Opinion
No. 05-15-00853-CR
01-12-2017
SELVIN SANTOS-HERNANDEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1330682-V
MEMORANDUM OPINION
Before Justices Lang-Miers, Myers, and Richter
Opinion by Justice Richter
The Hon. Martin Richter, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
A jury convicted Selvin Santos-Hernandez of Class A misdemeanor assault family violence. See TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2016). The trial court made an affirmative finding of family violence and sentenced appellant to 270 days' confinement in the Dallas County Jail. See TEX. CODE CRIM. PROC. ANN. art. 42.013 (West 2006). In a single issue on appeal, appellant contends the evidence is insufficient to support his conviction. We affirm the trial court's judgment.
BACKGROUND
While driving down a road in Grand Prairie on February 17, 2013, appellant and his wife Destinee began arguing. Appellant was driving. The couple's six-month-old baby was in a carseat in the back seat of the car. Appellant's two younger siblings, Odalis (age 12) and Christian (age 5) were also riding in the back of the car. The argument escalated into a physical fight. Appellant stopped the car and Destinee got out. All other facts about the altercation are disputed. Destinee and Odalis testified at trial to different and conflicting versions of the event.
Destinee testified that appellant started the fight. She said:
• Appellant was angry with her about men "liking" her photographs on Facebook and began yelling at her after grabbing her phone and looking at her Facebook account;
• As appellant became angrier he began driving recklessly and speeding;
• Destinee cried and begged him to stop the car, and tried to grab the gearshift to put the car in park;
• Appellant then pushed her and then punched her in the throat with his fist;
• Destinee grabbed the steering wheel and tried to kick open the car door;
• Appellant grabbed her left arm and squeezed it "as hard as he could" to keep her in the car;
• Destinee pushed him and finally bit him on the arm;
• When appellant finally stopped the car, Destinee got out and grabbed the baby from his car seat;
• She started running but appellant grabbed her by the arm and yelled at Odalis to come and take the baby;
• Destinee punched appellant's arms and pushed him "to get him off of me and the baby";
• Destinee knelt down to protect the baby with her body, and appellant hit her in the back of her head and grabbed her hair. He kicked her in the back, ribs, and shoulder;
• At appellant's direction Odalis took the baby from Destinee's arms, pulling Destinee's hair forcefully enough that Destinee momentarily released the baby;
• After Odalis took the baby, Destinee started hitting appellant and tried to run to retrieve the baby;
• Appellant chased her and put her in a choke hold, so that it hurt her to breathe and she almost fainted;
• She bit appellant in the face, the only place she could reach;
• Appellant released her and then left in the car, swerving as if to hit her.
Odalis testified that Destinee started the fight. She said:
• Destinee "started screaming" for an unknown reason and "wanted to throw herself out of the car";
• Destinee started hitting appellant in the face and arms while he was driving;
• Destinee grabbed the steering wheel and tried to pull the car off the road;
• Appellant had to stop the car because he could not grab Destinee's hands to fend her off;
• Appellant did not hit Destinee and did not put his hands around her throat and choke her;
• Destinee kept hitting appellant in the face, then bit him in the face and the hand;
• Destinee opened the car door and got out on her own, screaming;
• Destinee "grabbed the baby" and "threw the baby" to appellant;
• Odalis did not pull Destinee's hair or touch her in any way;
• They drove away, leaving Destinee, but then returned and threw Destinee's cell phone to her; and
• They drove to the Dallas Police Department to report Destinee's assault on appellant.
Appellant was indicted for the felony offense of assault family violence by impeding breathing or circulation. A jury found appellant guilty of a lesser-included offense, misdemeanor assault family violence. Punishment was assessed by the trial court. This appeal followed.
APPLICABLE LAW AND STANDARD OF REVIEW
Appellant contends the evidence is insufficient to support the jury's verdict because a "rational" juror could not have found the essential elements of the offense beyond a reasonable doubt. He also contends the jury was not rational because it rejected his claim of self-defense.
To obtain a conviction for assault family violence, the State was required to prove beyond a reasonable doubt that appellant intentionally, knowingly, or recklessly caused bodily injury to a family member, including appellant's spouse. TEX. PENAL CODE ANN. § 22.01(a); 22.01(b)(2); see also Davila v. State, 346 S.W.3d 587, 591 (Tex. App.—El Paso 2009, no pet.) (listing elements of offense).
We review the sufficiency of the evidence under the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). Fernandez v. State, 479 S.W.3d 835, 837 (Tex. Crim. App. 2016). We examine all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Fernandez, 479 S.W.3d at 837-38. This standard recognizes "the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319; see also Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). The fact finder is entitled to judge the credibility of the witnesses, and can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); see also Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012) ("The factfinder exclusively determines the weight and credibility of the evidence.").
We defer to the fact finder's determinations of credibility, and may not substitute our judgment for that of the fact finder. Jackson, 443 U.S. at 319; Thornton v. State, 425 S.W.3d 289, 303 (Tex. Crim. App. 2014); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (in conducting legal sufficiency analysis, appellate court "may not re-weigh the evidence and substitute our judgment for that of the jury"). When there is conflicting evidence, we must presume the fact finder resolved the conflict in favor of the verdict, and defer to that resolution. Jackson, 443 U.S. at 326; Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim. App. 2016). Circumstantial evidence is as probative as direct evidence and, alone, can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Evidence is sufficient if "the inferences necessary to establish guilt are reasonable based upon the cumulative force of all the evidence when considered in the light most favorable to the verdict." Wise, 364 S.W.3d at 903.
Appellant contends he acted in self-defense. A person is justified in using force against another when and to the degree he reasonably believes force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. See TEX. PENAL CODE ANN. § 9.31(a) (West 2011). "'Reasonable belief' means a belief that would be held by an ordinary and prudent man in the same circumstances as the actor." Id. § 1.07(a)(42).
When an appellant brings a sufficiency challenge on the basis of his claim of self-defense, we do not look to whether the State presented evidence that refuted self-defense. Gaona v. State, 498 S.W.3d 706, 709 (Tex. App.—Dallas 2016, pet. ref'd) (citing Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991)). Instead, after reviewing all the evidence in the light most favorable to the verdict, we determine whether any rational trier of fact would have found the essential elements of the offense beyond a reasonable doubt and found against the appellant on the self-defense issue beyond a reasonable doubt. Id. The jury resolves any conflicts in the testimony and determines the credibility of the witnesses and the weight to be given to their testimony. Id. (citing Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012)). Our duty is to ensure that the evidence the State presented supports the jury's verdict and the State has presented a legally sufficient case of the offense charged. Id. (citing Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012)).
ANALYSIS
As we have explained, although appellant was indicted for felony assault family violence for impeding Destinee's breathing or circulation, the jury found appellant guilty of the lesser offense of assault family violence. See TEX. PENAL CODE ANN. §§ 22.01(a); 22.01(b)(2)(B). Appellant contends the jury's verdict was not rational. He argues, "[t]he jury clearly did not believe Destinee and instead chose to believe Appellant's sister, so by finding Appellant guilty of any criminal wrongdoing, the jury was not rational in its decision." He explains that he "either acted in self-defense or he did not." If the jury believed Destinee, appellant argues, he should have been convicted as charged in the indictment. Because he was not, he concludes the evidence is legally insufficient to support his conviction on the lesser-included offense.
Appellant relies on Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009), for the proposition that an appellate court's legal sufficiency review includes "guarding against the rare occurrence when a factfinder does not act rationally." Laster cites Jackson v. Virginia for this proposition. See id. (citing Jackson, 443 U.S. at 317). In Jackson, the Court explained:
A "reasonable doubt" at a minimum, is one based upon "reason." Yet a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt . . . . Under [In re] Winship, [397 U.S. 358 (1970)] which established proof beyond a reasonable doubt as an essential of Fourteenth Amendment due process, it follows that when such a conviction occurs in a state trial, it cannot constitutionally stand.Jackson, 443 U.S. at 317-18 (additional citations omitted). But the Court explained that the relevant question on appellate review "is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319. The Court continued:
This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through legal conclusion that upon judicial review all of the
evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon "jury" discretion only to the extent necessary to guarantee the fundamental protection of due process of law.Id. (footnotes omitted).
Reviewing all of the evidence, we conclude a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt and found against the appellant on the issue of self-defense beyond a reasonable doubt. See Gaona, 498 S.W.3d at 709. The jury could have believed that appellant intentionally, knowingly, or recklessly caused bodily injury to Destinee, even if the jury did not believe that appellant "intentionally, knowingly, or recklessly impede[d] the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck." See TEX. PENAL CODE ANN. §§ 22.01(a); 22.01(b)(2)(B). Destinee testified that appellant punched, kicked, and pushed her in the course of their fight, and that she was injured as a result. Also through Destinee's testimony, the State sought to refute appellant's contention that he acted in self-defense. Destinee testified that appellant started the fight, and pushed and punched her first. The jury could have believed this testimony as well. Similarly, the jury could have rejected the portion of Destinee's testimony that appellant choked her.
Appellant argues that Destinee was not credible because (1) there was evidence that she was "often aggressive or prone to violence, especially in her relationship with Appellant"; (2) the State did not call the "disinterested eyewitness" identified by the police; (3) Destinee "had an adulterous relationship with another man that produced a child after she and Appellant separated"; (4) Destinee "had a clear motive to lie" because she could benefit in the parties' pending divorce and custody proceeding by accusing appellant of abuse; (5) Destinee had no sign of any injury and did not need medical attention after the alleged assault; and (6) no one took any photos of any of Destinee's injuries. Appellant argues, "[i]n sum, there was no evidence presented to refute Appellant's claim that he only used such force as was necessary to protect against Destinee's admitted attacks upon him." But each of these matters was called to the jury's attention during trial. Destinee's lack of credibility based on these reasons was the focus of defense counsel's closing argument to the jury.
Destinee's credibility was for the jury to decide. See, e.g., Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) (reviewing court defers to fact finder's determinations of credibility, and may not substitute its judgment for fact finder's). The jury was not required to believe all of Destinee's testimony. "As factfinder, the jury is entitled to judge the credibility of witnesses, and can choose to believe all, some, or none of the testimony presented by the parties." Chambers, 805 S.W.2d at 461. The jury's acceptance of some portions of Destinee's testimony and its rejection of other portions does not render its verdict irrational. See id.
It was also the jury's province to resolve conflicts in the evidence. Odalis testified that appellant not only did not choke Destinee but did not hit her at all. She testified that appellant grabbed Destinee's hands only after Destinee began hitting appellant, and that appellant acted only to prevent Destinee from grabbing the steering wheel. The State argued to the jury that appellant put Odalis, a twelve-year-old child, "in a bad position to begin with" by telling her to grab the baby from Destinee in the middle of the fight. The State further argued that Odalis had "been fed this whole story" by appellant, her big brother, including the unlikely contention that Destinee "cared so little about the baby" that she "threw" him at appellant in the course of the argument.
In order to reach its verdict, the jury was required to resolve the conflict between Destinee's and Odalis's testimony. According to its verdict, the jury believed Destinee that appellant hit her first and injured her. But the jury believed Odalis that appellant did not choke Destinee. When there is conflicting evidence, we must presume the fact finder resolved the conflict in favor of the verdict, and defer to that resolution. Jackson, 443 U.S. at 326; Blea, 483 S.W.3d at 33.
Appellant also argues that none of the exceptions to self-defense in penal code section 9.31(b) applies. He argues he did not act in response to verbal provocation alone; he did not consent to the exact force used or attempted by Destinee, but rather acted in attempt to save her life when she tried to lunge from the vehicle; he did not provoke Destinee's use of force; and he did not seek an explanation from Destinee concerning their differences while he was unlawfully carrying a weapon. See generally TEX. PENAL CODE ANN. § 9.31(b). These matters were included in the instructions to the jury, and we presume the jury understood and followed the instructions absent evidence to the contrary. See Jenkins v. State, 493 S.W.3d 583, 616 (Tex. Crim. App. 2016). We conclude that a rational jury could have found the essential elements of the offense of assault family violence beyond a reasonable doubt, and could have found against appellant on the issue of self-defense beyond a reasonable doubt. See Gaona, 498 S.W.3d at 709. We overrule appellant's sole issue.
CONCLUSION
We affirm the trial court's judgment.
/Martin Richter/
MARTIN RICHTER
JUSTICE, ASSIGNED Do Not Publish
TEX. R. APP. P. 47 150853F.U05
JUDGMENT
On Appeal from the 292nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1330682-V.
Opinion delivered by Justice Richter; Justices Lang-Miers and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 12th day of January, 2017.