Dan Barnett v. State ( 2009 )

Opinion to: SR TJ EVK ERA GCH LCH JB JS MM TGT

Opinion issued September 24, 2009

In The

Court of Appeals

For The

First District of Texas

NO.   01-08-00669-CR

Dan Barnett, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262^nd District Court

Harris County, Texas

Trial Court Cause No. 1098655

MEMORANDUM opinion

A jury convicted appellant, Dan Barnett, of the aggravated robbery of his 65-year-old mother, and the trial court assessed punishment at twenty-three years in prison.[1]  In his sole issue on appeal, Barnett complains that the evidence of bodily injury is factually insufficient to support his conviction.  We affirm.

BACKGROUND

Complainant, Annie Smith, drove home to find appellant, her son, standing at the back of her garage.  Appellant informed complainant that he smelled smoke and suggested that they check under the hood of her car.  Appellant then asked her to open the car’s trunk, but she refused.  Fearing that appellant was delusional,[2] complainant, in an effort to leave, got back in the car, locked the door, and tried unsuccessfully to start the car.  

Stepping closer to the car, appellant told complainant that he thought that she was “someone else” and that he was “going to get [her].”  He then punched out one of the car’s windows with his fist, shattering the glass.  Glass fragments hit complainant, scratching her and drawing blood.  Appellant continued to punch through the broken window, trying to pull complainant out of the car.  Hearing her cries for help, three neighbors came to her aid and, as one of them restrained appellant, complainant got out of the car.  Appellant then drove off in complainant’s vehicle without her permission.

Complainant reported the incident to the Houston Police Department (“HPD”) later that day.  When complainant contacted HPD two weeks later to follow up on her report, Officer K. Miles was dispatched to meet with her.  Complainant told Officer Miles that she was afraid to go home alone because she believed that her son was there.  The officer then accompanied complainant to her home where he observed appellant sitting in the driver’s seat of the stolen car.  Appellant was arrested and later indicted for aggravated robbery, with the indictment alleging that, “while in the course of committing theft of property owned by Annie Smith and with intent to obtain and maintain control of the property,” appellant “intentionally and knowingly cause[d] bodily injury to Annie Smith, a person of at least sixty-five years in age by scratching Annie Smith and throwing Annie Smith to the ground.”

Factual Sufficiency of the Evidence

In his sole point of error, appellant asserts that the evidence is factually insufficient to support his conviction for aggravated robbery because the complainant testified at trial that she was unsure whether she suffered physical pain during the incident.  Specifically, appellant argues that complainant’s testimony that she did not realize that she had been hit by the shattered glass until after the incident was over casts doubt upon the testimony of Officer Miles and complainant’s neighbors, thereby undermining the jury’s verdict and rendering the verdict against the great weight and preponderance of the evidence.    

A.      Standard of Review

When conducting a factual-sufficiency review, we view all of the evidence in a neutral light.  Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007) (citing Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000)).  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, 23 S.W.3d at 11.  Under the first prong of Johnson, we cannot conclude that a conviction 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 v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).  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 concluding 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. 

In conducting our review, we must be cognizant of the fact that a jury has already passed on the facts and avoid substituting our judgment for that of the jury. Lancon v. State, 253 S.W.3d 699, 704–05 (Tex. Crim. App. 2008).  The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and may choose to believe all, some, or none of the testimony presented.  Id. at 707.  We therefore afford almost complete deference to a jury’s determination when that decision is based on an evaluation of credibility.  Id. at 705. Unless the record clearly indicates that a different result is appropriate, we must defer to the jury’s determination concerning the weight to be given contradictory evidence.  Id. at 705.

 In conducting a factual-sufficiency review, we also must discuss the evidence that, according to appellant, most undermines the jury’s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).  We may not find the evidence factually insufficient simply because we disagree with the verdict, but only because the verdict represents a manifest injustice.  Watson, 204 S.W.3d at 414.

B. Discussion

Appellant asserts that complainant’s testimony that she was uncertain if she experienced pain as a result of the assault by her son conflicts with the testimony of other witnesses.  According to appellant, this contradictory evidence renders the verdict against the great weight and preponderance of the evidence.    

Under Texas law, a person commits the offense of aggravated robbery if, in the course of committing theft and with intent to obtain or to maintain control of the property, he causes bodily injury to another person, if the other person is 65 years of age or older. Tex. Penal Code Ann. §§ 29.02(a)(1), 29.03(a)(3)(A) (Vernon 2003).  Bodily injury is defined as “physical pain, illness, or any impairment of physical condition.” [3]  Tex. Penal Code Ann. § 1.07(a)(8) (Vernon 2003).  The definition is broad and encompasses even relatively minor physical contacts as long as they constitute more than mere offensive touching.  Aguilar v. State, 263 S.W.3d 430, 433 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (citing Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989)). 

Additionally, jurors may presume that an injured party actually felt or suffered physical pain.  Aguilar, 263 S.W.3d at 434.  Under Texas law, juries may “use 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.”  Taylor v. State, 71 S.W.3d 792, 795 (Tex. App.—Texarkana 2002, pet. ref’d). Thus, they can assume physical pain from the altercation itself, even without direct evidence.  See Goodin v. State, 750 S.W.2d 857, 859 (Tex. App.—Corpus Christi 1988, pet. ref’d) (rejecting contention that victim’s failure to testify that he felt pain necessitated finding of factual insufficiency as to “bodily injury”; holding existence of bruises and muscle strain sufficient to show bodily injury because jury could draw inference from these injuries that victim suffered physical pain).

In the present case, the jury was presented with conflicting evidence regarding whether complainant experienced physical pain as a result of her altercation with appellant.  Appellant points to complainant’s testimony that, when asked if it hurt when she was struck by glass from the shattered window, she replied that she did not realize that she had been hit by the glass fragments until later.  

Our review of the record shows that, although complainant testified that she did not recall feeling any pain during the incident, she also acknowledged, based upon her past experiences that cuts deep enough to draw blood also cause pain.  Likewise, she testified that appellant possibly hit her during the altercation, although she could not remember if it had actually happened.[4]  Complainant’s neighbors also testified that they saw appellant attacking her and heard her scream that appellant was hurting her.

The record also reveals that, although complainant denied during her testimony at trial that appellant grabbed her or threw her to the ground, she admitted on cross-examination that she had previously told Assistant District Attorney Anna Emmons that appellant had hurt her wrists, caused bruises on her body, tried to choke her, and would have killed her had the neighbors not stepped in. Officer Miles also testified that, approximately two weeks after the incident, complainant told him that appellant had punched her in the face an unknown number of times and had thrown her to the ground, and that she had bruises and scratches on her upper body as a result of the altercation.  According to Miles, some of the complainant’s scratches were still visible when he met with her.

Reviewing all of the evidence in a neutral light, and giving deference to the jury’s determinations on credibility and the weight to be given contradictory evidence, we conclude that the jury’s verdict is not against the great weight and preponderance of the evidence.  See Lancon, 253 S.W.3d at 706.  We hold that the evidence is factually sufficient to support appellant’s conviction and overrule appellant’s sole point of error.

CONCLUSION

We affirm the judgment of the trial court.

                                                          Jim Sharp

                                                          Justice

Panel consists of Justices Jennings, Higley, and Sharp.

Do not publish.  Tex. R. App. P. 47.2(b).

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[1]        See Tex. Penal Code Ann. §§ 29.02(a)(1), 29.03(a)(3)(A) (Vernon 2003). 

[2]        According to evidence offered during the sentencing phase of the trial, appellant had a long history of mental illness. 

[3]        There was no contention that complainant’s physical condition was impaired or that she became ill as a result of her altercation with appellant. Accordingly, the only type of “bodily injury” at issue is “physical pain.”

[4]        Early in her direct examination, the State obtained permission to treat complainant as a hostile witness.  Complainant later admitted that she loved appellant and did not want anything bad to happen to him.