Telepak v. State
| Decision Date | 12 October 2017 |
| Docket Number | No. 08-16-00104-CR,08-16-00104-CR |
| Parties | SHAUNTENETTE TELEPAK, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from 41st District Court of El Paso County, Texas
(TC # 20150D00941)
A jury found Shauntenette Telepak guilty of misdemeanor assault on a family member, her estranged husband. On appeal, she challenges the sufficiency of the evidence to support the conviction, and further claims her trial counsel was ineffective. We reject both contentions and affirm the conviction.
FACTUAL SUMMARY
Appellant married Jeffrey Telepak in May 2010. Both were career military. Jeffrey retired as a Command Sergeant Major in the summer of 2014, and followed Appellant to El Paso when she transferred to attend the Sergeant Major's Academy at Fort Bliss. They had one child by this marriage, a son born in February 2014.
Only because it colors the disputed versions of events, we describe Jeffrey and Appellant's physical appearance. Both are about the same height. At the time of these events, Jeffrey was 51 years old and weighed 160 pounds. He describes himself as a small, weak guy who does cardio but does not lift weights. The investigating detective in this case was somewhat less charitable, and described him as "scrawny" and "thin." Jeffrey was both a cook and recruiter in the Army, but for each of his 31 years of military service, he would have to pass a physical fitness exam twice a year. Conversely, Appellant was 41 years old at the time of trial and weighed 180 pounds. She is described as "rock solid" and "very muscular." Jeffrey claims she is a bodybuilder.
In December 2014, the couple separated. Jeffrey moved into his own apartment; Appellant was not listed on Jeffrey's apartment lease. While separated, Appellant and Jeffrey had informally worked out a custody arrangement for their child which is the genesis of the events we describe here.
Appellant attended a college class on Tuesday nights, and Jeffrey would ordinarily pick-up the child from daycare on Tuesday afternoons and care for him until Wednesday mornings. Based on phone texts exchanged on Monday, January 26, however, Jeffrey believed that Appellant was going to take the child back at 8:00 pm on Tuesday night, and he made other plans for that evening. Appellant disagreed, believing that Jeffrey would take care of the child that evening. The two exchanged less than friendly text messages on Tuesday, January 27th.
In one of the texts, Appellant sent a photo of a $50 receipt for clothes that she had just purchased for the child that day. Part of the childcare argument pertained to packing clothing for the child. Just before 8:00 pm on Tuesday, Appellant went to Jeffrey's apartment and left the bag of new clothes by his front door. She then phoned or texted him to say that he should step outside and pick up the bag. When he eventually did, he saw her in the parking lot. With Jeffrey at the front door, and Appellant in her vehicle, the two had a heated exchange over who would care for the child that night. After they hung up, Jeffrey went back inside his apartment and textedAppellant that he would have the child at her apartment door at eight o'clock. Appellant responded that she was coming to get the child.
According to Jeffrey, she banged on his door a few seconds later and was screaming to get the child. Jeffrey cracked the door open and told her to hold on while he packed the child's bag, but she walked into the apartment. Appellant then picked up the child, and according to Jeffrey, a child's car seat that he claimed was his. She supposedly said, "You're not going to need this anymore, because you're not going to see him anymore." Jeffrey followed Appellant outside, and the two argued some more over the car seat which Jeffrey eventually let her have. He then returned to his apartment.
The couple's version of events sharply diverge at this point. Jeffrey claims that about a minute later Appellant pounded on his front door. He cracked the door, thinking she had calmed down and was returning the car seat, but instead she demanded some "sippy" cups that were left in the apartment. He told her to stay outside and that he would retrieve them. When he tried to close the door, she wedged her foot inside the doorway. Even though he was telling her to stay outside, she overpowered him and forced her way into the apartment. She then pushed him aside, went into the kitchen, and began rifling through the refrigerator and countertops looking for the sippy cups. The cups, however, were in a bag in the living room, and Jeffrey tossed the bag out the front door and told Appellant to leave.
According to Jeffrey, she grabbed him and screamed that he needed to go outside and pick up the cups. He tried to escape down the hallway of his apartment, but she slammed him up against the wall. She then put her hands up under his neck and lifted him up, while screaming, She had her hands on his throat for 20 to 30 seconds. He claims she lifted him off the ground, and thathe could barely breathe. When she let him go, he fell to the ground. She then pounced on top of him, kneed him in the back, and kicked him. She had her combat boots on while he was bare footed. When he raised his foot to block a kick, she injured one of his toes. She then left and he called 911.
Conversely, Appellant's version paints a different picture. When she came to the door to ask for the sippy cups, Jeffrey engaged in a game where he would open the door, ask what she wanted, then close it and return later only to ask again what she wanted. He did this four times. On the third occasion, he struck Appellant on the back with the door. The fourth time, she went into the apartment. He was pushing her, telling her to get the "f--k out of his apartment." She told him, "You don't want to do this" and she proceeded to the kitchen. Jeffrey then threw the cups over her shoulder, out the door, and they landed under her vehicle. She started to walk out of the apartment when Jeffrey began pushing her several times in the back. On the third push, she turned around, and stopped him with her forearm, again telling him "You do not want to do this." He then quit pushing her, and she turned and walked out of the apartment.
The State called Detective Gonzalez who had investigated the incident. He met Jeffrey at William Beaumont Hospital that evening at 11:00 pm. He noted that Jeffrey had red marks on his throat and head, and was having difficulty talking. The State introduced photographs that showed markings on Jeffrey's neck and a bruise on one of his toes.
That night, the officers also went to interview Appellant. She repeated essentially the same story she told at trial. She did not tell the officers, however, that she ever felt threatened. She did tell them that she held Jeffrey against a wall with her forearm against his neck for about 30 seconds until he calmed down. At a protective order hearing in the couple's divorce, she also testified that she held him until he turned red.
The State indicted Appellant for the felony offense of intentionally, knowingly, or recklessly impeding the normal breathing of Jeffrey by applying pressure to his throat or neck. TEX.PENAL CODE ANN. § 22.01(b)(2)(B)(West Supp. 2016). The jury returned a guilty verdict on the lesser included misdemeanor charge of assault Appellant raises two issues on appeal. The first challenges the sufficiency of the evidence to support the verdict.
SUFFICIENCY OF THE EVIDENCE
Standard of Review
Evidence is legally sufficient when, viewed in the light most favorable to the verdict, any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010)(establishing legal insufficiency under Jackson v. Virginia as the only standard for review of the evidence).
The jury is the sole judge of credibility and the weight attached to the testimony of each witness. Dobbs v. State, 434 S.W.3d 166, 170 (Tex.Crim.App. 2014). It is the fact finder's duty "to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." See Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007), quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781. The jury also may choose to believe or disbelieve that testimony. Lancon v. State, 253 S.W.3d 699, 707 (Tex.Crim.App. 2008); Belton v. State, 900 S.W.2d 886, 897 (Tex.App.--El Paso 1995, pet. ref'd). When the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict, and we defer to that determination. Dobbs, 434 S.W.3d at 170; see also Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.
Circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone may be sufficient to establish guilt. Dobbs, 434 S.W.3d at 170; Carrizales v. State, 414 S.W.3d 737, 742 n.20 (Tex.Crim.App. 2013), citing Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Dobbs, 434 S.W.3d at 170; Hooper, 214 S.W.3d at 13.
We remain mindful that "[t]here is no higher burden of proof in any trial, criminal or civil, and there is no higher standard of appellate review than the standard mandated by Jackson." Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). Nonetheless, if a rational fact finder could have found the defendant guilty, we will not disturb the verdict on appeal. Fernandez v. State, 479 S.W.3d 835, 838 (Tex.Crim.App. 2016).
Applicable Law
To sustain its burden of proof, the State was...
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