Jose Botello v. State ( 2005 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JOSE BOTELLO,                                                 )

                                                                              )     No.  08-04-00127-CR

Appellant,                          )

                                                                              )                   Appeal from the

v.                                                                           )

                                                                              )     County Court At Law #4

THE STATE OF TEXAS,                                     )

                                                                              )     of El Paso County, Texas

Appellee.                           )

                                                                              )     (TC# 20040C02664)

                                                                              )

O P I N I O N

Jose Botello, appeals from his conviction for misdemeanor assault.  A jury found him guilty, and the trial judge assessed a punishment of 365 days= confinement, probated to 18 months community supervision, and a $200 fine.  On appeal, he raises two issues.  In Issue One, he challenges the legal sufficiency of the evidence to support his conviction.  In Issue Two, he challenges the factual sufficiency of the evidence.  We will affirm.

The Appellant and Ms. Cecilia Botello have been married for about twenty-three years and have four children.  On February 17, 2004, Ms. Botello arrived home between 6 p.m. and 7 p.m.  Appellant was in their bedroom, and since they had been having problems, she decided to go to her daughter=s room. Ms. Botello was falling asleep when Appellant went into the daughter=s bedroom and asked her why she had not gone into their bedroom.  Ms. Botello responded by telling the Appellant that she did not want to argue and that she just wanted to be by herself.  Appellant left the room and returned shortly.  Ms. Botello was on the telephone and Appellant started threatening her and asking her why was she on the telephone.  Ms. Botello  hung up the phone and they started to argue; she described the argument as a Astrong argument.@  She tried to leave the bedroom, and as she went through the doorway, Appellant pushed her from behind and her face hit the door frame.  Ms. Botello first went into the living room, then she tried to go back into her daughter=s bedroom and Appellant pushed her again causing her to hit the back of her head against the door.

After this, Ms. Botello left the house and went to the police station.  El Paso Police Officer Robert Hernandez observed two bumps on Ms. Botello=s forehead; one on the left side and one on the right side.  Officer Hernandez took photographs of the two injuries.  The two photographs depicting these injuries were submitted as State=s Exhibits 1 and 2.  Officer Hernandez later observed a third bump on the back of Ms. Botello=s head, but did not take a photograph of this injury.

Police Officers Francisco Zubia and Jeff Wall then followed Ms. Botello back to her house.  Ms. Botello let them inside the house.  The Appellant was in the house and denied the incident happened, but did not provide any explanation as to what did happen that evening.  Officer Zubia and Officer Wall testified that they did not notice any injuries on Appellant=s body. Ms. Botello walked Officer Zubia through the house explaining what happened.  Officer Zubia noticed pieces of shattered glass, either from a dish or cup, in the kitchen sink and on the kitchen floor.  Appellant was placed under arrest and escorted to the police station.

Appellant was charged by information with Aintentionally, knowingly, and recklessly causing bodily injury to Cecilia Botello by striking the head of Cecilia Botello against a door frame.@  A jury trial was held and Appellant was found guilty.  The trial court sentenced the Appellant to a probated sentence of eighteen months of community supervision.

In Issue One, Appellant challenges the legal sufficiency of the evidence, specifically arguing that the State failed to prove that Appellant caused bodily injury by striking the head of complainant against a door frame.  In Issue Two, Appellant challenges the factual sufficiency of the evidence.  Appellant contends that Athe evidence was factually insufficient to support the judgment or sentence, based upon the greater weight of the credible evidence by the defense that the complainant fabricated her complaint and self-inflicted her injuries because she was angry with Appellant.@  Appellant further argues that his Aconviction was manifestly unjust based upon the complainant=s incredulous testimony, and based upon the greater weight of the credible evidence by the defense that the complainant fabricated her complaint and self-inflicted her injuries because she was angry with Appellant.@

Under Tex.Pen.Code Ann. ' 22.01 (a)(1)(Vernon Supp. 2004-05), a person commits an offense of assault if the person Aintentionally, knowingly, or recklessly causes bodily injury to another, including the person=s spouse . . . .@  The Appellant=s information read in relevant part as follows:

[D]id then and there intentionally, knowingly, and recklessly caused bodily injury to Cecilia Botello by striking the head of Cecilia Botello against a door frame . . . . 

Appellant=s jury charge stated:

Now, if you find from the evidence beyond a reasonable doubt that on or about February 17, 2004, in El Paso County, Texas, the defendant, JOSE BOTELLO, did intentionally, knowingly or recklessly cause bodily injury to CECILIA BOTELLO by striking the head of CECILIA BOTELLO against a door frame, then you will find the defendant >GUILTY.=

The Appellant argues that there was a fatal variance between the jury charge and the evidence presented at trial.  As we understand, Appellant argues that the evidence is insufficient because there is a variance between the manner and means the State alleged was used (striking the head of the complainant against a door frame) and the actual manner and means used (pushing complainant).  Appellant asserts that a Apush@ is not tantamount to a Astrike.@  Citing to Phelps v. State, 999 S.W.2d 512, 515 (Tex.App.--Eastland 1999, pet. ref=d), the State contends that the language Aby striking the head of Cecilia Botello against the door frame@ is surplusage and not an essential element of the offense.  Therefore, it would not be included in a hypothetically correct jury charge on a misdemeanor assault.

In Phelps, the indictment alleged that the defendant did A>intentionally and knowingly cause serious bodily injury to [the victim], a child younger than fifteen years of age, by striking her in the head with his hand.=@ Phelps, 999 S.W.2d at 515. The Court held that the language, Aby striking her in the head with his hand,@ is not an element of the crime of injury to a child.  Id. at 516.  Additionally, citing Gollihar v. State, 46 S.W.3d 243, 257 (Tex.Crim.App. 2001), the State argues that only a material variance will render the evidence insufficient.

The Court of Criminal Appeals held in Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997), that the sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetical correct jury charge for the case.  The Court broadened the ramifications of Malik by holding that for the purposes of a sufficiency of the evidence review, a hypothetically correct charge need not incorporate allegations that give rise to immaterial variances.  Gollihar, 46 S.W.3d at 256.  In Gollihar, the Court states:

A variance between the wording of an indictment and the evidence presented at trial is fatal only if >it is material and prejudices [the defendant=s] substantial rights.=  When reviewing such a variance, we must determine whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the deficiently drafter indictment would subject the defendant to the risk of being prosecuted later for the same crime.

Gollihar, 46 S.W.2d at 257, quoting United States v. Sprick, 233 F.3d 845, 853 (5th Cir. 2000).  An immaterial variance will be discharged in a review of the sufficiency of the evidence. Gollihar, 46 S.W.3d at 258. In this case, the variance was not material because the complained of language was not an element of assault.

We agree with the State that the language Aby striking the head of [the complainant] against a door frame,@ which was included in Appellant=s information and jury charge is not an essential element of the offense of assault.  See Tex.Pen.Code Ann. ' 22.01(a)(1); Phelps, 999 S.W.2d at 518.  A hypothetically correct jury charge would not include the allegation, Aby striking the head of the complainant against a door frame.@ See Malik, 953 S.W.2d at 239-40. Our sufficiency analysis is therefore measured by the information and jury charge without such allegation.  See Gollihar, 46 S.W.3d at 255-56.

Standard of Review

In reviewing the legal sufficiency of the evidence, we must review the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979).  Our duty is not to reexamine the evidence and impose our own judgment as to whether the evidence established guilt beyond a reasonable doubt.  See Lyon v. State, 885 S.W.2d 506, 516-17 (Tex.App.--El Paso 1994, pet. ref=d).  Instead, our duty is to determine whether if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in the light most favorable to the verdict.  Adelman v. State, 828 S.W.2d 418, 421-22 (Tex.Crim.App. 1992). The jurors are empowered to Adraw reasonable inferences from basic facts to ultimate facts.@ Garay v. State, 954 S.W.2d 59, 66 (Tex.App.--San Antonio 1997, pef. ref=d), citing Kapuscinski v. State, 878 S.W.2d 248, 249 (Tex.App.--San Antonio 1994, pet. ref=d ). Any inconsistencies in the evidence are resolved in favor of the verdict.  See Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991).

In reviewing a factual sufficiency of the evidence challenge, we consider all of the evidence in a neutral light, both for and against the verdict, to determine whether it demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.  Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996).  In conducting a factual sufficiency review, we cannot substitute our conclusions for those of the jury.  See Davila v. State, 930 S.W.2d 641, 647 (Tex.App.--El Paso 1996, pet. ref=d). Our review must employ appropriate deference and should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any evidence presented at trial.  Johnson, 23 S.W.3d at 7; Clewis, 922 S.W.2d at 134.  A jury=s verdict is not manifestly unjust merely because the fact finder resolved conflicting views of the evidence in favor of the State.  Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997).

Reviewing the evidence in the light most favorable to the verdict and measuring the legal sufficiency of the evidence by the elements of assault as defined by a hypothetically correct jury charge, we find that the fact finder could have found beyond a reasonable doubt that the Appellant intentionally, knowingly, and recklessly caused bodily injury to Ms. Botello.  See Tex.Pen.Code Ann. ' 22.01(a)(1); Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2788-89; Malik, 953 S.W.2d at 240.

Ms. Botello testified as to two separate instances where the Appellant inflicted injury on her body.  Ms. Botello testified that as she was trying to leave the bedroom, Appellant pushed her from behind causing her to hit her head on the doorway. Later, Appellant pushed her again causing Ms. Botello to hit the back of her head against the door.  Officers Hernandez, Zubia, and Wall all testified that they observed the bruising on Ms. Botello=s head.  Officer Hernandez testified that he saw a third bump on the back of Ms. Botello=s head.  The State introduced the photographs depicting Ms. Botello=s head injuries at the trial.

Officer Hernandez testified that when Ms. Botello walked into the police station, she appeared withdrawn; he found it difficult to engage her in conversation and all the while, she kept her head down, was real soft spoken, appeared to be afraid, and at times, was crying.  In his opinion, she appeared to be affected by the events that had just occurred.  Office Zubia also testified that Ms. Botello kept her head down and was very quiet; she did not make any eye contact with him, she appeared to be scared, and it seemed as if she had been crying.  The jury could have inferred from this behavior that Ms. Botello had just been assaulted by her husband.

Furthermore, Appellant=s behavior when the police officers arrived at the Botello=s residence was described as Aa little fast paced@ when he questioned the officer=s presence.  Appellant also became irate when he was told about Ms. Botello=s allegations.  Again, the jury was free to infer from this behavior that Appellant had just assaulted Ms. Botello.

During the trial, Ms. Botello testified that she and her husband attend counseling.  Her counselor, Ms. Gloria Lee, testified that after the incident, during an individual session, Ms. Botello had not indicated that Appellant had hit her against the door frame nor that he had hit her at all.  Instead, Ms. Botello had told her that she had hit herself against the door frame of the bedroom.  Ms. Botello reported to the police that Appellant had hit her because she wanted Appellant to know that she was not going to tolerate any abuse.  Ms. Botello stated this during an individual session and then at a later session in front of the Appellant.  Appellant likewise indicated to Ms. Lee that he did not hit Ms. Botello.  Appellant did admit that they had been arguing, during which Ms. Botello threw a telephone at him and he threw a stuffed animal at her.  The injuries Ms. Botello sustained, were due to her banging her head against the door frame on her own.  However, by the time Ms. Lee had any sessions with Ms. Botello and the Appellant, Ms. Botello no longer had any visible injuries.  Ms. Lee testified that she did not know how severe Ms. Botello=s injuries were because she never saw any injuries.

Ms. Botello denied having told Ms. Lee that she made up the events that occurred on February 17.  She testified that she did not indicate to Ms. Lee that the assault did not occur.  Ms. Botello did however, sign a nonprosecution statement on March 22. Indicating that they would be getting a divorce, Ms. Botello testified that she and her husband had made an agreement where if she withdrew the charges, he would not fight for custody of the children or for the house.  However, this agreement was not yet in writing.

Given such testimony, we assume that the trial court resolved conflicts, including conflicting inferences, in favor of the verdict.  Matchett v. State, 941 S.W.2d 922, 936 (Tex.Crim.App. 1996).  In conducting our legal sufficiency review, we defer to that resolution and also resolve any inconsistencies in favor of the verdict.  See Matchett, 941 S.W.2d 936; Matson, 819 S.W.2d at 843. Viewing the evidence in the light most favorably to the verdict, we find that the evidence was legally sufficient to sustain the conviction for the offense of assault.  We overrule Issue One.

As was stated above, Ms. Lee provided contradicting testimony regarding Appellant assaulting Ms. Botello.  Ms. Botello also testified that she and the Appellant attended counseling with Ms. Lee, and stated that she never told Ms. Lee that she had made up the events of February 17.  She further stated that she did not give Ms. Lee any indication that the assault did not occur.

On cross-examination, Ms. Botello was asked why the pictures of her injuries showed a bump on the left side of her forehead, when she testified that she hit her right side.  Ms. Botello responded by stating that while she was testifying, she could not distinguish between the two sides.  She also indicated that the events occurred very fast.

We give due deference to the fact finder=s determinations since the fact finder is the judge of the credibility of the witnesses, and may Abelieve all, some, or none of the testimony.@  Chambers v. State, 805 S.W.2d 459, 461(Tex.Crim.App. 1991).  The jury obviously found Ms. Botello to be a credible witness and believed her testimony regarding the assault.  Having reviewed the entire record, we find that the evidence is not so obviously weak as to undermine the jury=s determination, nor is the proof of guilt, taken alone, greatly outweighed by contrary proof.  See Johnson, 23 S.W.3d 9; Clewis, 922 S.W.2d at 134. We therefore overrule Issue Two.

We affirm the trial court=s judgment. 

August 25, 2005

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)