Kim Howard Lindley v. State ( 1998 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-97-00797-CR

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Kim Howard Lindley, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT NO. 19,510, HONORABLE CHARLES E. LANCE, JUDGE PRESIDING

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A jury found appellant Kim Howard Lindley guilty of attempted aggravated assault. Tex. Penal Code Ann. §§ 15.01(a), 22.02(a) (West 1994). The jury assessed punishment, enhanced by a previous felony conviction, at imprisonment for ten years and a $10,000 fine. Appellant's only point of error is that the evidence is factually insufficient to sustain the conviction. We will overrule this contention and affirm.  

Appellant called the Milam County emergency dispatcher around 12:20 a.m. on July 30, 1997, and reported that "his wife had jumped him and was hitting on him." Appellant did not request an ambulance or report that anyone was hurt, but the dispatcher heard a woman's voice screaming, "He's trying to kill me." In response to this call, Deputy Tommy Morgan was dispatched to a trailer park in Rockdale.

Upon Morgan's arrival at the scene, witnesses told him they had seen a man beating a woman and dragging her by the "back of the head." One of these witnesses testified that the woman and man had been arguing outside a trailer, that the witness heard a "big old thump," that he then saw the woman crawl up the steps into the trailer, that the man followed her inside, and that shortly thereafter he heard "another thump, like a frying skillet . . . ."

Morgan went to the trailer, where he was met by appellant on the front steps. Through the glass door, Morgan could see a person lying on the floor. Appellant told Morgan that "his girlfriend had whipped up on him and she just turned into a wildcat . . . ." Morgan entered the trailer, where he found Rebecca McCartney lying unconscious in a pool of blood. As Morgan described it, there was "blood everywhere, gobs of blood." Nearby, Morgan saw a metal oxygen bottle shown at trial to weigh twenty pounds. Morgan radioed for an ambulance and then spoke to McCartney. She told the officer "he tried to kill me and that's the only thing she could remember." Later, appellant told Morgan that he hit McCartney "as hard as he could because she deserved it for whipping up on him."

The emergency medical technician who responded to Morgan's call for assistance testified that he thought McCartney was dead when he first saw her. After he found a pulse and began treating her, he asked McCartney if she had been hit with the oxygen bottle. She told him that she had. The doctor who treated McCartney at the hospital testified that her scalp was cut and bruised, and that her skull had been fractured. He said that the injuries were consistent with being hit on the head by the oxygen bottle. McCartney's blood alcohol level at the hospital indicated that she was intoxicated.

McCartney testified that she and appellant had been living together in her trailer for about a year. At around 7:30 on the night in question, they began to argue and appellant hit her in the eye. She hit him back and told him to leave. He did so, taking her car. When appellant returned to the trailer later that night, McCartney asked him for her car keys. He refused to give them to her. When she persisted in her demand, appellant threw her to the kitchen floor and began to kick her. McCartney did not remember being outside the trailer or being hit on the head. She acknowledged that she had been drinking, but could not remember the amount.

Appellant testified that McCartney was intoxicated when he returned to the trailer. She accused him of being with another woman, and began cursing and slapping him. At some point, appellant's arm was scratched or cut and began to bleed. Appellant admitted knocking McCartney to the floor during their argument. Appellant testified that he and McCartney did not fight outside the trailer and that he did not know how she incurred the injuries to her head. He added that after he called the police, McCartney screamed at him, tore her shirt, and smeared blood over herself. Appellant said that McCartney had hit him on another occasion, but that he had never before hit her.

The defense called several other witnesses, including appellant's former wife and his two daughters. These witnesses testified that McCartney had a violent reputation. Appellant, on the other hand, was not a violent person and the witnesses had never known him to hit McCartney. Appellant's former wife testified that he did not strike her during their eleven years of marriage.

The district court's jury charge authorized appellant's conviction for attempted aggravated assault and for the lesser included offense of assault. The charge also included a self-defense instruction. See Tex. Penal Code Ann. § 9.31(a) (West 1994). The jury found appellant guilty of attempted aggravated assault as alleged in the indictment.

In Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991), the court articulated the test for legal sufficiency in a case in which self-defense is raised: "whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of [the offense] beyond a reasonable doubt and also would have found against [the defendant] on the self-defense issue beyond a reasonable doubt." Id. (citing Jackson v. Virginia, 443 U.S. 307 (1979)). When conducting a factual sufficiency review, the evidence is not viewed in the light most favorable to the verdict. Instead, all the evidence is considered equally, including the testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319, 321 (Tex. App.--Austin 1992, no pet.). A verdict will be set aside for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd as untimely filed). Substituting the Clewis test for factual sufficiency for the Jackson legal sufficiency test employed in Saxton, appellant argues that the jury's finding of guilt and its implicit finding against him on the self-defense issue are so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

The evidence leaves no doubt that appellant and McCartney violently argued on the night she was injured. But even if the jury accepted as true appellant's claim that McCartney was the aggressor, and that she slapped appellant and somehow caused his arm to bleed, it could nevertheless conclude beyond a reasonable doubt that appellant used unreasonably excessive force to defend himself against McCartney's attack. See Penal Code § 9.31. Appellate courts exercise their fact jurisdiction only to prevent a manifestly unjust result. Reina v. State, 940 S.W.2d 770, 773 (Tex. App.--Austin 1997, pet. ref'd). We find no manifest injustice in the jury's conclusion that McCartney's conduct did not justify the beating she received from appellant. The point of error is overruled.

In addition to the brief filed by counsel, appellant has tendered a pro se brief. An appellant is not entitled to hybrid representation. Tobias v. State, 884 S.W.2d 571, 585 (Tex. App.--Fort Worth 1994, pet. ref'd). Nevertheless, we have examined the pro se contentions in the interest of justice and find them to be without merit.

The judgment of conviction is affirmed.

Lee Yeakel, Justice

Before Chief Justice Aboussie, Justices Jones and Yeakel

Affirmed

Filed: December 29, 1998

Do Not Publish

hat after he called the police, McCartney screamed at him, tore her shirt, and smeared blood over herself. Appellant said that McCartney had hit him on another occasion, but that he had never before hit her.

The defense called several other witnesses, including appellant's former wife and his two daughters. These witnesses testified that McCartney had a violent reputation. Appellant, on the other hand, was not a violent person and the witnesses had never known him to hit McCartney. Appellant's former wife testified that he did not strike her during their eleven years of marriage.

The district court's jury charge authorized appellant's conviction for attempted aggravated assault and for the lesser included offense of assault. The charge also included a self-defense instruction. See Tex. Penal Code Ann. § 9.31(a) (West 1994). The jury found appellant guilty of attempted aggravated assault as alleged in the indictment.

In Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991), the court articulated the test for legal sufficiency in a case in which self-defense is raised: "whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of [the offense] beyond a reasonable doubt and also would have found against [the defendant] on the self-defense issue beyond a reasonable doubt." Id. (citing Jackson v. Virginia, 443 U.S. 307 (1979)). When conducting a factual sufficiency review, the evidence is not viewed in the light most favorable to the verdict. Instead, all the evidence is considered equally, including the testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319, 321 (Tex. App.--Austin 1992, no pet.). A verdict will be set aside for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd as untimely filed). Substituting the Clewis test for factual sufficiency for the Jackson legal sufficiency test employed in Saxton, appellant argues that the jury's finding of guilt and its implicit finding against him on the self-defense issue are so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

The evidence leaves no doubt that appellant and McCartney violently argued on the night she was injured. But even if the jury accepted as true appellant's claim that McCartney was the aggressor, and that she slapped appellant and somehow caused his arm to bleed, it could nevertheless conclude beyond a reasonable doubt that appellant used unreasonably excessive force to defend himself against McCartney's attack. See Penal Code § 9.31. Appellate courts exercise their fact jurisdiction only to prevent a manifestly unjust result. Reina v. State, 940 S.W.2d 770, 773 (Tex. App.--Austin 1997, pet. ref'd). We find no manifest injustice in the jury's conclusion that McCartney's conduct did not justify the beating she received from appellant. The point of error is overruled.

In addition to the brief filed by counsel, appellant has tendered a pro se brief. An appellant is not entitled to hybrid representation. Tobias v. State, 884 S.W.2d 571, 585 (Tex. App.--Fort Worth 1994, pet. ref'd). Nevertheless, we have examined the pro se contentions in the interest of justice and find them to be without merit.

The judgment of conviction is affirmed.