Williams v. State

Full title: BILLY WAYNE WILLIAMS, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Oct 31, 2005

No. 05-05-00182-CR (Tex. App. Oct. 31, 2005)

Opinion

No. 05-05-00182-CR

Opinion Filed October 31, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-00824-VW. Affirmed.

Before Justices WHITTINGTON, FRANCIS, and LANG.

OPINION

Opinion By Justice LANG.

Billy Wayne Williams appeals the trial court's judgment finding him guilty of aggravated assault with a deadly weapon and assessing his punishment at life imprisonment. In two issues, Williams argues the evidence was legally and factually insufficient to support his conviction of aggravated assault. In its response, the State challenges the Court's jurisdiction arguing Williams's notice of appeal was untimely. We conclude Williams's appeal is timely and we have jurisdiction over this appeal. Also, we conclude the evidence is legally and factually sufficient to support Williams's conviction of aggravated assault. The trial court's judgment is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

Williams banged on the apartment door of his girlfriend, Lucinda Rattray,¹ at 12:30 a.m. and demanded that she let him in. Rattray and Williams began to argue. Rattray went into the bedroom because her grandchildren were sleeping on the living room floor and she did not want to wake them. Williams followed her into the bedroom where they continued to argue. Rattray left the bedroom and returned to the living room. Williams followed Rattray into the living room, picked her up, carried her back to the bedroom, placed her on the bed face up, and sat across her waist, pinning her to the bed. They continued to argue and every time Rattray attempted to respond to Williams's questions, he hit her in the face with his right fist. This went on for approximately two hours. During the argument, Williams placed his right hand around Rattray's neck and, using the weight of his body, pushed down on her neck causing Rattray to lose consciousness. After Rattray regained consciousness, she called 9-1-1. When the police arrived, Williams was in the doorway of the apartment and Rattray was in the kitchen. The police observed that Rattray had red marks across her neck about six inches wide, was bleeding from her mouth, nose, and left ear, and had bruising and swelling on her forehead and the side of her head. Also, Rattray complained of ringing in her ears and hearing loss in her left ear. In the bedroom, one of the officers observed blood splattered on the wall behind the headboard and smeared on the bed sheets. The police and paramedics recommended that Rattray go with the ambulance to the hospital, but Rattray refused medical treatment. The police arrested Williams and read him the Miranda ² warnings. While Williams was being booked-in at the jail, he saw an officer write down the charge of aggravated assault and stated he did not use a weapon, he only slapped Rattray in the face a couple of times. Approximately six days after the incident, Rattray went to the hospital emergency room complaining of an aggravated assault where she was choked and her head, neck, and upper chest were hit with a fist. The hospital ordered a CT scan of her head and gave her written materials explaining how to treat head injuries. Rattray left the hospital and went to the courthouse where she signed an affidavit of nonprosecution stating Williams did not assault her. During the trial, Williams absconded. The trial court determined Williams voluntarily absented himself and continued the trial in his absence. Rattray testified for the defense and recanted her earlier statements that Williams hit and choked her. Instead, Rattray claimed she lied to the police and the hospital, she was drinking beer on the night of the offense, and her injuries were sustained when she hit herself in the head with the door. The jury found Williams guilty of aggravated assault. Williams was still absent at the time of the hearing on punishment. The trial court, on behalf of Williams, entered a plea of not true to the enhancement paragraphs. After hearing evidence on punishment, the trial court found the enhancement paragraph alleging a prior conviction for murder true and made no finding on the enhancement paragraph alleging a prior conviction for the offense of escape. The trial court assessed Williams's punishment and informally sentenced him in absentia to life imprisonment. The trial court appointed an attorney to handle Williams's appeal in his absence. The State filed a motion to dismiss that appeal pursuant to Texas Rule of Appellate Procedure 42.4, which requires an appellate court to dismiss an appeal on the State's motion if the appellant has escaped from custody and has not voluntarily returned to custody within ten days after escaping. See Tex.R.App.P. 42.4. This Court granted the State's motion and dismissed that appeal.³ After Williams was apprehended, the trial court formally sentenced him to imprisonment for life. This appeal followed.

II. JURISDICTION

The State asserts the Court does not have jurisdiction over this appeal because Williams's appeal is untimely. Specifically, the State argues the appellate time requirements started when the trial court sentenced Williams in absentia on November 19, 2003, and expired before he filed his notice of appeal on November 1, 2004. Williams responds that the appellate time requirements did not begin to run until he was apprehended and the trial court formally sentenced him on October 25, 2004. Additionally, we must consider that the record reflects the trial court certified that Williams has no right of appeal. The trial court's certification states, in part:

After defendant's appeal was dismissed and the mandate issued, defendant was re-captured. The trial court then re-sentenced the defendant in the presence of the defendant and his attorney. Defendant has not filed a notice of appeal following the re-sentencing. Pursuant to the Court of Appeals [sic] opinion in Billy Ray Henderson v. State, [sic] Cause No. 05-04-01559-CR, the trial court's re-sentencing of the defendant did not change defendant's sentence or status and there is therefore no new judgment or other appealable order. The trial court therefore makes the following certification: I, judge of the trial court, hereby certify that the Defendant has no right of appeal.

Article 42.03 § 1(a) of the Texas Code of Criminal Procedure directs the trial court to pronounce the "sentence" in the defendant's presence. See Tex. Code Crim . Proc. Ann. art. 42.03 § 1(a) (Vernon Supp. 2005); Marshall v. State, 860 S.W.2d 142, 143 (Tex.App.-Dallas 1993, no pet.). A sentence is "that part of the judgment . . . that orders that the punishment be carried into execution in the manner prescribed by law." Tex. Code Crim. Proc. Ann. art. 42.02 (Vernon Supp. 2005); see Marshall, 860 S.W.2d at 143. The sentencing date begins the running of the appellate time requirements. Pruit v. State, 737 S.W.2d 622, 623 (Tex.App.-Fort Worth 1987, pet. ref'd). The trial court's certification cites Henderson v. State, 153 S.W.3d 735 (Tex.App.-Dallas 2005, no pet.) as support for its conclusion that Williams has no right of appeal. However, this case is distinguishable from Henderson. Henderson was convicted and sentenced to life imprisonment; he was not sentenced in absentia. See id. Henderson appealed and the court of appeals affirmed the trial court's judgment. Id. After the mandate issued, the trial court resentenced Henderson. Id. The resentencing was an unnecessary procedure because it was not required by rule or statute. Id. As a result, the resentencing did not change Henderson's sentence or status and created no new right of appeal. Id. at 736. Conversely, Williams was not present during the hearing on punishment or at the time the trial court assessed his punishment. Although the trial court sentenced Williams in absentia on November 19, 2003, the Texas Code of Criminal Procedure requires the sentence to be pronounced in the defendant's presence. See Pruit, 737 S.W.2d at 622-23. Therefore, the trial court's sentencing of Williams after he was apprehended was not an unnecessary procedure, it was required by statute. See Tex. Code Crim. Proc. Ann. art. 42.03 § 1(a). The appellate time requirements did not begin until after Williams was apprehended and he was present when the trial court pronounced his sentence on October 25, 2004. See Pruit, 737 S.W.2d at 622-23. The Court has jurisdiction over this appeal.

III. LEGAL AND FACTUAL SUFFICIENCY

In his first and second issues, Williams argues the evidence is legally and factually insufficient to support his conviction for aggravated assault with a deadly weapon.

A. Standards of Review

Differences exist between a legal sufficiency and factual sufficiency review of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Determining the legal and factual sufficiency of the evidence requires the implementation of separate and distinct standards of review. Id.

1. Legal Sufficiency

The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000). Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998).

2. Factual Sufficiency

There is only one question to be answered by the reviewing court in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Zuniga v. State, 144 S.W.3d 477, 485 (Tex.Crim.App. 2004). A review of the evidence for factual sufficiency is guided by three principles. Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App. 1997). First, deference is given to the findings of the fact finder; the evidence will not be reweighed. Id. at 407. Second, a finding of factual insufficiency must be supported by a detailed explanation because the fact finder can accept witness testimony or reject it. Id. However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Third, all of the evidence is viewed in a neutral light. Zuniga, 144 S.W.3d at 481; see Cain, 958 S.W.2d at 408; Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Johnson, 23 S.W.3d at 11; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The evidence weighed by the fact finder tending to prove the existence of the fact in dispute is compared to the evidence tending to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). This standard is applied to both circumstantial and direct evidence. King, 29 S.W.3d at 565; Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); Smith v. State, 895 S.W.2d 449, 452 (Tex.App.-Dallas 1995, pet. ref'd). Reversal for factual insufficiency occurs only when: (1) the evidence is so obviously weak that a conviction is clearly wrong and manifestly unjust; or (2) based on the contrary evidence, the beyond a reasonable doubt burden of proof could not have been met. Zuniga, 144 S.W.3d at 484-85; cf. Vasquez, 67 S.W.3d at 236; Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129.

B. Applicable Law

Pursuant to § 22.01(a)(1) of the Texas Penal Code, a person commits assault if he intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Pen. Code Ann. § 22.01(a)(1) (Vernon Supp. 2005).⁴ An assault under § 22.01(a)(1) is aggravated when the accused uses or exhibits a deadly weapon. Tex. Pen. Code Ann. § 22.02(a)(2) (Vernon Supp. 2005).⁵ A "deadly weapon" is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Pen. Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2005); Lane, at 191. "Serious bodily injury" means "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Tex. Pen. Code Ann. § 1.07(a)(46); Lane, 151 S.W.3d at 191. Depending on the evidence, a hand or foot may be a deadly weapon within the meaning of § 1.07(a)(17) of the Texas Penal Code. Lane, 151 S.W.3d at 191. When determining whether a hand or foot was used as a deadly weapon, the injuries inflicted on the victim are factors that should be considered. See Lane, 151 S.W.3d at 191.

C. Application of the Law to the Facts

Although he admits a hand can be used as a deadly weapon, Williams argues the evidence is legally insufficient to support his conviction of aggravated assault because the type of injuries sustained by Rattray support only simple assault. The State responds that the manner in which Williams used his hands had the potential to cause serious bodily injury. Viewing the evidence in the light most favorable to the verdict, there was evidence that Williams used his hands as a deadly weapon. There was evidence that Williams pinned Rattray to the bed and struck Rattray in the face several times with his right fist. See Lane, 151 S.W.3d at 192 (defendant struck victim in head several times with closed fist). Also, there was evidence that Williams choked Rattray with his left hand. Rattray told the police at the scene and signed a written statement stating she lost consciousness when Williams choked her. See id (victim lost consciousness). The police observed that Rattray had red marks across her neck, was bleeding from her mouth, nose, and left ear, and had bruising and swelling on her forehead and the side of her head. Rattray complained of ringing in her ears and hearing loss in her left ear. There was also evidence presented at trial from a police officer and the State's expert that a hand can be used as a deadly weapon and strangulation can cause serious bodily injury or death. Williams argues the evidence is factually insufficient because Rattray denied Williams choked her and the State's expert could not determine that Rattray had been strangled. The State responds that the jury could believe Rattray's statements to the police and hospital as well as her written statement, and disbelieve her testimony at trial. Also, the State responds that a police officer and expert testified that hands are capable of being a deadly weapon, and the injury inflicted by a person's fists or strangulation by a person's hands is capable of causing serious bodily injury or death. Viewing the evidence in a neutral light, there is ample evidence from which a fact finder could rationally conclude beyond a reasonable doubt that Williams was guilty of aggravated assault. It is clear that Williams's challenge to the factual sufficiency of the evidence is actually an attack on the credibility and weight assigned to the evidence by the jury. The evidence was neither so obviously weak that Williams's conviction is clearly wrong and manifestly unjust nor was the jury's verdict so contrary to the evidence that the beyond-a-reasonable-doubt burden of proof could not have been met. After reviewing all of the evidence under the appropriate standards of review, we conclude the evidence is legally and factually sufficient to support Williams's conviction of aggravated assault. Williams's first and second issues on appeal are decided against him.

IV. CONCLUSION

Williams's appeal was timely and this Court has jurisdiction over this appeal. Also, the evidence is legally and factually sufficient to support Williams's conviction of aggravated assault. The trial court's judgment is affirmed.