Opinion issued June 13, 2002
In The
Court of Appeals
For The
First District of Texas
NO. 01-01-00169-CR
____________
EDDIE BARTIE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Cause No. 838267
O P I N I O N
Appellant, Eddie Bartie, pleaded not guilty to aggravated assault and not true to an enhancement paragraph alleging a prior felony conviction for attempted murder. The jury found him guilty, found the enhancement paragraph true, and assessed punishment at 60 years confinement and a $10,000 fine. In four points of error, appellant complains of prosecutorial misconduct during the voir dire and jury argument and argues that the evidence was factually insufficient to support his conviction. We affirm.
On August 18, 1999, Sandra Lynn Bartie was visiting her mother, Ella Chatman, when she answered Chatman's door. Chatman testified that she saw appellant, Bartie's husband, at the door, and he shot Bartie with a handgun when she opened the door. Despite Chatman's pleas, appellant shot Bartie in the cheek, forearm, hand, and hip. She underwent surgery and stayed in the hospital for two weeks. Bartie testified she did not remember any of the events surrounding the shooting, and she could not identify her assailant.
Leslie Holman testified that on August 18, 1999, appellant, an acquaintance she had not seen for more than a year, came to visit. He told her he had shot his wife and that his mother-in-law had witnessed the shooting. After appellant left, Holman notified the police.
In points of error two and three, appellant argues his conviction should be reversed because the prosecutor conducted improper voir dire when she (1) used a hypothetical fact situation too factually specific to the case at trial and (2) used statements that had the effect of informing the jury of his criminal history. In point of error one, appellant contends his conviction should be reversed because the prosecutor's improper jury argument constituted a comment on his failure to testify.
Appellant did not object to any of the alleged prosecutorial misconduct. By failing to object to the prosecutor's voir dire statements, appellant has presented nothing for review. See Jenkins v. State, 870 S.W.2d 626, 629 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd). A defendant's failure to object to a jury argument forfeits his right to complain about the argument on appeal. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Having failed to preserve the alleged errors, appellant presents nothing for review. Tex. R. App. P. 33.1.
We overrule points of error one, two, and three.
In point of error four, appellant argues the evidence was factually insufficient to support his conviction for aggravated assault with a deadly weapon.
In reviewing the factual sufficiency of the evidence, we examine all the evidence neutrally, and ask whether proof of guilt is so obviously weak or greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). We will reverse the fact finder's determination only if a manifest injustice has occurred. Id. In conducting our analysis, we may disagree with the jury's determination, even if probative evidence supports the verdict, but must also avoid substituting our judgment for that of the fact finder. Id. A review of the sufficiency of the evidence requires us to consider all evidence admitted, including any evidence which may have been erroneously admitted. Beltran v. State, 728 S.W.2d 382, 389 (Tex. Crim. App. 1987).
Appellant presented no testimony or evidence. In support of his factual sufficiency argument, appellant argues that, because the complainant did not identify appellant, the evidence was so weak as to undermine confidence in the jury's determination. However, Ella Chatman, the complainant's mother, did identify appellant as the man who shot her daughter. Despite appellant's argument to the contrary, there was no evidence Chatman's cataract surgery impaired her vision. In addition, Leslie Holman testified appellant confessed to the crime. A court of appeals must show deference to such a jury finding. Cain v. State, 958 S.W.2d 404, 409 (Tex. Crim. App. 1997). Viewing all the evidence neutrally, the jury could have reasonably inferred from the evidence that appellant committed the aggravated assault. A jury decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State. Id. at 410. We will not substitute our judgment for that of the jury. Id. We hold the evidence was not so obviously weak or greatly outweighed by contrary proof as to indicate a manifest injustice has occurred.
We affirm the judgment.
Frank C. Price
Justice
Panel consists of Justices Hedges, Jennings, and Price. (1)
Do not publish. Tex. R. App. P. 47.
1.
The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.