Affirmed as Modified and Memorandum Opinion filed February 20, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00287-CR
DENNIS RAY BRASHER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 77th District Court
Limestone County, Texas1
Trial Court Cause No. 12931-A
MEMORANDUM OPINION
Appellant Dennis Ray Brasher was convicted of assault of a family or
household member with a previous conviction for assault of a family member. In
1
This case was transferred to the Fourteenth Court of Appeals from the Tenth Court of
Appeals in Waco; we apply transferor court’s precedents if there is a conflict. Tex. R. App. P.
41.3. There is no conflict between the Fourteenth Court of Appeals and the Tenth Court of
Appeals on the dispositive legal issues in this case.
two issues on appeal, appellant claims (1) the evidence is insufficient to support his
conviction, and (2) the judgment incorrectly recites that appellant pleaded guilty to
the offense charged. We sustain appellant’s second issue. Finding no reversible
error in his remaining issue, we modify the judgment to reflect that appellant
pleaded not guilty to the offense charged and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
The complainant, JoHanna Thompson, testified that she was in a dating
relationship and living with appellant at the time of the offense. On the day of the
offense, appellant used money the complainant had earned from the sale of her
truck to buy beer. Their argument over the use of the money escalated and resulted
in appellant hitting, kicking, and slapping the complainant. The complainant
testified that appellant bent her finger back and tried to break it. He began throwing
things at her and she also threw things back at him. Appellant hit her in the back of
the head, slapped her left cheek, and kicked her knee and buttocks. Appellant
threatened to cut the throat of the complainant’s puppy.
As appellant was leaving he slipped on the steps and hit his head on a
ceramic garden ornament. The complainant went to the home of Shawne Weibye, a
neighbor, and called the police. When the complainant first called, she told the 911
operator that it was not an emergency because appellant was leaving. Appellant
then turned around and began “screaming, cussing calling [the complainant]
names, hollering.” The complainant was still on the phone with the 911 operator
and told her what had happened. At the end of the 911 call, the complainant told
the operator, “It’s okay. I got this. If I need you, I’ll call you.” The complainant
explained at trial that she told the 911 operator she was okay because she was
afraid of appellant.
Limestone County Deputy Scott Curry responded to the 911 dispatch about a
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physical assault at the Shady Grove trailer park. When Curry and two other
deputies arrived, they saw the suspect in a clearing behind the trailer park. The
suspect identified himself as appellant, Dennis Brasher. Appellant told the officers
he was carrying a pocketknife, which they recovered from him. As Curry was
placing appellant in the patrol car, he noticed matted blood on the back of
appellant’s head. Curry and Deputy Jeremy Coslin went to the home where the call
had originated. They identified the complainant as Bettie JoHanna Thompson and
identified three witnesses, Tammy Schuett, Linda Ferrill, and Shawne Weibye.
When Curry arrived at the scene, it appeared that several belongings from inside
the home had been “kind of strung out through the yard.”
Curry took a statement from the complainant and Coslin took photographs of
the complainant. The photographs revealed a bruise on her left arm, a small
laceration to her left pinky knuckle, and redness on her left cheek, which were
consistent with the statement the complainant gave. Curry was unable to take
statements from the witnesses because “[t]hey were terrified of Mr. Brasher.” After
appellant was placed in Coslin’s patrol car he became agitated and was thrashing
about and yelling at the complainant. At that time, Corporal Shane James of the
Limestone County Sheriff’s Office instructed Coslin to transport appellant to the
county jail.
Sometime later, appellant and the complainant reconciled, and the
complainant told appellant she wanted to drop the charge of assault. Appellant’s
attorney contacted the complainant and asked whether she intended to drop the
charge. Appellant’s attorney brought an affidavit of non-prosecution to the
complainant’s house and asked her to sign it. The affidavit contained a sentence
stating, “I do not want Dennis Ray Brasher to be further prosecuted, and it is my
request that the prosecution be dismissed.” The complainant testified at trial that
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she read the document before signing it, and she did not remember seeing the
statement of non-prosecution at the time she signed it. The complainant testified
she did not want to drop the charge, but she expressed a desire to drop the charge
because she was afraid of appellant.
Shawne Weibye testified that she saw appellant hold the complainant’s
puppy by its neck and threaten to cut the puppy’s throat. Weibye also heard
appellant threaten to tie the complainant to the bed and burn the trailer, then saw
him light a curtain on fire with a cigarette lighter.2 Weibye also saw appellant hit
the complainant in the head three or four times, and saw him kick her legs. She did
not give a statement to police because she was afraid of appellant.
The complainant’s daughter, Brooke Thompson, testified that she saw
appellant hit the complainant in the face. She attempted to physically restrain
appellant and prevent him from hitting the complainant again. Appellant turned
and hit Thompson on the chin. Thompson also saw appellant fall down the stairs as
he left the house. When Thompson spoke with police on the day of the offense, she
told them that appellant had not hit her mother. She testified that she lied to the
police because she was afraid of appellant.
Appellant stipulated that he was convicted of a prior assault of a family or
household member as alleged in the indictment.
DISCUSSION
I. Sufficiency of the Evidence
In his first issue appellant argues the evidence is insufficient to prove he
assaulted the complainant.
When reviewing the sufficiency of the evidence, we view all of the evidence
2
The complainant extinguished the fire before it spread beyond the curtain.
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in the light most favorable to the verdict and determine whether, based on that
evidence and any reasonable inferences from it, any rational fact finder could have
found the elements of the offense beyond a reasonable doubt. Gear v. State, 340
S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307,
318–19 (1979)). The jury is the exclusive judge of the credibility of witnesses and
the weight of the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010). We defer to the jury’s responsibility to fairly resolve conflicts in the
evidence, and we draw all reasonable inferences from the evidence in favor of the
verdict. Id.
The jury alone decides whether to believe testimony, and the jury resolves
any conflicts or inconsistencies in the evidence. Mosley v. State, 983 S.W.2d 249,
254 (Tex. Crim. App. 1998). Likewise, the jury weighs the evidence, and it may
find guilt without physical evidence linking the accused to the crime. Harmon v.
State, 167 S.W.3d 610, 614 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).
Inconsistencies in witness testimony do not render the evidence insufficient.
Romero v. State, 406 S.W.3d 695, 697 (Tex. App.—Houston [14th Dist.] 2013,
pet. stricken).
Appellant was indicted for “intentionally, knowingly, or recklessly caus[ing]
bodily injury to Bettie Thompson, a member of the Defendant’s family or a
member of the Defendant’s household or a person with whom the Defendant had a
dating relationship, as described by Section 71.003 or 71.005 or 71.002(b), Family
Code, by striking or kicking or hitting or slapping or pushing Bettie Thompson,
and before the commission of the offense, the Defendant had previously been
convicted of an offense under Chapter 22, Penal Code, against a member of the
Defendant’s family or household[.]” See Tex. Penal Code. § 22.01(a)(1).
Appellant argues that when the conflicts in the testimony “are laid against
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the backdrop of the 9-1-1 recording, the photographic evidence and [the
complainant]’s affidavit of non-prosecution, the Court must conclude that no
rational juror could have found the evidence sufficient beyond a reasonable doubt
to support the allegations.”
911 Call
Appellant argues that the complainant’s statement to the 911 operator that
“It’s okay,” conflicts with her testimony that appellant assaulted her. Although the
complainant told the 911 operator she was okay, she testified she only did so after
she thought appellant had left the premises. The 911 call admitted into evidence
reflects that the 911 operator returned the call and the complainant reported that
appellant had assaulted her, had tried to “slice” her dog, hit her, and hit her
daughter. The complainant requested police officers to come to the trailer park.
Photographs
Appellant argues that the photographic evidence shows a “yellowed” bruise,
which could have been “a day or two old.” Appellant argues the photographs either
depict old injuries or injuries for which appellant was not charged. The
complainant testified that appellant hit her head, slapped her left cheek, and kicked
her knee and buttocks. Appellant was charged with assault by “striking or kicking
or hitting or slapping or pushing” the complainant. The photographs admitted into
evidence reveal two bruises on the complainant’s left arm, a laceration on the
pinky finger of her left hand, an abrasion on her right knee, and an abrasion on her
left cheek. The photographic evidence is consistent with the complainant’s
testimony. There was no medical testimony admitted as to the age of the bruises.
The jury had the opportunity to review the photographs of the complainant’s
bruises and lacerations. The jury could have viewed the photographs and inferred
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from the evidence at trial that the bruises and lacerations were a result of
appellant’s assault of the complainant.
Affidavit of Non-Prosecution
The complainant testified that she expressed a desire to drop the charge of
assault because she was afraid of appellant. She testified that she read the affidavit
appellant’s attorney asked her to sign and that at the time she signed it, she did not
remember that it contained language of non-prosecution. The jury was free to
believe the complainant’s testimony that she did not remember seeing the non-
prosecution language, and that if she expressed a desire not to prosecute appellant,
it was out of fear.
Conflicting Testimony and Statements of Witnesses
Appellant further argues that the conflicts among the witnesses’ testimony,
the statements they previously made, and the physical evidence is so great that no
rational juror could have found the elements of the offense beyond a reasonable
doubt. Each witness testified, however, that to the extent their testimony conflicted
with statements given at the scene of the offense, it was because they were afraid
of appellant and afraid to speak out against him in his presence.
Reviewing all the evidence in the light most favorable to the verdict, a
rational jury could have determined beyond a reasonable doubt that appellant
assaulted the complainant as charged in the indictment. We overrule appellant’s
first issue.
II. Reformation of the Judgment
In his second issue appellant contends the judgment incorrectly recites that
appellant pleaded guilty to the offense charged. Appellant is correct in that the
record reflects appellant pleaded not guilty. We sustain appellant’s second issue
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and modify the trial court’s judgment to reflect that he pleaded not guilty to the
charged offense. See Tex. R. App. P. 43.2(b).
CONCLUSION
Having sustained appellant’s second issue, we modify the judgment to
reflect that appellant pleaded not guilty to the charge offense. Having found no
reversible error otherwise, we affirm the judgment as modified.
/s/ Marc W. Brown
Justice
Panel consists of Justices Boyce, Christopher, and Brown.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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