IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
DECEMBER 5, 2006
______________________________
JOSEPH L. VILLARREAL, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE _________________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2004-405761; HONORABLE JIM BOB DARNELL, JUDGE _______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant, Joseph L. Villarreal, appeals his three convictions of injury to a child and sentences of four years incarceration in the Institutional Division of the Texas Department of Criminal Justice on each of the first two convictions and 10 years incarceration probated for 10 years for the third conviction. We affirm.
Background
In 2002, T.D.'s mother was killed in an automobile accident which led to T.D. being placed in appellant's care. Because of the mother's death and the child's subsequent change in residence, Frances Alonzo, the school counselor, visited with T.D. weekly to help T.D. cope with these traumatic events. In September of 2003, Lanau Limmer, one of T.D.'s teachers, observed T.D. in an upset state and spoke with her in an attempt to learn why she was upset. Limmer learned that appellant had hit T.D. with a coat belt which left bruises on her. On October 10, 2003, the school nurse observed bruising that T.D. indicated was caused by appellant hitting her with a belt. Finally, on October 17, 2003, a second teacher noticed that T.D.'s hands were red and that she was complaining of pain. T.D. was eight years old at the time of the first two incidents and was nine years old at the time of the last incident. The teacher and T.D. spoke with Alonzo and the school nurse regarding this third incident. Based on Alonzo's ongoing involvement with T.D., information gathered during weekly sessions with T.D., and knowledge of the previous incidents, Alonzo asked T.D. for permission to examine her body for other injuries to which she consented. Upon examination of T.D., Alonzo discovered that she had bruising to her lower back, buttocks, and thighs.
Based on these three incidents, appellant was indicted and charged with three counts of injury to a child. The indictment charging the two earlier incidents also contained notice of the State's intent to seek a deadly weapon finding for the use of a belt. A jury found appellant guilty on all three counts and recommended incarceration of four years for the first two counts, and 10 years probated for 10 years in the third case. Appellant appeals the affirmative findings of the use of a deadly weapon in the first two convictions alleging legally and factually insufficient evidence to support the deadly weapon findings. Additionally, appellant appeals his convictions and sentences alleging legally and factually insufficient evidence to support the convictions. We affirm.
In reviewing a claim of legal insufficiency with regard to a deadly weapon finding, we view the evidence in the light most favorable to the finding to determine whether any rational trier of fact could have found beyond a reasonable doubt that the defendant used or exhibited a deadly weapon. See Searcy v. State, 115 S.W.3d 628, 630 (Tex.App.-Waco 2003, no pet.); Nickerson v. State, 69 S.W.3d 661, 670 (Tex.App.-Waco 2002, pet. ref'd). Evidence can be legally sufficient to sustain a deadly weapon finding if the evidence demonstrates that: (1) the object meets the statutory definition of a deadly weapon; (2) the deadly weapon was used or exhibited during the transaction from which the felony conviction was obtained; and (3) other people were put in actual danger. Drichas v. State, 175 S.W.3d 795, 798 (Tex.Crim.App. 2005).
By statute, a deadly weapon means: (A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Pen. Code Ann. § 1.07(a)(17) (Vernon Supp. 2006). (1) To establish the use of a deadly weapon, the State is not required to prove the weapon used actually caused death or serious bodily injury but that it was capable of causing death or serious bodily injury. See Brooks v. State, 900 S.W.2d 468, 472 (Tex.App.-Texarkana 1995, no pet.).
We will now review the evidence in light of the three factors in Drichas. The school nurse testified that a belt, used in a manner such as in the present case, has the potential to cause injuries to internal organs if a person is hit in the lower back area, specifically kidney damage. Thus evidence was presented that the belt met the statutory definition of a deadly weapon. As to the second factor, appellant contends that no evidence was presented to the jury to demonstrate that the belt was used as a deadly weapon during the transaction from which the conviction was obtained because each witness stated that the belt could cause death or serious bodily injury if the belt was used with enough force. Even with such a qualification, the witnesses testified that the belt was capable of causing serious bodily injury. Further, the jury observed the photos and heard the witnesses' testimony describing the extent, severity, and location of the bruises. Therefore, the jury has sufficient information to determine that the belt was used "during the transaction" as a deadly weapon. See Brooks, 900 S.W.2d at 472 (jury's duty is to reconcile evidentiary conflicts and its decision will be upheld if supported by credible evidence). Finally, the nurse testified that, in her opinion, appellant used the belt with sufficient force to cause severe bruising and had the potential to cause injuries to internal organs. The nurse concluded that a belt used in this manner could kill a person if the person were hit hard enough. Therefore, we conclude that the jury had sufficient evidence to make the determination that T.D. was put in actual danger. Viewing all the evidence in light most favorable to the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that the belt was capable of causing death or serious bodily injury and thus could be considered a deadly weapon. We further conclude that the jury had evidence that it could have found beyond a reasonable doubt that the defendant used or exhibited the belt as a deadly weapon. Therefore, the evidence is legally sufficient to support an affirmative deadly weapon finding.
When reviewing the factual sufficiency of the evidence supporting a deadly weapon finding, we review all the evidence in a neutral light to determine whether the affirmative finding of a deadly weapon is so weak as to be clearly wrong or manifestly unjust. See Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex.Crim.App. 2003) (manifestly unjust standard applies when complaining party did not have burden of proof at trial).
In addition to the school nurse's testimony noted above, three teachers and the school counselor testified to personally observing the extent of the bruising as well as the location of the bruising. Additionally, several photographs of the bruising were admitted and available for the jury to review in making their determination. Considering all of the evidence in a neutral light, we cannot conclude that the evidence was so weak that the jury's affirmative finding as to the deadly weapon issue was clearly wrong or manifestly unjust. Therefore, we conclude that the evidence was factually sufficient to support the jury's affirmative deadly weapon finding. We overrule appellant's issue and will next consider the sufficiency of the evidence supporting the convictions.
In reviewing the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560, 573 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). The jury is the sole judge of the weight and credibility of the evidence. Jackson, 443 U.S. at 319.
When an appellant challenges the factual sufficiency of the evidence supporting his conviction, the reviewing court must determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding defendant guilty beyond a reasonable doubt. See Watson v. State, 2006 WL 2956272, at *8 (Tex.Crim.App. Oct. 18, 2006). In performing a factual sufficiency review, we are to give deference to the fact finder's determinations and not seek to order a new trial simply because we may disagree with the verdict. See id. As an appellate court, we are not justified in ordering a new trial unless there is some objective basis in the record demonstrating that the great weight and preponderance of the evidence contradicts the jury's verdict. See id. at *10. An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that appellant claims undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).
As to the sufficiency of the evidence supporting the conviction, appellant's sole contention is that the State failed to negate appellant's justification defense that his use of force was disciplinary. § 9.61(a). Specifically, appellant contends that the State failed to show that (1) the force used by appellant, acting in loco parentis, to discipline T.D. was not reasonable and necessary; or (2) appellant could not have reasonably believed the force was reasonable and necessary to discipline T.D. However, the justification provision raised by appellant does not allow the use of deadly force. See § 9.61 (a). "Deadly force" means force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury. § 9.01. Hence, if the State's evidence proves that the force, in the manner of its use or intended use, was capable of causing death or serious bodily injury, then the justification defense raised by appellant is inapplicable.
We note that the definitions for deadly force and deadly weapon contain similar language. Compare § 1.07(a)(17)(B) and § 9.01. As previously discussed in our analysis of the jury's affirmative deadly weapon finding, the evidence was legally and factually sufficient to support a finding that the belt, as used or as it was intended to be used, was capable of causing death or serious bodily injury. Therefore, the jury's affirmative deadly weapon finding can arise only if the jury also concluded that the belt, in the manner of its use or intended use, is capable of causing death or serious bodily injury. Having concluded that the evidence is sufficient to support the jury's affirmative deadly weapon finding, appellant cannot claim justification under section 9.61 for his actions because deadly force was used.
However, even if the defense of justification was available to appellant, the State was not required to specifically negate appellant's defense. The State is required to present evidence sufficient to convince a jury that appellant committed each element of the offense presented. See Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App. 1991) (State does not have burden of production but rather a burden of persuasion in disproving a defense). A verdict of guilty is an implicit rejection of appellant's defensive argument. See Zuliani, 97 S.W.3d at 594. Therefore, assuming arguendo that appellant legitimately raised the justification defense that the belt's use was for disciplinary purposes, the jury's verdict demonstrates that the jury rejected appellant's claim of justification. Viewing the evidence discussed above in the light most favorable to the verdict, we conclude that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.
Furthermore, we may not order a new trial unless there is some objective basis in the record demonstrating that the great weight and preponderance of the evidence contradicts the jury's verdict. Considering the extent of bruising described by the witnesses, appellant's admission of the use of the belt on T.D. and the photographs admitted into evidence, we cannot conclude that the great weight and preponderance of the evidence contradicts the jury's verdict. See Watson, 2006 WL 2956272, at *10. We conclude that the evidence is both legally and factually sufficient to support the jury's verdict. We overrule appellant's issues of legal and factual insufficiency of the evidence to support the convictions.
Having overruled appellant's issues, we affirm.
Mackey K. Hancock
Justice
Do not publish.
1. Further references to a section of the Penal Code will be by reference to "§ _."
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NO. 07-10-00016-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 28, 2011
JOHN ARTHUR NEWMAN, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY;
NO. 44,948-A; HONORABLE ROBERT P. BROTHERTON, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant, John Arthur Newman, pleaded guilty to one count of indecency with a child.[1] Consistent with the plea agreement, appellant was granted deferred adjudication community supervision for a period of ten years. Subsequently, the State filed a motion to adjudicate appellants deferred adjudication. The original motion to adjudicate was ultimately dismissed. Thereafter, the State filed a second motion to adjudicate appellants deferred adjudication. After a contested hearing on the States motion to adjudicate, appellant was adjudicated guilty of the original offense of indecency with a child. After a hearing on the issue of punishment, the trial court assessed appellants punishment at 12 years confinement in the Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ). Through two issues, appellant contends that the trial court abused its discretion in adjudicating appellants deferred adjudication and that the trial court committed error in admitting evidence of a failed polygraph examination. We will affirm.
Factual and Procedural Background
As stated above, appellant initially pleaded guilty to one count of indecency with a child. Pursuant to the plea agreement, appellant was placed on deferred adjudication community supervision for a period of 10 years. The terms and conditions of appellants community supervision were lengthy. The terms involved in the hearing on the States second motion to adjudicate involved condition 12 (payment of a monthly supervision fee of $50 and payment of a Crime Stoppers fee in the total amount of $50 at the rate of $5 per month) and condition 16(f) (required appellant to remain in the sexual abuse treatment program until successfully completed, as determined by the treatment specialists, or his probation had expired). The State alleged that appellant had failed to pay $433 of his probation fees and $45 of his Crime Stoppers fees. Further, the State alleged that appellant was unsuccessfully discharged from the program because of three factors: 1) appellant denied committing the offense to which he pleaded guilty; 2) appellant refused to cooperate with group treatment; and 3) appellant failed a polygraph test.
On October 16, 2009, the trial court conducted a hearing on the States motion to adjudicate. After hearing the evidence regarding the allegations of the State and testimony from appellant, the trial court recessed the hearing until October 23, 2009. On that day, the trial court found that appellant was financially unable to make the payments required by condition 12; however, it found the allegations that appellant had violated condition 16(f) to be true. Accordingly, the trial court adjudicated appellant guilty of the offense of indecency with a child.
On October 30, 2009, the trial court heard both sides on the issue of the proper punishment to be assessed. After hearing the evidence, the trial court assessed appellants punishment at confinement in the ID-TDCJ for a period of 12 years.
Appellant perfected his appeal and filed his brief with this Court. Appellants issues attack the sufficiency of the evidence to support the trial courts decision to adjudicate appellant guilty and the trial courts admission of evidence concerning appellants failure of a polygraph examination given as part of the sexual abuse treatment program. We disagree with appellant and will affirm the judgment of the trial court.
Sufficiency of the Evidence
Standard of Review
On violation of a condition of community supervision imposed under an order of deferred adjudication, the defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 2010). This determination is reviewable in the same manner used to determine whether sufficient evidence supported the trial courts decision to revoke community supervision. Id.; Antwine v. State, 268 S.W.3d 634, 636 (Tex.App.Eastland 2008, pet. refd). In an adjudication hearing, the State must prove by a preponderance of the evidence that a defendant violated the terms of his community supervision. Rickels v. State, 202 S.W.3d 759, 76364 (Tex.Crim.App. 2006); Antwine, 268 S.W.3d at 636. A preponderance of the evidence means that greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of his probation. Rickels, 202 S.W.3d at 76364.
Given the unique nature of a revocation hearing and the trial courts broad discretion in the proceedings, the general standards for reviewing sufficiency of the evidence do not apply. Pierce v. State, 113 S.W.3d 431, 436 (Tex.App.Texarkana 2003, pet. refd). Instead, we review the trial courts decision regarding community supervision revocation for an abuse of discretion and examine the evidence in a light most favorable to the trial courts order. Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. 1981). When the standard of review is abuse of discretion, the record must simply contain some evidence to support the trial courts decision. Herald v. State, 67 S.W.3d 292, 293 (Tex.App.Amarillo 2001, no pet.). The trial judge is the trier of fact and the arbiter of the credibility of the testimony during a hearing on a motion to adjudicate. See Garrett, 619 S.W.2d at 174.
Analysis
At the hearing on the motion to adjudicate, Ron Burks, a licensed sex offender treatment provider, with whom appellant had been placed, testified about appellants progress and efforts at completing the program. The sum of Burkss testimony was that appellant had regressed regarding the issue of accepting responsibility for the offense to which he had pleaded guilty. This was shown, according to Burks, because appellant initially stated that he had inappropriately touched the victim 25-50 times but later changed that statement to touching the victim only once. Additionally, Burks testified about how appellant did not complete the homework assignments required to progress through the program. According to the testimony, there were some 42 homework assignments contained in the workbook that each participant received. Further, Burks testified that, in his experience, the assignments should be completed within 12 to 24 months. Appellant had completed three assignments in eleven months. Burks acknowledged that appellant had several medical conditions and testified about the efforts that the program took to accommodate those issues. However, in the final analysis, it was Burkss opinion that appellant was malingering and using his medical conditions as an excuse. Burks also testified that appellant appeared to choose not to participate in the group sessions as he never seemed to have anything to say or offer. This was, according to Burks, counterproductive to the treatment plan because this type of therapy is confrontational in nature and requires the participants to be active in their participation. Appellant also missed some sessions according to Burkss records. Appellant failed a polygraph examination that he was required to take as part of the treatment plan. Burks testified that he believed that appellant had the capacity to do the work required. This was demonstrated, according to Burks, when appellant did complete one of the homework assignments requiring a presentation during a group session. Burks testified that appellants presentation was much better than had been expected. However, it was Burkss opinion that appellant was not trying and, therefore, not getting benefit from the plan. As a result of appellants lack of effort, he was discharged from the plan as an unsuccessful participant.
In the face of this evidence regarding appellants adjudication for failure to comply with condition 16(f), appellant presents the issue as the failure of the State to prove that appellant intentionally, knowingly, or voluntarily failed to remain in the sex offender program. Thus, according to appellant, the trial court abused its discretion when it adjudicated appellant.
Initially, we point out that appellants assertion that the State was required to prove that his removal from the sexual abuse treatment program had to be because of an intentional, knowing or voluntary act is not supported by any citations to any authority so holding. That issue aside, appellant pins his contentions on the testimony of Burks cited in his brief. According to appellant, two of the three allegations were proven to be false by these excerpts from Burkss testimony. As we read the testimony, such might be the case if we limit our review to only the portions cited in appellants brief. However, when the total of Burkss testimony is read, it is clear that appellant had substantial difficulty in completing the treatment program and that much of his difficulty appeared to be due to his lack of effort. The record certainly supports that proposition.
Understanding that the trial court is the final arbiter of the facts and the weight and credibility of the evidence, Garrett, 619 S.W.2d at 174, and that the State need only prove its allegations by a preponderance of the evidence, Rickels, 202 S.W.3d at 76364, we are convinced that the trial court did not abuse its discretion when it adjudicated appellant guilty of indecency with a child. See Herald, 67 S.W.3d at 293. Accordingly, appellants first issue is overruled.
Admission of Polygraph Evidence
Proof of a violation of a single term and condition of community supervision is a sufficient basis upon which to adjudicate a deferred adjudication. Antwine, 268 S.W.3d at 636. Therefore, we need not address appellants second contention. See Tex. R. App. P. 47.1.
Conclusion
Having overruled appellants first issue, we affirm the judgment of the trial court.
Mackey K. Hancock
Justice
Do not publish
[1] See Tex. Penal Code Ann. § 21.11(a)(1) (West Supp. 2010).