Kevin Fulford v. State

• Court: Court of Appeals of Texas
• Decided: November 9, 2011
• Docket: 08-10-00139-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ KEVIN FULFORD, No. 08-10-00139-CR § Appellant, Appeal from § v. 120th District Court § THE STATE OF TEXAS, of El Paso County, Texas § Appellee. (TC # 20090D02629) §

OPINION

Kevin Fulford appeals his conviction for family-violence assault (enhanced). The jury

found Appellant guilty as charged and sentenced him to eight years’ imprisonment together with

a $10,000 fine. In two issues on appeal, Appellant complains that the evidence is legally and

factually insufficient to sustain his conviction. For the reasons that follow, we affirm.

FACTUAL SUMMARY

Appellant was charged by indictment with family-violence assault, enhanced by a prior

conviction. According to the indictment, on or about May 2, 2009, Appellant:

[I]ntentionally, knowingly, and recklessly cause[d] bodily harm to DEBRA PINA, a member of [Appellant’s] family or household, by striking her about her body with a belt.

The enhancement paragraph alleged that Appellant was previously convicted of an offense

against a member of his family. Appellant stipulated to the enhancement paragraph, but he pled

not guilty to the charged offense. The case was tried to a jury.

Officer Magaly Guevara and Officer Max Christopher Bechtel of the El Paso Police

Department testified for the State. On May 2, 2009, the officers responded to a dispatch sent in response to a 9-1-1 call reporting a domestic assault. They arrived separately at the apartment

complex but proceeded to the designated apartment together. Officer Bechtel knocked on the

door, and Appellant answered, sporting a belt folded over in his right hand. The officers

immediately told Appellant to put the belt down, and he complied by tossing it into an infant car

seat. Both officers testified that when Appellant answered the door, he was sweating profusely

and breathing hard.

Appellant’s wife, Debra Pina, was sitting on a couch in the living room when they

arrived. The couple were the only people inside the apartment at that time. The officers

separated them. Officer Guevara initially approached Pina in the living room; but, when more

male officers arrived, Pina expressed a need to change clothing and Officer Guevara followed her

upstairs.1 Officer Bechtel remained downstairs to question Appellant.2

According to Officer Guevara, Pina was visibly shaken, scared, and had obviously been

crying. As Guevara followed Pina up the stairs, she noticed redness on the back on Pina’s arms,

but the staircase was fairly dark so she couldn’t quite tell what the marks looked like. Once

upstairs in the light, Guevara observed that Pina had multiple red, linear marks on the back of

each arm which were beginning to swell or “welt up.” When asked whether she was in pain,

Pina wouldn’t answer or even look at the officer. Officer Guevara also asked if Appellant had

caused the marks or hit her, but again Pina wouldn’t look at her and said nothing. When asked

whether this had happened before, Pina just cried. Officer Guevara then asked Pina if she could

photograph the injuries, but Pina refused and then said, “I just want him to leave.” At that point,

1 According to Officer Guevara’s testimony, Pina mentioned she was Muslim and needed to put on her “abaya” to cover her face.

2 Appellant simply said he and his wife had an argument, but he did not elaborate. Officer Guevara returned downstairs and signaled to the other officers to arrest Appellant.

Once Appellant was arrested and escorted from the apartment, Officer Bechtel spoke with

Pina’s thirteen-year-old daughter Marissa, who had placed the 9-1-1 call. Over Appellant’s

objection, an audio recording was admitted into evidence as an excited utterance and played for

the jury. The CAD (Computer Assisted Dispatch) report was also admitted. According to the

tape and report, Marissa told the dispatcher that Appellant was hitting her mother with a belt.

Officer Bechtel testified that when he approached Marissa for questioning, she was visibly upset

and crying. He was not permitted to testify to anything Marissa said to him.

Both Pina and Marissa testified for the defense. According to Pina, she and Appellant

had a verbal argument but she denied that Appellant ever struck her. On cross-examination, she

admitted it was possible he had a belt in his hand and that she had red marks on her arm.

Marissa testified that she did not actually see Appellant hit her mother. She had been

outside with her siblings and her paternal aunt. She only called 9-1-1 because her aunt told her to

do so.

SUFFICIENCY OF THE EVIDENCE

The Court of Criminal Appeals recently abandoned factual sufficiency review in those

cases where the burden of proof is beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893,

894-95 (Tex.Crim.App. 2010)(finding no meaningful distinction between the legal and factual

sufficiency standards and no justification for retaining both standards, therefore overruling the

factual sufficiency review adopted in Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.

1996)). In doing so, the Court also determined that the legal sufficiency standard articulated in

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is the only standard a reviewing court applies in determining whether the evidence is sufficient to support a

conviction. Brooks, 323 S.W.3d at 894-95. Therefore, in accordance with Brooks, we review

Appellant’s legal and factual sufficiency claims together under the Jackson legal-sufficiency

standard and determine whether the evidence is sufficient to support each and every essential

element of criminal offense beyond a reasonable doubt. See Brooks, 323 S.W.3d 894-95, citing

Jackson, 443 U.S. at 319, 99 S.Ct. 2789.

Standard of Review

Under the Jackson standard, a reviewing court must consider all evidence in the light

most favorable to the verdict and in doing so determine whether a rational justification exists for

the jury’s finding of guilt beyond a reasonable doubt. Brooks, 323 S.W.3d at 894-95, citing

Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. As the trier of fact, the jury is the sole judge as to the

weight and credibility of witness testimony, and therefore, on appeal we must give deference to

the jury’s determinations. Brooks, 323 S.W.3d at 894-95. If the record contains conflicting

inferences, we must presume the jury resolved such facts in favor of the verdict and defer to that

resolution. Id. On appeal, we serve only to ensure the jury reached a rational verdict, and we

may not reevaluate the weight and credibility of the evidence produced at trial and in so doing

substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 562

(Tex.Crim.App. 2000). This standard applies equally to both direct and circumstantial evidence.

King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995).

Applicable Law

Appellant was charged with intentionally, knowingly, or recklessly causing bodily injury

to Debra Pina, a member of Appellant’s family or household, by striking her with a belt. A

person commits an assault if the person, “intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse.” TEX .PENAL CODE ANN . § 22.01(a)(1)(West

2011). Bodily injury is defined as “physical pain, illness, or any impairment of physical

condition,” and is proved if the evidence shows that the victim suffered “some” pain. See

TEX .PENAL CODE ANN . § 1.07(a)(8)(West Supp. 2006); see Lane v. State, 763 S.W.2d 785, 786-

87 (Tex.Crim.App. 1989). This definition is purposefully broad and seems to encompass even

relatively minor physical contacts so long as they constitute more than mere offensive touching.

See Lane, 763 S.W.2d at 786; see also York v. State, 833 S.W.2d 734, 736 (Tex.App.--Fort

Worth 1992, no pet.). The jury may infer that the victim suffered pain based on evidence of

injuries or the circumstances of the assault. See Goodin v. State, 750 S.W.2d 857, 859

(Tex.App.--Corpus Christi 1988, pet. ref’d).

Analysis

Appellant first contends that the State’s evidence did nothing more than create a

suspicion of guilt which, under Urbano v. State, 837 S.W.2d 114 (Tex.Crim.App. 1992),

superceded in part on other grounds, Herrin v. State, 125 S.W.3d 436 (Tex.Crim.App. 2002), is

insufficient to sustain a conviction. See Urbano, 837 S.W.2d at 116 (“[i]f the evidence at trial

raises only a suspicion of guilt, even a strong one, then that evidence is insufficient.”). Appellant

points to the fact that the State did not call Pina as a witness or produce any photographs, relying

primarily on the 9-1-1 call instead. He emphasizes that upon arrival at the apartment, the officers

did not hear a belt slapping or any other sounds which would indicate a physical altercation was

in progress, nor did they see any physical signs of a disturbance in the living room. Appellant

also heavily relies on the fact that Pina never accused Appellant of hitting her, and affirmatively

denied the allegations.

As the trier of fact, the jury was free to believe or disbelieve any part or all of a witness’s testimony, and reconcile inconsistencies as they saw fit. See Margraves v. State, 34 S.W.3d 912,

919 (Tex.Crim.App. 2000). Apparently, the jury chose to believe the officers’ testimony and the

9-1-1 call over Pina’s and Marissa’s trial testimony. We must defer to the jury’s determination

of credibility. See TEX .CODE CRIM .PROC.ANN . art. 38.04 (West 1979); Bowden v. State, 628

S.W.2d 782, 784 (Tex.Crim.App. 1982)(holding that contradictions in evidence are reconciled by

the jury and will not result in reversal so long as there is enough credible testimony to support the

verdict.). Here, the jurors heard a recording in which Marissa told the operator that Appellant

was beating her mother with a belt. They also heard testimony from the responding officers that

when Appellant opened the door, he had a belt in his right hand and he was sweating profusely

and breathing hard. Pina was sitting on a couch in the living room and was visibly upset, shaken,

and had been crying. Finally, the jury heard testimony that red marks on the back of Pina’s arms

were beginning to welt which, in Officer Guevara’s opinion, was consistent with Pina being hit

by a belt. Considering the evidence before it, a rational jury could have found that Appellant

struck Pina, a member of his family or household, with a belt as alleged in the indictment.

Appellant next contends that even if the evidence supports a finding that Appellant struck

Pina with a belt, the conviction for assault cannot stand because there is no evidence he caused

any physical pain as required by the statute. The elements of family violence assault are: (1) the

defendant; (2) intentionally, knowingly, or recklessly; and (3) caused bodily harm to a family

member, including the defendant’s spouse. Davila v. State, 346 S.W.3d 587, 591 (Tex.App.--

El Paso 2009, no pet.). It is not necessary for the victim to testify that she experienced pain. The

jury may draw reasonable inferences from the evidence, including the inference that a victim

suffered pain as the result of her injuries. See Bolton v. State, 619 S.W.2d 166, 167

(Tex.Crim.App. 1981)(evidence of cut sufficient to show bodily injury); Arzaga v. State, 86 S.W.3d 767, 778-79 (Tex.App.--El Paso 2002, no pet.)(swelling and bruising of lips sufficient to

show bodily injury); Goodin, 750 S.W.2d at 859 (bruises and muscle strain sufficient to show

bodily injury). We conclude that the evidence is sufficient to support the jury’s implied finding

that Appellant caused bodily injury, i.e., inflicted pain upon Pina, when he struck her with a belt.

See Scugoza v. State, 949 S.W.2d 360, 362-63 (Tex.App.--San Antonio 1997, no writ); see also

Blevins v. State, No. 02-09-00237-CR, 2010 WL 5395836, at *3 (Tex.App.--Fort Worth Dec. 30,

2010, pet. ref’d) (holding evidence legally sufficient to sustain a conviction for family assault

where appellant shoved his wife, even though his wife testified she did not feel any pain when

she was shoved).

Finally, Appellant complains that even if all of the statements in the 9-1-1 call are true, it

is reasonably possible that Appellant and Pina were engaged in mutual combat and that he struck

her in self-defense, or that he struck her with her consent, arguing that “[w]ithout contextual

evidence regarding Pina’s actions or reactions, no one result is more reasonable than the other.”

However, it is the defendant’s duty to raise such defensive theories at trial. Appellant has raised

them for the first time on appeal. Because the State need not disprove any and all possible

defenses, Appellant’s contention is without merit. See Allen v. State, 273 S.W.3d 689, 693

(Tex.App.--Houston [1st Dist.] 2008, no pet.)(noting that, “It is the defendant’s burden to

produce evidence raising the defense, after which the burden shifts to the State,” and that, “The

burden placed on the State is not one of producing evidence to refute the defensive claim, but

rather to prove its assault case beyond a reasonable doubt.”).

Based on the totality of the circumstances, in the light most favorable to the jury’s

verdict, we conclude that the jury could have reasonably found each and every element of assault

beyond a reasonable doubt. For these reasons, we overrule both issues for review and affirm the trial court’s judgment.

November 9, 2011 ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)