Todd v. State, No. 08-05-00011-CR (Tex. App. 9/14/2006), 08-05-00011-CR.
| Decision Date | 14 September 2006 |
| Docket Number | No. 08-05-00011-CR.,08-05-00011-CR. |
| Parties | PHILLIP TODD, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the County Court at Law No. 2 of Grayson County, Texas, (TC# 2003-2-147).
Before BARAJAS, C.J., McCLURE, and CHEW, JJ., BARAJAS, C.J., not participating
This is an appeal from jury convictions for the offenses of resisting arrest, search, or transport and assault with bodily injury-family violence. The jury assessed punishment at 270 days' confinement for each offense, but the sentences were suspended and Appellant was placed on two years' probation for each offense. We affirm.
On November 23, 2002, Denison Police Officers Carney and Bellows responded to a report of a domestic disturbance at the residence of Appellant and Dana Todd.1 Upon exiting his patrol unit, Officer Carney observed Todd to have blood all over her face and all over her shirt. Officer Carney testified that upon arrival at the scene, the victim indicated to the officer that she had gotten into an altercation with Appellant who was her fiancé. Officer Carney took a taped statement from the victim, in which she said that she and Appellant had gotten into an argument and it ended up outside. She was trying to leave to go get a pack of cigarettes and while she was outside, Appellant came out there and did not want her to leave and they got into a struggle over the baby that she was holding in her arms. The victim indicated that Appellant had not "hit her, hit her," and that she did not know if it was an accident or not, but in the course of struggling over the baby, she got hit in the nose. She also indicated that Appellant had bitten her on the hand between her thumb and her finger. Officer Carney was able to see the bite mark and bruising and also observed blood on the victim's face consistent with having been hit in the nose.
Officer Bellows testified that while Officer Carney was speaking with the victim, Appellant was telling him what had happened. Appellant said they were arguing over the child and she had gotten up in his face and was screaming at him. Appellant said that he put his hand on her forehead and was going to push her forehead back and when he did, the palm of his hand struck her nose and caused it to bleed. Bellows testified that he did not believe Appellant intended to strike her nose, but that he just wanted to push her back away from him with his hand, and he guessed that Appellant's palm struck her nose.
After obtaining the victim's statement, Officer Carney went to speak with Appellant. Carney testified that Appellant indicated that he and his fiancé had gotten into a fight and that he had accidentally struck her in the nose, and that during the altercation, while trying to get the baby from her, he bit her on the hand.
Officer Carney testified that he then read Appellant the Texas peace officer's warning and advised him that he was under arrest for assault family violence. At that point, Appellant began running towards the front door of the house. Officer Carney was standing within arm's reach of him, and grabbed him by the back of his shirt. There was a gas grill between Officer Carney and Appellant, which both tripped over. Carney testified that he was basically on top of Appellant trying to hold him down on the ground. Appellant then, with Officer Carney on his back, made his way through the front door which was open. Once inside the residence, he was laying on his stomach holding his arms underneath him refusing to give Officer Carney his arms.
Carney testified that at the time, Appellant outweighed him by about ninety pounds, and that Appellant was trying to pick him up. Officer Bellows stated that due to Appellant's physical strength, he was able to pull his hands apart. Carney told Appellant that if he did not quit resisting, he was going to have to spray him with pepper spray Appellant was still not compliant, and Officer Carney advised Officer Bellows to spray him with pepper spray. The first spray hit Appellant on the side of the head and was not effective. Officer Bellows then sprayed again and hit him in his face. The second spray was effective and the officers were then able to get Appellant's hands behind his back, handcuff him, and pick him up.
The victim then entered the residence and was screaming, yelling, and crying. Appellant was refusing to exit the residence and was stating he wanted to go hug his wife before he left, that he did not want to go to jail, and that he just wanted to hug her. It took both officers to remove Appellant from the residence. Officer Carney testified that Appellant was not wanting to walk and basically made the officers drag him. Officer Bellows testified that the officers pretty much had to force Appellant to walk to the front door. Once they got to the front door, Appellant was picking up his foot and placing it on the door frame, bracing himself and trying to push back into the house while kicking at the officers.
At trial, the victim testified that she and Appellant had been arguing and she was sitting in the passenger seat of their vehicle with their baby. At the time of the offense, the baby she was holding was almost nine months old, and she was four months pregnant with the couple's second child. She testified that Appellant was attempting to take the baby, and he bit her hand to get her to let go because she was holding the baby too tight. She said she got out of the car, tripped over a tree root, and fell to the ground.
A neighbor, Heather Reeds, testified that she saw the victim on the ground and came over and took the baby.
The victim testified that Appellant did not hit her, and that Appellant was not the cause of her nosebleed. She said she was "real upset and real stressed," and when she gets that way her blood pressure goes up and her nose will start to bleed. She said she has had a problem with blood pressure induced nosebleeds since she was about six years old. She testified that on occasions when she got mad or stressed, her nose spontaneously bled, and that had happened at least ten or fifteen times just that year.
The victim further testified that she did not receive any bruising from Appellant biting her, and that it stung but did not hurt. She also denied that the bite left any sort of permanent mark or bruise. She said he bit her to get her to let go because she was holding the baby too tight. When questioned about Appellant bracing himself against the door frame, she testified that he was stumbling, but he did not jam himself anywhere.
In Issue Nos. One and Two, Appellant contends that the evidence is legally and factually insufficient to support the conviction for resisting arrest. Specifically, Appellant argues that there is insufficient evidence to demonstrate that Appellant used force against the officers.
In reviewing the legal sufficiency of the evidence, we are constrained to view the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could find the essential elements of the offense, as alleged in the application paragraph of the charge to the jury, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App. 1989); Humason v. State, 728 S.W.2d 363, 366 (Tex.Crim.App. 1987). More particularly, sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 239-40 (Tex.Crim.App. 1997).
Our role is not to ascertain whether the evidence establishes guilt beyond a reasonable doubt. Stoker v. State, 788 S.W.2d 1, 6 (Tex.Crim.App. 1989), cert. denied, 498 U.S. 951, 111 S.Ct. 371, 112 L.Ed.2d 333 (1990); Dwyer v. State, 836 S.W.2d 700, 702 (Tex.App.-El Paso 1992, pet. ref'd). We do not resolve any conflict in fact, weigh any evidence or evaluate the credibility of any witnesses, and thus, the fact-finding results of a criminal jury trial are given great deference. Menchaca v. State, 901 S.W.2d 640, 650-52 (Tex.App.-El Paso 1995, pet. ref'd);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); Leyva v. State, 840 S.W.2d 757, 759 (Tex.App.-El Paso 1992, pet. ref'd); Bennett v. State, 831 S.W.2d 20, 22 (Tex.App.-El Paso 1992, no pet.). Instead, our only duty is to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. Adelman, 828 S.W.2d at 421-22. In so doing, we resolve any inconsistencies in the evidence in favor of the verdict. Matson, 819 S.W.2d at 843, quoting Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). The trier of fact, not the appellate court, is free to accept or reject all or any portion of any witness's testimony. Belton v. State, 900 S.W.2d 886, 897 (Tex.App.-El Paso 1995, pet. ref'd).
In conducting a factual sufficiency review, we view the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. We set aside the fact finder's verdict only if (1) the evidence supporting the verdict, when considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). However, our factual sufficiency review must be appropriately deferential so as to avoid substituting our judgment for that of the fact finder. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). Accordingly, we are authorized to set aside the jury's...
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