Rosalinda De La O v. State

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ROSALINDA DE LA O, Appellant, v. THE STATE OF TEXAS, Appellee.	§ § § § § §	No. 08-06-00133-CR Appeal from County Court at Law No. 1 of El Paso County, Texas (TC # 20040C16559)

O P I N I O N

Rosalinda De La O, appeals her conviction of assault causing bodily injury. The jury assessed punishment at two years unsupervised probation and a fine of $1,000 probated to $900. We affirm.

FACTUAL SUMMARY

On August 10, 2004, a fight occurred between Rosalinda De La O and Fernanda Cruz after a resident council meeting at the Sun Plaza public housing facility for the elderly. Appellant passed by Cruz and told her, "I really wanted to do it, bitch." She then threw a soda can and its contents at Cruz. Because of the soda in her face, Cruz was unable to see whether the can hit her or if Appellant had hit her. Cruz's leg was cut and she had trouble breathing because she was hit in the chest.

Maria Barba was sitting near Cruz when she saw Appellant turn and call her "desgraciada." Appellant had a can of soda and tossed the contents of the can. Barba and others sitting near Cruz got wet from the soda. Barba also saw Appellant throw the can at Cruz which drew blood on her leg where the can hit her.

Although Cruz disliked Appellant, she did not provoke her or strike at her prior to the assault. Appellant claimed Cruz instigated the incident when she tried to kick her on the leg, but she admitted throwing the soda and she saw the can hit Cruz. Officer Jaime Sanchez interviewed Cruz and learned she and Appellant had had prior arguments and that Appellant had kicked her. He also noticed Cruz had a small cut on her leg that was bleeding.

FACTUAL SUFFICIENCY

In her sole issue for review, Appellant contends the evidence is factually insufficient to support the jury's verdict since there was no evidence that the assault occurred in the manner alleged in the information. ⁽¹⁾ She claims only one witness saw the can strike Cruz on the leg and no one saw her kick Cruz.

Standard of Review

In reviewing the factual sufficiency of the evidence, we must view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In performing our review, we are to give due deference to the fact finder's determinations. See id. at 8-9; Clewis, 922 S.W.2d at 136. The fact finder is the judge of the credibility of the witnesses and may "believe all, some, or none of the testimony." Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). Evidence is factually insufficient if it is so weak that it would be clearly wrong and manifestly unjust to allow the verdict to stand, or the finding of guilt is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. Therefore, the question we must consider in conducting a factual sufficiency review is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See id.

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.

General Verdict

Where alternate theories of committing the same offense are submitted to the jury in the disjunctive, it is appropriate for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted. Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991). Here, the jury was charged on disjunctive theories of the assault:

Now, if you unanimously find from the evidence beyond a reasonable doubt that on or about the 10th day of August, 2004, in El Paso County, State of Texas, the Defendant, Rosalinda De La O, did then and there intentionally, knowingly or recklessly cause bodily injury to Fernanda Cruz by kicking Fernanda Cruz about the leg with the foot of the Defendant or by throwing an object at Fernanda Cruz causing it to strike Fernanda Cruz on the body, then you will find the Defendant guilty.

We will affirm the jury's verdict if the evidence is sufficient to support any one of the theories charged. See Sorto v. State, 173 S.W.3d 469, 472 (Tex.Crim.App. 2005)(because the trial court's charge authorized the jury to convict on alternative theories, the verdict of guilt will be upheld if the evidence was sufficient on any one of the theories).

Assault Causing Bodily Injury

A person commits the offense of assault if the person intentionally, knowingly, or recklessly causes bodily injury to another. See Tex.Penal Code Ann. § 22.01 (a)(Vernon Supp. 2007). "Bodily injury" means physical pain, illness, or any impairment of physical condition. Tex.Penal Code Ann. § 1.07 (8)(Vernon Supp. 2007). Appellant contends the evidence was insufficient to support the jury's verdict because some of the witnesses did not see the soda can hit Cruz. She also argues that the security videotape proved only that she threw soda from the can. Bernie Rodriguez, the housing manager, only saw Appellant throw a soda can towards Cruz. Luciana Betancourt witnessed the altercation but did not see the beginning of the fight. Maria Vega was sitting next to Cruz when Appellant threw the can and heard it hit Cruz. Cruz didn't see whether Appellant had thrown the can at her because she had soda in her face.

While these witnesses did not see the can hit Cruz, others did. Maria Barba saw Appellant throw the can and saw blood on Cruz's leg where the can had hit her. Maria Vega heard the can hit Cruz: "[S]he hit her first with the can of soda, and it was open, and that's the reason why the content of the soda hit us all, us that were sitting close to her." Significantly, Appellant herself testified that she threw the can at Cruz and saw the can hit her. Viewed in a neutral light, this evidence was sufficient to support the jury's finding that Cruz was struck by the can on her leg. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991)(the fact finder is the judge of the credibility of the witnesses and may "believe all, some, or none of the testimony"). We overrule the sole point and affirm the judgment of the trial court.

November 8, 2007

ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Carr, JJ.

(Do Not Publish)

1. The information stated:

THAT ON OR ABOUT THE 10th DAY OF AUGUST, 2004 AND BEFORE THE FILING OF THIS INFORMATION IN SAID COUNTY OF EL PASO, STATE OF TEXAS, ROSALINDA DE LA O, HEREINAFTER REFERRED TO AS DEFENDANT,

PARAGRAPH A

DID THEN AND THERE INTENTIONALLY, KNOWINGLY, AND RECKLESSLY CAUSE BODILY INJURY TO FERNANDA CRUZ BY KICKING FERNANDA CRUZ ABOUT THE LEG WITH THE DEFENDANT'S FOOT.

PARAGRAPH B

DID THEN AND THERE INTENTIONALLY, KNOWINGLY, AND RECKLESSLY CAUSE BODILY INJURY TO FERNANDA CRUZ BY THROWING AN OBJECT AT FERNANDA CRUZ CAUSING IT TO STRIKE FERNANDA CRUZ ON THE BODY.