Sheldon Keith Crain v. State

NO. 07-08-0224-CR

 

IN THE COURT OF APPEALS

 

FOR THE SEVENTH DISTRICT OF TEXAS

 

AT AMARILLO

 

PANEL C

 

JULY 31, 2009

 

______________________________

 

 

SHELDON KEITH CRAIN, APPELLANT

 

V.

 

THE STATE OF TEXAS, APPELLEE

 

_________________________________

 

FROM THE 47^TH DISTRICT COURT OF POTTER COUNTY;

 

NO. 54,073-A; HONORABLE HAL MINER, JUDGE

 

_______________________________

 

 

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

 

 

OPINION

 

 

           Appellant, Sheldon Keith Crain, was charged by indictment with the offense of unlawful possession of a firearm by a felon, enhanced. Pursuant to a plea bargain, Appellant entered a plea of guilty and was assessed a sentence of six years confinement and a fine of $1,000. The trial court certified Appellant’s right to appeal matters raised by written motion filed and ruled on before trial. See Tex. R. App. P. 25.2(a)(2)(A). Appellant now raises a single issue: whether the trial court erred by denying his motion to suppress evidence obtained after he was illegally detained. We affirm.

Background

           On Appellant’s motion, the trial court held a suppression hearing and the following evidence was adduced. On July 23, 2006, Officer Dewayne Griffin, Amarillo Police Department, was responding to a theft call when he spotted Appellant walking in the roadway of a residential area at 12:30 a.m. When Appellant saw Officer Griffin’s patrol car, he grabbed at his waistband. Officer Griffin noted Appellant’s presence and decided to return to speak with him after responding to the theft call due to the number of burglaries committed after midnight in the area where Appellant was spotted.

            After responding to the call, Officer Griffin returned. Officer Cody Moore, who also responded to the theft call as back-up, agreed to assist. Officer Griffin located Appellant walking across a yard. He turned his spotlight on Appellant and asked him to come over to his patrol car and talk to him. Appellant continued walking several steps–then turned towards him. Officer Griffin exited his car and walked over to Appellant. Appellant appeared nervous and asked Officer Griffin if he was doing anything wrong. Officer Griffin responded he just wanted to speak with him. As they were talking, Officer Griffin noticed a strong odor of marihuana emanating from Appellant’s person and breath.

           After smelling the marihuana, Officer Griffin decided to detain Appellant for further investigation. He asked Appellant to put his hands behind his back and accompany him to his patrol car. As he approached the patrol car, Officer Moore arrived. Officer Griffin placed Appellant against the patrol car while he patted down Appellant’s right side. When Officer Moore patted down Appellant’s left side, he noticed a bulge beneath his shirt and, after pushing against the bulge, determined Appellant was carrying a handgun. He pulled up Appellant’s shirt and disarmed him. Officer Griffin placed Appellant under arrest.

           JoAnn Marez testified she lived at the address where Officer Griffin first turned his spotlight on Appellant. She further testified Appellant was an acquaintance whom she expected to visit her that night. When Officer Griffin first called out to Appellant from his patrol car, she testified Appellant was four or five feet from her unlocked door. She also testified Officer Griffin ordered or commanded Appellant to “stop” and “not to run.” In rebuttal, Officer Griffin denied giving these commands. He testified that, until he smelled the marihuana, Appellant was free to leave. At the hearing’s conclusion, the trial court denied Appellant’s motion finding Officer Griffin’s testimony was “very credible.”

           Standard of Review

           A trial court’s ruling on a motion to suppress is reviewed for abuse of discretion, Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002), under a bifurcated standard. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007). When a trial court’s fact findings are based on an evaluation of witness credibility or demeanor, almost total deference is given to its factual determinations supported by the record. St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App. 2007). On questions of mixed law and fact that do not turn on the trial court’s evaluation of witness credibility and demeanor, however, we conduct a de novo review. Amador, 221 S.W.3d at 673.

           When, as here, no findings of fact were requested nor filed, we view the evidence in the light most favorable to the trial court’s ruling and assume the trial court made implicit findings of fact supported by the record. See Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App. 2000). If the trial court’s decision is correct on any theory of law applicable to the case, it will be sustained. Armendariz v. State, 123 S.W.3d 401, 404 (Tex.Crim.App. 2003), cert. denied, 541 U.S. 974, 124 S. Ct. 1883, 158 L. Ed. 2d 469 (2004).

           Encounter vs. Detention

           Appellant contends that he was unlawfully detained when Officer Griffin shined his spotlight on him and commanded him to “stop” or “not to run.” The State contends that Officer Griffin’s initial contact with Appellant was an encounter that evolved into a temporary investigative detention after Officer Griffin detected an odor of marihuana emanating from Appellant.

           There are three distinct categories of interactions between police officers and citizens: encounters, investigative detentions, and arrests. State v. Perez, 85 S.W.3d 817, 819 (Tex.Crim.App. 2002). Encounters occur when police officers approach an individual in public to ask questions, and do not require any justification whatsoever on the part of the officer. Harper v. State, 217 S.W.3d 672, 674 (Tex.App.–Amarillo 2007, no pet.). Moreover, police officers do not violate the Fourth Amendment by merely approaching an individual in a public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. Perez, 85 S.W.3d at 819.

            A stop is deemed an investigative detention when a police officer detains a person reasonably suspected of criminal activity to determine his identity or to momentarily maintain the status quo while seeking additional information. Hoag v. State, 728 S.W.2d 375, 380 (Tex.Crim.App. 1987). In making a determination whether an encounter or detention occurred, we consider all of the circumstances surrounding the incident to determine “whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” State v. Garcia-Cantu, 253 S.W.3d 236, 242 (Tex.Crim.App. 2008). Each case must be evaluated on its own terms. “The test is necessarily imprecise, because it is designed to access the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation. Moreover, what constitutes a restraint of liberty prompting a person to conclude that he is not free to ‘leave’ will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs.” Michigan v. Chesternut, 486 U.S.567, 573, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988). “It is the display of official authority and the implication that this authority cannot be ignored, avoided, or terminated, that results in a Fourth Amendment seizure.” Garcia-Cantu, 253 S.W.3d at 243.

           The facts of this case are quite similar to those of Stewart v. State, 603 S.W.2d 861 (Tex.Crim.App. 1980). In Stewart, two officers observed a van parked at the end of a dead end street in front of a house under construction. 603 S.W.2d at 862. They shined their spotlights into the van and saw four persons inside. When the driver exited the van, the officers smelled the odor of burning marihuana. The officers subsequently found marihuana in a knapsack placed underneath the van by its passengers. The Court of Criminal Appeals held that “[t]he police exercised no authority until after they had smelled the odor of burning marihuana.” Id.

           Similarly, here, Officer Griffin did not engage in any show of authority until after he smelled marihuana on Appellant. Like the officers in Stewart, he used his spotlight to better view Appellant and the surrounding area in the dark. He first requested that Appellant come over to his patrol car and, when Appellant did not, Officer Griffin exited his car and walked over to Appellant. Appellant asked if he was doing anything wrong and Officer Griffin responded that he just wanted to speak with him. From the record, we cannot determine the tone or demeanor of the officer’s statement and we must, therefore, give great deference to the trial judge’s assessment as to whether the exchange was more akin to a command or a request.

           After Officer Griffin smelled the marihuana on Appellant’s person, he asked Appellant to place his hands behind his back and led him to the patrol car. Thus, prior to smelling the marihuana and detaining Appellant, Officer Griffin had simply illuminated Appellant and the surrounding area to more clearly see in the dark and then approached Appellant to ask him some questions. Under these circumstances, we find that Officer Griffin’s conduct would not communicate to a reasonable person that he or she was not free to decline Officer Griffin’s requests or otherwise terminate the encounter.

           That Officer Griffin activated his spotlight did not necessarily make the encounter non-consensual. Garcia-Cantu, 253 S.W.3d at 245 n.43. See Hudson v. State, 247 S.W.3d 780, 785 (Tex.App.–Amarillo 2008, no pet.). Here, the spotlight was a matter of practical necessity due to the time of night. Moreover, Appellant did not stop when the spotlight was shined in his direction but looked back and continued walking before finally stopping and facing Officer Griffin. Appellant was a pedestrian with open access to the entire yard and stopped of his own volition.

           Appellant relies on Hudson, supra, to assert that Officer Griffin’s initial interaction was to detain him. In that case, Hudson was observed by Officer Carrillo walking across a field in a residential area. 247 S.W.3d at 783. As he neared the curb, Officer Carrillo activated his patrol car emergency lights and called to him. When he was asked for identification, Hudson’s eyes were glassy and he appeared nervous, shaky. After questioning Hudson about the use of controlled substances, Officer Carrillo placed him in front of his patrol car and began a pat down search when he discovered a bulge in Hudson’s pocket which turned out to be a bag of marihuana. Id. This Court determined that, under the circumstances, Officer Carrillo’s stop of Hudson was not an encounter but a detention because Hudson stopped in response to the activation of the emergency lights rather than of his own accord and there was no evidence the lights were activated for safety reasons or due to darkness. 247 S.W.3d at 785-86. Further, Officer Carrillo testified that he activated his overhead lights as a signal to stop and would have possibly charged the pedestrian with evasion had he fled. Id. Here, there is evidence Appellant continued walking after Officer Griffin activated the spotlight and requested that he come over to the patrol car. Further, Officer Griffin testified he activated the spotlight to see more clearly in the dark and Appellant was free to stop or not.

           Finally, based upon Marez’s testimony, Appellant contends Officer Griffin commanded or ordered him to “stop” or “not to run” in conjunction with shining the spotlight. Officer Griffin, however, testified that, after he located Appellant, he did not order or command Appellant to take any action but asked him only to come over to his car or speak with him. To resolve this conflicting testimony, we defer to the trial court’s express determination that Officer Griffin’s testimony was “very credible.” See Garcia-Cantu, 253 S.W.3d at 249. The trial court is the sole judge of witnesses’ credibility; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997), and may accept or reject any or all of the witnesses’ testimony. Johnson v. State, 803 S.W.2d 272, 287 (Tex. Crim. App. 1990). See also Garcia–Cantu, 253 S.W.3d at 241. Appellant’s sole issue is overruled.

 

Conclusion

           The trial court’s judgment is affirmed.

 

                                                                                  Patrick A. Pirtle

                                                                                         Justice

     

 

Quinn, C.J., dissenting.

 

 

Publish.

 

 

 

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NO. 07-09-00275-CR

 

IN THE COURT OF APPEALS

 

FOR THE SEVENTH DISTRICT OF TEXAS

 

AT AMARILLO

 

PANEL B

 

FEBRUARY 7, 2011

 

 

RODNEY W. WOOTEN, APPELLANT

 

v.

 

THE STATE OF TEXAS, APPELLEE

 

 

 FROM THE COUNTY COURT AT LAW NO. 2 OF LUBBOCK COUNTY;

 

NO. 2008-451,360; HONORABLE DRUE FARMER, JUDGE

 

 

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

 

 

MEMORANDUM OPINION

 

Appellant Rodney W. Wooten appeals from his conviction by jury of the misdemeanor offense of domestic violence assault^[1] and the resulting sentence of fifteen days of imprisonment in the county jail and a fine of $3,000.  Through three issues, appellant contends the State failed to disclose evidence in violation of Brady v. Maryland, the trial court erred in refusing to include in the court=s charge an instruction of consent as a defense to assault, and the evidence was factually insufficient to support his conviction.  We affirm.

Background

            The victim of appellant’s assault was his wife, Wendi. She testified at trial, along with the 911 operator, the responding officer, and a Women’s Protective Services advocate.  Appellant presented the testimony of his son.  The evidence indicated police were called to the couple’s Lubbock apartment in response to a domestic disturbance.  Wendi told the responding officer that she and her husband argued over a MySpace account and he slammed the bedroom door on her leg and threw her against the wall.  She attempted to call 911 at that time but her husband took the phones away from her.  She called 911 from a neighbor’s apartment. The officer described Wendi as crying, scared, and in pain.  He observed she had a bruise on the inner side of her leg. 

Wendi went to her doctor the next day.  She had small bruises on her knee and her arm.  The doctor prescribed a painkiller and anti-inflammatory medication.  She returned to the doctor a day later because she was not feeling well.

When the responding officer spoke with appellant on the phone, appellant told the officer he did not assault Wendi. The officer told appellant to stay somewhere else that night or he would be arrested.  Appellant did not testify at trial.

Analysis

Brady Violation

In his first issue, appellant argues the State failed to disclose favorable evidence in violation of Brady v. Maryland.^[2]  The evidence of which appellant complains is a report regarding a prior incident of abuse committed against Wendi.  Appellant argued the report showed that instance of violence was mutual combat between Wendi and appellant. The State contends this issue was not preserved for appellate review.  At oral argument, appellant conceded the State is correct.  After a review of the record, we agree and overrule appellant=s first issue.

Jury Instruction

In appellant=s second issue, he contends the trial court erred in failing to include a defensive instruction on consent pursuant to section 22.06 of the Penal Code.  See Tex. Penal Code Ann. § 22.06 (West 2007).

             On a timely request, a defendant has the right to an instruction on any defensive issue raised by the evidence, whether such evidence is strong or weak, unimpeached or contradicted, regardless of what the trial court may or may not think about the credibility of this evidence. See Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App. 1996); Miller v. State, 815 S.W.2d 582, 585 (Tex.Crim.App. 1991) (op. on reh'g). When evidence from any source raises a defensive issue, and the defendant properly requests a jury charge on that issue, the trial court must submit the issue to the jury. See Muniz v. State, 851 S.W.2d 238, 254 (Tex.Crim.App. 1993), cert. denied, 510 U.S. 837, 126 L. Ed. 2d 82, 114 S. Ct. 116 (1993). Thus, if the issue is raised by any party, refusal to submit the requested instruction is an abuse of discretion. Id.  When the evidence fails, however, to raise a defensive issue, the trial court commits no error in refusing a requested instruction. Id.

Under the Penal Code, it is a defense to the offense of simple assault that the victim effectively consented to the offender's assaultive conduct or that the offender reasonably believed that the victim consented, at least so long as the conduct did not threaten or inflict serious bodily injury. Tex. Penal Code Ann. ' 22.06 (West 2007); Allen v. State, 253 S.W.3d 260, 261 (Tex.Crim.App. 2008).  The Texas Penal Code defines "consent" as "assent in fact, whether express or apparent." Tex. Penal Code Ann. ' 1.07(a)(11) (West 2003). Thus, the issue is whether there was any evidence, viewed in the light most favorable to appellant, to show (1) Wendi effectively consented to the assault, i.e., whether there was any evidence that she assented in fact, either expressly or impliedly, or (2) appellant reasonably believed Wendi effectively consented.  See Bufkin v. State, 179 S.W.3d 166, 173 (Tex.App.—Houston [14^th Dist.] 2005), aff’d 2006 Tex.Crim.App. LEXIS 2111 (Tex.Crim.App. Nov. 1, 2006).

Appellant contends consent can be implied from Wendi=s testimony that when she entered the bedroom after their argument to look for cigarettes, appellant grabbed her arm and she slapped him in the face.  She then left the room but later returned to find the door closed and barricaded.  She tried to force her way into the room and appellant slammed the door on her leg before she was able to move it out of the way.  Shortly thereafter, appellant attempted to leave the house and Wendi came up behind him.  He pushed her into a wall.  Appellant argues the issue of consent to mutual combat was raised by Wendi’s testimony because it shows Wendi was the instigator of the confrontations.

The State disagrees, noting that Wendi did not dare, entice, or induce appellant to assault her. See, e.g.,  Allen, 253 S.W.3d at 267  (evidence of the victim=s words such as Ago ahead,@ Acome on,@ Aslap me,@ and Ado it@ could be sufficient to raise evidence of consent); Pierce v. State, No. 04-02-00749-CR, 2003 Tex.App. LEXIS 9799, at *13 (Tex.App.BSan Antonio Nov. 19, 2003, pet. ref=d) (mem. op., not designated for publication) (victim testified she had been Aegging him on@ right before he pushed her off the bed but, under the circumstances, the statement was no more than a Asmart‑alec@ remark and was not consent).

In Pierce, the court concluded that the victim’s statement of “go ahead” before defendant struck her was no more than a “smart-alec” remark and was not consent. Pierce, No. 04-02-00749-CR, 2003 Tex.App. LEXIS 9799, at *13.  The court further noted that even viewed in the light most favorable to the defense, the statement shows that the alleged consent occurred only after the assaultive conduct had begun and the victim thus could not have consented to being hit, choked, grabbed, scratched or knocked down.  Id.  The rationale of Pierce is applicable here.  The testimony to which appellant points shows Wendi slapped him only after appellant grabbed Wendi=s arm.  Her action cannot be seen as giving implied consent to his physical actions of slamming her leg in the door or pushing her into a wall. Id. at *13; Tex. Penal Code Ann. '' 1.07(19), 22.06 (West 2003).  See Allen, 253 S.W.3d at 268 (noting “[c]ommon experience tells us that such apparent bravado (‘go ahead,’ ‘come on,’ ‘slap me,’ ‘do it’) in the face of an expressed threat does not normally communicate a genuine desire to be assaulted; it far more likely constitutes a backhanded warning of potentially dire consequences to the threatener should she actually carry out her threat”).  Neither of Wendi’s other two actions, attempting to enter their shared bedroom and coming up behind appellant as he was leaving their apartment, provide evidence she consented to his assaultive conduct. Moreover, appellant did not testify and offered no evidence, testimonial or otherwise, that he formed a reasonable belief that Wendi consented to being hit. Pierce, No. 04-02-00749-CR, 2003 Tex.App. LEXIS 9799, at *13; Tex. Penal Code Ann. § 22.06 (West 2007).  Having reviewed the entire record, we find the circumstances described in the record would not lead an ordinary and prudent man to a reasonable belief^[3] his wife effectively was consenting to his slamming a door on her leg or pushing her into a wall. 

Because the evidence failed to raise the defense of consent, the trial court did not commit error in refusing the requested instruction on consent. Granger v. State, 3 S.W.3d 36, 38 (Tex.Crim.App. 1999). We overrule appellant=s second issue.

Sufficiency of the Evidence

In appellant’s last issue, he challenges the factual sufficiency of the evidence to support his conviction.  Since appellant’s brief was filed, however, the Court of Criminal Appeals decided Brooks v. State, 323 S.W.3d 893, 2010 Tex.Crim.App. LEXIS 1240 (Tex.Crim.App. 2010).  In that case, the court determined the sufficiency of the evidence should be reviewed only under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L. Ed. 2d 560 (1979).  We will therefore review the evidence in a light most favorable to the verdict for appellant’s sufficiency claim.^[4]

            The legal sufficiency standard mandates that an appellate court defer to the factfinder's credibility and weight determinations. Brooks, 323 S.W.3d 893, 2010 Tex. Crim. App. LEXIS 1240, at *8. After giving proper deference to the factfinder's role, we will uphold the verdict unless a rational factfinder must have had reasonable doubt as to any essential element. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009).

A person commits assault if the person intentionally, knowingly or recklessly causes bodily injury to another, including the person's spouse. See Tex. Penal Code Ann. ' 22.01(a)(1) (West 2003). Therefore, the State was required to prove appellant intentionally, knowingly or recklessly caused bodily injury to Wendi.  We note appellant does not challenge the evidence supporting these elements but instead reiterates his consent or mutual combat argument.^[5]  Although we have already discussed and rejected appellant’s consent argument, we nevertheless will briefly address the evidence supporting each element of the offense in our sufficiency review.

First, the State had to prove appellant was the person who committed the assault.  Wendi identified appellant as the person who assaulted her. Appellant did not deny that he was the person who committed the assaultive actions.  Appellant acknowledges he and Wendi were husband and wife, members of the same household.  See Tex. Fam. Code Ann. § 71.005 (West 2009) (Ahousehold@ means a unit composed of persons living together in the same dwelling without regard to whether they are related to each other).

Next, the State had to prove appellant caused Wendi bodily injury.  ABodily injury@ means physical pain, illness, or any impairment of physical condition.  See Tex. Penal Code Ann. ' 1.07(8) (West 2003). Wendi testified at trial appellant slammed the door on her Areally hard@ and part of her knee was Asmashed in the door.@ She also testified that appellant pushed her into the wall with two hands, causing both of her arms to go Aflying.@  Her arm hit the doorway to their bedroom and her back hit the closet door.  She agreed that this hurt.  The officer who responded on the day of the incident testified that when he made contact with Wendi, A[s]he was crying.  You could tell she was in pain, and she was very scared.@ Photographs were admitted at trial showing a bruise on Wendi=s arm and knee. Wendi testified that she went to the doctor because her arm was hurting and was prescribed pain relievers and anti-inflammatories. She testified she returned to the doctor the following day because she still was not feeling well physically.  This evidence is sufficient to support the “bodily injury” element of the assault offense.

Last, the State had to prove appellant intentionally, knowingly, or recklessly caused bodily injury to Wendi.  Because section 22.01 authorizes three culpable mental states disjunctively, proof of any one of the three is sufficient to support a conviction.  Perez v. State, 704 S.W.2d 499, 501 (Tex.App.BCorpus Christi 1986, no pet.).  A person acts intentionally with respect to a result of his conduct when it is his conscious objective or desire to cause the result.  Tex. Penal Code Ann. § 6.03(a) (West 2003). A person acts knowingly with respect to a result of his conduct when he is aware that it is reasonably certain to cause the result. Id. § 6.03(b). A person acts recklessly with respect to a result of his conduct when he is aware of, but consciously disregards, a substantial and unjustifiable risk that the result will occur. Id. § 6.03(c). Intent may be inferred from circumstantial evidence such as acts, words, and the conduct of the appellant, as well as circumstances surrounding the offense.  Morris v. State, 07-08-0119-CR, 2009 LEXIS 5198, *3-4 (Tex.App.BAmarillo July 7, 2009, no pet.) (mem. op., not designated for publication), citing Guevara v. State, 152 S.W.3d 45, 50 (Tex.Crim.App. 2004).

 

Wendi testified appellant intentionally caused her injuries.  The record shows sufficient evidence from which the jury could have inferred appellant at least knowingly caused Wendi bodily injury when he grabbed her arm and, at the very least, recklessly caused bodily injury when he slammed the door with Wendi=s leg still in it and pushed Wendi into a wall.^[6]

As sole judge of the credibility of the witnesses and the weight to be given to their testimony, the jury chose, as they were entitled to do, to believe Wendi's version of events. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979 & Supp. 2009); Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002).  Applying the appropriate standard of review set forth in Brooks, we find the evidence sufficient to support the jury's verdict.  We overrule appellant=s last issue and affirm the judgment of the trial court.

 

                                                                                                James T. Campbell

                                                                                                            Justice

 

Do not publish.

 

 

---

^[1]  See Tex. Penal Code Ann. § 22.01(a)(1) (West 2003).

^[2] Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L. Ed. 2d 215 (1963).

^[3] See Tex. Penal Code Ann. § 1.07(a)(42) (West 2003) (reasonable belief Ameans a belief that would be held by an ordinary and prudent man in the same circumstances as the actor@). 

^[4] The previously-applied factual sufficiency standard considers whether the evidence supporting guilt, though legally sufficient, is so weak that the jury's verdict seems clearly wrong and manifestly unjust, or evidence contrary to the verdict is such that the jury's verdict is against the great weight and preponderance of the evidence. Grotti v. State, 273 S.W.3d 273, 283 (Tex.Crim.App. 2008); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006). Under that standard, the ultimate question is whether, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Grotti, 273 S.W.3d at 283. Even had we applied such a standard to review of the evidence, we could not sustain appellant's contention. From our review of the entire record, the finding of appellant's assaultive conduct was neither clearly wrong and manifestly unjust nor against the great weight and preponderance of the evidence.

 

^[5] Appellant insists that Wendi, by slapping him in the face, indicated her desire to enter into a violent and aggressive encounter and consented to appellant=s assaultive conduct, rendering the evidence insufficient to support his conviction. 

^[6] Again, we note appellant does not dispute that he intentionally, knowingly, or recklessly took physical action against Wendi.  He argues only that Wendi=s actions manifested implied consent to his conduct and that a person who slaps another should expect a physical reaction.