No. 11-04-00080-CR
June 16, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from Midland County.
Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
TERRY McCALL, Justice.
The jury convicted appellant of the third degree felony offense of assault of a member of appellant's household. TEX. PEN. CODE ANN. § 22.01 (Vernon Supp. 2004-2005). The trial court assessed punishment at seven years confinement. We affirm.
Issues Presented
Appellant presents four points of error for review. In his first point of error, appellant argues that the evidence was legally and factually insufficient to support his conviction. Specifically, appellant contends that the evidence was legally and factually insufficient to establish that the victim was a member of his household. In his second point of error, appellant argues that a mistake of fact — his mistaken belief that the victim was not a member of his household — negated the criminal culpability required for the commission of the offense. In his third point of error, appellant contends that the State made improper jury argument in vouching for the credibility of the State's witnesses. In his fourth point of error, appellant contends that the trial court erred in allowing evidence of extraneous conduct committed by appellant. Background Facts
Section 22.01(a)(1) of the Penal Code provides that a person commits the offense of assault if the person "intentionally, knowingly, or recklessly causes bodily injury to another." Section 22.01(b)(2) provides that an offense under Section 22.01(a)(1) is a third degree felony when the offense is committed against a member of the defendant's family or household and the State proves that the defendant has been previously convicted of such an offense. Section 22.01(e)(2) provides that the term "[h]ousehold" has the meaning assigned by TEX. FAM. CODE ANN. § 71.005 (Vernon 2002). Section 71.005 of the Family Code defines a "[h]ousehold" as a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other. The indictment alleged that appellant, on or about August 17, 2003, intentionally and knowingly caused bodily injury to Melina Talley a/k/a Melina Fuentes by punching and hitting her in the chest with his fist and choking her with his hands. The indictment also alleged that Fuentes was a member of appellant's family and household. The indictment further alleged that appellant had been previously convicted of an offense against a member of his family and household. Sufficiency of the Evidence
Appellant contends that the evidence was legally and factually insufficient to establish that he and Fuentes were members of the same household. In order to determine if the evidence is legally sufficient, we must review all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App. 2000). In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Zuniga v. State, 144 S.W.3d 477 (Tex.Cr.App. 2004); Ross v. State, 133 S.W.3d 618 (Tex.Cr.App. 2004); Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App. 2002); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App. 1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App. 1996). We review the fact finder's weighing of the evidence and cannot substitute our judgment for that of the fact finder. Cain v. State, supra; Clewis v. State, supra. The fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Cr.App. 1992). The fact finder may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Cr.App. 1986), cert. den'd, 488 U.S. 872 (1988). Fuentes testified about her relationship with appellant. She said that she and appellant started dating in June 2003. In July 2003, appellant moved into her apartment with her in Odessa. She said that appellant spent nights at her apartment and kept his personal belongings at her apartment. Fuentes said that she moved to the Cornerstone Village Condominiums in Midland on August 1, 2003. Fuentes listed appellant as an occupant of the apartment on the lease. Appellant was in the Midland County Jail, on August 1, 2003. Fuentes testified that appellant got out of jail on or about August 10, 2003. She said that appellant moved into her apartment with her. She considered appellant as a member of her household. Appellant had a key to the apartment. Fuentes said that appellant kept all of his clothes and toiletries at the apartment and that he also had personal pictures there. Fuentes also said that appellant slept in the same bed with her every night. Appellant assaulted Fuentes on August 17, 2003. Fuentes said that appellant was living with her at the time of the assault. Donna Everett, a friend of Fuentes, testified that appellant and Fuentes shared the apartment at Cornerstone Village Condominiums. She said that appellant stayed at the apartment and had his belongings there. Appellant testified that he was not living with Fuentes on August 17, 2003. Appellant said that he spent the night with Fuentes at her apartment from August 12, 2003, through August 16, 2003. He said that he had some of his clothes at Fuentes's apartment but that he was living with his brother. When he was arrested for the assault, appellant gave his address as 3101 North Midland Drive, Number 406, the address of Fuentes's apartment. The evidence was legally and factually sufficient to establish that Fuentes was a member of appellant's household at the time of the assault. See Word v. State, No. 11-03-00403-CR, 2005 WL 994690 (Tex.App.-Eastland, April 28, 2005) (not designated for publication). The jury was free to believe Fuentes's testimony that appellant lived with her and to disbelieve appellant's testimony that he did not live with her. Sharp v. State, supra at 614. Additionally, appellant listed Fuentes's address as his address. Appellant's first point of error is overruled. Mistake of Fact
Appellant contends that a mistake of fact negated the kind of culpability required for the commission of the offense. It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for the commission of the offense. TEX. PEN. CODE ANN. § 8.02(a) (Vernon 2003). Appellant contends that he mistakenly had some of his belongings at Fuentes's apartment and was attempting to take them to his brother's residence where he was living. Appellant's claimed mistake deals with whether he and Fuentes were members of the same household and, if so, whether he knew that they were members of the household. However, the State was not required to prove that appellant knew that he and Fuentes were members of the same household or that he intended to be a member of a household with Fuentes. Rather, to prove the criminal culpability required for the offense, the State had to prove that appellant intentionally and knowingly caused bodily injury to Fuentes. Thus, the kind of mistake alleged by appellant does not negate the kind of culpability required for the commission of the offense. Appellant's second point of error is overruled. Jury Argument
Appellant did not object to the jury argument at trial. To preserve a complaint for appellate review, a party must make a timely request, objection, or motion in the trial court with sufficient specificity to make the trial court aware of the complaint. TEX.R.APP.P. 33.1(a)(1)(A). Therefore, appellant failed to preserve this issue for appellate review. Appellant's third point of error is overruled. Extraneous Conduct
Appellant complains that the trial court allowed the State to introduce evidence of extraneous conduct over objection of appellant's counsel. Appellant has not made any record cites in support of his fourth point of error. TEX.R.APP.P. 38.1(h) requires that a brief "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Moreover, the record does not demonstrate that the trial court erred. Appellant's fourth point of error is overruled. This Court's Ruling
The judgment of the trial court is affirmed.