Garcia, Jr., Richard v. State

CourtCourt of Appeals of Texas
DecidedDecember 20, 2007
Docket01-05-00532-CR
StatusPublished

This text of Garcia, Jr., Richard v. State (Garcia, Jr., Richard v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garcia, Jr., Richard v. State, (Tex. Ct. App. 2007).

Opinion

Opinion Issued December 20, 2007

Opinion Issued December 20, 2007



In The

Court of Appeals

For The

First District of Texas


NO. 01-05-00532-CR


RICHARD GARCIA, JR., Appellant

V.

THE STATE OF TEXAS, Appellee


On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 40186



MEMORANDUM OPINION

          A jury found appellant, Richard Garcia, guilty of assaulting, and of having previously been convicted of assaulting, a family or household member.  See Tex. Pen. Code Ann. § 22.01(a)–(b) (Vernon 2005).  Upon finding true two prior burglary convictions used to enhance punishment, the jury assessed Garcia’s sentence at ninety-five years’ confinement and a $10,000 fine.  In two issues, Garcia contends that the evidence is legally and factually insufficient to support a finding that he committed assault against a family or household member or that he had been previously convicted of assaulting a family or household member.  We affirm.

Background

          On April 9, 2004, Garcia was living with his girlfriend, Ann Marie Trevino, with whom he had one child.  By the time of the trial in 2005, Garcia and Trevino had two children together.  Garcia and Trevino were both drinking alcohol that night and began to argue outside.  Trevino’s eleven-year-old daughter, two-month-old son, and Garcia’s ex-brother-in-law, Jimmy Lucas, were outside at the time of the argument.  According to Lucas’s testimony, Trevino ordered both Lucas and Garcia to leave.  At some point after that, Garcia hit Trevino with his fist on the back of her head, causing her to fall down onto the pavement and scrape her cheek, arm, and knee.  Garcia ran out of the yard, and Trevino picked up a shovel to chase him.  

          Following the altercation, Trevino called her sister and told her that Garcia had hit her and asked her sister to pick her up.  When the police arrived, Garcia was no longer at the house.  A police officer interviewed Trevino, and she told him that Garcia had struck her in the head, causing her to fall and sustain other injuries.  The officer recorded the interview, and the State played the recording for the jury at trial.  The officer also photographed Trevino’s injuries.

          Before the trial, Trevino sent Garcia a notarized affidavit stating that she did not want to press charges and would like the charges against Garcia to be dropped.  At trial, Trevino testified that she did not remember clearly the events that occurred because she had been drinking that night.  She further testified that Garcia did not strike her, and she does not remember telling the police officer that he did.

          The State presented testimony regarding Garcia’s prior convictions for assault of a family or household member.  The State offered into evidence, without objection, copies of Garcia’s prior judgments for assault of a family or household member, as well as testimony that the victim in those cases was Garcia’s former girlfriend, with whom he has three children.

Legal and Factual Sufficiency

          Garcia contends that the evidence is legally and factually insufficient to support a guilty verdict of third-degree felony assault.  Specifically, he contends there is not sufficient evidence to prove that either (1) an assault on a family or household member occurred, or (2) that he had been previously convicted of assault on a family or household member.

A. Standard of Review

When evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and 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, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005).  We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact.  See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). 

When evaluating factual sufficiency, we consider all the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt.  Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006).  We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  Under the first prong of Johnson, we cannot conclude that a verdict is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury.  Watson, 204 S.W.3d at 417.  Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict.  Id.  Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict.  Id.  We must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict.  See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). 

B.

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Related

Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
Drichas v. State
175 S.W.3d 795 (Court of Criminal Appeals of Texas, 2005)
Mitchell v. State
102 S.W.3d 772 (Court of Appeals of Texas, 2003)
Watson v. State
204 S.W.3d 404 (Court of Criminal Appeals of Texas, 2006)
King v. State
29 S.W.3d 556 (Court of Criminal Appeals of Texas, 2000)
Cain v. State
958 S.W.2d 404 (Court of Criminal Appeals of Texas, 1997)
Matson v. State
819 S.W.2d 839 (Court of Criminal Appeals of Texas, 1991)
Manning v. State
112 S.W.3d 740 (Court of Appeals of Texas, 2003)
Adelman v. State
828 S.W.2d 418 (Court of Criminal Appeals of Texas, 1992)
Herrero v. State
124 S.W.3d 827 (Court of Appeals of Texas, 2003)
Sims v. State
99 S.W.3d 600 (Court of Criminal Appeals of Texas, 2003)
Johnson v. State
23 S.W.3d 1 (Court of Criminal Appeals of Texas, 2000)
Dewberry v. State
4 S.W.3d 735 (Court of Criminal Appeals of Texas, 1999)
Wilson v. State
863 S.W.2d 59 (Court of Criminal Appeals of Texas, 1993)
Johnson v. State
967 S.W.2d 410 (Court of Criminal Appeals of Texas, 1998)

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