COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-151-CR
JUSTIN SHANE JOHN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY
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MEMORANDUM OPINION 1
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A jury convicted Appellant Justin Shane John of assault–family violence
and assessed a sentence of 365 days in the county jail and a $4,000 fine. The
trial court sentenced him accordingly. Appellant brings two points, arguing that
the evidence is legally and factually insufficient to sustain a verdict of guilty and
that the trial court erred by admitting evidence of prior convictions during the
1
… See Tex. R. App. P. 47.4.
guilt phase because they were too remote in time and “the probative value of
their admission outweighed the prejudicial value [sic].” Because the evidence
is legally and factually sufficient to support the verdict, the prior offenses were
not too remote, and Appellant did not preserve his remaining complaints about
the admission of his prior offenses, we affirm the trial court’s judgment.
After she separated from her husband, the complainant, Wendy, dated
Appellant for approximately eighteen months. Wendy and Appellant lived
together for about one year during that time. About three months after Wendy
and Appellant stopped dating, she ran into him outside her home after she had
visited with her husband and children at her mother’s home. Appellant became
angry, and he and Wendy began arguing. Wendy testified that when she began
to walk away, Appellant grabbed her from behind with his hands around her
neck. She testified that he would not allow her to leave. She testified that
Appellant grabbed her face and tried to make her look at him or talk to him.
She testified that Appellant punched her in the chest, knocking the breath out
of her, and that he hit her in the face. Finally, they both started crying, and
Wendy went into her house. Afterward, bruising was visible on Wendy’s body.
Wendy did not report the assault until three days later. Her husband had
told her before the assault that if he saw bruises on her again and if she
continued her abusive relationship with Appellant, he would take the children
2
away from her. Wendy’s family was in agreement with the husband on this
point.
When Wendy went to the police department, she sought a restraining
order against Appellant, but it was not her intention to seek criminal
prosecution. The police took pictures of Wendy’s bruises, and as a result,
Appellant was subsequently prosecuted for assault–family violence. Wendy
apologized to Appellant for the prosecution and told him that she did not want
to see anything happen to him. She did not want to be at Appellant’s trial.
Appellant’s view of the events was slightly different. He testified that
Wendy came over to his house on the evening in question at around 10:00 or
10:30 p.m. Although she denied it, he testified that the two spent the night
together and that Wendy did not leave his house until 5:00 or 6:00 a.m. the
next morning. He denied that he had hit or choked Wendy or had caused any
of her bruises, and he testified that she was not injured when she left his
house. Later, Appellant testified that Wendy sent him a text message
apologizing and telling him that she did not mean for “that” to happen.
Appellant was arrested soon thereafter.
3
In a single point, Appellant challenges both the legal and factual
sufficiency of the evidence to support the jury’s verdict. 2 In reviewing the legal
sufficiency of the evidence to support a conviction, we view all of the evidence
in the light most favorable to the prosecution to determine whether any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.3 Appellant does not challenge the fact that he and Wendy
were in a dating relationship; he challenges only the evidence of the assault.
Section 22.01(a)(1) of the penal code provides that a person commits
assault if he “intentionally, knowingly, or recklessly causes bodily injury to
another, including [his] spouse.” 4 “‘Bodily injury’ means physical pain, illness,
or any impairment of physical condition.” 5
At trial, Wendy testified that Appellant grabbed her around the neck with
his hands, grabbed her face, punched her in the chest with his fist so that the
breath was knocked out of her, and hit her face hard enough to cause a black
2
… See Laster v. State, 275 S.W.3d 512, 519 (Tex. Crim. App. 2009)
(stating that “[c]ourts and litigants should not combine their legal and factual
sufficiency analyses”).
3
… Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
(1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
4
… Tex. Penal Code Ann. § 22.01(a) (Vernon Supp. 2008).
5
… Id. § 1.07(8) (Vernon Supp. 2008).
4
eye. She testified that when Appellant grabbed her face, it hurt and caused her
pain. She also testified that when Appellant choked her, held her face, and
struck her, she suffered pain.
A police officer testified that the injuries he observed on Wendy were
consistent with what she had described to him, and photographs in evidence
depict Wendy’s bruising that she testified was a result of Appellant’s assaulting
her.
Appellant argues that the evidence is insufficient because Wendy’s
testimony was not credible. As evidence of her lack of credibility, he points to
the fact that she did not report the purported assault to the police for three
days after she claimed it had occurred and that she apologized to him
afterward. He argues that she went to the police only after her husband
threatened to take the children away if she did not end her relationship with
Appellant. Wendy did testify that she only intended to get a restraining order
when she went to the police and that she did not intend that Appellant be
prosecuted. Appellant also points to his testimony that he did not assault
Wendy on the evening in question. He argues that because his version of the
facts and Wendy’s differed so completely, her testimony cannot be sufficient.
5
The jury is the sole judge of the credibility of the witnesses and the
weight to be given to their testimony.6 As trier of fact, the jury could choose
to believe Wendy or to believe Appellant. Apparently, the jury determined that
Wendy was the more credible of the two.7 Viewing all the evidence in the light
most favorable to the prosecution, we hold that the evidence is legally
sufficient to support the jury’s verdict.
In support of his factual insufficiency claim, Appellant contends that
Wendy’s failure to report the purported assault until three days after she
claimed that it happened and the fact that she went to the police in response
to her husband’s threat to take the children away defeated her testimony,
rendering it not credible.
We note that there was some evidence that Appellant and Wendy both
had a motive to lie—Appellant did not want to go to jail, and Wendy did not
want to lose her children. Additionally, Appellant’s credibility was impeached,
to whatever degree, by evidence of two prior felony convictions. But again, as
sole judge of the credibility of the witnesses and the weight to be given to their
6
… See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v.
State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct.
2075 (2009).
7
… See Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.—Dallas 2003,
no pet.).
6
testimony,8 the jury chose to believe Wendy’s version of events. The
photographs of the bruises and black eye show that Wendy was injured, and
the officer’s testimony corroborates her testimony. Applying the appropriate
standard of review,9 we hold that the jury’s verdict is not so against the great
weight and preponderance of the evidence as to render the jury’s verdict
manifestly unjust. 10 We therefore hold that the evidence is factually sufficient
to support the jury’s verdict. We overrule Appellant’s first point.
In a multifarious complaint, Appellant appears to argue in his second point
that the trial court reversibly erred by admitting evidence of his prior failure to
identify conviction, three misdemeanor theft convictions, and two felony
convictions during the guilt phase and also seems to suggest charge error.
To preserve a complaint for our review, a party must have presented to
the trial court a timely request, objection, or motion that states the specific
grounds for the desired ruling if they are not apparent from the context of the
8
… See Tex. Code Crim. Proc. Ann. art. 38.04; Vasquez v. State, 67
S.W.3d 229, 236 (Tex. Crim. App. 2002).
9
… See Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008),
cert. denied, 129 S. Ct. 1037 (2009); Lancon v. State, 253 S.W.3d 699, 704
(Tex. Crim. App. 2008); Watson v. State, 204 S.W.3d 404, 414–15, 417
(Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 8–9, 12 (Tex. Crim.
App. 2000); Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).
10
… See Meraz v. State, 785 S.W.2d 146, 155 (Tex. Crim. App. 1990).
7
request, objection, or motion.11 Further, the trial court must have ruled on the
request, objection, or motion, either expressly or implicitly, or the complaining
party must have objected to the trial court’s refusal to rule.12
When Appellant took the witness stand, the prosecutor asked him if he
had ever been convicted of failure to identify himself to a police officer when
he was a fugitive from justice. Defense counsel objected, and the trial court
heard the offer of proof and objection outside the presence of the jury. The trial
court sustained the objection. The trial court instructed the jury to disregard
the question about the failure to identify conviction. Appellant did not move for
a mistrial; he therefore received all the relief that he requested and preserved
no complaint for appellate review regarding his failure to identify conviction.13
In arguing against the admissibility of the failure to identify evidence,
defense counsel stated, “He’s admitted to the two felony convictions, and I
believe they’re entitled to that.” The trial court noted that “the [d]efense is
making no objection as to the two felonies.” Appellant did not contradict the
11
… Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265
(Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).
12
… Tex. R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341
(Tex. Crim. App. 2004).
13
… See Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007)
(stating that only essential requirement to ensure preservation is timely, specific
request that is refused by trial court).
8
trial court. Before the jury, the State offered evidence of Appellant’s
convictions for the felony offenses of possession of a controlled substance and
unauthorized use of a motor vehicle. Appellant did not object or raise a rule
403 complaint. He therefore has not preserved such complaint regarding the
two felony convictions for appellate review.14 Further, to the extent that his
remoteness objection encompassed these two felonies, we hold that they were
less than ten years old and admissible. 15
Appellant refers to three burglary of a vehicle convictions. He was not,
however, convicted of burglary, but, rather, pled guilty to and was convicted
of theft of less than $750 in each case. We therefore refer to these three
cases as misdemeanor theft convictions. We understand Appellant to argue
that the three 1993 misdemeanor thefts are too remote to satisfy the
requirements of Texas Rule of Evidence 609,16 although he candidly concedes
that they are crimes of moral turpitude.
The theft offenses occurred in 1993 and were adjudicated in 1995.
Appellant was convicted of felony possession in 1999 and of unauthorized use
14
… See Tex. R. App. P. 33.1(a)(1)(2); Mendez, 138 S.W.3d at 341;
Mosley, 983 S.W.2d at 265.
15
… See Tex. R. Evid. 609.
16
… See id.
9
of a motor vehicle in 2003. The trial on the offense now before this court took
place in 2008. Appellant argues that because the 1993 thefts or his release
from confinement for those convictions occurred more than ten years before
the State offered the convictions into evidence at the trial on this case, the
theft convictions are too remote. Appellant is only partially correct. A
conviction that would ordinarily be considered too remote under rule 609(b) can
be admitted for impeachment if the trial court determines in the interest of
justice that its probative value substantially outweighs its prejudicial effect.17
Additionally, even though more than ten years have elapsed, a prior conviction
will not be too remote if the absence of the defendant’s reformation is shown
by evidence of an intervening conviction for a felony or for a misdemeanor
involving moral turpitude. 18
Here, the trial court’s ruling implicitly suggests a probative/prejudicial
determination. Further, Appellant’s 1999 and 2003 felony convictions are
sufficient to insulate the 1993 offenses from a remoteness objection. 19
17
… Jackson v. State, 50 S.W.3d 579, 591 (Tex. App.—Fort Worth
2001, pet. ref’d).
18
… Id.
19
… See id.
10
Applying the Theus test to this “he-said/she-said” dispute,20 we therefore hold
that the evidence of Appellant’s 1993 convictions was admissible under rule
609.
Regarding his apparent charge error complaint, Appellant cites to no
authority in support of his statement that the trial court’s failure to include a
limiting instruction in the jury charge constitutes charge error. 21 We therefore
do not consider it as a separate complaint among those raised under his second
point but instead as part of the harm discussion. We note, however, that
where no limiting instruction is requested when evidence is first admitted, it is
admitted for all purposes, and no subsequent limitation on the evidence by
means of a jury charge instruction is appropriate.22 We therefore overrule
Appellant’s second point.
20
… See Theus v. State, 845 S.W.2d 874, 880–81 (Tex. Crim. App.
1992).
21
… See Tex. R. App. P. 38.1(I); Tong v. State, 25 S.W.3d 707, 710
(Tex. Crim. App. 2000), cert. denied, 532 U.S. 1053 (2001); Mosley, 983
S.W.2d at 256.
22
… Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007).
11
Having overruled both of Appellant’s points, we affirm the trial court’s
judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 25, 2009
12