Opinion
No. 05-11-01494-CR
05-29-2012
RUFUS MARION SIRKEL, III, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed May 29, 2012.
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F11-41323-Q
MEMORANDUM OPINION
Before Justices Morris, Moseley, and Myers
Opinion By Justice Moseley
Rufus Marion Sirkel, III appeals from his conviction for aggravated assault with a deadly weapon. In a single issue, appellant contends the evidence is insufficient to support the conviction. We affirm the trial court's judgment. The background of the case and the evidence admitted at trial are well known to the parties, and we therefore limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled.
The indictment alleged appellant committed aggravated robbery with a deadly weapon, a baseball bat. The State later moved to amend the indictment by removing the words “baseball bat” and adding “an unknown object.” However, on its face, the indictment was not amended. During the plea hearing, the trial court asked appellant if he understood that he was indicted for an aggravated robbery but the State had filed a motion to reduce the charge to aggravated assault. Appellant said he understood the charge against him was being reduced, and that the punishment range was two to twenty years' imprisonment rather than five to ninety-nine years' or life imprisonment. Appellant waived a jury and pleaded guilty to aggravated assault. See Tex. Penal Code Ann. § 22.02(a) (West 2011). Appellant's signed judicial confession was admitted into evidence.
During the hearing, the complainant testified someone hit him on the back of his head with “a stick or a baseball bat,” he saw the stick or baseball bat, and someone continued hitting him when he fell to the ground. The complainant testified his money, cell phone, keys, and tennis shoes were taken during the assault. The complainant sustained wounds to his head and face, one tooth was knocked out and another cracked in half, his eyes were swollen shut, and blood was in his ear. The complainant testified he spent three days in a hospital.
Appellant admitted he assaulted the complainant, but testified he only used his fists and not a stick or baseball bat. Appellant testified he saw the complainant having sex with appellant's common-law wife in a wooded area behind their apartment complex. Appellant walked behind the complainant, hit him on the head with his fist, and continued hitting the complainant as he fell to the ground. Appellant testified he did not sustain any injuries to his fists from the assault.
The trial court found appellant guilty of aggravated assault and assessed punishment at fifteen years' imprisonment. The trial court also made an affirmative deadly weapon finding.
Appellant contends the evidence is insufficient to support the conviction for aggravated assault with a baseball bat. Appellant argues the indictment was never amended to change the alleged deadly weapon from a baseball bat to an unknown object, and that although the judicial confession recites he committed the assault while using a baseball bat, his testimony shows he hit the complainant with his fists. The State responds that the evidence is sufficient to support the aggravated assault with a deadly weapon conviction.
When a defendant pleads guilty or nolo contendere, the State must introduce sufficient evidence into the record to support the plea and show the defendant is guilty, and said evidence shall be accepted by the court as the basis for its judgment. See Tex. Code Crim. Proc. Ann. art. 1.15 (West 2005); see also Ex parte Martin, 747 S.W.2d 789, 792-93 (Tex. Crim. App. 1988). We will affirm the trial court's judgment if the evidence introduced embraces every essential element of the offense charged and is sufficient to establish a defendant's guilt. See Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996).
The record shows the trial court orally granted the State's motion to amend the indictment, but the indictment was not amended on its face. Appellant's signed judicial confession recites that during the assault, appellant “used and exhibited a deadly weapon, to-wit: a baseball bat.” It is well settled that a judicial confession, standing alone, is sufficient to sustain a conviction upon a guilty plea. See Pitts v. State, 916 S.W.2d 507, 510 (Tex. Crim. App. 1996). Moreover, it was the trial court's role, as the fact finder in this case, to reconcile conflicts in the evidence and judge the witnesses' credibility. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003); Lee v. State, 952 S.W.2d 894, 897 (Tex. App.-Dallas 1997, no pet.) (en banc). The trial judge stated she found the complainant's testimony credible, she believed the complainant when he said he was struck with a stick or baseball bat, and she questioned appellant extensively as to how he could cause so many injuries to the complainant while using only his fists.
We conclude the trial court did not err in finding appellant guilty of aggravated assault with a deadly weapon. We overrule appellant's sole issue.
We affirm the trial court's judgment.
JIM MOSELEY
JUSTICE
Do Not Publish
Tex. R. App. P. 47
111494F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
RUFUS MARION SIRKEL, III, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-01494-CR
Appeal from the 204th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F11- 41323-Q).
Opinion delivered by Justice Moseley, Justices Morris and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered May 29, 2012.
JIM MOSELEY
JUSTICE