No. 01-06-00813-CR
Opinion issued August 9, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 180th District Court Harris County, Texas, Trial Court Cause No. 1042176.
Panel consists of Chief Justice RADACK and Justices KEYES and HIGLEY.
EVELYN V. KEYES, Justice.
A jury convicted appellant, Willie Bernard Sykes, of assault of a household member, a third-degree felony, and assessed punishment at 10 years imprisonment. See Tex. Pen. Code Ann. § 22.01(a)(1), (b)(2) (Vernon Supp. 2006). In his sole point of error, appellant argues that the evidence was factually insufficient to support the jury's verdict. We affirm.
Facts
At the time of the offense, appellant lived in an apartment with his girlfriend, Gloria Jean Smith. On September 28, 2005, Smith was doing laundry at her apartment complex. When she returned to her apartment, appellant was angry that she had washed his new shirt. Appellant grabbed Smith and dragged her upstairs by her neck. Smith testified she "couldn't breathe" and "felt dizzy" and that his hold "hurt." Appellant released his grip, but continued to complain. Smith then headed to the bathroom, but appellant grabbed her again and put her in a tight headlock with his arms around her neck. Smith saw herself in the mirror with foam or bubbles coming out of her mouth. She could not breathe, lost consciousness, and urinated on herself. When appellant released her, Smith fell onto the bed. Smith testified her throat was "sore and raw" and her neck had a "nasty" "scar." She testified that one year later, she still had problems as a result of appellant's headlock. She sometimes coughed, she choked when swallowing, and her voice changed. After these events, appellant went to sleep, and Smith's children returned home from school. Smith also had a number of phone conversations that evening with her friends Evie and Shalita. She told them she was "tired of the relationship" with the appellant and needed to "get out" of the relationship. The following morning, September 29, 2005, Smith called her cousin, Barbara, and told her what had happened. Barbara asked Smith if she wanted help; Smith said that she did. Barbara then called the police, and Smith left the apartment. From outside her apartment, Smith saw the police enter her apartment and walk out with appellant in handcuffs. A police officer, Deputy R.A. Jenkins, took Smith's statement and asked her about the scratch on her neck. Deputy Jenkins testified that, the day after the incident, Smith had a scratch on the right side of her neck "[p]robably six inches long or so." It resembled "a fingernail scratch," but it could have come from another source. Appellant was charged with assault of a household member. See Tex. Pen. Code Ann. § 22.01(a)(1), (b)(2). On August 15, 2005, appellant had been previously convicted of assaulting a family member. Because of this prior conviction, appellant was eligible for the enhancement from a Class A misdemeanor to a third degree felony. See Tex. Pen. Code Ann. § 22.01(b)(2). Standard of Review
In his sole issue on appeal, appellant argues that the evidence presented at trial was factually insufficient to sustain his conviction for assault of a household member. We begin the factual sufficiency review with the presumption that the evidence supporting the jury's verdict is legally sufficient. Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). We view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or the conflicting evidence is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000). Regarding the second basis for a finding of factual insufficiency, "an appellate court must . . . be able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury's verdict before [the court] is justified in exercising its appellate fact jurisdiction to order a new trial." Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006) (emphasis omitted). For a review of factual sufficiency, we must consider the most important evidence that appellant claims undermines the verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Analysis
Appellant contends that the verdict is factually insufficient for two reasons: (1) the State presented no evidence of bodily injury and (2) Smith was not a credible witness. Evidence of Bodily Injury First, appellant argues that evidence of bodily injury was factually insufficient because the State presented no witnesses, medical reports, or photos to support a finding of bodily injury. An assault occurs when one "intentionally, knowingly, or recklessly causes bodily injury" to another. Tex. Pen. Code Ann. § 22.01(a)(1). The offense is raised to a felony of the third degree if the offense is committed against "a person whose relationship to or association with the defendant is described by Section . . . 71.005, Family Code, if it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter. . . ." Id. § 22.01(b)(2). "`Household' means a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other." Tex. Fam. Code Ann. § 71.005 (Vernon 2002). Bodily injury is defined as "physical pain, illness, or any impairment of physical condition." Tex. Pen. Code Ann. § 1.07(a)(8) (Vernon Supp. 2006). The definition of bodily injury is "purposely broad and seems to encompass even relatively minor physical contacts so long as they constitute more than mere offensive touching." Lane v. State, 763 S.W.2d 785, 786 (Tex.Crim.App. 1989). Physical pain can be proven by a victim's testimony of experiencing pain. See Lewis v. State, 530 S.W.2d 117, 118 (Tex.Crim.App. 1975). Similarly, in Allen v. State, testimony by the victim of a hurt, swollen, and sore nose was sufficient to establish bodily injury without corroborating evidence. 533 S.W.2d 352, 354 (Tex.Crim.App. 1976). Here, bodily injury through physical pain was established when Smith testified that appellant's grab and headlock "hurt" and that her throat was "sore and raw." In addition, Smith and Deputy Jenkins testified to the existence of a scratch on Smith's neck. As in Allen, Smith's testimony of feeling "hurt" and having a "sore and raw" throat is sufficient to prove bodily injury. See Allen, 533 S.W.2d at 354. Moreover, testimony by Smith that she had a "scar" on her neck and that appellant's grab and headlock "hurt" is similar to the facts of Lewis, where a small bruise and testimony of pain was sufficient to establish bodily injury. See Lewis, 530 S.W.2d at 118. Thus, Smith's testimony of pain is factually sufficient evidence of bodily injury. Moreover, testimony of a victim experiencing physical pain is not required to prove bodily injury. Evidence of a visible injury allows for an inference of pain. Arzaga v. State, 86 S.W.3d 767, 778-79 (Tex.App. — El Paso 2002, no pet.). In Arzaga, photos of a swollen and cut lip were sufficient to establish an inference of physical pain. 86 S.W.3d at 778-79. In Bryant v. State, testimony by an officer, corroborated by a fellow officer, that his fingers were red, purple, and swollen was sufficient evidence of physical pain. 47 S.W.3d 80, 82-83 (Tex.App.-Waco 2001, pet. ref'd). Here, even without Smith's testimony that appellant's actions caused her to experience physical pain, pain could be inferred. See Arzaga, 86 S.W.3d at 778-79. The fact that Deputy Jenkins corroborated the existence of the scratch resembles Bryant where testimony of a red, purple, and swollen hand was corroborated by another officer's testimony and held factually sufficient to establish physical pain. See Bryant, 47 S.W.3d at 82-83. As in Arzaga, a visible injury, such as the complainant's scratch, could lead to an inference of pain. See Arzaga, 86 S.W.3d at 778-79. Thus, testimony of a scratch on Smith's neck is sufficient evidence of bodily injury. Appellant argues, however, that Deputy Jenkins's testimony that the scratch on Smith's neck could have come from a source other than appellant undermines the verdict. A decision is not manifestly unjust, however, merely because the jury resolved conflicting views of the evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). Even if the jury believed that Smith's scratch had come from another source, Smith's testimony alone — namely, that appellant grabbed her neck and put her in a headlock and that her throat was sore and raw — would be sufficient to prove bodily injury through physical pain. See Allen, 533 S.W.2d at 354. Bodily injury can also be proven by evidence of "any impairment of bodily condition." See Tex. Pen. Code Ann. § 1.07(a)(8). Smith experienced an impairment of her physical condition when she had trouble breathing, felt "dizzy," became unconscious, and when, even one year later, as a result of appellant's actions, she sometimes coughed, she choked when she swallowed, and her voice changed. See York v. State, 833 S.W.2d 734, 735 (Tex.App.-Fort Worth 1992, no pet.) (holding restricted breathing sufficient evidence of impairment of physical condition). Thus, Smith's testimony of restricted breathing, dizziness, and unconsciousness is sufficient to establish bodily injury. Based on the foregoing, we hold that the testimony of both Smith and Deputy Jenkins provided direct and inferential evidence of physical pain and an impairment of Smith's physical condition. The verdict, therefore, is not against the great weight and preponderance of the evidence; nor is the evidence so weak as to make the jury verdict clearly wrong and manifestly unjust. See Johnson, 23 S.W.3d at 10-11. Credibility of the Victim
Second, appellant challenges Smith's credibility by arguing that the alleged assault was a scheme to end the relationship, providing reasonable doubt. More specifically, appellant points out that the victim could have left the apartment if she desired, but that she left only after long conversations with her friends about her relationship with appellant. Smith admitted during cross-examination that appellant slept after the incident; she had neighbors around her willing to help her in an emergency; she had access to a phone, and her children were capable of responding to an emergency. The day of the incident, she spoke with friends about how she needed to "get out" of the relationship. Appellant argues that this evidence provides reasonable doubt. Our evaluation may not intrude upon the fact finder's role as the sole judge of the weight and credibility accorded any witness's testimony. Cain, 958 S.W.2d at 407 n. 5. What weight to be given contradictory testimonial evidence is within the sole province of the fact finder because it turns on an evaluation of credibility and demeanor. Id. at 407-09. The fact finder may choose to believe all, some, or none of the testimony presented. Hughes v. State, 897 S.W.2d 285, 289 (Tex.Crim.App. 1994). We must defer appropriately to the fact finder to avoid substituting our judgment for its judgment. See Johnson, 23 S.W.3d at 12. How much weight to give the evidence alleging the assault versus the evidence alleging a motive to fabricate the assault is for the jury to decide. See Cain, 958 S.W.2d at 407-09. In this case, even if Smith acted on the advice of her friends to report the assault as a way to end the relationship with appellant, this evidence does not contradict the testimony of the assault. The jury could have found that Smith was assaulted as she testified, but only reported the assault when she decided to end the relationship. Appellant's contrary evidence is not of such "great weight and preponderance" to make the verdict factually insufficient. See Johnson, 23 S.W.3d at 10-11. Because the testimony of both Smith and Deputy Jenkins provided sufficient direct and inferential evidence of bodily injury, we conclude that the State presented factually sufficient evidence to convict appellant of assault. Thus, the verdict is not against the great weight and preponderance of the evidence; nor is the evidence so weak as to make the jury verdict clearly wrong and manifestly unjust. We overrule appellant's sole issue. Conclusion
We affirm the judgment of the trial court.