Raymond Perry, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: May 31, 2007
• Docket: 14-05-01155-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed May 31, 2007

Affirmed and Memorandum Opinion filed May 31, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-01155-CR

RAYMOND PERRY, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 7

Harris County, Texas

Trial Court Cause No. 1329795

M E M O R A N D U M   O P I N I O N

Appellant Raymond Perry was convicted of assaulting a family member and sentenced to 140 days= confinement in the Harris County jail.  Appellant argues on appeal that the evidence is factually insufficient to show he assaulted a family member by any of the means alleged by the State.  We affirm.      

I.  Factual and Procedural History

At appellant=s trial, Vantrice Ware testified that she witnessed the altercation at issue on June 25, 2005.  According to Ware, appellant and Shantell Harrell, the mother of appellant=s child, crossed paths on a stairwell at the apartment complex where appellant lived.  Ware testified that she saw appellant push Harrell onto the stairs, strike her with his hands, and place his knee on her neck.  According to Ware, Harrell screamed Aget off me@ and resisted appellant.  Ware then ran for help and summoned two officers who were at the complex investigating an unrelated case.

Deputy Francisco Garcia arrived at the scene first and discovered appellant arguing with some women.  According to Garcia, the women told him that appellant had just assaulted Harrell.  Garcia testified that he attempted to detain appellant, but appellant ran upstairs and into his apartment.  Garcia explained that appellant eventually came out of the apartment in response to requests by another law enforcement officer.

Garcia also testified regarding his interview of Harrell at the scene.  According to Garcia, Harrell was very angry at that time and told him that appellant assaulted her.  Garcia testified that Harrell told him that she wanted to file charges because appellant pushed her down the stairs, put his knee on her neck, and struck her with his fists.  Garcia photographed injuries to Harrell=s head, forehead, and neck; according to Garcia, Harrell reported that appellant caused these injuries.

Because appellant and Harrell have a child, appellant was charged with assault of a family member.  In the charging instrument, the State alleged that appellant assaulted Harrell by (1) striking her with his hand, (2) pushing her down some stairs, and (3) placing his knee on her neck.  At trial, Harrell testified she had been fighting with some girls when she was on her way to appellant=s apartment.  She stated she was going to confront the girls, and appellant tried to stop her.  According to Harrell, appellant grabbed her, and caused her to fall onto the stairs where  she  scratched her neck.  Harrell denied that appellant ever put his knee on her neck.

The jury found appellant guilty and the trial court assessed punishment at 140 days= confinement in the Harris County jail.  This appeal ensued. 

II.  Issues Presented

In three issues, appellant argues the evidence is factually insufficient to prove that he assaulted Harrell by pushing her with his hand, pushing her down stairs or placing his knee on her neck.

III.  Analysis

When evaluating the factual sufficiency of the evidence, we view all the evidence in a neutral light and determine whether there is an objective basis in the record on which to conclude that the great weight and preponderance of the evidence contradicts the jury=s verdict.  Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).

Although raised in three separate issues, appellant essentially contends that the evidence is factually insufficient to support his conviction for assault by any of the three   means asserted by the State.  Because the State was required to prove only one of the  means alleged in order to support the conviction,^[1] we must affirm appellant=s conviction if the State presented factually sufficient evidence to prove he assaulted Harrell by striking her with his hand, by pushing her down the stairs, or by placing his knee on her neck.

Appellant first argues  the jury should not have convicted him because the testimony of the State=s witnesses was either contradicted or explained by other witnesses.  However, the jury is the exclusive judge of the credibility of witnesses and the weight to be given to their testimony, and it is the jury=s exclusive province to reconcile conflicts in evidence.  Johnson v. State, 187 S.W.3d 591, 602 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d).  In reviewing the evidence, we do not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony.  See Watson, 204 S.W.3d at 417.

Here, Ware testified that she saw appellant assault Harrell by each of the three means alleged.  Garcia similarly testified that Harrell=s initial statements to investigators corroborated Ware=s description.  Moreover, the State offered photographs of Harrell=s injuries and her previous statement that she wished to press charges.  The jury apparently found this evidence more credible than the statements Harrell made at trial, and we will not substitute our judgment of witness credibility for the jury=s determination.  See Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000) (en banc).

Appellant also argues that Harrell offered no testimony that appellant caused her bodily injuries or pain.  This omission does not render the remaining evidence insufficient.  Harrell testified that she fell on the stairs and injured her neck after appellant grabbed her, and the State offered photographs of Harrell=s injuries.  Appellant next points to the testimony of his mother, Rose Perry Mitchell, who told the jury that she saw her son shortly after his arrest and observed quite a few injuries on him.   Appellant argues his mother=s testimony is consistent with the injuries Harrell said she inflicted on appellant during her struggle with him.  However, the fact that appellant may have sustained some injuries during the assault is not inconsistent with the other evidence showing that he attacked Harrell.  In sum, when viewed in conjunction with Ware=s eyewitness testimony, the evidence is factually sufficient to support appellant=s conviction for assault by any or all of the means alleged by the State.

After viewing the evidence in a neutral light, we conclude that the great weight and preponderance of the evidence does not contradict the jury=s verdict.  Accordingly, we overrule each of appellant=s stated issues.

IV.  Conclusion

We hold the evidence is factually sufficient to support appellant=s conviction and affirm the judgment of the trial court.      

/s/      Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed May 31, 2007.

Panel consists of Justices Frost, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).                  

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^[1]  See Eastep v. State, 941 S.W.2d 130, 133 (Tex. Crim. App. 1997) (en banc), overruled on other grounds, Riney v. State, 28 S.W.3d 561, 564B65 (Tex. Crim. App. 2000).