Affirmed and Memorandum Opinion filed May 11, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00072-CR
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RUSSELL ALFRED DAGOSTINO, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the County Court at Law Number Two
Fort Bend County, Texas
Trial Court Cause No. 97610
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M E M O R A N D U M O P I N I O N
Appellant Russell Alfred Dagostino asserts the evidence is legally and factually insufficient to support his conviction for misdemeanor assault. We affirm.
I. Factual and Procedural Background
Appellant pleaded not guilty to the misdemeanor assault of his common-law wife, Julie Tilton. A jury found appellant guilty, and the trial court assessed punishment at 365 days in the county jail, probated for twenty-four months, and a $200 fine.
In appellant=s sole issue on appeal, he asserts that the evidence is legally and factually insufficient to support his conviction for misdemeanor assault because the evidence shows that his actions were accidental rather than intentional, knowing, or reckless.
II. Analysis
At trial, Pamela Johnson, a Fort Bend County 9-1-1 operator, testified that, on February 1, 2002, she received a 9-1-1 call from Julie Tilton, the complainant. Johnson testified that the complainant said she was assaulted, choked, and slapped. Johnson also testified that the complainant told her that appellant was leaving and that a friend was coming to pick him up.
Deputy James Hutson of the Fort Bend County Sheriff=s Department testified that he was on patrol duty on February 1, 2002, when he received a call from a 9-1-1 operator to go to an apartment in Fort Bend County. He arrived there in approximately three minutes. Upon his arrival, Deputy Hutson saw the complainant in the doorway of the apartment, crying, breathing quickly, with a scratch and blood on her chin and redness around her neck and collarbone area. Deputy Hutson testified that the complainant appeared to be very upset, hysterical, and distraught. The complainant told Deputy Hutson that her husband, appellant, had hit her, slapped her with both hands, thrown her on a bed, and choked her, causing her to stop breathing for a moment. The complainant also stated that appellant told her that if she called the police, appellant would kill her. Deputy Hutson testified that the injuries to the complainant that he observed were consistent with what the complainant told him had happened. Deputy Hutson took photographs of the complainant=s injuries. These photographs were admitted in evidence at trial. Deputy Hutson testified that the complainant never told him that her injuries were the result of an accident and that appellant denied assaulting the complainant. Deputy Hutson testified that he determined that an assault had occurred.
The complainant testified that she was living with the appellant and their two-year-old daughter at the time of the incident in question. The complainant said that appellant was asleep when she answered a telephone call from her adult daughter=s fiancé, who invited her to go to a casino in Louisiana. The complainant told her daughter=s fiancé that she needed to check with appellant. The complainant testified she woke appellant up and then he slapped her, threw her on the bed, and began choking her using both of his hands. The complainant testified that, as a result of this incident, she received a scratch on her chin and bruises on her neck. She also testified that she needed appellant=s help with their young daughter during the period following her impending surgery for cervical cancer. A week after the incident, on February 8, 2002, the complainant told the detective in charge of her case that she wanted to drop the charges, and she faxed to this detective a document stating that she had awakened appellant, that the incident was her fault, and that she wanted to drop the charges. The complainant testified that she never stated that appellant had not assaulted her. She also stated that appellant threatened to kill her and their daughter if he served one day of probation or went to jail. The complainant also testified that appellant stated he would not pay any child support if he received probation or jail time for this incident. The complainant testified that she went to the office of appellant=s attorney and signed a sworn, written statement in an effort to have the charges against appellant dropped.
On cross-examination, the complainant admitted that her February 8, 2002, statement indicated that she woke appellant from a sleep, that she startled him, and that he did not intend to strike her. On direct examination the complainant said she never told the police that this was an accident. On cross-examination the complainant admitted telling the police on February 8, 2002, that what happened to her was an accident or mistake; however, she stated that this statement was not true but was made for the reasons she stated earlier. The complainant admitted that her sworn statement in the office of appellant=s counsel was similar to her February 8, 2002 statement, but, at trial, she said that this statement contained the following items that are not true: (1) the complainant hit appellant in the chest rather hard and woke him up; (2) appellant straddled the complainant and had his arms around her shoulder; (3) after these events, appellant and the complainant had an argument and only after appellant called a friend named Isabelle did the complainant call 9-1-1; (4) the complainant does not believe that appellant intended to harm her; and (5) the complainant had been taking prescription medicines for pain the entire day.
In this sworn statement, the complainant says appellant reflexively straddled her after she woke him up. On cross-examination, when specifically asked whether she objected to the use of Areflexively@ in her statement, the complainant said that, all she knows is that she assumes she startled appellant. The complainant testified that she had been taking various prescription drugs during this period but she does not know if she took any on the night of the incident in question. After being confronted with her written statement of February 8, 2002, and her sworn statement signed in appellant=s attorney=s office, the complainant still stood by her testimony on direct examination that appellant slapped and choked her. Neither of these prior written statements by the complainant were admitted in evidence.
The complainant=s adult daughter testified that she and her fiancé arrived at her mother=s residence on the night of the incident and that her mother told her that appellant thought the complainant and her daughter=s fiancé were having an affair and that appellant slapped and choked the complainant. According to the adult daughter, the complainant thought she was going to die as a result of the choking. The fiancé of complainant=s adult daughter testified that, on the night of the incident in question, the complainant told him that appellant got on top of her and strangled her.
Patricia Webber, the detective who was assigned to appellant=s case, testified that the complainant signed a non-prosecution form and told her that she did not want to pursue the charges against appellant because she was going to have an emergency surgical procedure and she needed help caring for her young daughter at home. Webber testified that on February 8, 2002, the complainant faxed her an affidavit stating that she had just waked appellant, that appellant was extremely exhausted, did not intend to harm her, and did not know what was happening.
Under the pertinent part of the Texas Penal Code, a person commits an assault if the person Aintentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse.@ Tex. Pen. Code ' 22.01(a)(1). The Texas Penal Code also states that bodily injury means Aphysical pain, illness, or any impairment of physical condition.@ Tex. Pen. Code ' 1.07(a)(8). Appellant asserts that the evidence is legally and factually insufficient to support his conviction because the evidence shows that his actions were accidental rather than intentional, knowing, or reckless.
In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that appellant=s evidence outweighs the State=s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@ Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses= testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). Although the complainant was impeached with her two prior statements that indicated appellant=s actions were accidental, at trial she testified to the contrary, and this testimony was corroborated by other witnesses. There was conflicting evidence as to what took place on February 1, 2002, but we presume the jury resolved conflicts in favor of finding that appellant=s actions were voluntary. See Turro, 867 S.W.2d at 47. After applying the legal-sufficiency standard of review, we conclude that a rational trier of fact could have found the essential elements of this offense beyond a reasonable doubt, and therefore we overrule appellant=s legal-sufficiency challenge. See McDuff, 939 S.W.2d at 614.
When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence without the prism of Ain the light most favorable to the prosecution@ and set aside the verdict only if it is Aso contrary to the overwhelming weight of the evidence to be clearly wrong and unjust.@ Johnson v. State, 23 S.W.3d 1, 6B7 (Tex. Crim. App. 2000). This concept embraces both Aformulations utilized in civil jurisprudence, i.e., that evidence can be factually insufficient if (1) it is so weak as to be clearly wrong and manifestly unjust or (2) the adverse finding is against the great weight and preponderance of the available evidence.@ Id. at 11. Under this second formulation, the court essentially compares the evidence which tends to prove the existence of a fact with the evidence that tends to disprove that fact. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 648. Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). After viewing all the evidence without the prism of Ain the light most favorable to the prosecution,@ we conclude that the verdict is not Aso contrary to the overwhelming weight of the evidence to be clearly wrong and unjust.@ See Johnson, 23 S.W.3d at 6B7. Therefore, we overrule appellant=s factual-sufficiency challenge.
Having found no merit in appellant=s challenge to the legal and factual sufficiency of the evidence, we overrule appellant=s sole issue on appeal and affirm the trial court=s judgment.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Memorandum Opinion filed May 11, 2004.
Panel consists of Justices Edelman, Frost, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).