Opinion
Nos. 05-04-00686-CR, 05-04-00702-CR
Opinion Filed April 14, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 5, Collin County, Texas, Trial Court Cause Nos. 005-82104-03 and 005-86876-02.
Affirmed as Modified.
Before Justices MORRIS, FRANCIS, and LANG-MIERS.
OPINION
A jury convicted Arlen Paul Pilkinton of two separate misdemeanor assaults on his girlfriend, and the trial court assessed punishment in each case at one year in county jail, probated for two years, and a $350 fine. On appeal, appellant challenges the legal and factual sufficiency of the evidence to sustain his convictions. We affirm. In November 2002, appellant was living with Amy Escamilla in rural Collin County. On the morning of November 29, Escamilla and appellant both used methamphetamine. That afternoon, they decided to go to McKinney to get their hair cut and to eat. The hair salon was too crowded, and they left. When they returned to appellant's truck, appellant noticed a number he did not recognize on his cell phone and accused Escamilla of having an affair. Instead of going home, Escamilla testified appellant drove the back roads of Collin County for ten hours; he beat her throughout this period of time. Escamilla estimated appellant hit her more than fifty times. At one point, appellant parked in a field, pushed Escamilla out of the truck, and told her that would "probably be the last place that [she] would take [her] last breath." Escamilla hurt her back in the fall. Appellant slammed down a knife on the truck's dash, pulled back Escamilla's head, put "something" to her neck, and threatened to kill her. Appellant told her it was a knife, and Escamilla pleaded for her life. Appellant helped Escamilla back into the truck, and Escamilla asked him to take her to the hospital. Appellant refused and drove to a a Wal-Mart parking lot, where he slapped her across the face "pretty good" and bloodied her mouth. Escamilla wiped away the blood with her shirt. At one point, he threw a Coke on her. During the long drive, Escamilla said she tried to escape, but appellant grabbed her shirt and held her in the truck. Finally, after dark, appellant drove home. He helped Escamilla into the house because she could barely walk. Once home, appellant continued to accuse Escamilla of cheating on him. She tried to lock herself in the bathroom, but appellant broke down the door. According to Escamilla, appellant slammed the cell phone against her head, bit her nose, kicked her, and bent her fingers back to "break them." When appellant lay on the bed, he doused her in water and turned on the fan. Escamilla said appellant threatened to tie her up and "hurt" her so she could not be with another man. As a result of the beating, Escamilla said she had two black eyes and bruises from head to toe. At about 1:20 a.m., appellant fell asleep and Escamilla fled the house. She called her neighbor, Terri Chapman, who was at a lake house in Bonham. Chapman testified that Escamilla sounded "terrified" and repeatedly said she was hurt. When Escamilla arrived, Chapman helped her from the car. She said Escamilla had bruises "everywhere on her body" and had a black eye. Additionally, Chapman said one side of Escamilla's face was swollen, she was holding one arm, and could not walk by herself. Chapman photographed some of the injuries. Chapman tried to persuade Escamilla to go to the police or to a doctor that night, but Escamilla was too scared. The two women talked until daybreak, and Chapman convinced Escamilla to contact the authorities. Escamilla and Chapman returned to Escamilla's home and called the Collin County Sheriff's Office. Deputy Bruce Ferguson responded to the call. Ferguson testified that Escamilla had a black eye, swollen face, swollen lip, bruising, and scraping. The majority of the bruises, said Ferguson, were on Escamilla's left side. He said it was difficult for Escamilla to talk. Because he believed she needed medical treatment, he offered to call an ambulance, but Escamilla declined. The sheriff's officer took photographs of Escamilla's injuries and appellant's truck. Escamilla, who did not have insurance, went to the doctor four days later and was prescribed pain medicine. Escamilla also testified that she had previously been diagnosed as "uni-bipolar," meaning she suffered depression. At the time of the assault, she was not taking medication for her illness. On cross-examination, defense counsel asked Escamilla if she knew her medical records did not reflect she sustained injuries. Escamilla responded that she did not need to review her medical records because she knew what had happened and who had done it to her. Escamilla testified she suffered eighty-seven bruises as a result of the assault. Escamilla also acknowledged that she knew that at the time of the assault, appellant had just received $45,000 as part of a divorce settlement and said she was jealous of appellant's ex-wife, Kim Pilkinton. Admitted into evidence were photographs of Escamilla's injuries as well as photographs of the cell phone, broken door, her shirt, and the interior of appellant's truck showing a substance splashed on the door. Escamilla's medical records were also admitted. After the incident, Escamilla moved in with her mother for a couple of weeks, but appellant eventually moved back into her home. Less than five months later, in April 2003, Escamilla broke her wrist during an altercation with appellant. At trial, Escamilla, who still loved appellant, characterized this incident as an "accident that turned worse than it should have been." According to Escamilla, she wanted appellant to help her clean an office building because she had helped him at work that day. Appellant refused and told Escamilla to leave him alone but she continued to ask appellant to help her. Escamilla said she was standing at the kitchen counter, and appellant came around the end of the counter with a Coke in his hand to "calm" her. Escamilla was determined not to be "doused" again with Coke. She said she "drawed back" because she did not know what appellant was going to do. While appellant was trying to calm her down, he pushed her "hard" and she slipped on clothing on the floor, landed with her arms, and broke her wrist. When asked if she had touched appellant first or if appellant touched her first, Escamilla replied, "He pushed me." After she fell, Escamilla said appellant was "scared" because he had the November assault charge pending. He put his hand over her mouth and said, "Bitch, you're not hurt. Get up." The next day, appellant's mother, Francis Pilkinton, gave Escamilla $400 to cover her medical bills. Mrs. Pilkinton told Escamilla if she needed more to just ask. On cross-examination regarding this incident, Escamilla agreed that appellant did not push her down but that she tripped. However, when asked if the push was "hard enough to do anything more than just keep you guys separate," Escamilla replied, "It was a hard push." Appellant's mother and ex-wife testified in his defense. His ex-wife, Kim, provided an alibi for appellant regarding the November assault. She testified appellant was with her from about 6 p.m. to 9 or 10 p.m. on November 29 separating their community property. Kim testified she believed it was a Sunday. She said Escamilla's jealousy of her relationship with appellant has been an ongoing problem. Also, according to Kim, appellant was tested for drug use toward the end of the divorce and he passed. Finally, Kim testified about an incident eight months' previously in which her eight-year-old son called her wanting to be picked up because Escamilla was "crazy" and chasing appellant down the road. Francis Pilkinton, appellant's mother, testified about the April incident. She said appellant came to her home at about 10:30 or 11 p.m. saying Escamilla was "acting crazy" and threatening to "call the laws" on him. Appellant told his mother Escamilla stumbled and fell. Escamilla then entered the house looking like a "limp noodle." Mrs. Pilkinton testified Escamilla was holding her arm and asking appellant to go with her to clean. Mrs. Pilkinton did not believe Escamilla was injured. She offered to go with Escamilla, but Escamilla decided not to go. Appellant stayed at his mother's that night. The next morning, Escamilla returned, woke up appellant, and asked him to take her to the doctor. According to Mrs. Pilkinton, Escamilla wanted appellant to be responsible for the medical bills. Appellant told her he would not go because "he did not know what [she] was going to do" since she had threatened to contact the police. Mrs. Pilkinton told Escamilla to go on to the doctor, that appellant was not going. After Escamilla left the room, Mrs. Pilkinton got $400 from appellant, which she then took outside to Escamilla. Later that day, Mrs. Pilkinton said Escamilla called appellant wanting another $3000. Appellant agreed to give her the money if Escamilla agreed not to contact the police. Mrs. Pilkinton said she wrote up an agreement stating that appellant was "not responsible for what had happened to her either time that she had called the laws." Before Escamilla arrived to pick up the money, two sheriff's deputies came to the house to arrest appellant. Appellant did not give Escamilla the money. After hearing the evidence, the jury convicted appellant on both assault charges. On appeal, he challenges the legal and factual sufficiency of the evidence to support the convictions. The standards for reviewing the legal and factual sufficiency of the evidence are well-established. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). In both of these cases, the State had to prove that appellant intentionally, knowingly, or recklessly caused bodily injury to Escamilla. See Tex. Pen. Code Ann. § 22.01(a)(1) (Vernon Supp. 2004-05). We begin with the November assault. Appellant's sole argument is that the evidence is factually insufficient to support the conviction. He complains about Escamilla's credibility and discrepancies in the evidence. He argues that a "combination of greed, jealousy, methamphetamine intoxication, and untreated depression" undermine Escamilla's credibility. As for the evidence, he argues that (1) the medical records and photographs fail to support a ten-hour beating and (3) his ex-wife testified he was with her for four hours of the alleged ten-hour assault incident. Escamilla's credibility was an issue for the jury to decide. As for his assertion that the medical records and photographs failed to support Escamilla's story, the jury had the photographs to view and could draw its own conclusions on the nature and extent of her injuries and whether they supported Escamilla's testimony. In addition, the jury had two witnesses, Escamilla's neighbor and the sheriff's deputy, who saw Escamilla shortly after the attack. Terri Chapman testified Escamilla had bruises all over her body, a black eye, swollen face, and could barely walk. The sheriff's deputy who responded to the domestic violence call saw her just hours later and described similar injuries. In fact, the deputy wanted to call an ambulance so that Escamilla could be treated for her injuries. That a doctor did not note any serious injury four days later does not defeat this evidence. As for Kim's alibi testimony, this does not render the evidence factually insufficient; rather, it only created a conflict the jury had to resolve. Kim testified appellant was with her separating their property; she also believed the day was a Sunday. Escamilla's medical records indicated the assault was on Friday. In its closing argument, the State told jurors that November 29 was a Friday. Even without this information, however, jurors were not required to believe Kim. Having reviewed all the evidence in this case, we conclude the evidence is factually sufficient to support appellant's assault conviction in cause number 05-04-00702-CR. We overrule the sole point of error. In cause number 05-04-00686, appellant complains the evidence is legally and factually insufficient to support his conviction in the April 2003 assault. In his first point of error, appellant argues the evidence is legally insufficient to establish that his conduct caused the injury. In particular, he complains the State offered no evidence to show that his push "actually caused injury to Escamilla" or caused Escamilla to slip on the clothes in the first place. We disagree. Proof of causation is sufficient if the evidence establishes that "but for" the defendant's conduct, the alleged result would not have occurred. Barcenes v. State, 940 S.W.2d 739, 745 (Tex.App.-San Antonio 1997, pet. ref'd). Escamilla testified she wanted appellant away from her. She testified appellant pushed her, the push was "hard," she slipped on clothing, fell, and broke her wrist. From this evidence, a rational jury could have determined that but for appellant's push, Escamilla would not have injured her wrist. We overrule the first point of error. In his second point of error, appellant complains the evidence is factually insufficient to allow the jury to reject his theory of self-defense. A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Tex. Pen. Code Ann. § 9.31(a) (Vernon 2003). Having reviewed the evidence in this case in a neutral light, we believe a jury could have reasonably concluded Escamilla's actions did not give appellant a reasonable belief that he needed to protect himself from her, even if Escamilla "drawed back" before appellant pushed her. Escamilla testified that she was standing at one end of the counter and appellant at the other. He approached her with a Coke in his hand. Escamilla testified she did not want appellant near her and did not want him to throw the Coke on her as he had in the past. She did not touch him first; instead, appellant pushed her "hard." To the extent he relies on evidence that Escamilla was "pushing his buttons," the law is clear that verbal provocation alone cannot justify the use of force against another. Tex. Pen. Code Ann. § 9.31(b)(1) (Vernon 2003). We conclude the evidence was factually sufficient to permit the jury to reject appellant's self-defense claim. We overrule the second point of error. In both orders placing appellant on community supervision and in both judgments, appellant's last name is spelled "Pilkington." Every other document in the record has appellant's last name as "Pilkinton." Further, appellant's signature is "Pilkinton." 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 both trial court's orders placing appellant on community supervision and both judgments to reflect appellant's last name as "Pilkinton."
As modified, we affirm the trial court's judgments.