Opinion
No. 05-10-01602-CR
03-06-2012
VICTOR ERIC VINCENT, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion issued March 6, 2012
On Appeal from the County Court at Law No. 1
Collin County, Texas
Trial Court Cause No. 001-80526-10
OPINION
Before Chief Justice Wright and Justices Bridges and Lagarde
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice Lagarde
Appellant Victor Eric Vincent waived a jury and pleaded not guilty to assault involving family violence. After finding appellant guilty, the trial court assessed punishment at 120 days' confinement in the county jail, probated for fifteen months, and a $600 fine. In a single point of error, appellant contends the evidence is legally insufficient to support the conviction. We affirm. Evidence Presented
Appellant, the complainant, and the complainant's daughter lived together in an apartment at the time of this offense. This living arrangement occurred after the complainant and her daughter moved to McKinney, Texas from Indiana where appellant and the complainant had been romantically involved. After living in McKinney for three or four months, their relationship deteriorated. At the time of the assault, the complainant was in the process of packing her belongings to move out of the apartment. At trial, the complainant gave conflicting testimony. She testified that in mid-January 2010, she came home and discovered appellant had been going through her packed boxes. When she confronted appellant, he became “defensive,” ranted and raved, read Bible scripture, and “all kinds of crazy things.” The complainant decided to go to a neighbor's apartment to let appellant calm down. She called to her daughter, who was in her bedroom, to accompany her. When the complainant placed her hand on the front door handle, she was struck in the back of the head by an object later identified as a vase. The complainant went out the door without looking back.
In another version of the incident, the complainant testified that after she was hit on the head, she was dizzy and fell on the floor. She held her head and saw blood on her hand. Screaming and hollering, she ran to a neighbor's apartment and called 911. At one point in her testimony, the complainant testified that after the vase hit her, it fell on the ground. Appellant picked up the broken vase and came toward her with it. The neighbor stepped between the complainant and appellant. At another point in her testimony, the complainant testified she did not see the vase in appellant's hands and did not see appellant throw the vase, but the vase could not have hit the doorframe, fall on the ground in pieces, and propel a shattered piece into her head by itself. The complainant testified she was briefly unconscious, and she was bleeding before she called 911 from the neighbor's apartment. A transcript from the complainant's 911 call recites the complainant had been hit by a baseball bat, and the complainant discovered the bleeding during the 911 call. The complainant testified that as a result of being hit with the vase, she felt pain and at the hospital, she had to have staples put in her head to close the wound. The complainant's medical records were admitted into evidence.
The complainant's daughter testified that at the time of the offense, she was in her bedroom. The daughter heard the complainant and appellant arguing. The complainant was screaming. While still in her bedroom, the daughter heard the complainant say, “I wish you would throw-I wish you would hit me with that vase.” When the daughter left her bedroom, she saw appellant's hand in a “forward motion,” but she did not see anything leave his hand or see or hear the vase hit anything. The daughter immediately ran to the front door. She did not see the complainant on the ground. The daughter testified the front door was white and had a dent in the frame. Before the incident, the vase was not covered with white markings.
She later testified that with all the loud arguing between appellant and her mother it was unlikely she would have heard the vase strike anything or break.
Apparently after the incident the vase was covered with white markings supposedly from hitting the white door frame.
Appellant testified the complainant and her daughter moved to Texas from Indiana at his suggestion. He and the complainant had a romantic relationship at one time. They agreed to end their renewed relationship after a few months together. Appellant told the complainant she needed to get another place, but he did not give her a deadline for moving out. When the complainant showed no signs of moving, appellant told her that she had to be out by the end of December 2009. In mid-January 2010, the complainant began packing a few things. She left the packed boxes in appellant's living room. Appellant testified that on the date of the incident, the complainant was “ranting and raving” and following him around the apartment. Appellant told the complainant to leave him alone and to “go about her business.” At some point and for no particular reason, appellant picked up a vase. Still screaming, the complainant started walking toward the door. As the complainant approached the door, she said, “I wish you would hit me with that vase.” Appellant testified he did not believe it was okay for him to throw the vase at the complainant, and he never tried to throw the vase at her. Appellant testified that after the complainant walked out the door, he threw the vase at the door. The vase struck the doorframe and fell in pieces on the ground outside the apartment. Appellant testified he did not throw the vase at the complainant, he did not strike the complainant's head with the vase or any other object, and he did not cause bodily injury to the complainant. Appellant testified the complainant's head injury was self-inflicted, and that no piece of the vase could have caused her injuries. Applicable Law
Eventually the complainant and her daughter moved to another apartment in the same apartment complex.
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In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lucio v. State, 351 S.W.3d 878, 894-95 (Tex. Crim. App. 2011); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). We are required to defer to the fact finder's credibility and weight determinations because the fact finder is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326.
The State was required to prove beyond a reasonable doubt that appellant intentionally, knowingly, or recklessly caused bodily injury to the complainant by “throwing and striking” the complainant's head with a vase, and the complainant was in a dating relationship with appellant or a member of his household. See Tex. Penal Code Ann. § 22.01(a)(1) (West 2011). “Bodily injury” means physical pain, illness, or any impairment of physical condition. Id. § 1.07(a)(8). Discussion
Appellant contends the evidence is insufficient to support a finding of guilt beyond a reasonable doubt because an assault causing bodily injury “did not occur and could not have occurred.” Appellant asserts the evidence does not prove that the complainant's head injury was caused by the “throwing and striking” of her head with a vase, and the complainant's testimony was inconsistent and conflicted with other evidence.
Contradictions in witness testimony do not destroy the sufficiency of the evidence because the fact finder is free to “accept or reject all or any part of a witness's testimony.” Lee v. State, 29 S.W.3d 570, 574 (Tex. App.-Dallas 2000, no pet.) (en banc). A reviewing court ensures that the trial court reached a rational conclusion, but it must not “re-evaluate the weight and credibility of the evidence.” Id.
Here, the trial court had the opportunity to see the witnesses, evaluate their credibility, and determine the weight to give their testimony. The trial court heard the complainant's testimony that a vase hit her in the back of her head as she was going out the front door. She felt pain and required treatment at a hospital. The trial court also heard appellant's testimony that he threw the vase at the door after the complainant had already gone out, and none of the broken pieces could have injured the complainant's head. It was the trial court's role, as the fact finder in this case, to reconcile any conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003); Lee, 952 S.W.2d at 897.
In his brief, appellant also contends he has an “absolute defense” to the charge of assault involving family violence because the complainant gave him “not simply effective consent but rather a very direct request for [him] to throw the vase that he ha[d] in his hand at [the complainant].” Appellant has not preserved this issue for appellate review. Appellant denied committing an assault, and he never testified that he was justified in committing an assault because the complainant consented to the assault. Moreover, even if preserved, the complainant's statement could not be reasonably construed as effective consent for appellant to assault her. See Allen v. State, 253 S.W.3d 260, 268 (Tex. Crim. App. 2008) (“Common experience tells us that such apparent bravado ('go ahead,' 'come on,' slap me,' 'do it') in the face of an expressed threat does not normally communicate a genuine desire to be assaulted; it far more likely constitutes a backhanded warning of potentially dire consequences to the threatener should she actually carry out her threat.”) We overrule appellant's sole point of error.
We affirm the trial court's judgment.
SUE LAGARDE
JUSTICE, ASSIGNED
Do Not Publish
Tex. R. App. P. 47
101602F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
VICTOR ERIC VINCENT, Appellant
V.
THE STATE OF TEXAS, AppelleeAppeal from the County Court at Law
No. 05-10-01602-CR
No. 1 of Collin County, Texas. (Tr.Ct.No. 001-80526-10).
Opinion delivered by Justice Lagarde, Chief Justice Wright and Justice Bridges participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 6, 2012.
SUE LAGARDE
JUSTICE, ASSIGNED