Ray R. Ward and Lillah Ward v. Russ Lovejoy

Ray R. Ward and Lillah Ward v. Russ Lovejoy

IN THE

TENTH COURT OF APPEALS

No. 10-00-378-CV

     RAY R. WARD AND LILLAH WARD,

                                                                              Appellants

     v.

     RUSS LOVEJOY,

                                                                              Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 95-29605

                                                                                                                

MEMORANDUM OPINION

                                                                                                                

      On December 27, 2000, the appellant filed a motion to dismiss this appeal. In relevant portion, Rule 42.1 of the Texas Rules of Appellate Procedure provides:

(a) The appellate court may dispose of an appeal as follows:

(1) in accordance with an agreement signed by all parties or their attorneys and filed with the clerk; or

(2) in accordance with a motion of appellant to dismiss the appeal or affirm the appealed judgment or order; but no party may be prevented from seeking any relief to which it would otherwise be entitled.

Tex. R. App. P. 42.1(a).

      The motion states that the parties have settled their dispute. It contains a certificate of conference indicating that appellees do not oppose the motion.

      Therefore, under the authority of Rule 42.1, the cause is dismissed. Costs are taxed against the party incurring them.

                                                                   PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Dismissed

Opinion delivered and filed January 24, 2001

Do not publish

16, at *18 (Tex. App.—Amarillo Apr. 20, 2006, no pet.) (not designated for publication) (mem. op.); accord Hunt v. State, No. 01-04-00526-CR, 2005 Tex. App. LEXIS 1674, at *10 (Tex. App.—Houston [1st Dist.] Mar. 3, 2005, no pet.) (not designated for publication) (mem. op.); Jackson v. State, No. 05-03-01820-CR, 2004 Tex. App. LEXIS 10670, at *6 (Tex. App.—Dallas Nov. 30, 2004, no pet.) (not designated for publication); Coleman v. State, No. 14-98-01459-CR, 2001 Tex. App. LEXIS 2877, at *4 (Tex. App.—Houston [14th Dist.] May 3, 2001, no pet.) (not designated for publication); Yurtman v. State, No. 04-94-00206-CR, 1996 Tex. App. LEXIS 776, at *6 (Tex. App.—San Antonio Feb. 28, 1996, pet. ref’d) (not designated for publication)Ho.  Evidence may be factually sufficient in spite of a witness’s recantation of prior complaining statements.  E.g., Klein v. State, 191 S.W.3d 766, 776-78 (Tex. App.—Fort Worth 2006, pet. granted on other grounds); Bufkin v. State, 179 S.W.3d 166, 170 (Tex. App.—Houston [14th Dist.] 2005), aff’d, 207 S.W.3d 779 (Tex. Crim. App. 2006).   

        The State points primarily to the testimony of the investigating police officer, Sgt. Ralph Nix, who testified as follows.  V. A. flagged Nix down while he was responding to a 9-1-1 call to V. A.’s apartment complex.  V. A. was “excited.”  (State Br. at 3 (quoting 2 R.R. at 7).)  V. A. told Nix that Jackson had thrown beer on her, thrown a beer can in her face, struck her in the face with his hand, pushed her down onto the ground, and choked her with his hands around her neck.  V. A. showed Nix injuries to her arm and lip, which V. A. said Jackson had caused.  V. A.’s clothing was wet and smelled of beer.  Through Nix, the State also introduced photographs of injuries to V. A.’s forearm and lip.  The State also introduced V. A.’s written statement to Nix, which corroborated Nix’s testimony.

        Jackson argues that V. A.’s statement to Nix was hearsay evidence.  However, “hearsay admitted without objection shall not be denied probative value merely because it is hearsay.”  Tex. R. Evid. 802.  “Thus, once the trier of fact has weighed the probative value of unobjected-to hearsay evidence in its factfinding process, an appellate court cannot deny that evidence probative value or ignore it in its review of the sufficiency of the evidence.”  Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005); accord Fernandez v. State, 805 S.W.2d 451, 453-56 (Tex. Crim. App. 1991); Chambers v. State, 711 S.W.2d 240, 245-47 (Tex. Crim. App. 1986) (per curiam).  Jackson also points primarily to the following evidence.  At trial, when called by the State, V. A. recanted her statement to Nix.  V. A. generally testified that she had not made the statements to Nix that Nix testified she had, but that, if she had made those statements to Nix, she had done so only because she was angry at Jackson.  V. A. testified that Jackson pushed her down only while trying to push her away from him, and hit her only in self-defense.  V. A. testified that the injuries to her arms were caused by Jackson’s holding her arms to prevent her from hitting him, and that she did not know how she received the injury to her lip, since she denied that Jackson hit her in the face.  Jackson also called two other witnesses, who testified that Jackson held V. A.’s arms or wrists when she attempted to strike Jackson, and one of whom testified that Jackson did not hit V. A.  Jackson also points to the absence of visible injuries to V. A’s throat, and the absence of testimony of other eyewitnesses.

        As Jackson concedes, the evidence “could support either version of events.  [V.] A[.] had a mark on her mouth, and a scrape on her arm.  Appellant suggests those injuries could have been inflicted by appellant assaulting [V.] A[.], or attempting to protect himself from her assault.”  (Br. at 8.)

        According appropriate deference to the trial court’s credibility determinations, and considering all of the evidence in a neutral light, we hold that the trial court was rationally justified in finding Jackson guilty beyond a reasonable doubt.  The evidence was factually sufficient.  We overrule Jackson’s issue.

        Having overruled Jackson’s sole issue, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

        Justice Vance, and

        Justice Reyna

        (Justice Vance concurs in the judgment)

Affirmed

Opinion delivered and filed July 25, 2007

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