Wawrykow v. State

• Decision Date: 24 November 1993
• Docket Number: Nos. 09-92-148,s. 09-92-148
• Citation: 866 S.W.2d 96
• Parties: Tania L. WAWRYKOW, Appellant, v. The STATE of Texas, Appellee. CR, 09-92-149 CR.
• Court: Texas Court of Appeals

Page 96

866 S.W.2d 96

Tania L. WAWRYKOW, Appellant, v.The STATE of Texas, Appellee.

Nos. 09-92-148 CR, 09-92-149 CR.

Court of Appeals of Texas Beaumont.

Nov. 24, 1993.

David Cunningham, Houston, for appellant.

Frank H. Bass, Jr., County Atty., Michael M. Valdez, Asst. County Atty., Conroe, for state.

Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.

OPINION

WALKER, Chief Justice.

The instant appeals come to us from a single trial involving appellant and her father, George M. Wawrykow, as defendants; each being charged with two separate offenses.¹ In the instant appeals, appellant was convicted by a jury for the misdemeanor offenses of Hindering Apprehension "A", and Assault "A".The jury assessed punishment at a fine of $3000 for the Hindering Apprehension offense with $1500 of said fine probated for a period of two (2) years.As for the Assault offense, the jury assessed appellant sixty (60) days in the Montgomery County Jail and, additionally, a fine of $3000.Appellant's jail time and $1500 of the fine were again probated for a period of two (2) years.Consolidating her appeals in a single brief, appellant raises the following three points of error:

Point of Error One: There is insufficient evidence to sustain Tania Wawrykow's conviction for Class A Assault as the State failed to prove bodily injury as required by section 22.01 of the Penal Code.

Point of Error Two: There is insufficient evidence to sustain Tania Wawrykow's conviction for Hindering Apprehension.

Point of Error Three: The prosecutor committed fundamental error by injecting his personal belief concerning the guilt of the appellants(sic) into the proceeding during final argument.

We will discuss appellant's first and second points of error together as they encompass the same general appellate standard for reviewing insufficient evidence complaints.

Although appellant's first two points of error complain generally of insufficient evidence, her brief reflects very specific and singular arguments regarding what pieces of evidence are lacking.The record reflects the separate informations charged appellant with Assault and Hindering Apprehension, respectively, by "intentionally, knowingly and recklessly caus[ing] bodily injury to another, namely, OFFICER L. FAUSTER, by striking OFFICER L. FAUSTER on or about the head with her fist," and "with intent to hinder the arrest of another, namely: GEORGE M. WAWRYKOW, did provide and aid in providing said GEORGE M. WAWRYKOW with means of avoiding arrest to-wit: by physically choking OFFICER FAUSTER with her arms."

With regard to the Assault charge, appellant argues that the State was required to prove "bodily injury" to Officer Fauster stemming from the alleged blows to Officer Fauster's head by appellant's fist.The argument continues that, at trial, the State failed to elicit any testimony that the alleged striking of Officer Fauster's head area by appellant caused Fauster "physical pain, illness, or any impairment of physical condition,"² or that Fauster was hurt in any way by said blow or blows to her head area.Following a careful examination of the statement of facts, we must agree with appellant that direct evidence of "pain" or "hurt" to Officer Fauster is lacking.

Appellant's argument under her second point of error is presented in her brief as follows:

Under Section 38.05(a)(2) of the Texas Penal Code, a person commits the offense of hindering apprehension by providing or aiding in the provision of any means of avoiding arrest or effecting escape.From a reading of the record, it is clear that when Tania Wawrykow went to the aid of her father, Dr. Wawrykow was not under arrest.Although he had been informed of the arrest, the officers had not yet effected the arrest....It is clear that she believed that he(sic)father was being unduly assaulted and she came to his assistance to prevent further injuries.Upon seeing her father being struck, Ms. Wawrykow was acting under a form of duress which caused her to come to his assistance.As such and acting under the duress of seeing her father beaten, she cannot be held criminally liable for the offense of hindering apprehension.

As we appreciate her argument, appellant is saying that the evidence is lacking so as to prove that George Wawrykow was in fact under arrest when appellant"went to the aid of her father."Appellant's argument also appears to raise the defense of "necessity,"³ as well as hint at an insanity defense.⁴As to both of these issues, the record reflects no attempt by appellant to raise them before the trial court either prior to trial or by a requested instruction to the jury.As such, these latter two issues are not preserved for appellate review.TEX.R.APP.P. 52(a).Thus, the sole issue before us under appellant's second point of error is whether or not an arrest had been or was being effected on George Wawrykow at the time appellant intervened.

The law mandates that convictions be affirmed if the evidence, viewed in the light most favorable to the verdict, with all reasonable inferences and credibility choices made in support of it, is such that any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573(1979).Indeed, juries are free to use their common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence.United States v. Heath, 970 F.2d 1397, 1402(5th Cir.1992), cert. denied sub nom, Cheng v. U.S., 507 U.S. 1004, 113 S.Ct. 1643, 123 L.Ed.2d 265(1993).As factfinder, the jury is the exclusive judge of the credibility of witnesses and the weight to be afforded their testimony.Chambers v. State, 805 S.W.2d 459, 461(Tex.Crim.App.1991);TEX.CODE CRIM.PROC.ANN. art. 38.04(Vernon 1979).Texas law further provides that a jury may believe a witness even though the witness's testimony has been contradicted; and that a jury may accept any part of a witness's testimony and reject the rest.Sharp v. State, 707 S.W.2d 611, 614(Tex.Crim.App.1986), cert. denied, 488 U.S. 872, 109 S.Ct. 190, 102 L.Ed.2d 159(1988).

Furthermore, lest we commit the same erroneous analysis as was pointed out to us in Criner v. State, 860 S.W.2d 84(Tex.Crim.App.1993), by "disregard[ing] the circumstantial evidence in the record," and by "overlook[ing] the circumstantial evidence which could lead a rational trier of fact to believe beyond a reasonable doubt" that Officer Fauster was "hurt" or in "pain" as a result of appellant's alleged actions, or that George Wawrykow was under arrest when appellant acted as alleged, we will look to the totality of the circumstances surrounding the entire incident in order to determine if the jury could have satisfied itself that all of the essential elements had been proven beyond a reasonable doubt.Id., op. at 86-87.

With regard to the Assault offense, several cases on the precise issue of proof of injury rely on the following language taken from Ramirez v. State, 518 S.W.2d 546(Tex.Crim.App.1975):

The terms "physical pain,""illness," and "impairment of physical condition" are terms of common usage, and when construed "according to the fair import of their terms," in the context used in Section 1.07(a)(7), supra, are not "so vague that men of common intelligence must necessarily guess at its meaning and differ as to their application."[citations omitted] A person of ordinary intelligence, who would be law-abiding, can determine with reasonable precision what conduct it is his duty to avoid.

Id. at 547-548.We note in passing that the sole issue for consideration in Ramirez was not the sufficiency of the evidence but whether the term "bodily injury" was so "vague, uncertain and indefinite" so as to be violative of both the U.S. and Texas Constitutions.Id. at 547.Nevertheless, subsequent cases addressing the issue of sufficiency of the State's proof of the "bodily injury" element have relied heavily on the above Ramirez language.One such case is Goodin v. State, 750 S.W.2d 857(Tex.App.--Corpus Christi1988, pet. ref'd).In Goodin, the complainant took the stand to recount his ordeal but did not testify specifically that he felt "pain" or that the bruises resulting from the encounter with the defendant"hurt."The Corpus Christi Court of Appeals quoted Ramirez in arriving at the conclusion that people of common intelligence do understand pain and some of the natural causes of pain, and that a jury made up of such people could find that the complainant did in fact suffer "pain" under a fair interpretation of that term as used in Section 1.07(a)(7).Id. at 859.Furthermore, it has been held that the Penal Code definition of "bodily injury" is purposefully broad and seems to encompass even 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).

In the instant case, the record reflects the following direct examination testimony of the complainant, Officer Fauster:

Q. (the State) Okay.And after you entered the store what happened?

A. (Officer Fauster)We fell on the ground and we were trying to get Mr. Wawrykow's hands behind his back to handcuff him.And I know Tania was on my back.She was hitting myself and the other officer in the back and the head with her fists.And it felt like somebody else was on our backs also, but I didn't see who that could have been.

Q.How can you be sure it was Tania?

A.Because I saw her.

Q.Okay.You said she was hitting you on the back.On the back of the head?

A.On the back.On the head.And screaming "Get off you fucking bitch."

Based upon the testimony of Officer Fauster as set out above and coupled with other eyewitness testimony contained in the record describing appellant as being...