IN THE
TENTH COURT OF APPEALS
No. 10-98-063-CR
CASEY JOE JONES,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court at Law
Coryell County, Texas
Trial Court # 98-44834
O P I N I O N
A jury convicted Casey Joe Jones of assault causing bodily injury and assessed punishment at a $1,000 fine. See Tex. Pen. Code Ann. § 22.01 (Vernon 1994 & Supp. 1998). He appeals, alleging that the trial court “erred in holding evidence sufficient to sustain the conviction,” when 1) the State’s proof failed to sustain descriptive averments made in the information; 2) there was a material and fatal variance in the allegations made and the evidence admitted at trial; and 3) there was insufficient evidence produced that an assault had occurred. Jones combined his arguments into one point. Measuring the sufficiency of the evidence against the “hypothetically correct jury charge,” we find it sufficient to support the verdict, and we will affirm the judgment.
FACTS
On November 23, 1997, the police received a call about a domestic dispute, and Officer Willie Dove responded. When he arrived, Dove witnessed Jones and Kelly Scoville arguing in the front yard. After talking with each of them, Dove determined that Scoville had been beaten by Jones. He then arrested Jones and sent Scoville to the police department to have her injuries photographed. Prior to trial, Scoville attempted to have the charges dropped, but Dove, as the “complaining party,” refused to do so. Scoville unwillingly appeared at trial as a State’s witness.
SUFFICIENCY OF THE EVIDENCE
In conducting a factual-sufficiency review, we examine all of the evidence impartially, and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). The jury is the judge of the facts and we will defer to the jury, finding the evidence factually insufficient only where necessary to prevent manifest injustice. Cain, 958 S.W.2d at 407.
The sufficiency of the evidence is measured only by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). In Malik, the Court of Criminal Appeals wrote:
No longer shall sufficiency of the evidence be measured by the jury charge actually given. Nevertheless, we recognize that measuring sufficiency by the indictment is an inadequate substitute because some important issues relating to sufficiency--e.g. the law of parties and the law of transferred intent--are not contained in the indictment. Hence, sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.
Id. at 239-40 (citations and footnote omitted). Measuring the sufficiency of the evidence against the hypothetically correct jury charge, proof of the elements of assault with bodily injury by any one of the manner and means alleged will be sufficient. Lehman v. State, 792 S.W.2d 82, 84 (Tex. Crim. App. 1990); Aquirre v. State, 732 S.W.2d 320, 326 (Tex. Crim. App. 1982); Zanghetti v. State, 618 S.W.2d 383, 387 (Tex. Crim. App. 1981); Reyna v. State, 846 S.W.2d 498, 500 (Tex. App.—Corpus Christi 1993, no pet.).
The information alleged in part that:
[Jones] did then and there intentionally, knowingly, and recklessly cause bodily injury to Kelly Scoville by grabbing her head, banging it against the couch, dragging her across the floor by her hair, squeezing her neck and cutting her lip.
Dove and Scoville testified at trial. Dove testified that he arrived on the scene and asked Scoville what had happened. He testified he made a determination to arrest Jones for beating Scoville based on what Scoville told him and on her appearance:
From what she told me, looking at her bruising, also she was standing there, she was pulling her hair out — what she said, he had pulled her hair out and drug her across the floor, and that he had her in a headlock and the only way she could get out of that headlock was to bite him on the arm so he would let her go. . . .
Scoville testified that, although she and Jones did have a physical fight, she started it by slapping him. She testified that he in turn “grabbed” her head and “laid” her down on the couch. Scoville testified that she next attempted to make a phone call, but that Jones grabbed her from behind, put her on the ground, and sat on top of her. When asked whether Jones grabbed her hair, she stated that her hair got caught in his bracelet and pulled when he put her on the floor.
Four photographs were taken the day of the incident to show bruising on Scoville’s body. When asked to look at the pictures, Scoville testified that some of the wounds were self-inflicted, but that Jones may have caused some of them because she bruised easily because she was low on iron. The State prosecutor asked Scoville about the statement that she gave to Dove on the day of the incident. He stated, “you indicated that he grabbed your head and squeezed and bounced it into the arm of the couch. Now, is that correct or not?” Scoville admitted that Jones had “squeezed a little bit,” but not enough to “hurt” her. Scoville testified that this was not her first physical altercation with Jones and that the police had been to their house on a number of prior occasions.
Having reviewed all of the evidence and having measured its sufficiency against the hypothetically correct jury charge, we find that Jones’ conviction for assaulting Scoville, namely by grabbing her head and squeezing her neck, is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 129; Malik, 953 S.W.2d at 240. Points one, two, and three are overruled.
BILL VANCE
Justice
Before Chief Justice Davis,
Justice Cummings, and
Justice Vance
Affirmed
Opinion delivered and filed August 19, 1998
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