Baldit v. State, 01–16–00119–CR

• Decision Date: 02 May 2017
• Docket Number: NO. 01–16–00119–CR,01–16–00119–CR
• Citation: 522 S.W.3d 753
• Parties: Derek Thomas BALDIT, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

522 S.W.3d 753

Derek Thomas BALDIT, Appellant

v.The STATE of Texas, Appellee

NO. 01–16–00119–CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued May 2, 2017

Michael "Corey" Young, Pullan & Young, PLLC, Conroe, TX, for Appellant.

Kim Ogg, District Attorney, Patricia McLean, Assistant District Attorney, Houston, TX, for the State.

Panel consists of Justices Keyes, Bland, and Huddle.

OPINION

Evelyn V. Keyes, Justice

A jury convicted appellant, Derek Thomas Baldit, of the Class A misdemeanor offense of assault on a family member.¹ Pursuant to an agreement between appellant and the State, the trial court assessed appellant's punishment at 180 days' confinement in the Harris County Jail. In two issues, appellant contends that (1) the State failed to present sufficient evidence that he intentionally or knowingly caused bodily injury to the complainant and (2) the trial court erred in failing to make a competency finding concerning a child witness.

We affirm.

Background

In January 2015, Laurita Elvir, the complainant, and appellant had been dating for approximately two years, and they were engaged. Elvir and her daughter, D.G., who was five years old at the time, lived with appellant in a house in Katy, Texas.

On January 27, 2015, Elvir and appellant began arguing while he was getting dressed in an upstairs bedroom. Appellant walked downstairs and into the kitchen, where he opened the refrigerator, and Elvir followed him, "still expressing how [she] felt." Elvir testified that she "said something that set [appellant] off," and he slammed the refrigerator door shut and gave her an angry look. Appellant rushed towards her and pushed her "really hard" against the door to a coat closet and held her there with his hand on her neck. Elvir's back hit the door, and she stated that she was scared because appellant had been violent with her before and she did not know what he was going to do next.

Elvir told appellant that she was going to call the police, and she went into the living room, where D.G. was sitting on the couch watching television, to retrieve her cell phone. Elvir started to unlock her phone, but appellant followed her and tried to grab the phone from her. Both appellant and Elvir were holding onto her phone, and Elvir stated that she held on tightly because appellant was trying to take the phone away from her. She testified, "I got pushed off to the ground on the floor and I'm being dragged from the living room, you know, hitting different things throughout the little hallway we have there into the kitchen and still holding onto [the phone]." She continued to hold onto her phone because she was scared, she wanted to call the police, and she did not have a landline.

Elvir testified that appellant tried to take her phone away while she was holding onto it, and she was "being dragged on the floor just hitting different things," including closet doors, the island in the kitchen, the couch, the television stand, a table in the living room, and the walls. Elvir had carpet burns on her face, elbow, and back as a result of being dragged around the house. Elvir was yelling and screaming while this was happening, and she repeatedly yelled at appellant to stop and give her the phone. D.G. was also screaming and crying during this time.

Eventually, appellant took Elvir's phone away from her. He started to leave the house with her phone, so Elvir grabbed onto his leg. Appellant did not kick her or throw her off, but he was able to get free, and he left the house. Appellant walked outside to the garage, locked the door to the garage so Elvir could not follow him in there, placed her phone in the garage, and then drove away. A neighbor overheard Elvir crying in her driveway, asked if she was alright, and called 911. Elvir later recovered her phone from the garage.

In addition to the carpet burns that she received, Elvir's injuries also included a broken toenail, which broke and bled when she bumped into various objects in the house. Elvir had bruising around her eye and on her back, her elbow, her hands, and her forearm. She stated that she had intense pain in her right forearm because she was gripping her phone very tightly with her right hand. She was not sure if her arm was broken, and she had difficulty writing immediately after this incident. Elvir testified that she bumped into several different objects in the house, and she was not sure which one caused each specific injury.

D.G., who was six years old and in kindergarten at the time of trial, also testified. D.G. testified that she knows the difference between the truth and a lie, and she was able to demonstrate this when the prosecutor asked her if he had a funny shoe on his head. She stated that would be a lie "[b]ecause there is no shoe on [his] head." When asked what was on the prosecutor's head, she replied, "your hair," and she agreed that would be the truth. She also agreed that it is important to tell the truth, and she promised "just to tell the truth while [she is] in the courtroom today."

D.G. testified that one year before, she lived "in Katy at the apartment" with her mother "and somebody else." She remembered a time when her mother "and the other person" got into a fight. She testified that while she was on the couch watching cartoons, Elvir and appellant started loudly "fighting and saying stuff" upstairs. When they came downstairs, appellant pushed Elvir hard into the closet door. Elvir said that she was going to call the police and ran for her phone, but appellant also got to the phone and they started struggling. D.G. stated that Elvir held tightly onto the phone and that Elvir also held onto appellant's leg while he "dragged her around the whole carpet on the floor." She testified that appellant went outside once he got ahold of Elvir's phone and that he put the phone in the garage. She stated that Elvir screamed and cried a lot, and she thought that appellant hurt Elvir. She also stated that Elvir "had bruising all over her and her toe was kind of cracked open."

On cross-examination, D.G. agreed that Elvir talked to her about testifying the week of trial and the week prior to trial. She also agreed with defense counsel's statement that Elvir "talked to [her] about what [she] was going to say."

On redirect examination, the prosecutor asked D.G. if Elvir told her to tell the truth, and D.G. responded "yes." She also agreed that Elvir told her that it was okay if she did not remember something, and she once again agreed that it is always important to tell the truth.

Deputy P. Gonzales, with the Harris County Constable's Office, responded to the 911 call. Deputy Gonzales testified that when he arrived at the house, Elvir was crying, her voice was trembling, "and she had signs of being recently in an abusive situation." Elvir had blood on the side of her face, she had difficulty moving her arm, and one of her toenails had flipped backwards into an upright position. Deputy Gonzales contacted appellant and asked him to return to the scene, which he did. Appellant agreed that he got into an argument with Elvir, but he told Deputy Gonzales that Elvir hit him, and when he tried to walk out of the house, Elvir grabbed onto his leg, which was probably how she hurt herself. Deputy Gonzales did not see any injuries on appellant. He considered Elvir's account of events to be credible and not appellant's account.²

Appellant's father, Roy Baldit, testified on his behalf. Roy testified that he saw appellant after he was released from jail the day after the incident with Elvir. He stated that appellant had what looked like scratch marks or fingernail marks on his neck, his back, and his arms. Roy took pictures of these scratches, and the trial court admitted them into evidence. Roy stated that appellant's booking photograph, which had also been admitted into evidence, showed marks on appellant's neck consistent with the ones that he saw, and the marks in that photograph looked "fresher" than the marks when he saw appellant.

The jury found appellant guilty of assault of a family member. Pursuant to an agreement between appellant and the State, the trial court assessed appellant's punishment at 180 days' confinement in the Harris County Jail. This appeal followed.

Sufficiency of Evidence

In his first issue, appellant contends that the State failed to present sufficient evidence that he intentionally or knowingly caused bodily injury to Elvir. He argues that, at best, the evidence supports a finding that he recklessly caused bodily injury to Elvir, but this finding was not authorized by the information or the jury charge.

A. Standard of Review

When reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether any rational fact finder 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, 61 L.Ed.2d 560 (1979) ; Adames v. State , 353 S.W.3d 854, 859 (Tex. Crim. App. 2011). The jurors are the exclusive judges of the facts and the weight to be given to the testimony. Bartlett v. State , 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). We may not re-evaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. Williams v. State , 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We afford almost complete deference to the jury's credibility determinations. See Lancon v. State , 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We resolve any inconsistencies in the evidence in favor of the verdict.

Curry v. State , 30 S.W.3d 394, 406 (Tex. Crim. App. 2000) ; see also Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) ("When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the prosecution and therefore defer to that determination.").

Circumstantial evidence is as probative as direct evidence in establishing guilt, and...