COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
EDITH McPHATTER, )
) No. 08-01-00480-CR
Appellant, )
) Appeal from the
v. )
) County Court at Law #1
THE STATE OF TEXAS, )
) of El Paso County, Texas
Appellee. )
) (TC# 20000C08687)
)
O P I N I O N
A jury convicted Appellant Edith McPhatter of misdemeanor assault and the trial court sentenced her to 90-days in the county jail, suspended the sentence for 1 year, and a $500 fine. She raises two issue on appeal: (1) that the evidence is legally and factually insufficient; and (2) that the trial court erred in denying her motion for new trial. We affirm.
This case stems from a classic love triangle. Appellant was long estranged from her husband Lynn McPhatter. He was having an affair with Sonia Gomez, though she had just learned that he was still married to Appellant. On April 30, 2000, Appellant drove into the parking lot of Lynn McPhatter=s apartment with their son, Geovaron. She was returning Geovaron after a weekend visit. Words were spoken and a fray between the three adults broke out in the parking lot. Sonia and Lynn both testified that Appellant grabbed Sonia by her hair and began kneeing and punching her torso. Sonia was standing but crouched over in a defensive posture. She stated that she was hit five or six times. Sometime later that night, Sonia filed a police report at a police sub-station. Two days later, she was interviewed by an El Paso Police Department detective. Photographs were taken that showed long scratches on her upper right arm.
At the time of trial, Geovaron was ten-years old. He testified that the fighting began when Sonia called Appellant crazy and raised her hand as if to hit Appellant, but then turned away. Appellant tried to stop Sonia from walking away and Aby accident@ grabbed Sonia=s hair. Sonia slapped Appellant in the face and Appellant slapped her back. The fighting ended when his father grabbed his mother from behind around the neck and threw her to the pavement.
Standards of Review
When reviewing the legal sufficiency of the evidence, we review the evidence in the light most favorable to the verdict and 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, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Burden v. State, 55 S.W.3d 608, 612 (Tex.Crim.App. 2001). We do not resolve any conflict of fact, weigh any evidence, nor do we evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). Our duty, rather, is to determine if the explicit and implicit findings of the jury are rational by reviewing all the evidence is the light most favorable to the verdict. Id. at 421-22. In so doing, we resolve any inconsistencies in the evidence in favor of the verdict. Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991).
In reviewing the factual sufficiency of the evidence, we ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is either so obviously weak as to undermine confidence in the jury=s determination or, although adequate if taken alone, is greatly outweighed by contrary proof. King v. State, 29 S.W.3d 556, 563 (Tex.Crim.App. 2000); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). We examine the evidence that tends to prove an elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997). We will set aside a verdict for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Wardrip v. State, 56 S.W.3d 588, 591 (Tex.Crim.App. 2001).
The State charged and was required to prove that Appellant committed assault by intentionally, knowingly, and recklessly cause bodily injury to Sonia Gomez by punching her in the face with her hand and by kicking her in the chest with her knee. See Tex.Pen.Code Ann. ' 22.01(a)(1)(Vernon 2003). Because the State alleged all three theories of mental culpability, the evidence is sufficient to support Appellant=s conviction if it establishes that she acted with any one of the three culpable mental states charged in the indictment. A person acts intentionally when it is his/her conscious objective or desire to engage in the conduct or cause the result. Tex.Pen.Code Ann. ' 6.03(a)(Vernon 2003). A person acts knowingly when he/she is aware of the nature of his/her conduct or that his/her conduct is reasonably certain to cause the result. Tex.Pen.Code Ann. ' 6.03(b). A person acts recklessly with respect to circumstances surrounding his/her conduct or the result of his/her conduct when he/she is aware of, but consciously disregards, a substantial and unjustifiable risk that the circumstances exist or the result will occur and the disregard constitutes a gross deviation from the standard of care an ordinary person would exercise under all the circumstances as viewed from the actor=s standpoint. Tex.Pen.Code Ann. ' 6.03(c).
In her first issue, Appellant complains that the evidence is legally and factually insufficient to sustain the conviction. The entire focus of her complaint is that Lynn McPhatter and Sonia Gomez simply cannot be believed because he was an adulterer, having an affair with Sonia, and that she was the fomenter of the fight. Appellant points to a number of inconsistencies in their testimonies that she claims invariably leads to the only possible conclusion that the Atestimony of two persons who have shown no shame in their adulterous relationship,@ cannot be found truthful by any rational jury. We find this contention to be without merit.
The evidence viewed in the light most favorable to the verdict would allow any rational trier of fact to determine that Appellant either intended to cause Ms. Gomez bodily injury by punching or kicking her, knew that punching or kicking Ms. Gomez was reasonably certain to result in bodily injury, or was aware of, but consciously disregarded the risk that punching and kicking Ms. Gomez would result in bodily injury and such disregard constituted a gross deviation from the ordinary person standard of care. Therefore, the evidence was legally sufficient for the fact finder to determine beyond a reasonable doubt that Appellant was guilty of assault.
Viewing all the evidence without regard to the verdict, and after a close reading of the record, we do not find any material conflict between the testimony of Geovaron and that of his father Lynn McPhatter or Sonia Gomez. It is clear that in his version, Sonia was the person who started the fight and we do note that a self-defense charge was given to the jury over the State=s objection. But even accepting the child=s version as the more accurate, his testimony is consistent the testimony of his father and Sonia that Sonia called Appellant Acrazy@ and then Appellant grabbed Sonia by the hair and the clash was on. The weight given to contradictory testimonial evidence is the sole province of the trier of the fact, because it turns on an evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408‑09 (Tex.Crim.App. 1997). Applying the appropriate standard of review for factual sufficiency challenges, we find that the evidence is not so obviously weak as to undermine confidence in the jury=s determination nor was the jury=s verdict overwhelmingly outweighed by contrary evidence as to be clearly wrong and unjust. Issue One is overruled.
In Issue Two, Appellant contends that she was entitled to a new trial because of the introduction of inadmissible testimony about a plea bargain and that a prior attorney Aknew@ she was guilty. We agree with the State that this issue has not been preserved because Appellant failed to move for a mistrial. See Brooks v. State, 642 S.W.2d 791, 798 (Tex.Crim.App. 1982). Accordingly, Issue Two is overruled.
The trial court=s judgment is affirmed.
August 21, 2003
DAVID WELLINGTON CHEW, Justice
Before Panel No. 1
Larsen, McClure, and Chew, JJ.
(Do Not Publish)