No. 11-04-00194-CR
Opinion filed March 9, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 238th District Court Midland County, Texas Trial Court Cause No. CR29203.
Panel consists of: WRIGHT, C.J., and McCALL, J., and, STRANGE, J.
RICK STRANGE, Justice.
The jury convicted Rosa Sifuentes Vidal of aggravated assault and assessed her punishment at twelve years in prison and a $5,000 fine. We affirm. Background Facts On September 28, 2003, Carolina Lujan awoke from a nap and discovered that her nephew had left the house with her automobile. Lujan and her daughter left their home and traveled to five area bars looking for her automobile. They found Lujan's car parked at the Los Padrinos Bar at approximately 11:30 p.m. Lujan asked Doris Olgin, the bar owner, to retrieve her nephew. Approximately two minutes later, Lujan's nephew came out in an extremely inebriated condition. Lujan's nephew was accompanied by some women including appellant. Lujan and appellant got into a fight. During the fight, appellant grabbed Lujan's hand and bit off part of her finger. Lujan developed an infection in her injured finger and eventually required partial amputation of the finger. At trial, appellant asserted self-defense. There was considerable conflicting testimony concerning who was the aggressor. Appellant called several witnesses who testified that Lujan, not appellant, was the aggressor. In rebuttal, the State introduced evidence that appellant had previously gotten into an altercation with the owner of the Dos De Oro Bar and had bitten his finger. The State also introduced evidence that on another occasion appellant got into a fight at the Los Padrinos Bar and shoved a 69-year-old woman off of a stool. Issues Appellant challenges her conviction with two issues. Appellant argues the trial court abused its discretion by admitting past acts of aggression by her and that the evidence was factually insufficient to support her conviction.
Discussion
Was Evidence of Appellant's Prior Violent Acts Admissible? We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). We will not reverse a decision that was within the "zone of reasonable disagreement." Id. at 102. Appellant argues that the trial court abused its discretion in admitting evidence of her prior acts of aggression. A defendant's prior crimes or bad acts are generally inadmissible to prove that she has a bad character or a propensity to commit the offense charged. Robinson v. State, 844 S.W.2d 925, 928 (Tex.App.-Houston [1st Dist.] 1992, no pet'n). Such evidence, however, may be admissible for other purposes, such as proof of motive, intent, plan, knowledge, or lack of mistake or accident. TEX. R. EVID. 404(b). These exceptions are not exclusive or exhaustive but are merely representative. Robinson, 844 S.W.2d at 929. When the accused raises a defensive theory, such as self-defense, the State may introduce evidence of prior violent acts by the accused in order to show her intent. See Halliburton v. State, 528 S.W.2d 216, 218 (Tex.Crim.App. 1975); see also Martin v. State, 173 S.W.3d 463, 468 (Tex.Crim.App. 2005) (evidence of extraneous offense admissible to rebut defense of consent). In this case, appellant argued extensively that the victim was the aggressor and that appellant was merely defending herself. The prior violent acts presented by the State were, therefore, admissible to show appellant's intent and to rebut her theory of self-defense. Appellant also argues in her brief that the prior violent acts were more prejudicial than probative. TEX. R. EVID. 403 provides, in relevant part, that "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." A Rule 404(b) objection that evidence constitutes an extraneous offense does not preserve error as to whether the evidence is unfairly prejudicial. Montgomery v. State, 810 S.W.2d 372, 388 (Tex.Crim.App. 1991). A further objection on the basis of Rule 403 is required to preserve error on that issue. Id. At trial, appellant's objection was based on Rule 404(b), and she did not make a further objection on the basis of Rule 403. There is, therefore, no Rule 403 decision to review. We overrule appellant's first issue on appeal. Is the Evidence Factually Sufficient? 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.Crim.App. 2004). We review the fact-finder's weighing of the evidence and cannot substitute our judgment for that of the fact-finder. Cain v. State, 958 S.W.2d 404 (Tex.Crim.App. 1997). Due deference must be given to the fact-finder's determination, particularly concerning the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1 (Tex.Crim.App. 2000). To prove appellant guilty of aggravated assault, the State was required to establish beyond a reasonable doubt that appellant intentionally, knowingly, or recklessly caused serious bodily injury to the victim. TEX. PEN. CODE ANN. '' 22.01(a)(1), 22.02(a)(1) (Vernon Supp. 2005). The State met its burden. Lujan testified that appellant started the fight by hitting Lujan in the mouth with her fist. Lujan then testified that the two of them began to struggle; and during the fight, appellant bit her finger. There was also testimony from a medical doctor that an infection developed in Lujan's finger as a result of this bite and that partial amputation of the finger was required. Appellant's argument is that Lujan was the actual aggressor in the fight and that appellant was acting in self-defense. Appellant called several witnesses who supported this theory. Despite this conflicting evidence, there is nothing in the record to suggest that it was irrational for the jury to accept the testimony of the victim and reject the testimony of appellant's witnesses, many of whom were family members of appellant. The jury is the sole judge of the credibility of the witnesses and of the weight to be given their testimony, and the jury is entitled to accept one version of the facts and reject another. TEX. CODE CRIM. PRO. ANN. art. 36.13 (Vernon 1981), art. 38.04 (Vernon 1979); Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App. 1981). We overrule appellant's second issue on appeal. Conclusion The trial court did not err in admitting evidence of prior violent acts committed by appellant, and the evidence was factually sufficient to support appellant's conviction for aggravated assault. The judgment of the trial court is affirmed.