Wawrykow v. State

866 S.W.2d 96, 1993 Tex. App. LEXIS 3198, 1993 WL 490247
CourtCourt of Appeals of Texas
DecidedNovember 24, 1993
Docket09-92-148 CR, 09-92-149 CR
StatusPublished
Cited by43 cases

This text of 866 S.W.2d 96 (Wawrykow 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
Wawrykow v. State, 866 S.W.2d 96, 1993 Tex. App. LEXIS 3198, 1993 WL 490247 (Tex. Ct. App. 1993).

Opinions

OPINION

WALKER, Chief Justice.

The instant appeals come to us from a single trial involving appellant and her father, George M. Wawrykow, as defendants; each being charged with two separate offenses.1 In the instant appeals, appellant was convicted by a jury for the misdemeanor offenses of Hindering Apprehension “A”, and Assault “A”. The jury assessed punishment at a fine of $3000 for the Hindering Apprehension offense with $1500 of said fine probated for a period of two (2) years. As for the Assault offense, the jury assessed appellant sixty (60) days in the Montgomery County Jail and, additionally, a fine of $3000. Appellant’s jail time and $1500 of the fine were again probated for a period of two (2) years. Consolidating her appeals in a single brief, appellant raises the following three points of error:

Point of Error One: There is insufficient evidence to sustain Tania Wawrykow’s conviction for Class A Assault as the State [98]*98failed to prove bodily injury as required by section 22.01 of the Penal Code.
Point of Error Two: There is insufficient evidence to sustain Tania Wawrykow’s conviction for Hindering Apprehension.
Point of Error Three: The prosecutor committed fundamental error by injecting his personal belief concerning the guilt of the appellants (sic) into the proceeding during final argument.

We will discuss appellant’s first and second points of error together as they encompass the same general appellate standard for reviewing insufficient evidence complaints.

Although appellant’s first two points of error complain generally of insufficient evidence, her brief reflects very specific and singular arguments regarding what pieces of evidence are lacking. The record reflects the separate informations charged appellant with Assault and Hindering Apprehension, respectively, by “intentionally, knowingly and recklessly causing] bodily injury to another, namely, OFFICER L. FAUSTER, by striking OFFICER L. FAUSTER on or about the head with her fist,” and “with intent to hinder the arrest of another, namely: GEORGE M. WAWRYKOW, did provide and aid in providing said GEORGE M. WAWRYKOW with means of avoiding arrest to-wit: by physically choking OFFICER FAUSTER with her arms.”

With regard to the Assault charge, appellant argues that the State was required to prove “bodily injury” to Officer Fauster stemming from the alleged blows to Officer Fauster’s head by appellant’s fist. The argument continues that, at trial, the State failed to elicit any testimony that the alleged striking of Officer Fauster’s head area by appellant caused Fauster “physical pain, illness, or any impairment of physical condition,”2 or that Fauster was hurt in any way by said blow or blows to her head area. Following a careful examination of the statement of facts, we must agree with appellant that direct evidence of “pain” or “hurt” to Officer Faus-ter is lacking.

Appellant’s argument under her second point of error is presented in her brief as follows:

Under Section 38.05(a)(2) of the Texas Penal Code, a person commits the offense of hindering apprehension by providing or aiding in the provision of any means of avoiding arrest or effecting escape. From a reading of the record, it is clear that when Tania Wawrykow went to the aid of her father, Dr. Wawrykow was not under arrest. Although he had been informed of the arrest, the officers had not yet effected the arrest_ It is clear that she believed that he (sic) father was being unduly assaulted and she came to his assistance to prevent further injuries. Upon seeing her father being struck, Ms. Wawrykow was acting under a form of duress which caused her to come to his assistance. As such and acting under the duress of seeing her father beaten, she cannot be held criminally liable for the offense of hindering apprehension.

As we appreciate her argument, appellant is saying that the evidence is lacking so as to prove that George Wawrykow was in fact under arrest when appellant “went to the aid of her father.” Appellant’s argument also appears to raise the defense of “necessity,” 3 as well as hint at an insanity defense.4 As to both of these issues, the record reflects no attempt by appellant to raise them before the trial court either prior to trial or by a requested instruction to the jury. As such, these latter two issues are not preserved for appellate review. Tex.R.App.P. 52(a). Thus, the sole issue before us under appellant’s second point of error is whether or not an arrest had been or was being effected on George Wawrykow at the time appellant intervened.

The law mandates that convictions be affirmed if the evidence, viewed in the light most favorable to the verdict, with all reasonable inferences and credibility choices made in support of it, is such that any ration[99]*99al trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979). Indeed, juries are free to use their common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence. United States v. Heath, 970 F.2d 1397, 1402 (5th Cir.1992), cert. denied sub nom, Cheng v. U.S., — U.S. —, 113 S.Ct. 1643, 123 L.Ed.2d 265 (1993). As factfinder, the jury is the exclusive judge of the credibility of witnesses and the weight to be afforded their testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.1991); Tex.Code Crim.PROcAnn. art. 38.04 (Vernon 1979). Texas law further provides that a jury may believe a witness even though the witness’s testimony has been contradicted; and that a jury may accept any part of a witness’s testimony and reject the rest. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986), cert. denied, 488 U.S. 872, 109 S.Ct. 190, 102 L.Ed.2d 159 (1988).

Furthermore, lest we commit the same erroneous analysis as was pointed out to us in Criner v. State, 860 S.W.2d 84 (Tex.Crim.App.1993), by “disregarding] the circumstantial evidence in the record,” and by “overlooking] the circumstantial evidence which could lead a rational trier of fact to believe beyond a reasonable doubt” that Officer Fauster was “hurt” or in “pain” as a result of appellant’s alleged actions, or that George Wawrykow was under arrest when appellant acted as alleged, we will look to the totality of the circumstances surrounding the entire incident in order to determine if the jury could have satisfied itself that all of the essential elements had been proven beyond a reasonable doubt. Id., op. at 86-87.

With regard to the Assault offense, several cases on the precise issue of proof of injury rely on the following language taken from Ramirez v. State, 518 S.W.2d 546 (Tex.Crim.App.1975):

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Cite This Page — Counsel Stack

Bluebook (online)
866 S.W.2d 96, 1993 Tex. App. LEXIS 3198, 1993 WL 490247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wawrykow-v-state-texapp-1993.