Opinion
NO. 01-18-00331-CR
04-23-2020
LEONARD LEE SMITH, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 10th District Court Galveston County, Texas
Trial Court Case No. 16-CR-2070
MEMORANDUM OPINION
A jury found appellant, Leonard Lee Smith, guilty of the felony offense of assault of a family member, enhanced by a prior conviction, and assessed his punishment at confinement for thirty years. In two issues, appellant contends that his trial counsel provided him with ineffective assistance during the guilt phase of trial and the trial court erred in admitting certain "victim impact" evidence.
See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2)(B); see also TEX. FAM. CODE ANN. §§ 71.0021(b), 71.003, 71.005.
We affirm.
Background
The complainant, Tambra Vinson-Smith, testified that she and appellant became friends when they were eight years old and grew up together, but they had lost touch in adulthood. They became reacquainted in about 2014, started "a whirlwind relationship," and married later that year.
The complainant testified that she and appellant moved to Galveston, Texas in 2015. Over time, the complainant saw a pattern of appellant spending his time off work drinking. On those occasions, he "would either get belligerent and violent verbally, or he would pass out." When he became verbally abusive, he would "[b]eat[] down her self worth [and] accus[e] [her] of things that he knew . . . were not true," like that she was "[h]iding money from him, having affairs, [and] lying to him . . . ." He would "browbeat[]" her, "telling [her] that [she] was just a piece of dirt . . . [and] tearing [her] down emotionally." The complainant was "not scared of [appellant] physically," because she would "separate [her]self from it" by going into her own room. That would normally put an end to it, and the complainant "usually would get flowers and a card the next day, saying, 'I don't know what all I did and said to you, but I'm worry. You don't deserve that kind of stuff.'"
The complainant testified that appellant did not physically abuse her until one evening in late July 2016. At the time, the complainant recounted, her friends, Vensent and Tamera Everett, were celebrating Vensent's birthday by spending several days at a recreational vehicle ("RV") park in Galveston. She became friends with the Everetts during a "spiritual retreat" in 2009 and would join them on outings and camping trips. When she began dating appellant, she brought him on one of the camping trips to introduce him to the Everetts.
On the evening of the assault, the complainant testified, the Everetts were hosting a party and had invited several friends, including the complainant and appellant, to join them for a cookout at the RV park. The complainant finished her shift at the Home Depot store by 4:30 p.m. and headed home "to get . . . ready to go to the cookout." When she arrived at the apartment, she noticed that appellant "had been drinking." She did not think he was intoxicated, "but [she] could tell he had consumed quite a bit." Before they left, appellant gave his driver's license to her "to put in [her] wallet because he had on his swim trunks."
At the cookout, they "h[u]ng out with friends that were in town," "enjoying the nice weather, [and] their company. . . . Everybody was having a cocktail." The complainant limited herself to "two glasses of wine because [she] thought [she] would possibly be driving home." She did not know how much appellant drank that evening, "but he always had something in his hand."
According to the complainant, after eating, they "went and hung out at the swimming pool." She remembered, "[i]t was a big pool. [Appellant] was sitting . . . on the right side with Tamera, and they were talking." Vensent and another friend also were nearby, and the complainant "was kind of in the middle" of the pool. They "were all talking back and forth," "having an open conversation, just enjoying each other's company." When the complainant tried to step out of the pool, however, "it all kind of changed." Appellant "kept pushing her back into the pool and then hitting" her in the head "with a wet towel." The complainant recalled asking appellant, "Please, stop it. I am trying to get out of the pool. That hurt," to which appellant responded, "Well, you just don't have a sense of humor." [Internal quotations omitted.] Appellant pushed her into the pool two or three times, and the complainant had to tell him to stop "a couple of times" before he stopped.
After changing into dry clothes, the complainant "decided [she] needed to leave." And appellant "decided he needed to leave; and he told [the complainant that she] was not riding in his car, which at that point there was no way [that she] was going to get in the vehicle with him." The complainant explained that she "was too scared" and she "didn't want to end up wrapped around a pole." The Everetts agreed to drive the complainant back to her apartment. Appellant got in his car and "drove off before [them]. He squealed tires all the way out the [RV] park."
The complainant testified that she arrived at the apartment before appellant and went inside. When appellant arrived a short time later, he entered the apartment, "slam[med] the door, [went] to the refrigerator, grab[bed] a beer, and . . . holler[ed] for [the complainant], wanting to know if [she] is there." The complaint walked in from the patio to talk to appellant. He was "very angry" because she "had his driver's license in [her] purse and [appellant] had to take back roads" home to avoid any law enforcement officers on the main road and the risk of being stopped without his driver's license. The complainant "offered to go and get [the driver's license]" and "went into the bedroom to get [her] purse." Appellant followed her into the bedroom and "snatched [the] purse away from [her]." The complainant told appellant to stop acting like that and said she was tired of his bad behavior.
According to the complainant, appellant responded by punching the complainant's face with his closed fist. He continued to punch her more than twenty times while "toss[ing her] around like a rag doll," and "throw[ing her] to the ground." Appellant threw the complainant on the bed, breaking the bed frame, then straddled her on the bed and held both of her arms down on her chest. At some point during the altercation, the complainant tried to reach for her cellular phone to call for emergency assistance, but appellant grabbed it from her and threw it against the wall, breaking the phone.
As the complainant pleaded with appellant to stop, appellant grew "angrier and angrier and then threw a couple of punches and then . . . grabbed [the complainant] again and threw her against the floor." He straddled the complainant again, this time pressing his hands against her neck. The complainant could feel herself "trying to lose consciousness" and "thought [she] would die." When she tried to scream for help, appellant covered her nose and mouth with his hand, moving it only after the complainant bit him.
The complainant managed to escape appellant and ran to the bathroom. Appellant grabbed a firearm and followed her there, pointing it at himself and threatening to commit suicide. He accused the complainant of being a liar and a whore and threatened to "shoot [her] in the back of the head]" if she tried to get away from him. The complainant tried to appease him; eventually, she was able to convince him to let her leave to visit her mother for a few days. The whole ordeal lasted about three hours.
At trial, the complainant detailed her extensive injuries. She also explained that Tamera took her to the hospital. After she was discharged, she rested for a few hours in the Everetts' RV, then went to stay with a friend in Galveston, where she "hid [her] car in [the] backyard so [that appellant] couldn't find [her]." When she felt well enough, she made the longer drive to her mother's home in Decatur, Texas. The complainant testified that she was still in pain several months later and that it took her until mid-October 2016 to heal enough to where she could work.
Vensent testified that he and Tamera first met the complainant on a group camping trip in 2012. The complainant introduced them to appellant in 2014 "on another camping excursion." Between 2014 and 2016, Vensent recounted, both couples attended seven or eight group camping trips and socialized during barbecues and other activities.
In late July 2016, Vensent and Tamera spent several days at the Sandpiper RV Park in Galveston. They made plans to have a barbecue one evening with three or four couples that they were friends with, including the complainant and appellant. That evening, they barbecued and swam in the pool, and had drinks. One couple had a boat and offered to take a group fishing for flounder that night. They "made arrangements that later that evening [the boat owners] [were] going to get [the] boat and come back, and [they would] all . . . go flounder gigging."
Vensent testified that the boat owners were gone for about forty-five minutes. Meanwhile, the rest of the group was in the swimming pool. "[W]hen [they] were getting ready to get out of the pool," Vensent noticed that appellant "had aggressively pushed [the complainant] back into the pool about four or five times." To Vensent, appellant's behavior at first "seemed like he was just maybe kidding around like kids or something, but after a while it was getting to where [the complainant] didn't seem to like it very much." The boat owners returned and met the rest of the group, and then they walked to where the boat parked. As the group prepared to go out on the boat, Vensent noticed that appellant had developed "an attitude." Appellant, "wasn't too happy of how late it was that [the boat owners] showed up with the boat. He was getting pretty belligerent, pretty mad . . . . He was cussing everybody," using "foul language . . . . [H]e just started getting a little like aggressive, like he was mad, really mad."
Vensent testified that they "decided it may not be a good idea to go fishing" with appellant. As appellant and the complainant prepared to leave, appellant appeared too intoxicated to drive his car but he would not turn over his keys. The Everetts offered to drive the complainant home. Appellant left first, but the Everetts and the complainant arrived first at the home. They dropped the complainant off, and appellant "showed up then." Vensent recalled that appellant "was pretty upset with [them]," but they "just kind of let it be" and returned to the RV park to go fishing.
According to Vensent, about 2:00 a.m., the fishing group returned to shore. The Everetts returned to their RV and "tried to go to bed, but "found that [they] had a leak . . . over [their] bed." As they were taking care of the leak, they heard a knock at the door at about 3:00 a.m. Vensent answered it and found the complainant, "look[ing] like she had a fight with Mike Tyson. . . . Her eye was swollen [shut], purple. . . . She had bruises all over her arms . . ., all over her body." Vensent called for emergency assistance.
Emergency assistance personnel arrived, assessed the complainant's condition, and advised that she go to the emergency room. Tamera drove the complainant to a nearby hospital for treatment. When Tamera and the complainant later returned to the trailer, the complainant stayed for a little while to rest. "Later that day," Vensent recalled, the complainant headed to a friend's home.
Tamera testified that she met the complainant at a campout in 2012, met appellant at a campout in 2014, and attended their wedding later that year. In July 2016, she and Vensent came down to the Sandpiper RV Park in Galveston for several days to celebrate his birthday. They decided to have a barbecue one night and invited friends, including a couple who owned a charter fishing business, and the complainant and appellant. The boat owners "had a new boat, and they were anxious to take it out into the bay area and to go flounder gigging. . . . And a few people wanted to go." Appellant was one of the people interested in going fishing, and the complainant "decided she wanted to go."
After the group ate, Tamera recalled, they went swimming in the RV park's pool. Tamera and the complainant "were in the pool, and [Vensent] and [appellant] were on the edge of the pool. And [appellant] kept pushing [the complainant] back into the water." This behavior made Tamera "kind of nervous," and she "did not know why he was disrespecting her like that." Tamera explained: "He pushed her away with his hands and also with his feet." Tamera "had never seen him do anything like that to her. . . . He was kind of argumentative with her." To Tamera, the complainant "looked embarrassed. [Tamera] had never seen [appellant] interact that way, so [she] didn't know if they were arguing before. It wasn't the loving relationship [that she] had seen before."
Eventually, the group left the swimming pool. When the complainant and appellant got ready to leave, the complainant did not leave with him. Appellant "was belligerent and said he was going to drive" and no one thought "that he was in the right state of mind to drive," so she and Vensent said that they would drive the complainant home. After getting in his car, appellant "kind of spun out a little bit like he was going to be speeding, but then he kind of left the RV park at a normal speed but was revving his engine." Vensent and Tamera drove the complainant to her apartment. When they arrived, appellant was not there. As they left [the complainant's] apartment and were walking on the sidewalk," they "passed [appellant] going to [the] apartment. And he called out to [them] and told [them] that [they] were no better than [the complainant] was."
The Everetts returned to the RV park and went out on the boat with its owners. They spent about two hours out on the bay before they returned to shore. The Everetts returned to their RV and managed to sleep for about an hour before they were awakened by a leak above the bed. Tamera testified that they heard a knock on the door as they were changing their sheets. The complainant was there and "one of her eyes was swollen shut. The other eye was swollen a lot. She had bruising. She had a huge knot on her forehead, and her lip was cut and swollen." The complainant told Tamera what had happened while Vensent called for emergency assistance.
After emergency assistance personnel examined the complainant and left, Tamera drove the complainant to the hospital and stayed with her until she was discharged. While they were at the hospital, Tamera received a text from appellant asking if she would let him talk to the complainant, saying that "he was sorry" and "didn't know why he behaved the way that he did." Tamera did not have the complainant talk to appellant.
Later, Tamera and the complainant returned to the RV, where the complainant rested until about 11:00 a.m. After they had breakfast, Tamera drove behind the complainant's car as the complainant drove to a friend's house because the complainant "didn't know if [appellant] would be looking for her."
Ineffective Assistance
In his first issue, appellant argues that his trial counsel did not provide him with effective assistance of counsel during the guilt phase of trial because trial counsel did not object to the admission of "various unnoticed extraneous offenses." See TEX. R. EVID. 404(b)(2) ("On timely request by a defendant in a criminal case, the prosecutor must provide reasonable notice before trial that the prosecution intends to introduce evidence—other than that arising in the same transaction—in its case-in-chief.").
The Sixth Amendment guarantees the right to the reasonably effective assistance of counsel in criminal prosecutions. U.S. CONST. amend. VI; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). To prove a claim of ineffective assistance of counsel, appellant must show that (1) his trial counsel's performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Appellant has the burden to establish both prongs by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). And "appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong." Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).
"A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In reviewing counsel's performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that counsel's performance falls within the range of reasonable professional assistance or trial strategy. See Robertson v. State, 187 S.W.3d 475, 482-83 (Tex. Crim. App. 2006). To rebut that presumption, a claim of ineffective assistance must be "firmly founded in the record," and "the record must affirmatively demonstrate" the meritorious nature of the claim. See Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012) (internal quotations omitted).
The trial record alone is rarely sufficient to show ineffective assistance. Williams v. State, 526 S.W.3d 581, 583 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd). Generally, a silent record that provides no explanation for trial counsel's actions will not overcome the strong presumption of reasonable assistance. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. (Tex. Crim. App. App. 2005); see also Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007) (noting "presumption that trial counsel's performance was reasonably based in sound trial strategy"). In the rare case in which trial counsel's ineffectiveness is apparent from the record, an appellate court may address and dispose of the claim on direct appeal. Lopez, 343 S.W.3d at 143. However, the record must demonstrate that counsel's performance fell below an objective standard of reasonableness as a matter of law and no reasonable strategy could justify trial counsel's acts or omissions, regardless of counsel's subjective reasoning. Id.; see also Menefield, 363 S.W.3d at 593 (when trial counsel is not given opportunity to explain his actions, "the appellate court should not find deficient performance unless the challenged conduct was so outrageous that no competent attorney would have engaged in it") (internal quotations omitted).
"An extraneous offense is any act of misconduct, whether resulting in prosecution or not, which is not shown in the charging instrument and which was shown to have been committed by the accused." Martinez v. State, 190 S.W.3d 254, 262 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd). Texas Rule of Evidence 404(b) prohibits the admission of extraneous-offense evidence solely to prove a person's character or to show that the person acted in conformity with that character. TEX. R. EVID. 404(b). Extraneous-offense evidence may be admissible, though, to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. See id.; Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex. (Tex. Crim. App. 1990). Evidence of extraneous offenses also may be admissible to rebut defensive theories. Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996). In addition, evidence of another crime, wrong, or act may be admissible as "same-transaction contextual evidence" if several offenses "are intermixed, or blended with one another, or connected so they form an indivisible criminal transaction," and full proof by testimony "of any one of them cannot be given without showing the others." Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011) (internal quotations omitted). But this "same-transaction contextual evidence is admissible only when the offense [with which the defendant is charged] would make little or no sense without also bringing in that evidence," and only if it is necessary to the jury's understanding of the offense. Id.
Appellant asserts that his trial counsel erred in failing to object under Rule 404(b) to testimony elicited by the State (1) that during the complainant's marriage to appellant, he had a habit on his days off of drinking to excess and verbally abusing her, and (2) that appellant was impaired and recklessly driving when he left the Everetts' barbecue.
We consider whether the challenged extraneous-offense evidence was objectionable in the first place, "because an attorney's failure to object to admissible testimony does not constitute ineffective assistance." Heiman v. State, 923 S.W.2d 622, 625 (Tex. App.—Houston [1st Dist.] 1995, pet. ref'd). Appellant argues that his trial counsel erred in not objecting to the admission of the aforementioned extraneous-offense evidence because the record does not show that the State provided him with written pretrial notice of its intent to use this extraneous-bad-acts evidence. But Rule 404(b) does not require the State to provide written notice of its intent to introduce evidence of extraneous misconduct, and the record does not show whether the State provided notice to appellant's trial counsel by some other means. See Agbogwe v. State, 414 S.W.3d 820, 836 (Tex. App.—Houston [1st Dist.] 2013, no pet.). Because we cannot determine from the record whether the State complied with Texas Rule of Evidence 404(b)(2)'s notice requirement, we cannot conclude that the performance of appellant's trial counsel fell below an objective standard of reasonableness. See id. Thus, we hold that appellant has not shown that his trial counsel's performance was deficient.
Further, Texas courts have consistently held a decision not to object to extraneous-offense evidence can be a legitimate trial strategy, "for reasons ranging from not wanting to draw the jury's attention to the evidence to not wanting the jurors to believe that the defendant is trying to hide information from them." Matute v. State, No. 03-13-00761-CR, 2016 WL 112385, at *4 (Tex. App.—Austin Jan. 6, 2016, no pet.) (mem. op., not designated for publication); see, e.g., Lemons v. State, 426 S.W.3d 267, 273 (Tex. App.—Texarkana 2013, pet. ref'd); Huerta v. State, 359 S.W.3d 887, 894 (Tex. App.—Houston [14th Dist.] 2012, no pet.); Haagensen v. State, 346 S.W.3d 758, 766 (Tex. App.—Texarkana 2011, no pet.); Heiman v. State, 923 S.W.2d 622, 626 (Tex. App.—Houston [1st Dist.] 1995, pet. ref'd); Ahmadi v. State, 864 S.W.2d 776, 783 (Tex. App.—Fort Worth 1993, pet. ref'd).
We overrule appellant's first issue.
Admission of Evidence
In his second issue, appellant argues that the trial court erred in admitting during the guilt phase of the trial, purported "victim impact" evidence.
We review a trial court's ruling on the admission of evidence for an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Walker v. State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism'd). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). When considering a trial court's decision to admit evidence, we will not reverse the trial court's ruling unless it falls outside the "zone of reasonable disagreement." Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996) (internal quotations omitted). We will uphold a trial court's evidentiary ruling if it is correct on any theory of law applicable to that ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
"Victim impact evidence is designed to remind the jury of the foreseeable consequences the crime has on the community and the victim's family and friends. Relevant victim impact evidence may include the physical, psychological, or economic effects of a crime on the victim or the victim's family." Espinoza v. State, 194 S.W.3d 706, 711 (Tex. App.—Houston [14th Dist.] 2006, no pet.). Victim-impact evidence "may be admissible at the punishment phase when that evidence has some bearing on the defendant's personal responsibility or moral culpability." Espinosa, 194 S.W.3d at 711; see also Reynolds v. State, 371 S.W.3d 511, 525 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd). It generally is irrelevant at the guilt phase of trial because it does not tend to make more or less probable the existence of any fact of consequence on the issue of guilt or innocence. See Love v. State, 199 S.W.3d 447, 456-57 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd). As an exception to this general rule, though, victim-impact evidence may be admissible during the guilt phase of trial as a "circumstance of the offense" or if the testimony would tend to make more or less probable a fact of consequence at the guilt phase of trial. Longoria v. State, 148 S.W.3d 657, 659-60 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd).
Here, appellant complains about the admission of the following testimony from the complainant:
[State]: And were you still in pain several hours later?
[The complainant]: Yes.
[State]: Were you still in pain several months later?
[The complainant]: Yes.
[State]: About how long did it take for everything to heal when you were able to, you know, go back and start looking for a job?
[Appellant's counsel]: Objection, Judge. That's victim impact.
[State]: Your honor, she is discussing her injuries and how they are healing.
THE COURT: I agree. Overruled.
[State]: How long before your injuries had completely healed for you to—let me—while you were healing, were you working?
[The complainant]: No.
[State]: How long did it take for your injuries to heal for you to be able to interview for work?
[The complainant]: I went to work—
[Appellant's counsel]: Objection, Judge. That's victim impact, working after the incident.
[State]: My question was—
THE COURT: The question is directed as to amount of time it took her until she was able to do so. If you want to rephrase it that way, feel free to.
. . . .Appellant also complains about the trial court's admission into evidence of photographs of the complainant taken over several days following the assault. The following exchange took place at trial regarding the photographs:
[State]: How long did it take you to heal where you could go and actually work?
[The complainant]: Mid October.
[State]: About how long was that?
[The complainant]: from July to mid October.
[Defense counsel]: Judge, the Defense objects to 2 through 11 on the basis of 401 and 403, and all these other photos are post incident. This would go, if anything, as to victim impact as to the continuing effects of the assault. All these photos were taking well after the incident supposedly occurred.
[State]: In response, they are progression photos over the next several days; and her injuries do change. They do look different. In fact, in one of the photos at the end where you don't—in those photographs the bruising on her forehead, the bruising starts to develop on her forehead as her eyes are starting to heal. So they are different photographs. As her eyes are starting to heal, she starts to gain bruising. So, that is over the next several days of what she sustained and extremely relevant to the case in what her injuries looked like.
THE COURT: I think it shows the actual state of the injuries, and so your objection is overruled.
A person commits the offense of assault of a family member by occlusion if he (1) intentionally, knowingly, or recklessly, (2) causes bodily injury to another, (3) the offense is committed against a person whose relationship with the defendant is described in Texas Family Code sections 71.0021(b), 71.003, or 71.005, and (4) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth. TEX. PENAL CODE ANN. §§ 22.01(a), (b)(2)(B). Thus, in this case, the State was required to prove that appellant acted "intentionally, knowingly, or recklessly" in committing the offense against the complainant. Direct evidence of the requisite culpable mental state is not required. See Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002); Tottenham v. State, 285 S.W.3d 19, 28 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd) ("[P]roof of a culpable mental state almost invariably depends on circumstantial evidence."). Evidence of the extent and duration of a complainant's injuries is relevant to show that appellant acted with the requisite level of intent in committing the assault. See Baldit v. State, 522 S.W.3d 753, 759-60 (Tex. App. — Houston [1st Dist.] 2017, no pet.); Herrera v. State, 367 S.W.3d 762, 771 (Tex. App.—Houston [14th Dist.] 2012, no pet.); see also Hart, 89 S.W.3d at 64 (intent and knowledge may be inferred from "any facts which tend to prove its existence, including the acts, words, and conduct of the accused, and the method of committing the crime and from the nature of the wounds inflicted on the victims" (internal quotations omitted)); Montgomery v. State, 198 S.W.3d 67, 87-88 (Tex. App.—Fort Worth 2006, pet. ref'd) (considering nature and extent of injuries in determining sufficient evidence existed that defendant knowingly inflicted complainant's injuries).
Appellant relies on Miller-El v. State, 782 S.W.2d 892 (Tex. Crim. App. 1999), but that case does not support his position. There, the Texas Court of Criminal Appeals admitted evidence that the complainant had become paralyzed as a result of the injuries that the defendant had inflicted but did not allow evidence of the hardships she suffered because of paraplegia. 782 S.W.2d at 895. In doing so, the court confirmed the long-settled rule that evidence of the nature and extent of the complainant's injury is probative of the defendant's intent. See id.
Here, the challenged testimony and photographs did not concern any ongoing limitations caused by any permanent impairment that the complainant may have suffered as a result of her injuries. Rather, the photographs showing the progression of the complainant's bruising and the testimony about how long it took her to heal show the nature and extent of her injuries and thus constitute circumstantial evidence of appellant's intent.
Accordingly, we hold that the trial court did not err in admitting the complained-of testimony and photographs.
We overrule appellant's second issue.
Conclusion
We affirm the judgment of the trial court.
Julie Countiss
Justice Panel consists of Justices Keyes, Goodman, and Countiss. Do not publish. TEX. R. APP. P. 47.2(b).