Opinion issued January 26, 2006
In The
Court of Appeals
For The
First District of Texas
NO. 01-05-00415-CR
OSCAR TRINIDAD CASTRO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause No. 1004508
MEMORANDUM OPINION
A jury found appellant, Oscar Trinidad Castro, guilty of the second-degree felony offense of aggravated assault and assessed punishment at six years’ confinement. On appeal, Castro contends the evidence is legally and factually insufficient to support his conviction. We hold that sufficient evidence supports the conviction and therefore affirm.
Facts
In October 2004, Darsha Lara and her husband, John, stopped at a Chevron station near the intersection of Lawndale and Broadway in Houston so that John could fill a tank with air. Darsha needed to walk her dog and spotted a patch of grass behind the carwash. As she approached the grassy area, Darsha noticed a blue duffel bag, tarp, and box cutter lying on the ground. Feeling uneasy, Darsha bent down to retrieve her dog. She testified that as she straightened, she felt someone approach her from behind and pull a rope tightly around her neck. Although she attempted to call for help, Darsha lost her ability to breathe for “a few seconds” and was unable to speak. Darsha testified that she was afraid to fall down because she was wearing a back brace, but eventually she was able to get the rope off and “bump” the assailant, later identified as Castro, away from her.
Darsha testified that after she broke free, Castro lay on the ground laughing for a short while. He then told his dog, which appeared to be a Rottweiler, to “go get her.” Darsha panicked and ran towards her husband. Once she made it to safety, Darsha discovered that she had scratches on her back and “all over” her arms, a rope burn on her neck that was bleeding, and a “busted mouth.” In addition, a replacement partial in her mouth fell out during the scuffle. Darsha testified that her injuries were painful and took approximately one week to heal.
John testified that while he was filling a tank with air, Darsha came running towards him from the vicinity of the carwash, crying hysterically. He noticed that she had a piece of rope around her neck. He also observed that she had rope burns on both sides of her neck, scratches on the back of her neck, and a “busted lip.” Darsha told him that “a man had tried to get her” behind the carwash. After learning what had happened, John walked over to the carwash to confront Castro. Castro grew belligerent and began cursing Darsha. Darsha saw that Castro was holding a broken beer bottle and pleaded with John to return to their truck. John complied and called the police.
Officers Anthony Gonzales and Ricardo Cruz of the Houston Police Department responded to the call. Officer Gonzales testified that when they arrived, Darsha was quite “shaken up.” She had pieces of rope hanging around her neck, a “busted lip,” blood coming out of her mouth, and scratches on her neck and arms. Officer Gonzales asked Darsha where the suspect had gone, and she pointed to some bushes along a fence near the carwash.
The officers approached and found Castro sitting on a tree stump. Officer Gonzales told Castro to stand. Although he initially ignored the officers, Castro eventually stood and placed his hands inside his pockets. Officer Gonzales instructed Castro to remove his hands from his pockets, but Castro refused. He became “very irate” and began screaming profanities directed at Darsha. After Officer Gonzales drew his gun, Castro finally removed his hands from his pockets, and Officer Gonzales observed that Castro had a rope in his hand that was identical to the rope around Darsha’s neck. Similar pieces of rope were dangling from Castro’s pockets. The officers were finally able to subdue Castro, handcuff him, and place him in their police car. Officer Gonzales testified that he recovered both the rope from Darsha’s neck and the rope from Castro’s pocket, which he transported to the police station. The State introduced the pieces of rope into evidence, and Officer Gonzales authenticated them.
Officer Cruz similarly testified that upon arriving at the scene, he observed that Darsha had a piece of rope “dangling from her hair, from her chest.” Castro was extremely uncooperative and made several derogatory remarks directed at Darsha. Officer Cruz also noticed that Castro had a piece of rope dangling from his right front pocket.
Castro testified that on the evening in question, he was sitting on a tire behind the carwash at the Chevron station near the intersection of Broadway and Lawndale in Houston, drinking a beer. His dog, which is half bulldog and half pitbull, was with him. Castro saw Darsha approach and watched her carefully to make sure she did not steal anything from his backpack. Castro testified that his dog suddenly walked over to Darsha’s dog, so he rose to follow. When Castro’s dog was two or three steps away from Darsha, she heard a noise and turned, and Castro informed her that his dog does not bite. Castro testified that Darsha retrieved her dog, he retrieved his backpack and his dog, and the two went their separate ways. As Castro was walking back to the tire, John approached and asked him what he was doing. Castro replied that he was getting his bag and his dog. The two then had a heated exchange, after which Castro returned to the tire and sat down. Five minutes later, the police arrived and arrested him. Castro cursed the police and was angry because he had not done anything wrong. Castro testified that he sells newspapers for The Houston Chronicle and that the rope recovered from the scene is the twine he uses to tie newspapers. Castro denied using the twine to choke Darsha.
Analysis
Legal Sufficiency
Castro contends the evidence is legally insufficient to support his conviction for aggravated assault because there is no evidence that Darsha felt pain or sustained serious bodily injury. Castro thus asserts that the jury could not have found the essential elements of aggravated assault beyond a reasonable doubt.
In reviewing a legal insufficiency claim, we view the evidence in the light most favorable to the verdict and decide whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999). We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).
A person commits assault when he “intentionally, knowingly, or recklessly causes bodily injury to another.” Tex. Pen. Code Ann. § 22.01(a)(1) (Vernon 2003). The assault is aggravated when the person “(1) causes serious bodily injury to another . . . ; or (2) uses or exhibits a deadly weapon during the commission of the assault.” Id. § 22.02(a)(1)–(2).
Castro focuses his argument on the serious bodily injury requirement of section 22.02(a)(1). The indictment, however, alleges that Castro “intentionally and knowingly cause[d] bodily injury to DARSHA LARA, by using a deadly weapon, namely, a rope.” Thus, the State’s theory is that Castro committed aggravated assault under section 22.02(a)(2) by using a deadly weapon—not by causing serious bodily injury as set forth in section 22.02(a)(1). “When an indictment facially alleges a complete offense, the State is bound by the theory alleged in the indictment, as is the reviewing court in its sufficiency analysis.” Rojas v. State, 986 S.W.2d 241, 246 (Tex. Crim. App. 1998). Accordingly, we are confined to reviewing whether there is legally sufficient evidence that Castro, with the requisite mental state, used a deadly weapon[1] in causing bodily injury to Darsha.
“Bodily injury” means “physical pain, illness, or any impairment of physical condition.” Tex. Pen. Code Ann. § 1.07(a)(8) (Vernon 2003). “This definition appears to be 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). Testimony from the victim that she suffered physical pain is generally sufficient to prove bodily injury. Allen v. State, 533 S.W.2d 352, 354 (Tex. Crim. App. 1976); Letson v. State, 805 S.W.2d 801, 806–07 (Tex. App.—Houston [14th Dist.] 1990, no pet.). Moreover, “[t]he existence of a cut, bruise, or scrape on the body is sufficient evidence” to give rise to an inference that the victim felt physical pain and thus suffered “bodily injury” within the meaning of the statute. Arzaga v. State, 86 S.W.3d 767, 778–79 (Tex. App.—El Paso 2002, no pet.); see also Goodin v. State, 750 S.W.2d 857, 859 (Tex. App.—Corpus Christi 1988, pet. ref’d) (“The fact of a physical intrusion on the body in the form of a cut or scrape can itself be sufficient evidence of the associated physical pain necessary to show ‘bodily injury.’”).
Here, Darsha testified that she had scratches on her back and “all over” her arms, a rope burn on her neck, and a “busted mouth.” She also testified that these injuries were painful and took approximately one week to heal. Officer Gonzales and John corroborated her testimony. Specifically, Officer Gonzales testified that Darsha had scratches on her neck and arms, a “busted lip,” and blood coming from her mouth; John testified that Darsha had rope burns on both sides of her neck, scratches on the back of her neck, and a “busted lip.” We hold that this evidence is sufficient to show bodily injury. See Allen, 533 S.W.2d at 354 (holding evidence was sufficient to show bodily injury where appellant kicked police officer in nose and officer testified his nose hurt, swelled, and was sore for three or four days); Harris v. State, 164 S.W.3d 775, 784–85 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (where appellant attempted to choke victim, holding evidence was sufficient to show bodily injury because victim had “reddish marks around [her] neck” and scratch on her collarbone); Arzaga, 86 S.W.3d at 778–79 (where appellant punched victim in mouth, holding State proved bodily injury by legally sufficient evidence because victim had at least one abrasion on inside of upper lip and her mouth was swollen and bruised); Hubert v. State, 652 S.W.2d 585, 588 (Tex. App.—Houston [1st Dist.] 1983, pet. ref’d) (holding victim’s testimony that appellant struck his face and scratched his neck, which caused swelling and tenderness, was sufficient to prove bodily injury).
When viewed in the light most favorable to the verdict, we conclude that the evidence supports a determination beyond a reasonable doubt that Castro intentionally and knowingly caused bodily injury to Darsha. We therefore hold that the evidence is legally sufficient to support Castro’s conviction for aggravated assault.
Factual Sufficiency
Castro contends the evidence is factually insufficient to support his conviction for aggravated assault because Darsha’s testimony was uncorroborated and inconsistent, and was impeached by the fact that she has two prior felony convictions. He further asserts that his version of the events is more believable than Darsha’s version.
In a factual sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside 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. Zuniga v. State, 144 S.W.3d 477, 483 (Tex. Crim. App. 2004). Although our analysis considers all the evidence presented at trial, 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). We may not substitute our own judgment for that of the fact-finder. Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000).
Castro first asserts that Darsha’s “rendition of events is completely uncorroborated by any credible or physical evidence.” To the contrary, Darsha testified that while she was walking her dog near the carwash, Castro approached her from behind and tightly pulled a piece of rope around her neck. During the struggle, Castro scratched her arms and back, “busted” her mouth, and caused a rope burn on her neck. Darsha’s testimony was corroborated by Officer Gonzales, Officer Cruz, and John. Specifically, all three men testified that when they saw Darsha after the attack, she had a piece of rope around her neck. Moreover, Officer Gonzales and Officer Cruz testified that Castro had an identical piece of rope in his hand and another piece of rope dangling from his pocket. Both Officer Gonzales and John testified that Darsha was extremely “shaken up,” was crying “hysterically,” and had scratches and rope burns on her neck, along with a “busted lip.” John testified that when he encountered Castro, Castro grew belligerent and began cursing Darsha; Officer Gonzales and Officer Cruz testified that Castro resisted arrest, was “very irate,” and continually screamed profanities directed at Darsha. The State introduced into evidence, and Officer Gonzales authenticated, the piece of rope recovered from Darsha’s neck, as well as the identical piece of rope Castro had in his pocket. Thus, Darsha’s testimony was corroborated by both physical evidence and the observations of three witnesses.
Castro also contends Darsha’s credibility was impeached by the fact that she has two prior felony convictions. He observes that there were several inconsistencies in her testimony and urges that his version of the events is more believable than Darsha’s version. It is within the exclusive province of the jury, however, to resolve any conflicts and inconsistencies in the evidence. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995); Harris, 164 S.W.3d at 784. The jury is free to believe or disbelieve part or all of a witness’s testimony. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986); Harris, 164 S.W.3d at 784; see also Hall v. State, 137 S.W.3d 847, 852–53 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (refusing to disturb jury’s credibility assessment where jury heard appellant’s claims “but declined to believe” him). Here, the jury chose to believe Darsha’s version of the events, which, as we have already discussed, was corroborated by both physical evidence and the testimony of Officer Gonzales, Officer Cruz, and John. “A decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State.” Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997).
Viewing all the evidence in a neutral light, we conclude that the evidence supporting Castro’s guilt is not so weak or so against the overwhelming weight of the contrary evidence as to render the jury’s verdict clearly wrong and manifestly unjust. We therefore hold that the evidence is factually sufficient to support Castro’s conviction for aggravated assault.
Conclusion
We conclude that the evidence is legally and factually sufficient to support Castro’s conviction and therefore affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Taft, Higley, and Bland.
Do not publish. Tex. R. App. P. 47.2(b).
[1] In the portion of his brief entitled “Issues Presented,” Castro asserts that there is legally insufficient evidence that he used or exhibited a deadly weapon during the assault. Castro, however, did not argue this point or provide citations to relevant authorities in accordance with Texas Rule of Appellate Procedure 38.1(h)—indeed, the remainder of his brief does not even mention the deadly weapon issue. In any event, we note that a rope can constitute a deadly weapon. Harper v. State, 753 S.W.2d 516, 518 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d).