Opinion
No. 05-01-00747-CR.
Opinion Filed April 16, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the County Criminal Court No. 10, Dallas County, Texas, Trial Court Cause No. MA01-73445-L. Affirmed.
Before Chief Justice THOMAS and Justices FRANCIS and LANG.
OPINION
A jury convicted Charles Dawson Stuart of assault and assessed punishment at 180 days in the county jail and a $500 fine. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We will affirm. Jeana McAlister, the complainant, testified that at approximately 5:20 p.m. on February 4, 2001, appellant hit her in the face with an unopened can of beer, then he hit her in the back of the head with a metal thermos bottle. McAlister testified she was riding in appellant's van with appellant and her boyfriend, John Perez, who is appellant's brother. McAlister and appellant began arguing about money he owed for rent and a telephone bill. Both appellant and Perez were living with McAlister and her children. When McAlister, appellant, and Perez arrived at the parking lot of McAlister's apartment, the argument escalated. McAlister told appellant, "I'm not leaving the van until you pay me what you owe me." During the course of the argument, McAlister's mother and children came to the parking lot to see what was happening. Appellant subsequently drove to a street behind the apartment and parked the van on the side of the road. Appellant kept telling Perez to get McAlister out of the van, then told McAlister, "You're going to leave my van one way or another." Both appellant and Perez hit McAlister in the face with unopened cans of beer. McAlister testified she did not recall who hit her first because she almost blacked out, but she believed appellant hit her first. She also testified she believed appellant was the person who hit her in the back of the head with the thermos because he was holding the thermos when she got up. McAlister testified her face was bleeding and she felt pain after appellant hit her. Appellant and Perez dragged McAlister out of the van, then drove away. McAlister walked to her apartment and called police. McAlister testified Perez came back a short time later and said he was sorry, but she did not see appellant again. Perez left before police arrived. Dallas police officer Jenny Nance testified she responded to an injured person call at McAlister's apartment. When she arrived, she observed injuries to McAlister's face that included a black eye, severe bruising to the eye, a swollen nose, and scratches on McAlister's arm. McAlister told Nance that she had an argument with appellant and his brother about money owed her for rent and telephone bills, appellant and his brother hit her in the face with unopened cans of beer, and the assault happened inside appellant's van that was parked one-and-a-half blocks from her apartment. Appellant did not testify at the guilt/innocence phase of trial. In reviewing the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.307, 318-19 (1979). In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). The jury is the exclusive judge of the facts provided and of the weight to be given to the testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). While the reviewing court has some authority to disregard evidence that supports the verdict, it may not substitute its own determination for that of the jury. See Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002), petition for cert. filed, 71 U.S.L.W. 3531 (U.S. Feb. 11, 2003) (02-1189); Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). The State was required to prove beyond a reasonable doubt that appellant intentionally, knowingly, or recklessly caused bodily injury to another. See Tex. Pen. Code Ann. § 22.01(a)(1) (Vernon 2003). "`Bodily injury' means physical pain, illness, or any impairment of physical condition." Id. § 1.07(a)(8). Appellant contends the evidence is legally and factually insufficient because McAlister was not certain what happened, and Perez admitted he hit the complainant. The State responds the evidence is legally and factually sufficient to prove appellant hit McAlister in the face with an unopened beer can in an attempt to get her out of his vehicle. We agree with the State. McAlister testified appellant hit her in the face with an unopened can of beer. Although she stated she almost "blacked out" from the blows to her face by both appellant and Perez, she continually stated she believed appellant hit her first and appellant was the person who hit her with the thermos. The jury was free to accept or reject all or any part of a witness's testimony. See Lee v. State, 29 S.W.3d 570, 574 (Tex.App.-Dallas 2000, no pet.). This Court must defer to the jury's findings and may not substantially intrude upon its role as the sole judge of the weight and credibility of the witnesses. See Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim. App. 1997). Having reviewed all of the evidence under the appropriate standards, we conclude the evidence is legally and factually sufficient to support the conviction. See Jackson, 443 U.S. at 318-19; Johnson, 23 S.W.3d at 11. Accordingly, we overrule appellant's two points of error. We affirm the trial court's judgment.