No. 05-08-00424-CR
Opinion filed February 3, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F07-54985-QL.
Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.
JIM MOSELEY, Justice.
Appellant Carlos Juan Tovar waived a jury and pleaded not guilty to violation of a protective order by assault. After finding appellant guilty, the trial court assessed punishment at five years' imprisonment. In a single point of error, appellant contends the evidence is factually insufficient to support the conviction. We affirm.
Applicable Law
In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.), cert. denied, 128 S.Ct. 282 (2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S.Ct. 87 (2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). The State was required to prove beyond a reasonable doubt that by assaulting Y.R., appellant intentionally and knowingly committed family violence in violation of a protective order issued under Chapter 85 of the Texas Family Code. See Tex. Penal Code Ann. § 25.07(a)(1) (Vernon Supp. 2008). "Family violence" means an act by a member of a family against another member of the family that is intended to result in physical harm, bodily injury, assault, sexual assault, or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault. See Tex. Fam. Code Ann. § 71.004(1) (Vernon 2002). "Family" includes individuals who are the parents of the same child. See id. § 71.003. Evidence
Y.R. and appellant lived together for seven years and have three children together. In May 2006, Y.R. obtained a protective order against appellant that was valid for two years. Y.R. testified that on July 13, 2007, appellant came to her apartment, asked her to drop the protective order, and demanded she leave with him. Y.R. could not call the police because appellant took the telephone away from her. Appellant hit Y.R. in the face with a closed fist, grabbed her by the hair, and demanded she go with him or he would kill her and their children. Y.R. and the children left with appellant and rode the bus to appellant's house. When she arrived at appellant's house at about 5:00 p.m., she prepared dinner for her children. After dinner, Y.R. stayed in the living room with her children until she put them to bed in the dining room at about 8:00 p.m. Appellant's three sons from another relationship were sleeping in a back bedroom. After putting the children to bed, Y.R. stayed in the living room with appellant, who was intoxicated. At about 4:00 a.m., appellant pulled Y.R. on the floor, removed her clothing, and forced her to have sex with him. Y.R. testified she struggled to get away, but appellant hit her repeatedly. Y.R. yelled for appellant's oldest son to help her, but he did not help. After appellant ejaculated, he went into the kitchen and returned with a knife. Appellant asked Y.R. to kill him and to forgive him for everything he had done. At this point, Y.R.'s children ran into the room crying. Eventually appellant allowed Y.R. and her children to leave. While they waited at a corner bus stop, appellant drove his car onto the sidewalk toward where Y.R. stood. When he saw the bus coming, appellant turned around and left. After Y.R. and her children went back to their apartment, Y.R. called the nuns at a Catholic shelter she had stayed in previously, then called the police. An audiotape of the 911 call was played during trial. When the police arrived, Y.R. told them what appellant had done. The officers transported Y.R. to a hospital where she was given an exam and treated for pain. Y.R. testified she sustained bruises on her ribs and arms, where appellant kicked and hit her, had "swollen knots" on her head, and scratches on her face and back. Y.R. denied she told an officer appellant drove her to his house in his car. Dr. Ballogin testified he performed physical and sexual assault exams on Y.R. on the morning of July 14, 2007. Ballogin observed multiple bruises on Y.R.'s arms, scratches on her arms and back, and a laceration under her right eye. There were also bruises on Y.R.'s right upper abdomen and lower abdomen. Ballogin testified the injuries he observed on Y.R. were consistent with a physical assault. Y.R. told him appellant knocked on her apartment door and she opened it before she knew it was him. Appellant spoke to her "angrily," threatened to kill her and the children. Y.R. said she and the children left with appellant and took a bus to his house. Y.R. begged appellant to leave her and the children alone. Appellant left them at his house. When he came back, the children went to bed. Appellant became angry, pulled Y.R.'s hair, threw her on the sofa, removed her clothing, and had non-consensual sex with Y.R. After appellant finished, he brought a knife to Y.R. and asked her for forgiveness and to kill him, then he allowed Y.R. and the children to leave. Several witnesses testified on appellant's behalf. Detective John Rospigliosi testified he interviewed Y.R. six days after the incident. Rospigliosi did not see any injuries on Y.R. at that time. During the interview, Y.R. stated she and appellant argued at her apartment, after which appellant put her in his car and took her to his house. Rospigliosi did not recall Y.R. saying appellant forced her to go with him on the bus or that immediately after the sexual assault, Y.R.'s children ran into the room crying. Rospigliosi did not recall Y.R. stating appellant got a knife from the kitchen and asked her to kill him, or stating appellant tried to run her over with his car while she waited for the bus back to her apartment. Rospigliosi also testified Y.R. did not tell him there were children other than her own at appellant's house during the assault. Patricia Mendoza, appellant's girlfriend, testified she received several telephone calls from a woman beginning at 5:30 a.m. on July 14, 2007. The woman sounded mad, but was not crying. Mendoza also testified appellant did not have a car at that time because his brother had wrecked appellant's vehicle months earlier. Appellant's son, C.T., was fourteen years old at the time of the alleged assault. C.T. testified Y.R. came to their house at about 5:00 p.m. on July 13, 2007. He had not seen Y.R. in several months, but she seemed normal that evening. While Y.R. was feeding them dinner, appellant went to the store and returned. Later that evening, appellant went to a bar with some friends. At about 3:00 a.m., Y.R. woke C.T. and told him to walk to an aunt's house with her. After walking to the aunt's house, Y.R. went into a bar looking for appellant. C.T. stayed outside, but he saw appellant inside the bar when Y.R. opened the door. After five minutes, Y.R. came out of the bar looking mad. She began walking fast. C.T. walked with Y.R. back to appellant's house. C.T. went back to sleep. C.T. testified he did not hear any loud noises or anyone screaming or crying. Appellant's son, H.T., was twelve years old at the time of the alleged assault. H.T. testified that when Y.R. came to their house on July 13, 2007, she behaved normally. H.T. and his brothers went to bed about 1:00 a.m. and woke up about 8:00 a.m. H.T. did not hear anyone screaming or crying. Discussion
Appellant contends the evidence is factually insufficient because Y.R.'s testimony was inconsistent, incredible, and contradicted by other testimony. Appellant asserts the medical evidence was insufficient to show an assault occurred, and Y.R.'s testimony is the only evidence that directly supports the conviction. The State responds that the evidence is factually sufficient to support the conviction. It was the trial judge's role to reconcile any conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). The fact finder may choose to believe or disbelieve all or any part of any witness's testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). Viewing the evidence under the proper standards, we conclude it is factually sufficient to support appellant's conviction. See Roberts, 220 S.W.3d at 524; Swearingen, 101 S.W.3d at 97. We overrule appellant's sole point of error. We affirm the trial court's judgment.