In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00162-CR
SHAYE JOHNSON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the County Court at Law No. 2
Lubbock County, Texas
Trial Court No. 2012-471,559, Honorable Drue Farmer, Presiding
April 9, 2014
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, Shaye Johnson, appeals the trial court’s judgment finding him guilty of
misdemeanor assault1 and imposing a punishment of 364 days in the Lubbock County
Jail and a $4,000 fine. On appeal, he brings to this Court one point of error, contending
that the evidence is insufficient to sustain said conviction. We will affirm.
1
See TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2013).
Factual and Procedural History
On the evening of August 25, 2012, an argument occurred between appellant
and his pregnant girlfriend of several years, Paige Johnson. Also at the house where
the argument began were Paige’s older sister, Erica Shumaker, and Erica’s husband,
Aaron Shumaker. We know from the record that Erica ultimately called 911 to summon
police assistance, reporting that appellant had assaulted Paige. The precise details of
the interaction between appellant and Paige are mired in the conflicting accounts from a
reluctant complaining witness and the accounts from the two other witnesses at the
scene, accounts which are not clear and not entirely consistent with one another.
Officer Cade Reddish of the Lubbock Police Department was one of the responding
officers and testified at trial. The details of the witnesses’ testimony will be described
more fully in our later evaluation of the evidence.
By the end of the evening, appellant had been arrested for assault. A Lubbock
County jury found him guilty of the charged offense and assessed punishment at 364
days in the Lubbock County Jail and a fine of $4,000. On appeal, appellant advances
one point of error, challenging the sufficiency of the evidence to support his conviction.
Standard of Review
In assessing the sufficiency of the evidence, we review all 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, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State,
323 S.W.3d 893, 912 (Tex. Crim. App. 2010). “[O]nly that evidence which is sufficient in
2
character, weight, and amount to justify a factfinder in concluding that every element of
the offense has been proven beyond a reasonable doubt is adequate to support a
conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful
that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no
higher standard of appellate review than the standard mandated by Jackson.” Id.
When reviewing all of the evidence under the Jackson standard of review, the ultimate
question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07
n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d
404, 448–50 (Tex. Crim. App. 2006), as outlining the proper application of a single
evidentiary standard of review). “[T]he reviewing court is required to defer to the jury’s
credibility and weight determinations because the jury is the sole judge of the witnesses’
credibility and the weight to be given their testimony.” Id. at 899.
Analysis
Again, appellant challenges the sufficiency of the evidence supporting his
conviction for the assault on Paige. In support of his position, he maintains that “[t]he
drastically inconsistent testimony of the State’s two primary witnesses was so disparate
that no rational jury could have believed them to establish guilt beyond a reasonable
doubt.” He also contends that “[t]he alleged victim in the case was unreliable as a
witness in the case due to her changing story and admi[ssion] that she lied to officers.”
The Evidence
The jury heard Reddish’s recording of the accounts of Paige, Erica, Aaron, and
appellant at the scene. It also heard Reddish’s recollections of each person’s account
3
at the scene. Paige, Erica, and Aaron testified at trial, enabling the jury to hear each
witness’s recollection of the night and evaluate any inconsistencies between the
accounts at trial and the accounts of the events on the night of August 25, 2012.
Paige
Twenty-year-old Paige came to the courthouse with appellant on the first day of
trial. She testified that she and appellant had been a couple for several years and
remained a couple at the time of trial. She admitted that she did not want to be at trial
that day and explained that she thought that it was unnecessary for this matter to be
taken to trial, that the proceeding was “pointless.” She testified that she was angry at
Erica for calling police that evening and explained that Erica was “crazy” and had a
habit of making false reports to the police. Initially, Paige could not recall whether she
and appellant were arguing on the evening of August 25, 2012, but later she recalled
that they were, in fact, in a strictly verbal argument. She consistently denied throughout
her testimony that appellant ever grabbed her, hit her, or otherwise contacted her in a
physically violent manner. She denied, too, that appellant ever tried to kick in the front
door or issued any threats against her or her family.
She recalled having talked to officers on the evening in question, but she did not
recall what she had told them. She added, however, that, if she had reported to officers
that appellant hit her, she had lied to them at the scene, probably because she was
mad. At trial, she explained that she and appellant simply started arguing and he
walked outside. She did admit that, because she was mad at appellant, she had thrown
juice on him before he walked outside or, perhaps, tried unsuccessfully to walk outside
4
over the now-slippery floor. She testified that he may have gone back into a bedroom
instead. She remained in the kitchen.
She confirmed that she had an injury to her lip that day but did not recall what
type of injury it was or how she got it. She claimed that she was unaware of the injury
until the police pointed it out to her. She did recall having told the officers at the scene
that she often picks at her lips and causes them to bleed. She testified that the officer
did not believe her when she mentioned that at the scene. She also testified that she
had gotten mad at appellant earlier that day over an incident relating to a girl at the mall;
she characterized herself as “the jealous type” and “actually bipolar.”
Erica
Erica testified that she was cooking at the house when an argument began
between appellant and Paige. Erica recalled the argument beginning in the direction of
a bedroom in which appellant and Paige were located and there being “a lot of banging
around.” She recalled that Paige came out of the bedroom and that appellant also
came out and went into the living room. Paige got angry and threw juice as she stood in
the doorway of the bedroom. After Paige threw the juice, appellant grabbed Paige by
the hair and pulled her into the living room. There, Erica said, appellant hit Paige in the
face several times—perhaps even more than ten times—with a closed fist. She testified
that appellant was hitting Paige “pretty hard” and causing a “big bump” and a bruise to
start to form under her eye. Paige, who looked to be in pain, was raising her hand in an
effort to push him away from her. Appellant leaned Paige over the couch and continued
5
to punch her in the face and stomach. She described Paige as trying to cover her
stomach to protect herself from appellant’s punches. Scared, Erica then called 911.
Erica testified that appellant threatened to kill them all, just as he had threatened
in the past. Appellant had left the house for a short time, but he returned, proceeded to
kick in the front door, and regained entry into the house where he continued his threats
against them. She testified that she did report to the responding officers that appellant
threatened them that day.
Aaron
At trial, Aaron testified that appellant and Paige were in a dating relationship and
that Paige was pregnant with appellant’s child at the time. He recalled that there had
been some arguing between appellant and Paige that day but did not recall the topic of
disagreement. He was in his room when he first heard the verbal disagreement begin
between the couple in the living room. He testified that, as he came out of the bedroom
and into the living room on his way outside to smoke a cigarette, he heard the argument
continue and saw appellant “punch [Paige] in the jaw.” He explained that the juice
incident happened right before the verbal exchange took place between the couple. He
confirmed that Paige threw the juice in appellant’s direction, though Aaron was
uncertain whether Paige threw it directly at appellant and whether any juice actually
contacted him.
Aaron admitted that there were “some parts where I wasn’t paying attention, and
parts [he] was,” so he could not be certain that appellant’s blow to Paige’s jaw was the
first blow. He did not witness Paige strike a blow at appellant. Of the portion of the
6
altercation to which he was paying attention, he observed appellant hit Paige in the jaw
with a closed fist and hit her in the stomach with either a closed or open fist. Aaron
described Paige’s reaction to being hit in the jaw as one in which her head “whipped
back” somewhat to the side and backward. He testified that it appeared that Paige
experienced pain as a result of that blow. He also testified that, when appellant then hit
her in the stomach, Paige doubled over with her forearms over her abdomen for a
“second” but then stood back up. Aaron qualified his account of appellant’s blow to
Paige’s stomach because he was not able to view it fully; rather, he was off to the side
when he witnessed the blow to her stomach. Aaron added that, either that night or a
night following shortly thereafter, the expectant Paige began to bleed and had to be
rushed to the hospital.
After the blows that Aaron saw, appellant again approached Paige who, Aaron
testified, put her hands up in an attempt to push him back or halt his advance toward
her. Again, explaining that he was not paying very close attention, he was not certain
whether Paige ever actively pushed him away from her. After seeing appellant hit his
pregnant sister-in-law twice, Aaron “turned around and walked out,” presumably to go
smoke the cigarette he first came from the room to do. He explained that his back hurt
that day and he did not want to “get into anybody else’s business.” He acknowledged
that he thought the assault on Paige was “wrong” but “wanted them to handle it
themselves.” Aaron testified that, at some point after appellant assaulted Paige,
appellant went outside. One of the three remaining occupants locked the door
apparently, and appellant, wishing to regain access to the residence, kicked in the front
door, which Aaron would later repair.
7
Aaron testified that he did report to the police that appellant had also grabbed
Paige by her hair, but he was uncertain whether he independently remembered that fact
at trial because he does not “really keep things in [his] mind that much.” He does
confirm, though, that, as he sat on the stand, he independently recalled seeing
appellant hit Paige in the face. Unlike Erica, who had testified that she was scared,
Aaron testified that what he saw that day did not alarm him that much.
Officer Reddish
Reddish testified that, at the scene, appellant denied having hit Paige but
admitted to having grabbed her by the neck. That night at the scene, Paige reported to
Reddish that appellant had assaulted her, that he had punched her. She also
demonstrated to Reddish how appellant had hit her by twice punching her own closed
fist into her open palm. As he was talking with Paige, he noticed that the left part of her
lower lip was swollen and was bleeding on the inside, an injury he described as
consistent with having been the result of a hit to the face with a closed fist. Reddish
testified that a crime scene officer was unavailable at that time to come out and take
higher resolution images of Paige’s injuries, but he documented the injury to her lip by
recording it on his in-car video recording equipment. Frames of the video, in addition to
the video itself, were introduced to show that Paige had a laceration to the inside of her
lip that night. Though it is not clearly visible in the images, Reddish testified that, earlier
in the evening, there had been blood coming from the laceration.
At trial, Reddish did not recall that Erica had reported to him that appellant had
threatened them that evening. He also did not recall that there was damage to the front
8
door consistent with Erica’s and Aaron’s accounts of appellant kicking at the front door.
After referring to his report, however, Reddish did note that Erica had reported to him
that appellant threatened to “whip all of y’all.”
The jury also heard a recording of Erica’s call to 911 that evening and the
Lubbock County Jail’s recording of a phone call between appellant and Paige recorded
the day after the incident in which appellant said to Paige something to the effect of the
following: If you did not say anything to them, then they cannot do anything; if you did
say something, then you screwed me.
Discussion
As is apparent from the record, there are inconsistencies regarding the precise
sequence of events that night and some details regarding the altercation. For instance,
we cannot ascertain with certainty how many times appellant struck Paige, and Paige
denied at trial that appellant struck her at all that night. Though mostly immaterial with
respect to the charges brought against appellant, whether appellant kicked in the front
door to regain entry to the house is likewise uncertain, as is the exact nature of the
threats he made to the family upon regaining entry to the house. Aaron even conceded
that his memory of the events may be somewhat “iffy” due his failure to pay very close
attention to the entire exchange and his poor memory. Viewing the evidence in the
requisite favorable light and examining it for elements of the charged offense, however,
we will conclude that, despite the inconsistencies, the evidence was sufficient, such that
the jury could have rationally found the elements of assault beyond a reasonable doubt.
Appellant was charged with assault, meaning that the State had to prove beyond a
9
reasonable doubt that appellant intentionally, knowingly, or recklessly caused bodily
injury to Paige. See TEX. PENAL CODE ANN. § 22.01(a)(1).
The witnesses’ accounts—though inconsistent in some respects—were
nevertheless consistent in describing an assault by appellant on Paige. Though, at trial,
Paige repeatedly denied that appellant struck her at all, the jury was in the best position
to weigh her credibility on the stand and her subsequent recantation of her initial report
to officers that evening that appellant had, in fact, punched her. The evidence confirms
that she did have an injury to her lip that was consistent with her own initial account of
having been punched with a closed fist. Witness testimony also described appellant as
having punched Paige with a closed fist in her face. Both Erica and Aaron described
appellant striking Paige and Paige’s reactions as indicative of her experiencing pain as
a result of those blows. Paige, who initially reported that appellant had punched her,
later denied even knowing of the injury to her lip until the officers pointed it out to her at
the scene. Paige’s alternate explanation that her habit of picking at her lip caused the
laceration and bleeding inside of her mouth was put before the jury, which obviously
rejected it.
And such was its province to do. It is well-established that resolution of conflicts
and inconsistencies in the evidence is the province of the jury as trier of fact. See
Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982) (op. on reh’g); see also
TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979). Such conflicts will not call for
reversal so long as there is enough credible testimony to support the conviction.
Bowden, 628 S.W.2d at 784. Because resolution of conflicts or inferences therefrom
lies within the exclusive province of the jury, it may choose to believe all, none, or some
10
of the evidence presented to it. See Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex.
Crim. App. 1995) (en banc). The jury is also the exclusive judge of the credibility of
witnesses. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994) (en banc) (per
curiam). Here, there is sufficient evidence from which the jury could determine that
appellant assaulted Paige. We overrule appellant’s sole point of error.
Conclusion
Having overruled appellant’s sole point of error, we affirm the trial court’s
judgment of conviction. See TEX. R. APP. P. 43.2(a).
Mackey K. Hancock
Justice
Do not publish.
11