Opinion issued December 31, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-08-00513-CR
DAVE WARD, III, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 1
Fort Bend County, Texas
Trial Court Cause No. 126653
MEMORANDUM OPINION
A jury convicted appellant, Dave Ward, III, of assault causing bodily injury. See Tex. Penal Code Ann. § 22.01 (Vernon Supp. 2009). The jury found that Ward was in a dating relationship with the complainant. Before the punishment phase of trial, the State and Ward reached an agreement that Ward’s punishment would be 90 days’ confinement in the Fort Bend County Jail, and the trial court rendered judgment. On Ward’s motion, the trial court suspended the imposition of sentence pending this appeal. On appeal, Ward challenges the admission of certain testimony by a sheriff’s deputy and the factual sufficiency of the evidence to support the jury’s rejection of his self-defense claim.
We affirm.
Background
The facts leading up to the assault charge against Ward were disputed at trial. The evidence presented at trial and relevant to this appeal is summarized below.
Complainant’s Version of Events
On the evening of September 5, 2005, complainant A. Woods argued with appellant Dave Ward about his relationship with another woman.[1] The dispute took place at Woods’s house in Fort Bend County. Exhausted from her day, Woods went to sleep. In the early morning the next day, Woods was awakened by Ward punching her shoulder and shouting at her—calling her insulting, vulgar names, threatening her, and berating her for contacting the other woman. Woods told Ward to stop, but Ward continued punching Woods’s shoulder and back. At trial, Woods testified that Ward punched her more than six times. While Ward punched her, Woods fell on the floor. Woods tried to get up, but Ward pushed and kicked her.
Woods went to the kitchen to get the telephone, but Ward got to it first and removed the batteries. Ward then ran to the bedroom to retrieve another telephone. Woods grabbed her mobile telephone from the kitchen, and ran to the bathroom to call the police. Ward punched through the bathroom door, which hit Woods’s face and caused her to drop the mobile telephone. Ward took Woods’s mobile telephone and left the house.
Woods testified that “I let my anger outweigh my fear, and I wanted to lure him back to my house . . . [s]o that the police could apprehend him. I wanted to make sure that the police got him.” Woods called Ward twice, asking him to return her mobile telephone. Less than an hour after the assault, Ward returned to Woods’s house. Woods testified that Ward seemed apologetic: “Tears were coming from his eyes, and he said he was sorry.” Ward slept on Woods’s couch and took a shower when he awoke several hours later. While Ward was in the shower, Woods called the police.
Appellant’s Version of Events
Ward offered a different account of the incident, testifying that Woods was the aggressor. Ward repeatedly testified that he was no longer in a dating relationship with Woods and that they were only friends. Nevertheless, he testified that he had a key to her house, kept several large and small possessions there (including furniture and appliances), spent every other evening with Woods, slept together in one bed with her, and spent the two nights prior to the alleged assault at Woods’s house.
Ward testified that Woods was intoxicated and that she instigated a fight because of her jealousy about Ward’s new girlfriend. He testified that Woods assaulted him physically, punching his chest and face and causing him pain. Ward claimed that Woods’s assault bruised him but that the bruises did not show because of his dark complexion. He said that he raised his hands defensively and held both of her arms to restrain her from hurting him or herself. Ward denied hitting, kicking, or punching Woods.
Ward testified that Woods stumbled and fell, hitting her chin on the dining room table. On cross-examination, however, Ward testified that “[Woods] doesn’t stumble. She drinks a lot, but she doesn’t stumble.” Ward said that he left Woods’s house and rented a nearby hotel room, but he returned at Woods’s insistence. Ward testified that they slept together in Woods’s bed. According to Ward, when he awoke the next day, he took a shower and prepared to leave Woods’s house. Fort Bend County Sheriff’s Deputy C. Carillo arrived, spoke to Ward and Woods, and instructed Ward to leave.
Other Trial Proceedings
At trial, Deputy Carillo testified that Woods was upset when he arrived at her house in response to her call for help. Deputy Carillo saw fresh bruises on Woods, which he photographed, along with the damaged bathroom door. Deputy Carillo spoke with both Woods and Ward. He testified that he saw no visible injuries on Ward. Although Ward was already planning to leave, Deputy Carillo told him to leave Woods’s house. On redirect examination, Deputy Carillo testified that he determined that Ward was the aggressor.
The trial court included a self-defense instruction in the jury charge, and the jury found Ward guilty. In addition, the jury found that Ward and Woods had a dating relationship. Although Ward had previously elected to have the jury assess his punishment, he reached an agreement as to punishment with the State, upon which the trial court entered judgment. On Ward’s motion, the trial court suspended imposition of his punishment pending this appeal.
Admission of Officer’s Opinion Testimony
In his first issue, Ward contends that the trial court reversibly erred in admitting Deputy Carillo’s testimony that, in his opinion, Ward was the aggressor. According to Ward, this was tantamount to allowing Deputy Carillo to testify that Ward was guilty.
At trial, the State asked Deputy Carillo preliminary questions about his experience and training. Then the State asked about the incident between Ward and Woods:
Q. And after making your assessment of the scene, speaking to the witnesses, based on your training and experience, did you make a determination who the aggressor was in this situation?
DEFENSE ATTORNEY: Objection, Judge, irrelevant. Calls for speculation.
THE STATE: It doesn’t call for speculation. He’s been trained on how to do that. He’s just testified that he went to the scene. He looked at the scene. He talked to witnesses and he had to make a determination and that’s what I’m asking him to tell the jury what that determination is.
THE COURT: Determination from the information?
THE STATE: Correct.
THE COURT: I’m going to allow the question.
THE STATE: Thank you, Your Honor.
Q. I’ll repeat the question. Did you make a determination on that day who the aggressor was?
A. Yes, ma’am.
Q. And who was that?
A. Mr. Ward.
On appeal, Ward relies on Boyde v. State, 513 S.W.2d 588, 590 (Tex. Crim. App. 1974), and Weathersby v. State, 627 S.W.2d 729, 730 (Tex. Crim. App. 1982), for the proposition that it is improper for a police officer to opine as to the defendant’s guilt or innocence. In Boyde, the Court of Criminal Appeals held that “numerous instances when the prosecutor attempted to circumvent the rulings of the court in both presentation of evidence and argument to the jury” required reversal. 513 S.W.2d at 593. The prosecutorial misconduct in Boyde included asking a police officer if he believed the defendant was guilty. Id. at 590. In Weathersby, the Court of Criminal Appeals held that the defendant received ineffective assistance of counsel because his trial attorney failed to object on numerous occasions, including failures to object to questions about the defendant’s friends’ criminal character, the detectives’ opinion testimony regarding the defendant’s guilt, jury argument about the detectives’ testimony, evidence that the defendant’s co-conspirator had been found guilty of the crime, and questions about the defendant’s extraneous offenses. 627 S.W.2d at 730–31.
When Deputy Carillo was asked at trial about his determination of who, as between Ward and Woods, was the aggressor in the incident, Ward objected based only on relevance and speculation. Ward made no objection on the basis that Officer Carillo was being asked to provide an opinion as to Ward’s guilt or innocence. To the extent Boyde and Weathersby might have supported an argument that eliciting such an opinion was improper, we hold that Ward’s appellate issue is not preserved because his trial objection fails to comport with his argument on appeal. See Barnes v. State, 876 S.W.2d 316, 325 (Tex. Crim. App. 1994) (holding that appellate issue waived because it did not comport with trial objection).
We overrule Ward’s first issue.
Factual Sufficiency
In his second issue, Ward contends that the evidence was factually insufficient to support the jury’s rejection of his self-defense claim.[2] In a factual sufficiency review, we view all of the evidence in a neutral light. Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (applying factual sufficiency standard of review to case when appellant challenged factual sufficiency of jury’s rejection of his self-defense claim).
Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id. In conducting a factual sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
In reviewing the factual sufficiency of the evidence, appellate courts should afford almost complete deference to a jury’s decision when that decision is based upon an evaluation of credibility. Lancon v. State, 253 S.W.3d 699, 704–05, 707 (Tex. Crim. App. 2008). The jury is in the best position to judge the credibility of a witness because it is present to hear the testimony, as opposed to an appellate court which relies on the cold record. Id. at 705. The jury may choose to believe some testimony and disbelieve other testimony. Id. at 707.
As alleged in the information, the State charged Ward with assault by intentionally, knowingly, or recklessly causing bodily injury to Woods by striking her with his hand and by kicking her with his foot. See Tex. Penal Code Ann. § 22.01(a). Woods testified that Ward caused her bodily injury by punching, hitting, and kicking her. She testified that she was in pain and sought medical attention. She testified about the nature and extent of her injuries. Deputy Carillo testified that he saw Woods hours after the assault and that he saw bruises and a cut on her skin. In addition, the State introduced photographs showing Woods’s injuries and the damage to the bathroom door. The State also introduced records from Woods’s hospital visit. Because the jury was entitled to believe Woods, we cannot conclude that the evidence that Ward assaulted Woods is so weak that the verdict is clearly wrong and manifestly unjust. See Johnson, 23 S.W.3d at 11.
Ward argues that the jury should not have rejected his claim of self-defense because Woods’s “testimony and actions were so out of character for a supposed assault victim as to not be credible to an extreme degree.” Ward notes that Woods testified that she could not recall certain facts about the couple’s activities during the days just prior to the assault. In particular, Ward contends that Woods’s credibility was undermined by the evidence that she called him after the assault, invited him back to the house, and allowed him to sleep there for a while before calling the police. As Ward observes, Woods’s actions after the assault were one of many considerations the jury could have used to evaluate Woods’s credibility. Similarly, Ward’s self-defense claim rested entirely upon his testimony and depended for its success on the jury’s determination that Ward was telling the truth. While the photographs and Deputy Carillo’s testimony corroborated Woods’s testimony, there was nothing to corroborate Ward’s testimony. As we have noted, we afford almost complete deference to a jury verdict based upon an evaluation of credibility because the jury was in the best position to judge the witnesses’ credibility. Lancon, 253 S.W.3d at 704–05. Thus, we conclude that the verdict was not against the great weight and preponderance of the evidence.
We hold that the evidence was factually sufficient, and we overrule Ward’s second issue.
Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Chief Justice Radack and Justices Bland and Massengale.
Do not publish. Tex. R. App. P. 47.2(b).
[1] The nature of the relationship between Woods and Ward was disputed at trial. The issue was presented to the jury, which found that the two were in a dating relationship. See Tex. Fam. Code Ann. § 71.0021(b) (Vernon 2009) (“‘[D]ating relationship’ means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of: (1) the length of the relationship; (2) the nature of the relationship; and (3) the frequency and type of interaction between the persons involved in the relationship.”). None of Ward’s issues on appeal implicate this fact dispute.
[2] During the pendency of this appeal, Ward has filed numerous items outside the appellate record with the Clerk of this Court. These items include letters, photographs, greeting cards, business cards, clothing, documents, toys, and a screenplay. Because these items are all outside the appellate record, we have not considered them in our sufficiency review.