IN THE
TENTH COURT OF APPEALS
No. 10-06-00412-CR
Christopher Ralph Campos,
Appellant
v.
The State of Texas,
Appellee
From the County Court at Law No. 2
McLennan County, Texas
Trial Court No. 20060658CR2
MEMORANDUM Opinion
Christopher Ralph Campos was convicted of assaulting his girlfriend’s nine-year-old son. He was sentenced to 120 days in jail. Because the evidence was both legally and factually sufficient, and because the trial court did not err in denying Campos’ motion for new trial, the trial court’s judgment is affirmed.
Background
Campos and Toni King were living together in King’s condominium with King’s son, Tyler Gibson. On September 11, 2005, Devin Craddock, who lived across the street from King, heard loud screaming and went outside to see what was happening. She saw Campos and King outside, arguing. Campos was using profanity and King was screaming. During the argument, Craddock saw Gibson come out and yell at King and Campos to stop. She then saw Campos turn around and hit Gibson in the jaw with his fist. The boy fell to the ground, got up crying, and tried to stop the argument again. Craddock saw Campos hit Gibson again, knocking him to the ground. Craddock saw that the side of Gibson’s face was red. At the trial, Campos and King denied that Campos struck Gibson.
Sufficiency of the Evidence
In his first two issues, Campos argues that the evidence was both legally and factually insufficient to establish that he caused bodily injury to the victim because there was no testimony from the victim or others that the victim experienced pain. Campos argues that because he denied hitting Gibson, King denied that Campos hit Gibson, and Gibson did not testify, thus there was no direct evidence of the effects of the assault, the evidence is both legally and factually insufficient to establish that Gibson suffered bodily injury. Bodily injury was defined for the jury as “physical pain, illness, or any impairment of physical condition.”
In reviewing the legal sufficiency of the evidence, this Court looks at all of the evidence in the light most favorable to the verdict to 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, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). Courts reviewing all the evidence in a light favorable to the verdict must assume jurors made all inferences in favor of their verdict if reasonable minds could, and disregard all other inferences in their legal sufficiency review. Evans v. State, 202 S.W.3d 158, 165 n.27 (Tex. Crim. App. 2006). When faced with conflicting evidence, the reviewing court presumes the trier of fact resolved any such conflict in favor of the prosecution. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).
In a factual sufficiency review, the evidence is reviewed in a neutral light. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); accord Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). Only one question is to be answered in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). "Evidence is factually insufficient when . . . the evidence is 'so weak' that the verdict 'seems clearly wrong or manifestly unjust,' or the verdict is 'against the great weight and preponderance of the evidence.'" Castillo v. State, 221 S.W.3d 689, 693 (Tex. Crim. App. 2007) (quoting Watson at 414-15, 417). "[A]n appellate court must first 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 before it is justified in exercising its appellate fact jurisdiction to order a new trial." Watson at 417.
Campos and King testified that Campos was irritated at Gibson because he was sticking his tongue out at Campos and being disrespectful. King then joined in with Gibson. Campos stated that he told Gibson he was going to snatch his tongue out of his mouth and reached for Gibson, pretending he was going to grab his tongue. Both Campos and King denied that Campos ever struck Gibson. Gibson did not testify.
The State’s witness to the assault was Devin Craddock, a neighbor across the street from Campos and King. She did not know Campos, King, or Gibson. But she testified that after being drawn outside by screaming and the use of profanity, she witnessed Campos strike Gibson with a closed fist on the side of the face on two occasions while Campos was arguing with King. The blows knocked the boy to the ground. Craddock further testified that when Gibson got up from the ground, he was crying and screaming, and the left side of his face was red. It appeared to Craddock that Gibson was in pain. A friend of Craddock, who was also outside when the incident occurred, called the police. One of the officers who arrived on the scene noticed a scratch on Gibson’s chin, which King explained to the jury was just acne.
Campos contends that Craddock’s testimony was not enough to support an inference of pain. But the definition of bodily injury appears to be purposefully broad and seems to encompass even relatively minor physical contacts so long as they constitute more than mere offensive touching. Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989). Accordingly, viewing the evidence under the appropriate standards, the evidence is both legally and factually sufficient to prove Gibson sustained bodily injury. Campos’ first and second issues are overruled.
Motion for New Trial
In his third issue, Campos contends the trial court erred in denying his motion for new trial because he presented new evidence which was favorable to him and which probably would have resulted in a different verdict. Campos timely filed a motion for new trial and attached the affidavits of Jennifer Thomasson, a neighbor, William Tyler Gibson, the victim, and Lisa Boatman, a school nurse. On appeal, Campos claims Thomasson’s testimony was new evidence.
Article 40.001 of the Texas Code of Criminal Procedure provides that "[a] new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial." Tex. Code Crim. Proc. Ann. art. 40.001 (Vernon 2006). Under that statute, a defendant is entitled to have his motion for new trial granted if (1) the newly discovered evidence was unknown to him at the time of trial; (2) his failure to discover the new evidence was not due to his lack of due diligence; (3) the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result in a new trial. Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003). The trial court has discretion to decide whether to grant a new trial based on newly discovered evidence, and its ruling will not be reversed absent an abuse of discretion. Keeter v. State, 74 S.W.3d 31, 37 (Tex. Crim. App. 2002). A trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006).
Campos presented no evidence in his motion or at the new trial hearing that Thomasson’s testimony was unknown to him at the time of the trial or that his failure to discover the new evidence was not due to his lack of due diligence. Campos alleged in his motion for new trial that Thomasson, a next door neighbor and friend of Toni King, had moved by the time of the trial and had not left a forwarding address. He also alleged that she was only recently located based on new evidence uncovered by his investigator. However, no evidence was presented to back up these allegations. There were no affidavits from Campos’ trial counsel or his investigator. And Thomasson’s affidavit does not explain her whereabouts at the time of the trial or how she was located. Further, while her statements in the affidavit may not have been cumulative, they would not probably bring about a different result in a new trial. Thomasson stated that she walked outside after King, Gibson, and Campos were already outside talking. She also stated that no one was afraid or upset, indicating that she had not been outside when Campos was screaming which was the time that the witness saw him strike Gibson.
After reviewing the four prong test, the trial court did not abuse its discretion in denying Campos’ motion for new trial based on Thomasson’s affidavit. His third issue is overruled.
By his fourth issue, Campos contends that the ends of justice required the trial court to grant a new trial, where he was able to produce evidence that established he was not guilty of the offense of which he had been convicted. Campos relies on the affidavits of Thomasson, Gibson, and Boatman.
A trial judge has the authority to grant a new trial "in the interest of justice." State v. Herndon, 215 S.W.3d 901, 906 (Tex. Crim. App. 2007). A trial judge does not have authority to grant a new trial unless the first proceeding was not in accordance with the law. Herndon, 215 S.W.3d at 907. He cannot grant a new trial on mere sympathy, an inarticulate hunch, or simply because he personally believes that the defendant is innocent or "received a raw deal." Id.
Campos contends that the affidavits support his testimony and King’s testimony that no assault occurred. As we stated previously, Thomasson’s affidavit indicates that she had not been outside when Campos was screaming which was the time that the witness saw him strike Gibson. Boatman, the school nurse, stated in her affidavit that Gibson’s mother asked her to check his chin and that she only saw acne and saw no evidence of Gibson being struck. Boatman states no time frame as to when she examined Gibson’s chin. And although one of the police officers stated that he saw a scratch on Gibson’s chin, Craddock stated that the side of Gibson’s face was red after Campos struck him. Boatman’s affidavit does not, and cannot, address what the witness saw. Gibson stated in his affidavit that Campos did not strike him. Neither the State nor the defense called Gibson as a witness.
It does not appear by these affidavits that Campos’ trial was not in accordance with the law. Therefore, the trial court did not abuse it’s discretion in denying Campos’ motion for new trial. Campos’ fourth issue is overruled.
Conclusion
Having overruled each issue presented for review, the trial court’s judgment is affirmed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed January 2, 2008
Do not publish
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