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Opinion filed August 14, 2008
In The
Eleventh Court of Appeals
__________
No. 11-07-00301-CR
__________
ISRAEL GARCIA, III, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 89th District Court
Wichita County, Texas
Trial Court Cause No. 44,774-C
M E M O R A N D U M O P I N I O N
The jury convicted Israel Garcia, III of the offenses of resisting arrest and assault against a public servant. The jury assessed his punishment at confinement for one year in the county jail and a $2,000 fine for resisting arrest and at confinement for eight years in the Institutional Division - Texas Department of Criminal Justice and a $5,000 fine for assault. We affirm.
Sole Issue on Appeal
In his sole issue on appeal, appellant contends that the evidence is factually insufficient to support his conviction for assault. Appellant challenges neither his resisting arrest conviction nor the legal sufficiency of the evidence supporting his assault conviction. Appellant argues that the evidence is factually insufficient because the three civilian witnesses and one of the police officers did not testify that they saw appellant actually and intentionally kick Wichita Falls Police Officer Douglas E. Tidwell.
Standard of Review
To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.
Evidence Presented
Kristie Mitchell testified that, when she was fifteen years old, appellant approached her at her apartment complex and asked her to get into the pool. He pulled on her arm. Mitchell Akind of knew that he was drunk,@ and she was uncomfortable. She stated that her friends were with her and that she was not too worried Aif something were to happen.@ Mitchell testified that appellant was Ajust being a little annoying.@ Appellant kept pulling on her arm, and one of her friends began to argue with appellant. By the time the police arrived, Mitchell testified that about twenty people were standing around.
Mitchell testified that, when the police tried to arrest appellant, he ran off. Appellant resisted the police. He kicked and tried to get away. Mitchell testified that he might have kicked the female officer that was at the scene. Mitchell remembered appellant being Atasered@ and was Apretty sure@ that it was the male police officer who tasered appellant. The taser slowed appellant down A[a] little.@
Mitchell testified that appellant was kicking before he was tasered and that his kicks were aimed at the police officers. She stated that she did not really want to be testifying, that she thought Ahe was just trying to get away,@ that she really did not hear what was being said during the incident, and that she Amostly just saw@ what was happening. While Mitchell knew the incident was not her fault, she felt like it Aall could have been stopped.@
Eric Crawford testified that appellant looked drunk and that he was Atrying to hit on@ Mitchell. Appellant and Crawford Agot into it@ but were not physically fighting. Appellant was yelling and cursing. The police came and tried to talk to appellant. Appellant ran away, and the police caught and restrained him. Appellant was screaming and kicking. Crawford saw appellant kick the female officer. Crawford stated that the taser did not really work on appellant. Crawford also testified that the police were able to restrain appellant and put him into a police car. Crawford stated that appellant had caused the disturbance, that appellant Adidn=t kick the dudes [the male officers],@ and that he did not see what happened after appellant was taken to the police car. Crawford later stated that he was Anot sure@ if appellant only kicked the female officer.
Joseph Jameson testified that the police officers tried to talk to appellant first and then they tried to arrest him. Appellant was trying to get away. The officers used the taser on appellant. Jameson stated that, while the taser did not stop appellant, it did slow him down. Jameson testified that appellant hit the female officer and that appellant=s main goal was Ato get away.@
Officer Tidwell testified that he responded to a disturbance call at the apartment complex. His two partners were in another vehicle, and all three of them went to the apartment complex. Officer Mike Wheat and Officer Beth Ahring dealt with appellant while he talked to one of the Hirschi High School students who he recognized. Men, women, and children were standing around. Appellant was belligerent. He was cursing loudly and using the AF word.@ Appellant smelled of alcohol, and Officer Tidwell could tell he had been drinking. As the officers tried to calm him down, appellant just became louder and louder.
When Officer Wheat told appellant that he was under arrest for disorderly conduct, appellant said that he was not going to jail and ran. Officer Tidwell Abody tackled@ appellant and got him down on the ground. Officer Tidwell hurt his elbow in the process and lost the use of his arm. As appellant and Officer Tidwell struggled, Officer Tidwell stated that they Aprobably covered a three[-] or four-foot area.@ Officer Tidwell testified that he thought he heard Officer Wheat yell to Officer Ahring to Adrive stun@ appellant. Officer Tidwell and appellant continued to struggle, and appellant grabbed the drive stun gun at some point. When appellant grabbed the gun, Officer Tidwell was stunned by the gun and lost his grip on appellant.
Officer Tidwell testified that appellant kicked Aspecifically@ at him for the Abigger purpose@ of getting away. Appellant kicked him in the knee. Once they had appellant in the police car, he kicked Officer Tidwell again B this time in the chest and the other knee. Appellant was on his back. He drew his legs up and kicked out. Officer Tidwell described these kicks as Agood, hard kicks@ with appellant using Athe full force@ of his legs.
Officer Tidwell testified that, as a direct result of appellant=s kicks, his shoulder, knee, and ankle were injured. His elbow was injured while he was trying to keep appellant from escaping. He went to the hospital, had X-rays, and missed two weeks of work. At the time of trial, his shoulder, ankle, and elbow still bothered him.
Officer Wheat testified that he was on the other side of the police car and could not see appellant and Officer Tidwell at that time. Officer Wheat stated that appellant was Ahighly agitated and had quite a bit of strength.@
Analysis
The jury, as the finder of fact, was the sole judge of the weight and credibility of the witnesses= testimony. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979). Due deference must be given to the factfinder=s determination, particularly concerning the weight and credibility of the evidence. Johnson, 23 S.W.3d at 9; Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996). This court has the authority to disagree with the factfinder=s determination Aonly when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.@ Johnson, 23 S.W.3d at 9. While we review the factfinder=s weighing of the evidence, we cannot substitute our judgment for that of the factfinder. Cain, 958 S.W.2d at 407; Clewis,922 S.W.2d at 133.
After reviewing all of the evidence, we find that the evidence supporting the verdict is not so weak that the verdict is clearly wrong and manifestly unjust and that the verdict is not against the great weight and preponderance of the conflicting evidence. A reasonable jury could have found that an assault occurred when appellant was inside the police car and out of the other witnesses= sight. Officer Wheat and Crawford both testified that they could not see what happened when appellant was in the police car. Neither Mitchell nor Jameson testified concerning when appellant was in the police car. Officer Tidwell=s testimony that appellant kicked him in the chest and knee at this time was uncontroverted. The evidence is factually sufficient, and the sole issue is overruled.
Holding
The judgment of the trial court is affirmed.
TERRY McCALL
JUSTICE
August 14, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.