NUMBER 13-02-648-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOHN DUNCAN SUPER, Appellant,
v.
THE STATE OF TEXAS,
Appellee.
On appeal from the County Court at Law No. 8
of Harris County, Texas.
MEMORANDUM OPINION
Before Justices Yañez, Rodriguez, and Garza
Memorandum Opinion by Justice Garza
Following a bench trial, appellant, John Duncan Super, was convicted of misdemeanor assault against his wife, sentenced to thirty days’ confinement probated for six months, and assessed a fine of $200. Appellant now raises three issues on appeal. We affirm.
1. Motion to Quash
In his first issue, appellant claims that the trial court committed reversible error by denying his motion to quash the information. The information alleged that appellant “intentionally, knowingly, or recklessly” caused bodily injury to his wife by “placing” his hands on his wife’s neck and by placing his hand on her wrist. Appellant contends that this language failed to give him adequate notice of how the offense was allegedly committed because the word “cause” is indeterminate and variable, even though it is defined by section 22.01(a)(1) of the penal code. Tex. Pen. Code Ann. § 22.01(a)(1) (Vernon 2004). Appellant made no objection to the word “cause” at trial. He has therefore preserved nothing for this Court to review. See Tex. R. App. P. 33.1; Coffey v. State, 796 S.W.2d 175, 179 (Tex. Crim App. 1990). Appellant’s first issue is overruled.
2. Legal and Factual Sufficiency
In his second and third issues, appellant contends that the evidence is legally and factually insufficient to support his conviction. Sufficiency of the evidence is measured against the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would accurately set out the law, would be authorized by the indictment, and would not unnecessarily increase the State’s burden of proof. Id.
Appellant maintains that the evidence adduced at trial by the State is insufficient because it does not prove that his wife suffered bodily injury, which is an element of assault.
A. Legal Sufficiency
When reviewing the legal sufficiency of evidence, we view 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 (1979); Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999). We are not fact finders; our position is that of a due process safeguard to ensure only the rationality of the trier of fact’s finding of the essential elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).
We turn to the record. In the light most favorable to the State, it establishes that appellant’s wife suffered bodily injury. One witness saw appellant strangling his wife. Several witnesses testified that, at the time of the assault, appellant’s wife screamed: “help”; “help me”; “help me please”; “stop”; “stop, you’re hurting me”; “let me go”; “ow”; and “ouch.” Two police officers who arrived on the scene after the incident testified that, at the time, appellant’s wife appeared to have been crying. She had red marks on her neck and wrist consistent with harmful physical contact such as by strangulation. Her clothes were torn.
In cases involving circumstantial evidence, such as this, “it is not necessary that every fact point directly and independently to the defendant’s guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances.” See Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). From the foregoing evidence, a rational trier of fact could have found beyond a reasonable doubt that appellant’s wife suffered bodily injury. The evidence is therefore legally sufficient. Appellant’s second issue is overruled.
B. Factual Sufficiency
In a factual sufficiency review, the evidence is viewed in a neutral light, favoring neither party. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). In this neutral light, we determine whether “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. Crim. App. 2000). A clearly wrong and unjust verdict occurs where the jury’s finding “shocks the conscience” or “clearly demonstrates bias.” Santellan v. State, 939 S.W.2d 155, 164-65 (Tex. Crim. App. 1997). We are authorized to disagree with the fact finder’s verdict even if probative evidence exists that supports the verdict. Id. at 164; see also Johnson, 23 S.W.3d at 7.
Viewed in a neutral light, the proof of guilt in this case is not so obviously weak as to undermine confidence in the fact-finder’s determination. Furthermore, the proof contrary to the State’s evidence, which consisted mainly of testimony from appellant and his wife asserting that there was no assault or bodily injury, does not greatly outweigh the proof of guilt. The trier of fact is the sole judge of the witnesses’ credibility and the weight to be given their testimony, and it is free to accept or reject all or any part of the testimony of any witness. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Appellant’s third issue is overruled.
3. Conclusion
After consideration of appellant’s three issues and the argument and authorities presented in support of each, we affirm his conviction for assault.
_______________________
DORI CONTRERAS GARZA,
Justice
Do not publish.
Tex.R.App.P. 47.2(b)
Memorandum Opinion delivered
and filed this the 5th day of August, 2004.