after Appellant started to assault Herrera until police arrived, twenty minutes later and apprehended Appellant. Roque's tone of voice, the rapidity with which she spoke, and the urgency in her voice make it obvious Roque was describing events as they were presently occurring and was facing an ongoing emergency. Moreover, the 911 operator asked Roque a series of questions: the address of Roque's location, Appellant's name, Herrera's physical status and whether medical attention was needed, a physical description of Appellant and Herrera, whether Appellant was still assaulting Herrera, and whether Appellant had access to a vehicle to flee the scene. The 911 operator's questions were clearly meant to elicit responses to resolve the present emergency, rather than to ascertain what had happened in the past. Knight, 2018 WL 3867570, at *8 (noting that these are the type of questions a 911 operator may ask to aid a victim and to ensure their safety upon law enforcement arrival). The call did not take place in an environment that was tranquil or safe, which is evidenced by the volume and tone of Roque's voice, the screaming and crying of Roque's daughters in the background, and Appellant physically kicking Roque's vehicle.
The State compares the case at hand to Davis, wherein one complainant provided statements to police as events occurred, and the other provided statements hours afterward from a place of safety. Davis, 547 U.S. at 827. The court in Davis concluded a 911 call can begin with non-testimonial statements that may later evolve into testimonial statements. Id. at 829. Unlike in Davis where the call evolved into testimonial statements because the assailant left the scene and the emergency had ended. Here, Appellant did not leave the scene until police arrived and the emergency did not cease until Appellant was apprehended. The statements on the 911 call were non-testimonial and do not amount to the functional equivalent of testimony as Appellant contends. Throughout the 911 call, Roque "simply was not acting as a witness; she was not testifying. What she said was not 'a weaker substitute for live testimony'" at trial. [Emphasis in orig.]. Davis, 547 U.S. at 828 (emphasizing that "[n]o 'witness' goes into court to proclaim an emergency and seek help"). Thus, viewed objectively, we conclude a reasonable listener would recognize the 911 caller was facing an ongoing emergency and was trying to provide assistance to the victim.
CAD Transcript and Event Chronology & Confrontation Clause Requirements
Apart from the 911 call itself, Appellant further argues the CAD transcript and the event chronology of the call also contained testimonial statements and the admission of these exhibits violated his rights under the Confrontation Clause of the Sixth Amendment. Appellant relies on the same hearsay and "functional equivalent of testimony" arguments asserted as to the 911 call.
Admission of the CAD transcript and the event chronology proved the same facts contained in the 911 call. The CAD transcript is merely a summary of the conversation the caller was having with the call taker, and the event chronology is part of the CAD transcript, which timestamped all of the comments within the transcript. After reviewing the exhibits, it is apparent the information within the CAD transcript and the event chronology is no different than what the 911 call itself contained. Because the CAD transcript and the event chronology are mere summaries of the 911, and because we find the 911 call does not contain testimonial statements, therefore, it follows the CAD transcript and the event chronology also do not contain testimonial statements and their admission did not violate Appellant's rights under the Confrontation Clause.
We overrule Issue One in its entirety finding the 911 call, the CAD transcript, and the event chronology all contain non-testimonial statements that do not violate the Confrontation Clause of the Sixth Amendment.
Issue Two: Complaining Witness Testimony & Confrontation Requirements
In Issue Two, Appellant argues the trial court erred in permitting the State to rest after the case-in-chief without calling the complaining witness to testify, which he contends violated his constitutional rights under the Confrontation Clause. Because we find there is no requirement that the State call a complaining witness to testify at trial, we find Issue Two unmeritorious.
A complaining witness is a crime victim who ultimately has no control over the case because it is the State, rather than the complaining witness, that brings forth charges. Davis, 177 S.W.3d at 362. The State may bring charges against a defendant even when a complaining witness declines to pursue charges, refuses to testify at trial, or testifies on behalf of the defendant at trial. Id. (emphasizing that "[t]he party here is the State of Texas, not the complaining witness."). It is well-established the State does not have to call any particular witness to prove its case, and the "State has a right to prove its case in any way it may see fit under proper rules and regulations, and a defendant cannot direct either the method or manner of proof." Shelvin v. State, 884 S.W.2d 874, 877 (Tex.App.—Austin 1994, pet. ref'd). The right of an accused to be confronted by the "witnesses against him" refers to the right that a defendant enjoys, not to the State's burden of production or the particular witnesses required for conviction. Carter v. State, 702 S.W.2d 774, 778 (Tex.App.—Fort Worth 1986, pet. ref'd)(interpreting the language of Article 1.05 of the Texas Code of Criminal Procedure).
The instant case differs from Chavez v. State, 508 S.W.2d 384, 386 (Tex.Crim.App. 1974), in which the court held an accused is not denied his right to confront and cross-examine a witness against him when the complainant does not testify at trial. Unlike in Chavez, the complaining witness here was present at trial and testified on behalf of Appellant; she denied the assault altogether. The State argues regardless of whether the complaining witness denied the assault, Appellant had ample opportunity to exploit her testimony in his favor and was not denied his right of confrontation under the Confrontation Clause of the Sixth Amendment. We agree and find this sub-part of Appellant's second issue is overruled.
Evidence of Physical Pain
Within this issue, Appellant further argues the trial court erred in allowing the case to go forward to the jury without requiring the State to call the complaining witness at trial because only she could testify as to the pain she felt during the assault. This argument is meritless because a complaining witness is not required to personally testify to the pain she/he suffered to uphold a conviction. Wead v. State, 94 S.W.3d 131, 135 (Tex.App.—Corpus Christi 2002, pet. granted), rev. on other grounds, 129 S.W.3d 126 (Tex.Crim.App. 2004)(finding that "Appellant has not directed us to any authority which requires the complainant to personally testify to the elemental fact of bodily injury . . . While it may be preferable to have the complainant testify to that element, that testimony is not required to sustain a conviction."). The State likens this case to Arzaga v. State, 86 S.W.3d 767, 778-79 (Tex.App.—El Paso 2002, no pet.), in which this Court held that the admitted evidence—an eyewitness' testimony, rather than the victim's, and photographs of the victim's injury—was sufficient to support the assault conviction.
The indictment charged Appellant with intentionally, knowingly, or recklessly causing bodily injury to Herrera by striking her about the head with his hand and by grabbing or dragging her about the arm. The Penal Code defines bodily injury as physical pain, illness, or any impairment of physical condition. In Arzaga, this Court recognized, "the jury is permitted to draw reasonable inferences from the evidence, including an inference that the victim suffered pain as a result of her injuries. . . . The existence of a cut, bruise, or scrape on the body is sufficient evidence of physical pain necessary to establish 'bodily injury' within the meaning of the statute." [Citations omitted]. 86 S.W.3d at 778 (citing Bolton v. State, 619 S.W.2d 166, 167 (Tex.Crim.App. 1981)) (evidence of cut on arm was sufficient to show bodily injury); Goodin v. State, 750 S.W.2d 857, 859 (Tex.App.—Corpus Christi 1988, pet. ref'd)(rejecting the contention that the State failed to prove bodily injury because the victim did not personally testify that bruises and strains "hurt" or that he felt pain, holding the existence of bruises was sufficient because the jury was able to draw inference from these injuries that the victim suffered physical pain).
The evidence at trial included eyewitness testimony from Roque and Delacruz, who both testified to the physical injuries Herrera sustained, and specifically a scratch on her arm that was not present prior to the assault, and the fact Herrera complained of pain from that injury after the assault. A photograph of what appears to be a large scratch on Herrera's arm was admitted into evidence. The 911 call itself also provided the jury with a narrative of the assault and insight into the bodily injuries and pain Herrera experienced. This testimony permitted an inference by the jury Herrera suffered physical pain and testimony from the victim is not required. This portion of Appellant's second issue is overruled.
Complaining Witness Testimony & Exculpatory Evidence
Last, Appellant contends it was the prosecution's "special responsibility" to call the complaining witness to testify because the State knew her testimony would be favorable to the defense, citing to Rule 3.09 of the Texas Disciplinary Rules of Professional Conduct. The only relevant portion of Rule 3.09 is a codification of the holding in Brady v. Maryland, 373 U.S. 83 (1963), which states, "[t]he prosecutor in a criminal case shall make timely disclosure . . . .")[Emphasis added]. TEX.DISCIPLINARY RULES PROF'L CONDUCT 3.09(d). There is no issue regarding the failure of the State to disclose exculpatory evidence because Appellant was well aware Herrera denied the assault, refused to cooperate with police, and signed a non-prosecution affidavit. There was no Rule 3.09 violation; Herrera's testimony was disclosed to Appellant and presented to the jury by the Appellant.
Appellant's second issue is overruled in its entirety.
LEGAL SUFFICIENCY
In Issue Three, Appellant asserts the evidence was not factually or legally sufficient to support his conviction. We disagree.
Standard of Review and Applicable Law
Under the Due Process Clause of the U.S. Constitution, the State is required to prove every element of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). In Brooks, the Texas Court of Criminal Appeals held the only standard a reviewing court should apply when examining the sufficiency of the evidence is the legal sufficiency standard articulated in Jackson, which requires deference to be given to the jury's credibility and weight determinations. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex.Crim.App. 2010). The critical inquiry in a legal sufficiency challenge, as set out in Jackson and to which we refer as the "Jackson standard," is whether the evidence in the record could reasonably support a conviction of guilt beyond a reasonable doubt. Jackson, 443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007). When reviewing the legal sufficiency of the evidence, we must view all of the evidence in the light most favorable to the verdict to determine whether any rational juror could have found the defendant guilty of the essential elements of the offense beyond a reasonable doubt. Salinas v. State, 163 S.W.3d 734, 737 (Tex.Crim.App. 2005). Additionally, we treat circumstantial evidence as being equally probative as direct evidence. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004)(citing Templin v. State, 711 S.W.2d 30, 33 (Tex.Crim.App. 1986)). Therefore, a lack of direct evidence is not dispositive on the issue of the defendant's guilt; guilt may be established by circumstantial evidence alone. Id., at 49 (citing Miles v. State, 165 S.W. 567, 570 (Tex.Crim.App. 1914)). We measure the evidence by the elements of the offense as defined by the hypothetically correct jury charge. Thomas v. State, 303 S.W.3d 331, 333 (Tex.App.—El Paso 2009, no pet.)(citing Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997)). A hypothetically correct charge accurately sets out the law, is authorized by the indictment, does not unnecessarily restrict the State's theories of liability, and adequately describes the offense for which the defendant was tried. Malik, 953 S.W.2d at 240.
We bear in mind that the trier of fact is the sole judge of the weight and credibility of the evidence, and we must presume the fact finder resolved any conflicting inferences in favor of the verdict and defer to that resolution. Dobbs v. State, 434 S.W.3d 166, 170 (Tex.Crim.App. 2014) (citing Jackson, 443 U.S. at 319). A reviewing court may not reevaluate the weight and credibility of the evidence or substitute its judgment for that of the fact finder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App. 2010)(citing Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999)). Our only task under this standard is to determine whether, based on the evidence and reasonable inferences drawn therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Id.
Issue Three: Legal Sufficiency to Support Conviction
In Issue Three, Appellant asserts the evidence was not factually or legally sufficient to support his conviction, specifically arguing that the complaining witness's testimony the assault never occurred confirmed the State's failure of proving the elements of the charged offense.
Analysis
The main thrust of Appellant's argument is the evidence is factually and legally insufficient to support his conviction because the complaining witness testified the assault did not occur. Appellant incorrectly asserts a factual insufficiency claim; the court in Brooks abandoned the factual sufficiency standard, codifying it to a standard of legal sufficiency. 323 S.W.3d at 915 (Cochran, J., concurring op.)("To declare the evidence factually insufficient necessarily turns an appellate judge, viewing only the cold written record, into a self-appointed thirteenth juror with absolute veto power over the twelve citizens who actually saw the witnesses, heard the evidence, and reached a rational, reasonable verdict.").
Appellant argues the State "fail[ed] to meet the elements of the offense through the one witness it avoided, but who is an essential element of the offense . . . Herrera, the complaining witness." The fact that a complaining witness testifies for the defense and denies the assault does not negate the elements of the charged offense or serve as a substitution for the jury's determinations. Moreover, Appellant appears to discount the evidence customarily utilized in proving the elements of an offense. At trial, the State offered the 911 call recording, the CAD transcript of the call, the event chronology of the call, a photograph of Herrera—in which a large scratch on her arm is visible—a photograph of Herrera appearing to be crying, a photograph of Roque's vehicular passenger door which depicted damage by way of Appellant having allegedly kicked it, and the testimony of two eyewitnesses—Roque and Delacruz. The jury as the fact finder was entitled to determine the facts, assess the credibility of the witnesses, and weigh their testimony. See Dowdy v. State, No. 08-15-00061-CR, 2016 WL 5806412, at *2 (Tex.App.—El Paso Oct. 5, 2016, no pet.)(not designated for publication)(noting that as a reviewing court, we are not permitted to sit as "thirteenth juror" and substitute our judgment for that of the fact finder). We defer to those findings and overturn a conviction only if it is irrational. Brooks, 323 S.W.3d at 899; Laster v. State, 275 S.W.3d 512, 517-18 (Tex.Crim.App. 2009). The question we answer here is whether a rational jury, in measuring the content of evidence admitted at trial against a hypothetically correct jury charge, could have found that all elements of the charged offense were satisfied beyond a reasonable doubt. See Duke v. State, 365 S.W.3d 722, 729 (Tex.App.—Texarkana 2012, pet. ref'd).
A person commits assault if the person intentionally, knowingly, or recklessly causes bodily injury to another. TEX.PENAL CODE ANN. § 22.01(a). The manner and means alleged of causing bodily injury is not an essential element of the offense. Thomas, 303 S.W.3d at 333. As applicable to the offense of assault in this case, the hypothetically correct jury charge would ask whether: (1) Appellant; (2) intentionally, knowingly, or recklessly; (3) caused bodily injury to Herrera by striking her about the head with his hand, or by grabbing or dragging her about the arm with his hand; and (4) had previously been convicted of assault against a member of his family or household or with whom he has had a dating relationship. See id. at § 22.01(a), (b); Thomas, 303 S.W.3d at 333.
In the instant case, the 911 caller positively identified Appellant as the assailant within the 911 call and in court, the photograph depicts bodily injury to Herrera's arm, two eyewitnesses testified as to the bodily injury they witnessed Appellant commit upon Herrera, the State also admitted three of Appellant's previous assault on family or household member convictions, and because of the overwhelming corroboration the 911 call itself provides, we cannot say the trial court's conviction verdict was irrational. The evidence is legally sufficient to support Appellant's conviction. Issue Three is overruled.
(1) On the 10th day of October, 2008, in the County Court at Law Number 2 of El Paso, County, Texas, in Cause Number 20070C04987; and (2) on the 10th day of October, in the County Court at Law Number 2 of El Paso, County, Texas, in Cause Number 20070C05539; and (3) on the 2nd Day of October 2008, in the 41st District Court of El Paso County, Texas, in Cause Number 20070D02503.
CONCLUSION
Having overruled Appellant's three issues, we affirm the judgment of the trial court. November 13, 2020
YVONNE T. RODRIGUEZ, Justice Before Alley, C.J., Rodriguez, and Palafox, JJ. (Do Not Publish)