Garcia, Jr., Richard v. State

Opinion Issued December 20, 2007 Opinion Issued December 20, 2007 In The Court of Appeals For The First District of Texas NO. 01-05-00532-CR RICHARD GARCIA, JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Cause No. 40186 MEMORANDUM OPINION A jury found appellant, Richard Garcia, guilty of assaulting, and of having previously been convicted of assaulting, a family or household member. See Tex. Pen. Code Ann. § 22.01(a)–(b) (Vernon 2005). Upon finding true two prior burglary convictions used to enhance punishment, the jury assessed Garcia’s sentence at ninety-five years’ confinement and a $10,000 fine. In two issues, Garcia contends that the evidence is legally and factually insufficient to support a finding that he committed assault against a family or household member or that he had been previously convicted of assaulting a family or household member. We affirm. Background On April 9, 2004, Garcia was living with his girlfriend, Ann Marie Trevino, with whom he had one child. By the time of the trial in 2005, Garcia and Trevino had two children together. Garcia and Trevino were both drinking alcohol that night and began to argue outside. Trevino’s eleven-year-old daughter, two-month-old son, and Garcia’s ex-brother-in-law, Jimmy Lucas, were outside at the time of the argument. According to Lucas’s testimony, Trevino ordered both Lucas and Garcia to leave. At some point after that, Garcia hit Trevino with his fist on the back of her head, causing her to fall down onto the pavement and scrape her cheek, arm, and knee. Garcia ran out of the yard, and Trevino picked up a shovel to chase him. Following the altercation, Trevino called her sister and told her that Garcia had hit her and asked her sister to pick her up. When the police arrived, Garcia was no longer at the house. A police officer interviewed Trevino, and she told him that Garcia had struck her in the head, causing her to fall and sustain other injuries. The officer recorded the interview, and the State played the recording for the jury at trial. The officer also photographed Trevino’s injuries. Before the trial, Trevino sent Garcia a notarized affidavit stating that she did not want to press charges and would like the charges against Garcia to be dropped. At trial, Trevino testified that she did not remember clearly the events that occurred because she had been drinking that night. She further testified that Garcia did not strike her, and she does not remember telling the police officer that he did. The State presented testimony regarding Garcia’s prior convictions for assault of a family or household member. The State offered into evidence, without objection, copies of Garcia’s prior judgments for assault of a family or household member, as well as testimony that the victim in those cases was Garcia’s former girlfriend, with whom he has three children. Legal and Factual Sufficiency Garcia contends that the evidence is legally and factually insufficient to support a guilty verdict of third-degree felony assault. Specifically, he contends there is not sufficient evidence to prove that either (1) an assault on a family or household member occurred, or (2) that he had been previously convicted of assault on a family or household member. A. Standard of Review When evaluating the legal sufficiency of the evidence, we view 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 offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). When evaluating factual sufficiency, we consider all the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a verdict is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson, 204 S.W.3d at 417. Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id. We must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). B. Assault of a Family or Household Member A person commits assault if the person intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse. Tex. Pen. Code Ann. § 22.01 (a) (1) (Vernon 2005). “Bodily injury” means physical pain, illness, or any impairment of physical condition. Id. § 1.07(a)(8). An offense of assault is a felony of the third degree if the offense is committed against a member of the defendant’s family or household, if it is shown on the trial of the offense that the defendant has been previously convicted of an offense against a member of the defendant’s family or household. Id. § 22.01(b) (2). “Family” includes individuals who are the parents of the same child, without regard to marriage. Tex. Fam. Code Ann. § 71.003 (Vernon 2002). “Household” means a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other, and “member of the household” includes a person who previously lived in a household. Id. §§ 71.005–71.006. In order to convict Garcia of third-degree felony assault, the State must prove that both an assault against a family or household member occurred and that the defendant had been previously convicted of assault against a family or household member. See Tex. Pen. Code Ann. § 22.01(b) (2). If a court determines that an offense involved family violence, the court shall make an affirmative finding of that fact and enter the affirmative finding in the judgment of the case. Tex. Code Crim. Proc. Ann. art. 42.013 (Vernon 2006). In the absence of such a finding, the State may meet its burden “by introducing a previous judgment of conviction for assault, together with extrinsic evidence that the victim of that assault was a member of the defendant's family or household.” Mitchell v. State, 102 S.W.3d 772, 775 (Tex. App.—Austin 2003, pet. ref’d); Manning v. State, 112 S.W.3d 740, 744 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (extrinsic evidence may be used to prove that previous assault was committed against family or household member in subsequent proceeding when convicting court failed to make affirmative finding in judgment). C. Legal Sufficiency of the Evidence of Assault Garcia contends that the evidence is legally insufficient to support a guilty verdict for assault against a family member. Trevino testified that she was living with Garcia at the time of the assault, and they have two children together. In addition, Garcia’s sole defense witness, Lucas, testified that Trevino and Garcia were living together at the time of the assault and had a child together. Trevino’s eleven-year-old daughter also testified that Trevino and Garcia were living together at that time. The State admitted into evidence photographs of Trevino’s injuries, as well as a videotape of Trevino describing the assault to the responding police officer. In addition, Trevino’s daughter testified that she witnessed the assault, and that Garcia hit her mother on the back of the head, causing her to fall down. Lucas testified that Garcia hit Trevino, but did so in self-defense. Viewing the evidence in the light most favorable to the verdict, we hold the evidence is legally sufficient to support a finding that Garcia assaulted Trevino and that she was a family or household member. See Tex. Fam. Code Ann. §§ 71.003, 71.006. D. Factual Sufficiency of the Evidence of Assault Garcia asserts that the evidence is factually insufficient. He points to Trevino’s testimony, which he claims undermines the verdict. Trevino testified that she only vaguely remembers the night the assault took place because she was intoxicated at the time. She further testified that Garcia did not strike her, nor did he cause her to fall down. She admitted, however, that the recorded statement that she gave to the police on the night of the assault differs from her testimony in court. Officer Clark verified that it was Trevino’s voice on the videotape, in which Trevino states that Garcia struck her on the head. Officer Clark also testified that he photographed Trevino’s injuries on the night of the assault, and that she had abrasions on her arms and legs, and a slight redness and swelling on her cheek. Other witnesses’ testimony is also inconsistent with Trevino’s testimony. Trevino’s daughter, T.M., testified to the events of that night, and her recollection of the events differs from Trevino’s testimony. T.M. testified that she was on the back porch with Garcia and Trevino at the time of the assault, and she saw Garcia strike her mother on the back of the head with a closed fist, causing her to fall down. Trevino’s sister testified that Trevino called her shortly after the assault, and Trevino told her that Garcia had hit her and asked her sister to pick her up. Garcia’s defense witness, Lucas, also testified that he saw Garcia hit Trevino, although he alleged that Trevino was threatening Garcia with a shovel before he struck her. The fact-finder alone determines the weight to place on contradictory testimonial evidence because that determination depends on the fact-finder’s evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408–09 (Tex. Crim. App. 1997). As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5. As an appellate court, we must avoid re-weighing the evidence and substituting our judgment for that of the fact-finder. Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998); see also Wilson v. State, 863 S.W.2d 59, 65 (Tex. Crim. App. 1993); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). We must defer to the jury’s findings. “A jury decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State.” Herrero v. State, 124 S.W.3d 827, 835 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (quoting Cain, 958 S.W.2d at 410). The State’s evidence was not so obviously weak or contrary to the overwhelming weight of the evidence as to be factually insufficient. We hold that factually sufficient evidence supports the verdict. E. Sufficiency of the Evidence of Prior Convictions Garcia further contends that the evidence is legally and factually insufficient to support a finding that he had been previously convicted of assaulting a family or household member. The State offered into evidence copies of Garcia’s two prior judgments for assault, one that occurred September 28, 2000 and one that occurred September 16, 2001. Garcia pleaded nolo contendere to both offenses. Neither judgment contains an affirmative finding of family violence. A crime scene investigator with the Sugar Land Police Department testified that the fingerprints on the judgments match Garcia’s fingerprints. The State also offered the information for each of those offenses, which state that Garcia “did then and there intentionally, knowingly, or recklessly cause bodily injury to LILLY ZEPEDA . . .” Garcia contends that these judgments should not be considered, because they are not certified. However, Garcia did not object to their admission at trial and thus, cannot challenge their admission on appeal. See Tex. R. App. P. 33.1. Michael Huffman, a deputy with the Fort Bend Sheriff’s Office testified that he responded to a domestic violence assault call on September 28, 2000. Deputy Huffman interviewed Lilly Zepeda, and testified that Zepeda has three children with Garcia. In addition, Trevino testified that Zepeda is Garcia’s ex-girlfriend and that they have three children together. Lucas also confirmed that Zepeda used to be Garcia’s common-law wife. We conclude that the extrinsic evidence supplied by Deputy Huffman shows that Zepeda, the complainant in both the prior convictions, was Garcia’s family member at the time of those offensives. We hold that the evidence is legally and factually sufficient to support a finding that Lilly Zepeda is a member of Garcia’s family, and that Garcia was twice previously convicted of assaulting her. See Tex. Fam. Code Ann. § 71.003. Conclusion We hold that the evidence is legally and factually sufficient to support a conviction of third-degree felony assault. We therefore affirm the judgment of the trial court. Jane Bland Justice Panel consists of Chief Justice Radack and Justices Alcala and Bland. Do not publish. See Tex. R. App. P. 47.4.