IN THE
TENTH COURT OF APPEALS
No. 10-14-00324-CR
LEONARD ALLEN HENNARD,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court No. 39293CR
MEMORANDUM OPINION
Leonard Hennard was indicted on two counts of assault family violence. Count 1
alleged assault family violence by occlusion and Count 2 alleged assault family violence
enhanced with a prior conviction. The jury convicted Hennard on both counts, found the
enhancement paragraph to be true, and assessed punishment at 20 years confinement
and a $10,000 fine for each count. We affirm.
Judgment
In the first issue, Hennard complains that the judgment should be modified to
reflect the proper sections of the Texas Penal Code that he was found to have violated.
The judgment reflects that Hennard was convicted of “Assault Family Violence/Two
Counts (Count One: Assault Family Violence by Occlusion and Count Two: Assault
Family Violence – Enhanced)” and references Texas Penal Code Section 22.01. The
judgment further states that the offense is a third degree felony enhanced to a second
degree felony. Hennard argues that the proper statute for Assault Family Violence by
Occlusion is TEX. PENAL CODE ANN. § 22.01 (a) (1) and 22.01 (b) (2) (B) and the proper
statute for Assault Family Violence - Enhanced is TEX. PENAL CODE ANN. § 22.01 (a) (1)
and 22.01 (b) (2 (A). Hennard asks this Court to modify the judgment to reflect the proper
statute.
The judgment shall reflect “the offense or offenses for which the defendant was
convicted” and “the date of the offense or offenses and degree of offense for which the
defendant was convicted.” TEX. CODE CRIM. PROC. ANN. § 42.01 § 1 (13), (14) (West Supp.
2014). The judgment accurately reflects the offenses for which Hennard was convicted
and the degree of offense for which he was convicted. We overrule the first issue.
Prosecuting Attorney
In the second issue, Hennard complains that the judgment should be modified to
reflect the correct name of both prosecuting attorneys who represented the State.
Hennard states that the judgment incorrectly identifies Patrick Wilson as the prosecuting
attorney in the case, but that the record reflects that Ricky Sipes and Habon Mohamed
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were actually the prosecuting attorneys at trial. Hennard, however, cites nothing to show
that the elected State’s attorney cannot be named in the judgment if he did not participate
in the proceeding resulting in the judgment. The Code of Criminal Procedure states that
a judgment shall reflect “[t]hat the case was called and the parties appeared, naming the
attorney for the state, the defendant, and the attorney for the defendant.” TEX. CODE CRIM.
PROC. ANN. art. 42.01, § 1(2) (West Supp. 2014). The elected district attorney for Ellis
County is the attorney for the State in this case. Hennard’s second issue is overruled.
Sufficiency of Evidence
In the third and fourth issues, Hennard argues that the evidence is insufficient to
support his conviction for the offense of assault family violence by occlusion and that the
trial court erred in denying his motion for directed verdict. The Court of Criminal
Appeals has expressed our standard of review of a sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support
a conviction, a reviewing court must consider all of the evidence in the light
most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
responsibility of the trier of fact fairly 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. "Each fact need not point directly
and independently to the guilt of the appellant, as long as the cumulative
force of all the incriminating circumstances is sufficient to support the
conviction." Hooper, 214 S.W.3d at 13.
Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), cert den’d , 132 S.Ct. 2712, 183
L.Ed.2d 71 (2012).
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The Court of Criminal Appeals has also explained that our review of "all of the
evidence" includes evidence that was properly and improperly admitted. Conner v. State,
67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,
326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence
are treated equally: "Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is well
established that the factfinder is entitled to judge the credibility of witnesses and can
choose to believe all, some, or none of the testimony presented by the parties. Chambers
v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
Hennard argues that the evidence is insufficient to prove that he caused injury to
Tamra Colvin by “intentionally, knowingly, or recklessly impeding the normal breathing
or circulation of the blood of the person by applying pressure to the person's throat or
neck or by blocking the person's nose or mouth.” See TEX. PENAL CODE ANN. § 22.01 (b-
1) (3) (West Supp. 2014).
Officer Jason Esquibel, with the Red Oak Police Department, testified that on April
1, 2013, he responded to an assault call. When he arrived, Tamra Colvin approached him
and said that she had gotten into a fight with her brother, Hennard. Colvin was
screaming and crying. Colvin told Officer Esquibel that Hennard slapped and choked
her in the living room of their home, and then the fight continued in the bedroom where
Hennard v. State Page 4
he hit her again and stomped on her. Officer Esquibel testified that Colvin had redness
on her neck that was consistent with being choked. Sergeant Marc Schroeder testified
that he responded to the assault call to assist Officer Esquibel. Sergeant Schroeder also
observed red discoloration on Colvin’s neck. Colvin told the officers that she did not
want to press charges; however, she later came to the police station and stated that she
did want to pursue charges against Hennard.
Katherine Young testified that on April 2, 2013, Colvin knocked on her door.
Young stated that Colvin was crying and hysterical and she was yelling that Hennard
beat her up. Colvin told Young that Hennard threw her out of the bedroom window and
that he kicked her with his boots. Young testified that Colvin had marks around her neck
that were not there earlier that day. Colvin asked Young to call the police, and Young
called 9-1-1.
Colvin testified at trial, but stated that she did not want to be there. Colvin testified
that on the day of the offense she had taken prescription medication and that she does
not remember anything that happened that day. Colvin said that she does not remember
talking to the police and that she does not remember giving a statement. When asked
about the bruising on her neck on the night of the offense, Colvin stated that she had
previously tried to choke herself. Colvin could not say whether or not the bruising on
her neck was self-inflicted. Colvin signed an affidavit of non-prosecution three months
after the offense. She testified that Hennard has never touched her and that he would not
hurt her.
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Officer Esquibel testified at trial that Colvin told him Hennard choked her and that
Colvin had injuries consistent with being choked. Sergeant Schroeder also observed red
discoloration on Colvin’s neck consistent with being choked. Young also testified that
Colvin had marks on her neck. The State introduced pictures showing the injuries to
Colvin’s neck. Colvin testified at trial that she could not remember what happened on
the day of the offense. The factfinder is entitled to judge the credibility of witnesses and
can choose to believe all, some, or none of the testimony presented by the parties.
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We find that the evidence
is sufficient to support Hennard’s conviction for assault family violence by occlusion. We
overrule the third and fourth issues.
Conclusion
We affirm the trial court’s judgment.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed September 17, 2015
Do not publish
[CR25]
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