Pierson, Dwayne Andre v. State

Affirmed and Memorandum Opinion filed February 8, 2007 Affirmed and Memorandum Opinion filed February 8, 2007. In The Fourteenth Court of Appeals ____________ NO. 14-06-00044-CR ____________ DWAYNE ANDRE PIERSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the County Criminal Court at Law No. 5 Harris County, Texas Trial Court Cause No. 1303426 M E M O R A N D U M   O P I N I O N A jury convicted appellant, Dwayne Andre Pierson, of misdemeanor assault. See Tex. Penal Code Ann. ' 22.01(a)(1) (Vernon 2003). The trial court sentenced appellant to ten months= incarceration in the Harris County Jail. Appellant raises three issues on appeal. In his first and second issues, appellant contends the evidence is legally and factually insufficient to support the jury=s finding that the complainant suffered bodily injury. In his third issue, appellant contends the trial court asked an improper commitment question during voir dire. We affirm. Factual and Procedural Background On May 14, 2005, Deputy Robbennolt of the Harris County Sheriff=s Department responded to a family disturbance call at an apartment complex on West Road in Harris County. Upon arrival, Robbennolt met with the complainant, Detra Campbell-Nelson. Robbennolt observed red marks on both sides of the complainant=s neck, consistent with injuries caused by grabbing or choking. The complainant was very excited and appeared to have been crying. The complainant told Robbennolt that she and appellant were dating, and appellant had come to her apartment that evening. The complainant stated that she asked appellant to leave because he had been drinking. The complainant further stated that appellant became angry, pushed complainant into a chair, grabbed her throat with one hand, and covered her mouth and nose with his other hand. The complainant also told Robbennolt that appellant=s actions caused her extreme pain. On May 16, 2005, appellant was charged by information with assault. On June 6, 2005, the complainant executed an affidavit of nonprosecution. In her affidavit, the complainant stated she did not want to see appellant prosecuted for assault or testify against appellant at his trial. Appellant=s case was tried on November 28 and 29, 2005. Deputy Robbennolt and the complainant were the only witnesses to testify. Robbennolt testified he was dispatched to the complainant=s residence at 10:00 p.m. on May 14, 2005 and arrived at 11:06 p.m. Robbennolt testified the complainant made the following statements to him when he arrived: She told me that - - basically, that her boyfriend came over that night. He had been drinking. She did not want - - she had a child. The child was in the apartment at the time that I was talking to her. She stated that she does not let anybody around her child when they have been drinking. She stated, at that time, that he became angry, started yelling. Then she asked him to leave. He refused, grabbed ahold [sic] of her - - or before he grabbed her, he poked her in the temple with his finger, knocking her into a chair that was in the living room. When she fell in the chair, he got on top, grabbed ahold [sic] of her around the throat, and put his other hand around her mouth and nose. She stated that she felt a lot of pain from this happening. Robbennolt testified that when he first observed the complainant she was crying, and her demeanor was nervous and fearful. Robbenolt testified he saw marks on the complainant=s neck consistent with someone grabbing or choking her. Robbennolt gave the following testimony describing the marks on the complainant=s neck: The marks were - - when I first observed them, red in color. Like a - - close to a blood bruise, where the blood came to the surface, but was not oozing out of the wound itself. . . . The marks were on both sides of her neck. I would say, probably, just less than halfway around the neck, consistent with a hand print that were - - looks as if it were a scrape mark or a pull mark - - that were tight against the skin that would leave, like, a stretched red mark going toward the throat toward the Adam=s apple. They were red. They weren=t bleeding; but they had the appearance of a shiny look, as if they were new. Robbenolt further testified he has dealt with assault victims on many prior occasions. Based on his training and experience, Robbenolt concluded that the marks on the complainant=s neck were consistent with her statement that she had been assaulted by appellant. Robbennolt testified he obtained a written statement from the complainant on May 14, 2005, which was consistent with her oral statement that she was assaulted by appellant.[1] Robbennolt also testified he was dispatched to the complainant=s residence on or about May 16, 2005, and was told by the complainant that she had not been assaulted by appellant on May 14, 2005. The complainant testified during the State=s case in chief. The trial court limited the scope of the complainant=s testimony, based on her representation that certain lines of questioning would cause her to give conflicting statements under oath. On direct examination, the complainant identified appellant as the person who was the subject of her statement to Robbennolt on May 14, 2005. On cross-examination, the complainant testified she did not receive any medical care on May 14, 2005. The complainant further testified that she and appellant are currently engaged to be married. The jury found appellant guilty of assault, and the trial court sentenced appellant to ten months= confinement in the Harris County Jail. This appeal followed. Discussion I. Legal Sufficiency In his first issue, appellant contends there is legally insufficient evidence to sustain the jury=s finding that the complainant suffered bodily injury. In a legal sufficiency review, we view 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness=s testimony. Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998). We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). A person commits assault if he intentionally, knowingly, or recklessly causes bodily injury to another, including the person=s spouse. Tex. Penal Code Ann. ' 22.01(a)(1) (Vernon 2003). ABodily injury@ means physical pain, illness, or any impairment of physical condition. Tex. Penal Code Ann. 1.07(8) (Vernon 2003). The Court of Criminal Appeals has broadly interpreted the definition of bodily injury to include Aeven relatively minor physical contacts so long as they constitute more than mere offensive touching.@ Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989). When considering whether there is sufficient evidence to establish that a victim suffered bodily injury, juries are free to apply common knowledge, observation, and experience gained in ordinary affairs of life, while giving effect to inferences that may reasonably be drawn from the evidence. Wawrykow v. State, 866 S.W.2d 96, 99 (Tex. App.CBeaumont 1993, no pet.). A fact finder may infer that a victim actually felt or suffered physical pain because people of common intelligence understand pain and some of the natural causes of it. Id.; Goodin v. State, 750 S.W.2d 857, 859 (Tex. App.CCorpus Christi 1988, pet. ref=d). In the instant case, appellant contends there is legally insufficient evidence of bodily injury because the complainant did not testify that she suffered pain, and because Deputy Robbennolt had no personal knowledge of the events concerning the assault case. We disagree. Robbennolt gave detailed testimony regarding the complainant=s appearance and the red marks on her neck, which, in Robbennolt=s opinion, were consistent with assault. Robbennolt further testified that the complainant specifically told him that appellant=s actionsCchoking her with his hand around her neck, covering her mouth with his hand, and striking her in the temple with his fingerCcaused her pain. When viewed in the light most favorable to the verdict, we find the evidence supports a determination beyond a reasonable doubt that the complainant suffered bodily injury. See Harris v. State, 164 S.W.3d 775, 785 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d) (finding legally and factually sufficient evidence of bodily injury where victim had reddish marks on her neck and a scratch on her collarbone). Accordingly, we overrule appellant=s legal sufficiency point of error. II. Factual Sufficiency In his second issue, appellant contends there is factually insufficient evidence to sustain the jury=s finding that the complainant suffered bodily injury. In a factual sufficiency review, we consider all the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). The evidence may be factually insufficient in two ways. Prible v. State, 175 S.W.3d 724, 730B31 (Tex. Crim. App. 2005). First, when considered by itself, evidence supporting the verdict may be so weak the verdict is clearly wrong and manifestly unjust. Id. Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. In conducting a factual sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). Our analysis must consider the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Turning to the first basis on which we may reverse, we find that the testimony of Deputy Robbennolt, recounted above, provides factually sufficient evidence to support the jury=s finding that the complainant suffered bodily injury. Appellant directs us to the following evidence which he claims is contrary to the jury=s finding that the complainant suffered bodily injury: (1) Robbennolt=s testimony that the complainant contacted him prior to appellant=s trial and stated that appellant did not assault her, (2) Robbennolt=s testimony that the complainant refused medical treatment, (3) Robbennolt=s testimony that he had no photographs of the complainant=s neck, and (4) the absence of testimony by the complainant regarding the issue of pain. When considering all the evidence in a neutral light, we find that the contrary evidence is not so strong that the beyond-a-reasonable-doubt standard could not have been met, nor is the evidence supporting the verdict so weak it is clearly wrong and manifestly unjust. See Prible, 175 S.W.3d at 730B31. Accordingly, we overrule appellant=s factual sufficiency point of error. III. Voir Dire In his third point of error, appellant contends the trial court abused its discretion by asking an improper commitment question to prospective jurors during voir dire. Specifically, appellant argues the trial court used a hypothetical fact situation which was identical to the evidence introduced at trial, thereby committing prospective jurors to an issue in the case. The State argues appellant failed to preserve this issue for our review. In the alternative, the State argues the trial court=s hypothetical was not an improper commitment question because it was intended to explain the law. A. The Facts During voir dire, the prosecutor asked the following question which sought to determine whether venire members could find a hypothetical defendant guilty of assault if the victim had no visible physical injuries: What do you think is required to show bodily injury? . . . You=d be surprised. The law just requires pain. You have to show that the person felt pain. Doesn=t require a scratch. Doesn=t require a bruise. Doesn=t require any kind of mark. I just have to prove to you that the person (Pointing) felt pain. How many of you - - considering this is the charge I have to prove, that these are the things that happened; but as far as serious bodily injury, the only thing that I=m required to show is that person=s - - they felt pain. How many of you think - - Hum, in an assault case, if there were no bruises and, you know, I do believe she felt pain. I believe beyond a reasonable doubt she or he felt pain, but you don=t have any bruises, you don=t have any marks, she didn=t spend any time in the hospital - - how many of you could find a person guilty if you believe beyond a reasonable doubt she felt pain but there were no bruises? After eight venire members responded to the prosecutor=s question, the trial court intervened and made the following statements: When the question is posed, it=s that you believe beyond a reasonable doubt the testimony that the contact caused pain. It=s no longer a question of deciding whether you believe that it caused pain. Okay? You might be looking for a mark to see if you believe it caused pain; but let=s say that you=ve already resolved that question in your mind and you believe beyond a reasonable doubt that the contact caused pain, which is all that the law requires. Would you, then, follow that part of the law and find the defendant guilty; or would you, instead, find the defendant not guilty, even though you believed that the State proved everything they have to beyond a reasonable doubt? You see the distinction that I=m pointing out? Eleven additional venire members responded to the prosecutor=s question,[2] then the following exchange took place: Venireperson No. 20: Just him assaulting her is not enough? The Prosecutor: No. In order to be guilty of assault under the law, I have to prove to you that he intentionally - - Adid intentionally and knowingly cause bodily injury.@ Bodily injury is just a fancy term for Acaused pain.@ So, I have to show that Ahe intentionally and knowingly caused pain.@ If I can=t prove that they caused pain to the person, no assault. Venireperson No. 20: Wouldn=t bodily injury be like if she went and had x-rays and there was some film showing bruising after the incident or . . . The Prosecutor: Bruising after the incident - - generally, if there=s bruising, there=s pain. So, it=s really weird, but pain is a prerequisite to the bodily injury. The Court: I=m going to plug through again. Excuse me. Okay. Let=s try this: What if I went wacky suddenly and I marched right out there and I slapped Ms. Lugo? I just slapped her cold, right across the face. But I=m not real strong so by the time the police arrived, any mark is gone. But she says - - Defense Counsel: Judge, I=m going to object to the hypothetical as getting into the evidence in the case beyond the Court=s - - The Court: I don=t know your case. So, I don=t know. Defense Counsel: I=m going to object to that statement by the Court. The Court: Thank you. Okay. So, you hear that evidence; and you believe beyond a reasonable doubt the testimony that it hurt. Or let=s try another one. . . . B. Standard of Review The trial court has broad discretion over the process of selecting a jury. Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002); Allridge v. State, 762 S.W.2d 146, 167 (Tex. Crim. App. 1998). Therefore, we will not disturb the trial court=s ruling on the propriety of a particular question during voir dire absent an abuse of discretion. Barajas , 93 S.W.3d at 38; Allridge, 762 S.W.2d at 163. C. Analysis Assuming, without deciding, that appellant preserved error on the commitment issue, we conclude that the trial court=s hypothetical was not an improper commitment question. In Standefer v. State, the Court of Criminal Appeals articulated a three-prong test for determining whether a voir dire question calls for an improper commitment. 59 S.W.3d 177, 179B82 (Tex. Crim. App. 2001). The first prong of the test requires trial courts to determine whether a particular question is a commitment question. Id. at 179. If the court determines that a particular question is a commitment question, then the court must decide whether the question gives rise to a valid challenge for cause. Id. at 181B82. If the question meets the Achallenge for cause@ requirement, then the court must determine whether the question includes only those facts necessary to determine whether a prospective juror is challengeable for cause. Id. A commitment question is proper if gives rise to a valid challenge for cause and includes only those facts necessary to determine whether a juror is challengeable for cause. Id. 1. Did the Trial Court Ask a Commitment Question? A commitment question is one that commits a prospective juror to resolve, or refrain from resolving, an issue a certain way after learning a particular fact. Id. at 179. The hypothetical question asked by the trial judge and objected to by appellant=s trial counsel included the following facts: the trial judge slapped Ms. Lugo in the face, the venire members believed beyond a reasonable doubt that Ms. Lugo suffered physical pain, and, by the time the police arrived, all marks were gone. Viewed in context, the trial court=s hypothetical sought to determine whether venire members could find a person guilty of assault under the facts of the hypothetical. Therefore, the trial court=s hypothetical was a commitment question because it sought to determine whether prospective jurors would Aresolve, or refrain from resolving, an issue a certain way after learning a particular fact.@ Id. 2. Would One of the Possible Answers to the Question Lead to a Valid Challenge for Cause? For a commitment question to be proper, one of the possible answers to the question must give rise to a valid challenge for cause. Id. at 182. The statute under which appellant was charged requires the State to prove that the victim experienced physical pain. See Tex. Penal Code Ann. '' 1.07(8), 22.01(a)(1). One possible response to the trial court=s hypothetical is that a venire member would not convict a defendant of assault, even though the venire member believed beyond a reasonable doubt that the victim experienced physical pain (without visible physical injury) as a result of being intentionally slapped. A prospective juror who would require the State to meet a higher burdenCsuch as evidence of a visible physical injuryCwould be subject to a challenge for cause, since that juror would require the State to prove a fact that the statute does not require.[3] See Tex. Code Crim. Proc. Ann. art. 35.16(b)(3) (Vernon Supp. 2006). Accordingly, the trial court=s hypothetical satisfies the challenge-for-cause requirement under the second prong of the Standefer analysis. See Standefer, 59 S.W.3d at 181B82. 3. Did the Question Include Only the Necessary Facts? Even if a commitment question meets the challenge-for-cause requirement, the question may be improper if it includes facts in addition to those necessary to sustain a challenge for cause. Id. at 182. The Standefer court referenced the facts of Atkins v. State as an example of a voir dire question which impermissibly supplied more facts than necessary to sustain a challenge for cause. Id. In Atkins, the State asked prospective jurors the following question: AIf the evidence, in a hypothetical case, showed that a person was arrested and they had a crack pipe in their pocket, and they had a residue amount in it, and it could be measured, and it could be seen, is there anyone who could not convict a person, based on that-@ Atkins v. State, 951 S.W.2d 787, 789 (Tex. Crim. App. 1997). In Atkins, the facts in the State=s hypothetical question were identical to the evidence introduced at trial. Id. at 790. The Atkins court held that the State=s question was improper because it served no purpose other than to commit the venire members to the facts of the case. Id. AThe key to understanding Atkins and the third prong of Standefer is that the hypothetical used by the State in Atkins contained too many case-specific facts.@ Lee v. State, 176 S.W.3d 452, 461 (Tex. App.CHouston [1st Dist.] 2004), aff=d, 206 S.W.3d 620 (Tex. Crim. App. 2006) (holding voir dire question was not improper under the third prong of Standefer because the non-case-specific facts included in the question Awere necessary for the hypothetical question to be useful in ascertaining the views of the prospective jurors on an issue pertinent to the fair determination of the case@). In the instant case, the trial court=s hypothetical contained none of the facts ultimately adduced at trial.[4] All of the cases cited by appellant as controlling authority are distinguishable on this basis.[5] Further, the purpose of the trial court=s hypothetical was to explain the law of assault and determine whether prospective jurors could apply it correctly. See Atkins, 951 S.W.2d at 789 (ABecause the law allows the use of a hypothetical to ascertain the views of prospective jurors on issues pertinent to a fair determination of the case, it must be determined whether the hypothetical was used to explain the law or was used to commit the jurors to particular circumstances.@). The facts included in the trial court=s hypothetical were intended to explain the law, and were not specific to appellant=s case. Therefore, the trial court=s hypothetical question did not contain unnecessary facts under the third prong of the Standefer analysis. See Standefer, 59 S.W.3d at 182; Atkins, 951 S.W.2d at 789B90; Lee, 176 S.W.3d at 461. Accordingly, the trial court=s hypothetical was not an improper commitment question, and appellant=s third issue is overruled. Conclusion Having considered and overruled each of appellant=s three issues on appeal, we affirm the judgment of the trial court. /s/ John S. Anderson Justice Judgment rendered and Memorandum Opinion filed February 8, 2007. Panel consists of Justices Yates, Anderson, and Hudson. Do Not Publish C Tex. R. App. P. 47.2(b). [1] The written statement given by the complainant on May 14, 2005 was not offered into evidence. [2] The venire consisted of twenty prospective jurors. [3] Article 35.16(b)(3) provides that the State may challenge a venire member for cause if Ahe has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment.@ Tex. Code Crim. Proc. Ann. art. 35.16(b)(3) (Vernon Supp. 2006). [4] In the trial court=s hypothetical, the judge slapped Ms. Lugo in the face, and, by the time the police arrived, any mark was gone. In contrast, Deputy Robbennolt gave detailed testimony at trial describing the marks he observed on the complainant=s neck after arriving at her residence. Further, the victim in the trial court=s hypothetical was slapped; whereas, the complainant in the case at bar was pushed into a chair and choked. [5] Appellant cites three cases as controlling authority on this issue, all of which involve commitment questions containing facts peculiar to the case on trial. See Atkins v. State, 951 S.W.2d 787, 790 (Tex. Crim. App. 1997) (analyzing Aimproper question in which the hypothetical was used seeking to commit the veniremembers to the specific facts of the case@); Brown v. State, 674 S.W.2d 443, 447 (Tex. App.CDallas 1984), aff=d, 741 S.W.2d 453 (Tex. Crim. App. 1987) (holding trial court correctly disallowed voir dire question Abecause it would have improperly brought forth a fact peculiar to the case@); White v. State, 629 S.W.2d 701, 706 (Tex. Crim. App. 1981) (AThere was no error in refusing to let the appellant ask a hypothetical question that was based on the facts peculiar to the case on trial.@).