IN THE
TENTH COURT OF APPEALS
No. 10-05-00423-CR
Kevin Ray Sykes,
Appellant
v.
The State of Texas,
Appellee
From the 13th District Court
Navarro County, Texas
Trial Court No. 29,885
MEMORANDUM Opinion
Appellant Kevin Ray Sykes appeals his conviction of Aggravated Assault. We will affirm the judgment.
Background
Sykes visited the Longbranch Saloon in Corsicana, Texas on the evening of October 16, 2004. Late in the evening, an altercation occurred between Sykes and another patron, Jerry Thompson. At trial, the State presented three witnesses who testified that, without provocation, Sykes hit Thompson in the mouth with the end of a pool stick. Sykes offered testimony from two witnesses who said that Thompson first hit Sykes in the ear with a beer bottle or beer mug and that Sykes was acting in self defense.
Sykes was convicted of Aggravated Assault and sentenced to twenty-five years in prison. On appeal, he challenges the factual sufficiency of the evidence.
Factual Sufficiency of the Evidence
In a factual-sufficiency review, we view all of the evidence in a neutral light and consider only whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). However, there are two ways in which the evidence may be insufficient. Id. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. Id. at 485. This standard acknowledges that evidence of guilt can preponderate in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Id. Stated another way, evidence supporting guilt can outweigh the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard. Id.
Zuniga also reminds us that we must defer to the jury’s determination. See id. at 481. (citing Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997)). The jury determines 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). It is the jury that accepts or rejects reasonably equal competing theories of a case. Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001). The evidence is not factually insufficient merely because the factfinder resolved conflicting views of evidence in favor of the State. Cain, 958 S.W.2d at 410.
Sykes was indicted for “intentionally, knowingly, or recklessly caus[ing] serious bodily injury to Jerry E. Thompson by hitting him with a pool stick.” See Tex. Pen. Code Ann. § 22.02(a)(1) (Vernon Supp. 2006). Thompson testified that he did not know Sykes and did not hit him or provoke him in any way. Sykes testified that he made a “smart comment” to Thompson, who immediately hit him with a beer mug or beer bottle. Sykes said he had a pool stick in his hand and used it to defend himself. He also testified that the mug or bottle “took off half of his ear.” However, he admitted that he did not seek treatment for any injuries.
Scott Otto of the Corsicana Police Department testified that he spoke to two witnesses at the bar and found no evidence that Sykes was provoked. Further, he testified that he asked if any of the others present at the bar wanted to make a statement. No one offered any additional information or suggested that Sykes acted in self-defense.
Bruce Greer, the bartender on duty at the time of the incident, testified that he saw Sykes walk around the bar, pick up the pool stick, and hit Thompson with it in the mouth. Before trial, Greer had written a letter stating that he was under the influence of drugs the evening of October 16, 2004 and is “not really aware of what happened.” At trial, he explained that he was in jail and had been threatened by other inmates not to testify. He hoped the letter would prevent his testifying.
Tereso Sanchez testified that he arrived at the bar around the time Thompson arrived and was talking to him at the time of the altercation. Shelley Walker testified that she was talking to Greer at the time of the incident and saw Sykes walk over to Thompson, pick up a pool stick, and hit Thompson. Both Sanchez and Walker testified that Sykes hit Thompson without provocation.
Tracy Richards, Sykes’ friend, testified that she saw Thompson hit him with a beer mug or beer bottle. She testified that the container did not break but that Sykes was severely injured. William and Kimberly Barlow, Thompson’s former employees, testified that he admitted to them that he hit Sykes first. Tracy Richards’ father, Jim Richards, testified that he saw Thompson hit Sykes and saw “glass fly.”
Throughout trial, the witnesses disagreed on whether Thompson hit Sykes first, which witnesses could have possibly seen the altercation, whether the lights and music in the bar were on or off, whether Thompson hit Sykes first, and, if so, whether the mug or bottle broke.
Considering all of the evidence in a neutral light, we find that the jury was justified in finding Sykes guilty. Zuniga, 144 S.W.3d at 484. We must defer to the jury’s determination of the credibility of the witnesses. Johnson, 23 S.W.3d at 7. We cannot say that the evidence is not factually sufficient because the jury resolved the conflicting views of the evidence in favor of the State. Cain, 958 S.W.2d at 410. Further, the evidence supporting the finding of guilt was not too weak to support the finding beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484-85. Accordingly, we find that the evidence was factually sufficient, and we overrule Sykes’ sole issue.
Conclusion
Having overruled Sykes’ sole issue, we affirm the trial court’s judgment.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed September 20, 2006
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