Opinion
No. 04-04-00235-CR
Delivered and Filed: April 20, 2005. DO NOT PUBLISH.
Appeal from the 79th Judicial District Court, Jim Wells County, Texas, Trial Court No. 03-05-11204, Honorable Mike Westergren, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Nora Navin appeals her conviction of assault on a public servant. Navin contends that the evidence is legally and factually insufficient to support the jury's finding that the officer in question sustained bodily injury. Navin also contends that she received ineffective assistance of counsel. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion. See Tex.R.App.P. 47.4. Navin first contends that the evidence is legally and factually insufficient to support a finding that Officer Enrique Flores, Jr. sustained bodily injury as a result of her kicking him. In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution to 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). In our factual sufficiency review, we must consider all of the evidence in a neutral light to determine whether a 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 is factually insufficient if, when considered by itself, the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt. Id. In addition, weighing both evidence supporting the verdict and evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, thereby making the evidence factually insufficient. Id. at 484-485. We are not permitted to reweigh the evidence, rather we defer to the trier-of-fact's findings, particularly those based on credibility determinations. Cain v. State, 958 S.W.2d 404, 407-09 (Tex.Crim.App. 1997). "Bodily injury" is defined as "physical pain, illness, or any impairment of physical condition." Tex. Pen. Code Ann. § 1.07(a)(8) (Vernon Supp. 2004). "This definition appears to be purposefully broad and seems to encompass even relatively minor physical contacts so long as they constitute more than mere offensive touching." Lane v. State, 763 S.W.2d 785, 786 (Tex.Crim.App. 1989). In this case, both Officer Flores and Officer Salazar testified that Navin was kicking Officer Flores as he attempted to walk her to and place her into the police car. Officer Flores testified that Navin was kicking back at him as he was walking behind her. Navin's kicks were landing on his legs above his knee. Officer Flores responded affirmatively when he was asked whether the kicks caused him some kind of physical pain. Although Navin and her son testified that Navin did not kick Officer Flores, the jury weighed the credibility of the witnesses and apparently believed the officers' testimony. Navin contends that the facts in this case are similar to those discussed by the Austin court in In re M.C.L., 110 S.W.3d 591, 600 (Tex.App.-Austin 2003, no pet.). We disagree. The issue in In re M.C.L. was whether the bodily injury, or cuts, sustained by the officer were caused by the appellant kicking the officer or by the broken glass caused by the appellant kicking out the rear windows of the police car. See id. The Austin court noted that the officer's only testimony regarding bodily injury was that his hands were cut with shards of glass. See id. Accordingly, the court was unable to say that the bodily injury resulted from the appellant kicking the officer. See id. In the instant case, unlike In re M.C.L., Officer Flores stated that the kicks landed by Navin caused him some physical pain. This testimony was legally and factually sufficient to support the jury's finding that Officer Flores sustained bodily injury as a result of Navin kicking him. Navin also contends that trial counsel was ineffective in failing to: (1) request an instruction on the lesser included offense of resisting arrest; (2) request an instruction on the right to use force to resist the officer's use of excessive force; and (3) object to the absence of a definition of recklessly in the charge. To prevail on a claim of ineffective assistance of counsel, Navin must first show by a preponderance of the evidence that counsel's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). In addition, Navin must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. at 813. To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. at 814. In this case, the record is silent with regard to counsel's reasons for not requesting additional instructions or objecting to the charge. The State speculates that counsel may not have requested the instruction on the lesser included offense because any conviction would jeopardize Navin's deferred adjudication community supervision in another case. The State also speculates that counsel may not have requested an instruction on Navin's right to use force because the facts would not support the submission of such an instruction. The State further speculates that counsel may not have objected to the absence of a definition for the term "recklessly" because the culpable mental states for which definitions were provided focused the jury's attention on the culpable mental states that were more burdensome to prove. Ineffective assistance of counsel claims, however, are not built on retrospective speculation; they must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex.Crim.App. 2002). To find Navin's trial counsel ineffective without a proper record exploring counsel's trial strategy would require this court to speculate as to counsel's motivation and reasoning, which we may not do. See id. Because the record is silent, the presumption of reasonable professional assistance has not been defeated. The judgment of the trial court is affirmed.