COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00240-CR
NO. 02-13-00241-CR
GERRY DON RUDOLPH APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE COUNTY COURT OF YOUNG COUNTY
TRIAL COURT NOS. 35479, 35480
----------
MEMORANDUM OPINION1
----------
I. INTRODUCTION
A jury convicted Appellant Gerry Don Rudolph of one count of assault
causing bodily injury and one count of deadly conduct. See Tex. Penal Code
Ann. § 22.01(a)(1) (West Supp. 2013), § 22.05(a), (e) (West 2011). In both
1
See Tex. R. App. P. 47.4.
cases, the trial court sentenced Rudolph to 180 days’ confinement, probated for
eighteen months; assessed a $1,000 fine; and ordered that the sentences run
concurrently. In two issues, Rudolph argues that the evidence is insufficient to
prove venue and to sustain his assault causing bodily injury conviction. We will
affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
Chelsea Johnson was living with Rudolph’s ex-girlfriend, Laura Benton, at
Benton’s house in Graham, Texas. Rudolph went to the house to pick up his and
Benton’s children for the weekend. Rudolph did not like Johnson or her
relationship with Benton, so when he arrived, Benton warned him that Johnson
was in the bathroom taking a shower. Rudolph responded that as long as
Johnson did not talk to him, he would not talk to her.
After about five or ten minutes, Rudolph and Benton began arguing.
Benton told Johnson to come out of the bathroom so that they could leave the
house. Rudolph followed the women outside and told Johnson that he was going
to hit her. He charged at Johnson and punched her in the mouth with his fist,
causing Johnson’s lip to bleed. Johnson ran to Benton’s car, got in, and locked
the door. Benton eventually joined Johnson in the car.
The two women drove to Johnson’s mother’s house and called the police.
Then, they returned to Benton’s house with Johnson’s mother and brother-in-law,
and Rudolph came outside and pointed a gun toward Johnson and her mother.
2
The women and Johnson’s brother-in-law began driving away, and as they were
leaving, a Graham police officer arrived.
III. ANY VENUE ERROR WAS HARMLESS
In his first issue, Rudolph argues that the trial court erred by denying his
motion for directed verdict in both cases because there is insufficient evidence to
prove venue. He argues that there is no evidence that Benton’s house located at
922 Kentucky Street is in Young County.
As a general rule, “[i]f venue is not specifically stated, the proper county for
the prosecution of offenses is that in which the offense was committed.” Tex.
Code Crim. Proc. Ann. art. 13.18 (West 2005). To sustain an allegation of
venue, it shall only be necessary to prove by a preponderance of the evidence
that by reason of the facts in the case, the county where such prosecution is
carried on has venue. See id. art. 13.17 (West 2005). Because venue is not an
element of the offense, the failure to prove venue does not implicate sufficiency
of the evidence, nor does it require acquittal under Jackson. Schmutz v. State,
No. PD-0530-13, 2014 WL 300810, at *4 (Tex. Crim. App. Jan. 29, 2014)
(referencing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
(1979)). Moreover, venue error is non-constitutional and is subject to a harm
analysis under Texas Rule of Appellate Procedure 44.2(b). Id. at *5.
In this case, Benton testified that she lived at 922 Kentucky Street in
Graham, Texas. She and Johnson both testified that the events with Rudolph
took place at Benton’s house. Sergeant Terry Vanlandingham with the Graham
3
Police Department testified that he responded to the scene at 922 Kentucky
Street. Although no witness testified specifically that Benton’s residence was in
Young County, the evidence at trial established that the offenses occurred in
Graham, Texas.
To the extent, if any, that this evidence does not prove by a preponderance
that by reason of these facts the county where the prosecution is carried on—that
being Young County—had venue, we conduct a non-constitutional harm
analysis. See id. Non-constitutional error that does not affect substantial rights
must be disregarded. Tex. R. App. P. 44.2(b). A substantial right is affected
when the error had a substantial and injurious effect or influence in determining
the jury’s verdict. Schmutz, 2014 WL 300810, at *8. In assessing the likelihood
that the jury’s decision was adversely affected by the error, we consider
everything in the record. Id. Reviewing everything in the record—testimony,
physical evidence, jury instructions, the State’s theories and any defensive
theories, and closing arguments, we hold that the venue error, if any, in this case
was harmless. See id.
We overrule Rudolph’s first issue.
IV. SUFFICIENCY OF THE EVIDENCE OF BODILY INJURY
In his second issue, Rudolph argues that the evidence is insufficient to
prove that he caused bodily injury to Johnson as required to sustain his assault
causing bodily injury conviction.
4
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of 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 crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99
S. Ct. at 2789; Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013).
This standard gives full play to the responsibility of the trier of fact to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.
at 2789; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App. 2011).
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Winfrey, 393
S.W.3d at 768. Thus, when performing an evidentiary sufficiency review, we
may not re-evaluate the weight and credibility of the evidence and substitute our
judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010). Instead, we determine whether the necessary inferences are
reasonable based upon the cumulative force of the evidence when viewed in the
light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.
Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.
2013). We must presume that the factfinder resolved any conflicting inferences
in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99
S. Ct. at 2793; Temple, 390 S.W.3d at 360.
5
A person commits an offense if he “intentionally, knowingly, or recklessly
causes bodily injury to another.” Tex. Penal Code Ann. § 22.01(a)(1). Bodily
injury is defined as “physical pain, illness, or any impairment of physical
condition.” Id. § 1.07(a)(8) (West Supp. 2013).
Here, Benton and Sergeant Vanlandingham both testified that Johnson
had a “busted lip” after Rudolph punched her. Sergeant Vanlandingham
explained that Johnson’s lip was swollen and had been bleeding and that the
injury was consistent with someone who had been punched. Four photographs
of Johnson’s injuries were introduced into evidence as State’s Exhibits 1 through
4.
Johnson testified that Rudolph hit her tooth, which punctured her lip and
caused her to bleed. When asked if the punch caused her physical pain,
Johnson responded, “Not really. It just started bleeding. I didn’t really feel
anything. I was kind of numb.” The prosecutor then asked, “He hit you pretty
hard then?” She agreed.
Rudolph focuses on Johnson’s testimony that she did not feel physical
pain when he punched her, but the jury could have reasonably inferred that
Johnson was referring to her immediate reaction to being punched in the face
rather than a blanket statement that her swollen, split open lip never caused her
any physical pain. See Sorrells, 343 S.W.3d at 155. The jury could have
reasonably inferred that Johnson’s swollen, split open lip would have caused her
physical pain after the shock and “numb[ness]” of the events wore off. See
6
Garcia v. State, 367 S.W.3d 683, 688 (Tex. Crim. App. 2012) (“A fact finder may
infer that a victim actually felt or suffered physical pain because people of
common intelligence understand pain and some of the natural causes of it.”).
Viewing the evidence in the light most favorable to the prosecution, we
hold that the above evidence was sufficient to prove that Rudolph intentionally
caused bodily injury to Johnson. See Tex. Penal Code Ann. §§ 1.07(a)(8),
22.01(a)(1); Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Winfrey, 393 S.W.3d at
768. We overrule Rudolph’s second issue.
V. CONCLUSION
Having overruled Rudolph’s two issues, we affirm the trial court’s
judgment.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 24, 2014
7