11th Court of Appeals
Eastland, Texas
Opinion
Tyrone Washington
Appellant
Vs. No. 11-02-00102-CR B Appeal from Dallas County
State of Texas
Appellee
A jury convicted appellant of the offense of assault, a Class A misdemeanor. The trial court set appellant=s punishment at confinement in jail for 365 days and a fine of $500. The trial court suspended the imposition of the jail time and placed appellant on community supervision for 2 years. We affirm.
In his first issue on appeal, appellant claims that the evidence is factually insufficient to support his conviction. We disagree.
While Roy Wayne Traylor, Sr. was getting a tire replaced at a tire shop, appellant came in to get a flat repaired. Enrique Venegas, who worked at the tire shop, testified that, when appellant arrived, Traylor said something to appellant. Appellant then hit Traylor with a jack stand which appellant had gotten from his pickup. Traylor fell, and appellant continued to attack him. Venegas testified that appellant ordered his dogs to attack Traylor. Traylor was bleeding from the face and had dog bites on him. Traylor=s son gave a pipe to Traylor, and Traylor used the pipe to run the dogs away. Shortly thereafter, the police arrived.
Traylor=s 11-year-old son also testified. His testimony was much the same as that of Venegas. He added that, when appellant arrived at the tire shop, appellant began to call the name of a dog that his father had raised, saying, AOtis Boy. Otis Boy.@ Traylor was in the business of raising and training horses and dogs. Otis had been killed, and Traylor thought that appellant was responsible for the death. Words were exchanged; appellant hit Traylor with the jack stand; and Traylor fell to the ground. Appellant first commanded his dog to watch Traylor and then told the dog to get Traylor. The dog started biting Traylor. Traylor=s son got a pipe and gave it to his father who used it to run off the dog. Traylor got the jack stand, but appellant picked up a brick and hit Traylor in the chin. According to Traylor=s son, both Traylor and he attempted to call 9-1-1.
Traylor testified that, when appellant arrived at the tire shop, appellant began to taunt him about his dead dog. Appellant was saying, AOtis Boy, Otis Boy, Otis Boy.@ Otis was a male pit bull that Traylor had raised from a pup and had had for about 11 years. The dog was valuable as a breeding dog. Appellant began to tell Traylor that he had videotaped how Otis was killed. Traylor told appellant that he would catch appellant in his yard sometime. Appellant replied that what was going to happen was that Traylor was going to jail. Traylor turned to walk away; and appellant said, AThat ain=t all that=s going to happen. Something is going to happen to you. Something is going to happen to you.@ At this point, appellant got a two-ton jack stand from the back of his pickup, hit Traylor in the face, and knocked him down. Appellant hit Traylor once again. As appellant tried to hit him a third time, Traylor grabbed the jack stand, and both men were holding it. Appellant attempted to kick Traylor between the legs and to hit him in other places. While appellant was attempting to hit Traylor, Traylor bit appellant=s thumb. Appellant told his dog to attack. While the dog was attacking Traylor, appellant continued to kick him. Traylor got up and attempted to call the police. Traylor was able to get the police but not before appellant hit Traylor in the face with a brick. While they were waiting on the police, appellant picked up a car rim, and Ahe had it in his left hand. And he took his shirt off, and he was walking and tough-talking me.@ Traylor flagged down an officer who waited at the scene until the officers who actually had been dispatched arrived. Traylor had cuts to his face and collarbone area, and he had dog bites to his hands, elbow, and leg. Traylor was later treated for his injuries at a hospital.
Officer Anthony Leonard investigated the incident. He testified that, based upon his interviews with Traylor, appellant, and several witnesses who did not want to get involved, he determined that appellant was the aggressor. He further testified that Traylor had one or two dogs in his pickup and that there was one dog in appellant=s pickup and one had run away.
Appellant testified that he knew that Traylor had been convicted for two murders in the past. He stated that he was also aware that Traylor had assault convictions. Appellant and Traylor were neighbors, and Traylor had caused a considerable amount of trouble for appellant. Traylor would threaten appellant, shoot into his property, and do various other things that would cause appellant to be afraid of Traylor, including mutilating pigs. According to appellant, on the day of the assault, it was Traylor who was the aggressor. Traylor first spit on appellant=s shoes, then on his shirt, and then hit him in the right shoulder. Traylor kept trying to hit him, as if sparring with him, but missed. Appellant was trying to protect himself. He said that he did not order his dog to attack Traylor; but, rather, the dog instinctively came to his defense. Appellant further testified that Traylor told his son to go to their pickup and get a dog. Traylor=s son got the dog, a pit bull; but it would not do anything. Traylor told his son to put the dog back in the pickup. Appellant further testified that he did not remove his shirt and threaten Traylor with the tire rim. Instead, Traylor removed appellant=s shirt by pulling on it. Further, appellant denied having killed Traylor=s dog. Appellant also testified that he had a videotape which showed Traylor=s aggression and also showed Traylor turning pigs loose in his backyard so that his dogs could mutilate them. Appellant stated that he was the one who called the police while he defended himself with a shovel as Traylor continued to hit him on the head several times.
Appellant called other witnesses who testified to either Traylor=s previous acts of aggression and bad reputation or to appellant=s good reputation.
In reviewing appellant=s factual insufficiency point, we are required to determine:
[W]hether 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 jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.
Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000).
In this case, the jury was the trier of fact and, thus, was the judge of the credibility of the witnesses and the weight to be given to their testimony. TEX. CODE CRIM. PRO. ANN. arts. 38.04 & 36.13 (Vernon 1979 & 1981) . The jury may believe some witnesses and refuse to believe others. Further, it may accept portions of the testimony of a witness and reject other portions. Esquivel v. State, 506 S.W.2d 613, 615 (Tex.Cr.App.1974). An appellate court cannot substitute its judgment for that of the fact finder. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Cr.App.1996).
After conducting a review in accordance with the above standards, we hold that the evidence in this case is factually sufficient to support the verdict of the jury. Appellant=s first issue on appeal is overruled.
In his second issue on appeal, appellant contends that the trial court erred when it refused to allow him to introduce certain videotapes. Appellant had three video cameras installed at various places on his property. One of these cameras pointed toward Traylor=s property. Appellant maintains that the videotapes reflected an earlier incident on the date that Otis was killed. Appellant argued that the videotape shows, among other things, the sound of gunshots, the yelp of a dog, and Traylor=s reaction to appellant=s dog being shot. Appellant also asserts that the videotape shows shouts of profanities, sounds of sirens, appearance of police officers at the scene, Traylor=s aggressive nature, appellant=s state of mind, and why appellant was afraid of Traylor.
We have reviewed the videotapes. Some portions of the videotapes are unintelligible, both the audio and video portions. Nevertheless, even if we assume that appellant is correct in his assertion that the trial court should have admitted the videotapes under TEX.R.EVID. 404(a)(2) as evidence of a pertinent character trait exhibited by Traylor, any error did not affect appellant=s substantial rights. TEX.R.APP.P. 44.2(b) provides that an appellate court is to disregard an error that does not affect substantial rights. A substantial right is affected if there is an error which had a substantial and an injurious effect or influence upon the jury=s verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Cr.App.1997). Where the alleged error is not a constitutional one, we will examine the record to determine whether there is a fair assurance that the jury was not influenced, or only slightly influenced, by the error. Morales v. State, 32 S.W.3d 862, 867 (Tex.Cr.App.2000). As required by Morales, we have reviewed the record as a whole. Here, everything allegedly on the videotapes had been testified to, either by appellant, Traylor, or one of appellant=s witnesses. All of the information was before the jury. Even if there was error committed by the trial court when it did not admit the videotapes, any error did not affect appellant=s substantial rights. Appellant=s second issue on appeal is overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
JUSTICE
October 31, 2002
Do not publish. See TEX.R.APP.P. 47.3(b).
Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.