Drew Feldpausch v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-02-299 CR ____________________ DREW FELDPAUSCH, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 217th District Court Angelina County, Texas Trial Cause No. CR-22694 OPINION Drew Feldpausch was convicted of robbery and sentenced to eight years of confinement in the Texas Department of Criminal Justice, Institutional Division. The two points of error raised on appeal from the bench trial challenge the legal and factual sufficiency of the evidence with regard to the element of bodily injury. When reviewing the legal sufficiency of the evidence, we look at 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979). When reviewing the factual sufficiency of the evidence, we must decide whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the factfinder's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). The indictment alleged "that Drew Feldpausch . . ., while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally, knowingly, or recklessly cause[d] bodily injury to [the complainant] by striking at [the complainant] with defendant's hand causing [the complainant] to fall to the ground, . . ." Feldpausch contends that the State failed to meet its burden of proof on the bodily injury element of robbery. See Tex. Pen. Code Ann. § 29.02(a)(1) (Vernon 1994). The victim, a pizza delivery man, testified that, instead of paying for the $50 worth of food that had been ordered, Feldpausch swung at him with a closed fist. The delivery man ducked, but Feldpausch's fist grazed the top of the delivery man's head and he fell to the ground on the concrete parking lot, hurting his hand in the process of breaking his fall. His contact with the concrete left a two to three inch scratch on the palm of his right hand. On cross-examination, the complainant insisted that he reported the injury to the sheriff's deputy who responded immediately after the offense. Detective Ron Stubblefield of the Lufkin Police Department, who took the victim's statement some seven weeks after the crime, did not mention the hand injury in his report. Stubblefield testified that the victim did relate having fallen down on the concrete. Testifying on his own behalf, Feldpausch admitted that he took the two two-liter bottles of soda, then grabbed the three pizzas and ran away, but denied he swung at the pizza delivery man before taking the merchandise, and that the complainant fell down. The appellant argues that the evidence is legally insufficient to prove beyond a reasonable doubt that he caused bodily injury to the complainant because the State failed to produce any medical records or independent evidence to support the victim's testimony. Similar facts were sufficient to establish bodily injury in Lane v. State, 763 S.W.2d 785, 786-87 (Tex. Crim. App. 1989), and Lewis v. State, 530 S.W.2d 117, 118 (Tex. Crim. App. 1975). The issue in those cases was whether momentary pain and a small bruise on the arm constituted "bodily injury." The court reasoned that any level of violence perpetrated against another for the purpose of preventing or overcoming resistance to theft, without regard to the degree or character of the physical force exerted, elevated mere purse-snatching to robbery. Lane v. State, 763 S.W.2d at 787; Lewis v. State, 530 S.W.2d at 118. And in an assault case, Wawrykow v. State, 866 S.W.2d 87, 90 (Tex. App.--Beaumont 1993, pet. ref'd), we held that, even in the absence of any testimony that the officer felt pain or was hurt by the contact, bodily injury was established by testimony that the appellant shoved the officer in the chest hard enough to push him out of a doorway. In this case, it is not so much the degree of pain or injury that the appellant challenges, but the lack of corroboration of the complaining witness's testimony. There appears to have been no such corroboration in Lane and Lewis, and Feldpausch cites no precedent in which the victim's uncorroborated testimony was insufficient to establish bodily injury in a prosecution for robbery. The trial judge, when sitting as the sole trier of facts, is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony, and may accept or reject any part or all of the testimony given by the State or defensive witnesses. Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995); Alexander v. State, 823 S.W.2d 754, 756-57 (Tex. App.--Austin 1992, no pet.). In Alexander, the trial court was free to disbelieve the appellant's testimony that he stole two items on different dates and, considering the victim's testimony that he noticed the two items missing at the same time, conclude that the appellant took the property on the same occasion. Id. In this case, the trial court could rationally believe the complaining witness's version of the facts and disbelieve the appellant's. Point of error one is overruled. Next, the appellant argues that the evidence is factually insufficient because no independent testimony or medical evidence corroborated the victim's testimony and Feldpausch refuted the victim's claim of bodily injury with his own testimony. Again, the trial court could believe the victim's testimony that his hand was scratched in the fall and the officer's testimony that the victim told him about the fall, and conclude that, although not mentioned in the report, the injury to the victim's hand did in fact occur. Likewise, the trial court could disbelieve the appellant's testimony that he did not strike the victim and that the victim did not fall down. The fact that the witness's testimony regarding the scratch was not corroborated by medical records does not render it so weak that a conviction based solely upon the testimony of the victim is clearly unjust. We cannot conclude that the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust, where the only evidence contradicting the victim came from the accused. Point of error two is overruled. The judgment is affirmed. AFFIRMED. PER CURIAM Submitted on January 24, 2003 Opinion Delivered February 5, 2003 Do Not Publish Before McKeithen, C.J., Burgess and Gaultney, JJ.