Opinion issued June 23, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-00919-CR
____________
ROBERT HICKS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 3
Galveston County, Texas
Trial Court Cause No. 227115
MEMORANDUM OPINION
Following a bench trial, the trial court found appellant, Robert Hicks, guilty of the offense of assault on a member of his household and, after assessing his punishment at confinement for 180 days, suspended the sentence and placed appellant on community supervision for a period of 12 months. In two issues, appellant contends that the evidence was factually insufficient to support his conviction and that “[t]he State committed prosecutorial misconduct by wrongfully preventing a material witness from attending trial.” We affirm.
Factual Background
The complainant, Susie Ford, testified that, at 9:00 a.m. on July 23, 2003, she left her apartment that she had leased with appellant to pick up her employment check. After picking up her check and calling to her apartment to ask whether anyone wanted to accompany her to cash her check, she picked up her cousin, Shirley Yanders, from the apartment, and went to a credit union to cash the check. Thereafter, the complainant and Yanders went shopping and then to a club called “Hole in the Wall,” where the complainant drank one beer. The complainant testified that she had not become intoxicated. Thereafter, the complainant and Yanders went home, where the complainant found appellant sitting in the bedroom. The complainant explained that appellant argued with her because she went drinking after she cashed her check, returned home late, and left appellant at the apartment after he declined to go to the credit union with her. Appellant called the complainant a “tramp,” “a ho,” “a bitch,” and “a slut,” hit her, and, when she lifted her head, appellant hit her in the eye with his fist. Thereafter, the complainant ran out of the apartment and called for emergency assistance. She explained that, although an ambulance arrived, she declined to go to the hospital. The complainant also noted that pictures, which were admitted into evidence, were taken of her black eye at the police department five days after the incident had occurred.
During cross-examination, the complainant testified that she hit appellant back after he hit her. She explained that she was supposed to go to work that day at 3:00 p.m. but did not do so due to her black eye. When asked at what time of day she received her injury, the complainant explained that she received her black eye before her shift was to start and that it was still daylight. Although she conceded that she had been convicted of assaulting her ex-boyfriend several years ago, on redirect examination, she testified that she had never been physically abusive to appellant.
Shirley Yanders testified that, on July 23, 2003, she had been living with appellant, the complainant, and Carletha, the complainant’s eight-year-old granddaughter. After the complainant had gone to pick up her check, the complainant returned to the apartment to pick up Yanders and Carletha. Thereafter, they all went to the bank and went shopping. The complainant then went inside a bar near a bus stop. Yanders explained that she left 30 minutes later and that the complainant picked her up later from another location. They returned to the apartment together, and Yanders saw appellant sitting on the bed in the bedroom. Yanders heard appellant and the complainant arguing and “fighting verbally.” She then heard appellant say to the complainant that “I’ll do such and such and such a thing to you.” At this point, Yanders went into the bedroom and saw appellant jump off the bed and hit the complainant. She then saw the complainant hit appellant in return and appellant hit the complainant’s eye. The complainant ran out of the apartment after Yanders separated appellant and the complainant.
During cross-examination, Yanders explained that the complainant went inside the bar by herself and that she and Carletha waited at a bus stop. However, Yanders explained that, rather than take a bus, she took a taxi to a friend’s house, where the complainant picked her up before they returned to the apartment. Yanders testified that she could not remember how dark it was when the complainant picked her up from the friend’s house. Yanders further testified that she vaguely remembered Galveston Police Officer C. Teague’s visit to the apartment but that she did not talk to Teague.
In his defense, appellant called Officer Teague and George Linko. Appellant also testified on his own behalf. Officer Teague testified that she had conducted a follow-up interview with both the complainant and Yanders. When asked how involved Yanders was in the interview, Teague explained that Yanders had expressed her concern about the complainant and had participated in the interview for at least 15 to 20 minutes. Teague testified that she had read the report of Galveston Police Officer M. Moyer, the investigating officer, but she could not recall from reading the report the time of day that the incident had occurred. Finally, Teague testified that, during the follow-up interview, the complainant had told her that she had been intoxicated on the day of the incident.
George Linko testified that he had been friends with appellant for seven to ten years, that they had once worked together at a gas station, and that they had gone out a few times for drinks. Linko explained that he had seen the complainant and appellant engage in only a couple of arguments and that the “meanest” that he had ever seen appellant was “[j]ust arguing a couple of times” and “passing words.” He further explained that the worst thing that he had seen appellant do while appellant was intoxicated was to pass out. Finally, Linko testified that, based on his relationship with appellant, he did not consider appellant to be a violent person.
Appellant testified that, on July 23, 2003, which was his day off from work, at around 8:00 a.m., he began drinking coffee but then started drinking beer. He explained that he had not wanted to go with the complainant and Yanders to cash the complainant’s check at around 9:00 a.m. After the complainant and Yanders left, appellant went back to sleep, woke up around 4:00 p.m., watched television in the bedroom, and drank more beer. When he awoke, Yanders and Carletha were in the apartment and, when appellant asked Yanders about the complainant, Yanders told him that the complainant had returned to the apartment to change clothes earlier in the day and then went to work. When the complainant returned to the apartment at around 9:00 p.m., the complainant went into the bedroom, where she and appellant started “having words.” Appellant explained that he had wanted to know where the complainant had been because he had thought that she was at work and that he thought that the complainant was “[g]etting drunk or seeing some other guy.” The complainant grabbed appellant by his throat. Appellant pushed the complainant, and she fell over the bed and hit the dresser. The complainant then stood up, held her eye, and grabbed appellant by his throat again. In response, appellant swung at the complainant, and the complainant then stopped and left the apartment. After the incident, appellant resumed watching television. Thereafter, law enforcement officers arrived and arrested appellant. Appellant denied threatening the complainant and trying to hit her first. Appellant explained that he thought that the complainant was intoxicated at the time and that he was afraid of the complainant because she had previously told him that she had committed violence against one of her ex-boyfriends.
During cross-examination, appellant admitted that he yelled at the complainant and called her names. He also agreed that he had been convicted of a class C misdemeanor assault of the complainant on June 25, 2001, but explained that he did not “remember what that was all about.” On redirect examination, he remembered that he had gone to jail for committing the offense. He also admitted that he never told Officer Moyers, the investigating officer, that he had only been trying to defend himself against the complainant. During redirect examination, he testified that, at the time of the incident, he “was drunk, but [he] wasn’t real drunk” and agreed that he recalled the incident clearly. Sufficiency of the Evidence
In his first issue, appellant argues that the evidence was factually insufficient to prove that appellant assaulted the complainant because “no rational finder of fact could have found the [a]ppellant guilty beyond a reasonable doubt.” Appellant contends that “the incredible testimony of the State’s witnesses on numerous points coupled with their contradictions makes their testimony so suspect as to be lacking any credibility” and that his “evidence of self-defense was not rebutted by the State’s evidence proving that [a]ppellant struck [the complainant] or by [the State’s] argument that the finder of fact should disbelieve the [a]ppellant’s assertion of self-defense due to his lacking credibility.”
When conducting a factual sufficiency review, we view all of the evidence neutrally, not in the light most favorable to the verdict, and we will set aside the verdict “only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met.” Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 483 (Tex. Crim. App. 2004)). When a defendant challenges the factual sufficiency of the rejection of a defense, we review all the evidence in a neutral light and ask whether the State’s evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate taken alone, is against the great weight and preponderance of the evidence. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). We must not substitute our judgment for that of the fact finder. Zuniga, 144 S.W.3d at 481-82. Although our analysis considers all the evidence presented at trial, we note that the trier of fact is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to their testimony. Sharp v. State, 707 S .W.2d 611, 614 (Tex. Crim. App. 1986); Jaggers v. State, 125 S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). Unless the available record clearly reveals that a different result is appropriate, we must defer to the trier of fact’s determination concerning what weight to give contradictory testimonial evidence because this resolution often turns on an evaluation of the credibility and demeanor of the witnesses, and the jurors were in attendance when the testimony was delivered. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).
A person commits the offense of assault if he intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Pen. Code Ann. § 22.01(a)(1) (Vernon Supp. 2004-2005). However, “a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force.” Id. § 9.31 (Vernon 2003). A reasonable belief is defined as one “that would be held by an ordinary and prudent man in the same circumstances as the actor.” Id. § 1.07(42) (Vernon Supp. 2004-2005).
In support of his argument that the evidence was factually insufficient to support his conviction, appellant asserts that “[t]he entire argument under the factual sufficiency challenge hangs on [the complainant’s] and Ms. Yanders’s credibility, the State’s only witnesses.” First, appellant asserts that the complainant lacked credibility regarding (1) “the issue of whether or not she was intoxicated during the incident in question”; (2) “the time the incident actually occurred”; (3) “why she did not go to work that day”; and (4) “her past incident of family violence.” Second, appellant asserts that Yanders’s testimony lacked credibility regarding (1) “whether she came home with [the complainant] or whether she was already at the apartment when [the complainant] came home from drinking”; (2) “her interview with Officer [C.] Teague”; and (3) “her admittedly close relationship to [the complainant].”
Appellant also contends that he “presented direct evidence of self-defense by testifying that [the complainant] choked him twice prior to him hitting her in self-defense” and that “George Linko testified as a character witness for the [a]ppellant that [appellant] had a reputation for being a nonviolent person . . . , even when he had been drinking.” Appellant notes that, “after [he] met his initial burden of producing some evidence to support his . . . self-defense justification defense, the State was required to persuade the finder of fact beyond a reasonable doubt that the [a]ppellant did not act is self-defense.”
Here, however, there is ample evidence that appellant caused bodily injury to the complainant. The complainant testified that, after she arrived at the apartment that she shared with appellant, appellant called her “a tramp,” “a ho,” “a bitch,” and “a slut” and then hit her. The complainant further testified that, when she lifted her head after being struck, appellant hit her again in the eye, causing it to bruise. Yanders testified that she heard appellant and the complainant arguing and “fighting verbally.” Yanders further testified that she saw appellant jump off of the bed, hit the complainant once, and hit the complainant again in the eye. Appellant testified that he and the complainant were “having words” before the physical altercation took place and agreed that he yelled at her and called her names. He also testified that he was intoxicated during his altercation with the complainant.
We note that the trier of fact’s decision to accept or to reject appellant’s claim of self-defense ultimately hinged on appellant’s credibility. As the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given their testimony, the trial court, as the fact finder, was free to believe or disbelieve all or any part of the State’s witnesses’, appellant’s witnesses’, or appellant’s testimony. See McKinny v. State, 76 S.W.3d 463, 468-69 (Tex. App.—Houston [1st Dist.] 2002, no pet.). When the fact finder’s determination depends primarily upon its evaluation of the witnesses’ demeanor and credibility, it is entitled to almost total deference. Johnson, 23 S.W.3d at 8-9.
Viewing all of the evidence neutrally, we conclude that the evidence was not so weak that the trial court’s finding of guilt and implicit rejection of appellant’s self-defense claim was clearly wrong or manifestly unjust. We also conclude that the contrary evidence to the trial court’s finding of guilt and implicit rejection of appellant’s self-defense claim was not so strong that the standard of proof beyond a reasonable doubt could not have been met. Accordingly, we hold that the evidence was factually sufficient to support appellant’s conviction for the offense of assault.
Accordingly, we overrule appellant’s first issue.
Preventing Appearance of Material Witness
In his second point of error, appellant contends that “[t]he State committed prosecutorial misconduct by wrongfully preventing a material witness from attending trial.” Appellant asserts that “the State misrepresented the whereabouts and avocation of Officer M. Moyer in violation of the discovery process” when the State “produced the name of Officer Moyer as a trial witness in the case and listed his avocation as peace officer with the Galveston Police Department at a time when Officer Moyer was not a peace officer with the Galveston Police Department”; the State first informed appellant on the day of trial that Moyer was no longer employed by the Galveston Police Department; “the State added to the misrepresentation by issuing a subpoena for Officer Moyer through the Galveston Police Department,” which “caused appellant to fail to subpoena Officer Moyer”; pursuant to Code of Criminal Procedure article 24.03, “when a witness has been served with a subpoena at the instance of either party in a particular case, that execution of process inures to the benefit of the opposite party in a particular case in the event the opposite party desires to use that witness on the trial of the case”; and, “when a witness has once been served with a subpoena, no further subpoena may be issued for that witness.”
Our review of the record shows that, on April 27, 2004, the State listed Officer Moyer’s name as a trial witness on its witness list and listed his “avocation” as a peace office with the Galveston Police Department. The record also shows that the State filed its application for the issuance of a subpoena to compel the attendance of Moyer on April 26, 2004. Moreover, the return of service in the record shows that the State served Officer Moyer with a subpoena on April 29, 2004, at 1:33 p.m.
When a subpoenaed witness does not appear, the party calling him must follow three steps to preserve error. Sturgeon v. State, 106 S.W.3d 81, 85 (Tex. Crim. App. 2003); Rodela v. State, 829 S.W.2d 845, 848 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). First, the party must request a writ of attachment, which must be denied by the trial court. Sturgeon, 106 S.W.3d at 85; Rodela, 829 S.W.2d at 848. Second, the party must show what the witness’s testimony would have been. Sturgeon, 106 S.W.3d at 85; Rodela, 829 S.W.2d at 848. The defendant may make this showing by attaching affidavits to a motion for continuance or motion for new trial or by providing testimony during a hearing on a motion for new trial. Gentry v. State, 770 S.W.2d 780, 787 (Tex. Crim. App. 1988). A party’s assertion of the anticipated testimony in open court is also sufficient to preserve error. Sturgeon, 106 S.W.3d at 83. Third, the testimony that the witness would have given must be relevant and material. Id. at 85; Rodela, 829 S.W.2d at 848. If all three requirements have been met, reversible error will result unless the error made no contribution to the conviction or to the punishment. Sturgeon, 106 S.W.3d at 85; Rodela, 829 S.W.2d at 848.
In the instant cause, there is no evidence in the record that appellant requested a writ of attachment. Therefore, appellant has failed to meet the first requirement necessary to preserve error regarding the failure of a subpoenaed witness to appear. Therefore, we hold that appellant has failed to preserve error for our review regarding Officer Moyer’s failure to appear at trial.
We overrule appellant’s second issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Hanks.
Do not publish. Tex. R. App. P. 47.2(b).