Edwin E. Swanson v. State ( 2006 )

Affirmed and Memorandum Opinion filed February 28, 2006

Affirmed and Memorandum Opinion filed February 28, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00195-CR

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EDWIN E. SWANSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 949985

M E M O R A N D U M   O P I N I O N

After a trial to the court, appellant Edwin E. Swanson was found guilty of aggravated assault with a deadly weapon, namely a bottle, and the trial judge assessed his punishment at twenty-five years= confinement in the Institutional Division of the Texas Department of Criminal Justice.  On appeal, appellant contends the evidence is legally and factually insufficient to support the conviction because the evidence showed he acted in self-defense, and the trial court erred in allowing the State to impeach appellant with prior convictions in violation of Texas Rule of Evidence 609.  We affirm.

Factual Background

On May 24, 2003, complainant Vipul Patel owned and operated the La Chateau liquor store on Woodway.  Patel testified that, shortly after he opened the store that day, appellant came in and bought a soda.  On his way out, appellant expressed interest in a bottle of gin and said he would check with his girlfriend about the purchase.  About fifteen minutes later, appellant returned, grabbed a bottle of gin, and came up to the counter.  Appellant said to Patel, AGive me your money and let=s fight.@  Appellant then hit Patel on the forehead with the glass liquor bottle, and they began to struggle.  When Patel came around the counter, appellant struck him a second time behind his ear. Patel was briefly knocked unconscious. When he regained consciousness, appellant was gone.  Appellant=s glasses, which apparently were knocked off during the struggle, were left behind, along with the bottle of gin.  Patel identified appellant both in a pre-trial photo array and in court.

Witnesses testified they saw appellant running from the liquor store and hiding behind a dumpster at a nearby restaurant.  With the help of the witnesses, two men from a hair salon next door to Patel=s liquor store located appellant standing at a bus stop and detained him until the police arrived.

Officer Angelo, one of the officers who responded to the incident, testified that when he interviewed Patel, Patel did not tell him that appellant had demanded money, and the officer had no information to indicate that a robbery had taken place.  Officer Angelo acknowledged that Patel did tell him he had been robbed a month earlier and that appellant matched the description of one of the robbery suspects.^[1]

Valgene Holmes and Barbara Swanson, appellant=s mother, testified on appellant=s behalf.  Both testified that appellant was gainfully employed at the time of the incident.

Appellant took the stand in his defense and testified that when he paid for the soda, Patel told him he had to be crazy to come back in his store after robbing him the month before.  Patel then hit appellant with his hand and they started fighting.  Patel said he was going to kill appellant, and hit him two times. In self-defense, appellant picked up a liquor bottle and hit Patel twice with it.  At trial, appellant denied saying AGive me your money@ or ALet=s fight@ to Patel.  On cross-examination, appellant admitted that he was convicted of two cases of robbery in 1995, theft in 1994, robbery in 1987, and, finally, four counts of aggravated robbery in 1984.

Analysis of Appellant=s Issues

In his first issue, appellant contends the evidence is legally and factually insufficient to support his conviction, because the evidence showed he acted in self-defense.  In his second issue, appellant contends the trial court erred in allowing the State to impeach appellant with prior convictions in violation of Texas Rule of Evidence 609. 

1.       Legal and Factual Sufficiency of the Evidence

Appellant contends the evidence is both legally and factually insufficient because Patel=s version of events made less sense than his, and Patel=s attempt to portray the incident as a robbery was not credible.  According to Patel, appellant paid for a soda and then said AGive me your money and let=s fight,@ but appellant points out that he had no weapons and no disguise, and he did not take anything from the store, even though Patel was unconscious for a time.  Appellant also ran out of the store without retrieving his glasses, even though he cannot see well without them.  Moreover, when the police investigated the incident, Patel never said anything to them about appellant demanding money from him.  Patel did inform the police, however, that he was robbed a month earlier and believed appellant looked like one of the suspects, which appellant asserts is consistent with his testimony that Patel accused him of being one of the robbers before he began fighting with appellant.  Thus, appellant contends, it is apparent that Patel suffered trauma from the earlier robbery and, as a result, mistakenly believed appellant was trying to rob him.

A.      Applicable Law

A person commits an aggravated assault if he intentionally, knowingly, or recklessly causes serious bodily injury to another, and uses or exhibits a deadly weapon. See Tex. Pen. Code '' 22.01(a), 22.02(a)(2).  When a glass bottle is used to strike another person, it is capable of causing death or serious bodily injury, and thus constitutes a deadly weapon.  See Hayes v. State, 728 S.W.2d 804, 808 (Tex. Crim. App. 1987).

With certain exceptions, a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other=s use or attempted use of unlawful force.  Tex. Pen. Code ' 9.31(a).  The defendant has the initial burden of producing evidence of self-defense, and the State then bears the burden to disprove the defense beyond a reasonable doubt. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003).  The burden of persuasion is not one that requires the production of evidence; rather, it requires only that the State prove its case beyond a reasonable doubt.  Id. When a jury finds the defendant guilty, there is an implicit finding against the defensive theory.  Id.

B.      Standards of Review

When an appellant challenges the legal sufficiency of the evidence supporting a fact finder=s rejection of a defense, the focus is not whether the State presented evidence which refuted appellant=s self-defense testimony, but rather, 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 appellant on the self-defense issue beyond a reasonable doubt.  Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).  The trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony.  Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). 

In reviewing a challenge to the factual sufficiency of the evidence to support the rejection of self‑defense, we review all the evidence in a neutral light and ask (1) whether the State's evidence taken alone is too weak to support the finding of guilt beyond a reasonable doubt, and (2) whether the evidence supporting the defense is strong enough that the rejection of the self‑defense claim does not meet the beyond‑the‑reasonable doubt standard.  See Zuniga v. State, 144 S.W.3d 477, 484B85 (Tex. Crim. App. 2004); Zuliani, 97 S.W.3d at 595; see also Roy v. State, 161 S.W.3d 30, 36‑37 (Tex. App.CHouston [14th Dist.] 2004, no pet.) (harmonizing articulation of standards in Zuniga and Zuliani).  In conducting the factual‑sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder.  Zuniga, 144 S.W.3d at 481B82. 

C.      Analysis

We begin with the legal sufficiency review.  Undisputedly, appellant struck Patel with a glass liquor bottle, causing him serious bodily injury.  Patel testified that appellant intended to rob him and assaulted him first.  Although appellant testified that he acted only in self-defense, the trial judge, as the fact finder, was the sole judge of the credibility of the witnesses and the weight to be given the testimony. Therefore, she was free to believe Patel=s testimony and disbelieve appellant=s testimony.  See Margraves, 34 S.W.3d at 919.  We find the evidence is legally sufficient to support the conviction.

Turning to the factual sufficiency review, appellant argues the evidence is insufficient to support the trial judge=s rejection of his self-defense claim because (1) none of Patel=s property was stolen; (2) Patel did not initially report that appellant demanded money from him; and (3) testimony that Patel believed appellant resembled someone who tried to rob him a month earlier made his testimony less credible.  Appellant suggests that this evidence supports his claim of self-defense, because it shows there was no robbery.

Most of appellant=s argument focuses on the lack of evidence of a robbery. However, although facts consistent with an attempted robbery were before the trial judge, the State was not required to prove robbery; it was required to prove aggravated assault.  The evidence appellant contends is most important in undermining the trial judge=s verdict demonstrates only that a robbery was not completed, which is consistent with Patel=s testimony and the State=s theory of the case. 

Appellant also focuses on whether Patel thought appellant had previously robbed him and whether he initially told the police appellant was attempting to rob him. Although there was some inconsistency in Patel=s testimony regarding these issues, the inconsistencies go to his credibility.  When considering inconsistent evidence, we are mindful that we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder.  See Zuniga, 144 S.W.3d at 481B82; see also Washington v. State, 127 S.W.3d 197, 204 (Tex. App.CHouston [1st Dist.] 2003, pet. dism=d) (rejecting claim of factual insufficiency based on lack of credible testimony by complainant).  The trial judge had the opportunity to observe Patel=s demeanor and weigh the credibility of his testimony, and apparently chose to accept Patel=s testimony despite any evidentiary inconsistencies. And, although the evidence that Patel thought appellant resembled someone who previously robbed him may be consistent with appellant=s version, it does not negate the fact that, despite appellant=s claim that Patel assaulted him first, appellant did not report the alleged assault to the police, but instead fled the liquor store and was later seen hiding behind a nearby dumpster.

Ultimately, this case hinged on the resolution of the conflicting versions of events presented by the State and appellant.  The trial judge determined the credibility of the witnesses and resolved the evidentiary inconsistences in the State=s favor and against appellant.  See Zuliani, 97 S.W.3d at 594 (stating that finding of guilt is an implicit finding against defensive theory).  We decline to substitute our judgment for that of the trial judge on how much weight to give the witnesses= testimony.  Considering all the evidence in a neutral light, the record does not reveal that the proof of appellant=s guilt is too weak to support the trial judge=s finding beyond a reasonable doubt.  Nor does the record reveal that the evidence supporting appellant=s claim of self-defense is so strong that guilt could not have been proven beyond a reasonable doubt.  Therefore, we hold there is factually sufficient evidence from which the trial judge could find beyond a reasonable doubt that appellant was not acting in self‑defense.

We overrule appellant=s first issue.

2.       Impeachment with Prior Convictions

In his second issue, appellant contends the trial court erred in allowing the State to impeach him with prior convictions in violation of Texas Rule of Evidence 609.  Specifically, appellant contends that the probative value of the convictions that were less than ten years old did not outweigh their prejudicial effect, and the probative value of the convictions that were more than ten years old did not substantially outweigh their prejudicial effect.  See Tex. R. Evid. 609(a), (b).  However, in order to preserve a complaint for appellate review, a party must make a timely request, objection, or motion stating the specific grounds for the desired ruling, unless the specific grounds were apparent from the context.  Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991).  Although appellant objected and received an adverse ruling on the admission of the prior convictions before he testified, appellant did not object when the State later cross-examined him regarding the prior convictions.  Thus, appellant has failed to preserve error on this issue.  See Ethington, 819 S.W.3d at 858 (stating that generally a party must continue to object each time inadmissible evidence is offered).

We therefore overrule appellant=s second issue.

                                                      Conclusion

We overrule appellant=s issues and affirm the trial court=s judgment.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed February 28, 2006.

Panel consists of Justices Fowler, Edelman, and Guzman.

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

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^[1]  Officer Angelo also testified that a bottle can be used as a deadly weapon.