in the Matter of the Marriage of Max Munish Mehta and Rajni Kalra Mehta and in the Interest of Aaron Mehta, a Child ( 2004 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00136-CV

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IN THE MATTER OF THE MARRIAGE OF

MAX MUNISH MEHTA AND

RAJNI KALRA MEHTA AND

IN THE INTEREST OF

AARON MEHTA, A CHILD

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On Appeal from the 296th Judicial District Court

Collin County, Texas

Trial Court No. 296-51926-03

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Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Ross

O P I N I O N

          Rajni Kalra Mehta has filed a document that evidences a desire to appeal from a divorce granted August 6, 2003, by the 296th Judicial District Court of Collin County, Texas. In that document, she states a number of possible grounds for her appeal, most of which involve alleged improper actions taken by her husband in connection with the divorce. The situation is complicated by the fact Rajni is representing herself in this matter and resides in India. Our correspondence with her has been sent to her address in that country.

          Her notice of appeal was late-filed, but under the application of the mailbox rule, it appears it was filed within the fifteen-day grace period provided by Tex. R. App. P. 26.3. On October 24, 2003, we sent a letter to Rajni in which we explained this and directed her to forward a motion to extend time for filing her notice of appeal pursuant to the rule. We also explained that a record would need to be requested, paid for, and filed with this Court in order for her appeal to proceed. In that letter, we also set out the relevant rules, enclosed a copy of our docketing statement for her to complete and return, and informed her about the need to remit the appropriate filing fee to this Court. We also warned her she was required to provide this Court with clerk's and reporter's records, and that those records were due no later than December 23, 2003.

          We warned her that, if she did not proceed with her appeal as set out above, her appeal would be subject to dismissal and warned her that, to avoid this result, any response or motion must be filed with this Court by December 8, 2003.

          More than thirty days have now elapsed beyond the due date. Rajni has not contacted this Court. She has neither requested nor paid for the preparation of a record and has taken no action to pursue her appeal.

          We dismiss the appeal.

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      January 7, 2004

Date Decided:         January 8, 2004

al, when viewed in the light most favorable to the verdict and evaluated under the hypothetically correct jury charge, a reasonable jury could find each element of the offense proven beyond a reasonable doubt. There is evidence that Gaines and Chew lived together at the time of the incident. There is evidence that Chew struck Gaines in her mouth. Freeman observed the "busted" lip. There is evidence that Chew hit Gaines in the arm and grabbed her arm several times. The hit and the grab "stung," presumably causing some degree of physical pain. There was also evidence Chew choked Gaines. Therefore, the evidence shows Chew (1) intentionally, (2) caused bodily injury by striking or choking, (3) Gaines, (4) who was a "family" or "household" member as defined by the Texas Family Code.

Additionally, in his brief to this Court, Chew wrote the following: "Thus, while there is undoubtedly legally sufficient evidence to support a finding of 'bodily injury' in Gaines suffering a split lip, Appellant will now demonstrate that the evidence was so factually insufficient regarding such a finding as to render it manifestly wrong and unjust." The State's brief properly notes this as a concession that Chew's first point of error lacks merit. Chew's first point of error is overruled.

IV. Analysis - Factual Sufficiency

In his second point of error, Chew contends the evidence is factually insufficient because the evidence does not overwhelmingly show Chew caused Gaines' cut lip. Gaines testified that Chew did not hit her in the mouth and that she "busted" her lip when she fell down the stairs. The police report also contains no mention of the other assaultive conduct by Chew (the grabbing or hitting of Gaines' arm). Chew contends that, because Gaines denied at trial being struck in the mouth by Chew and because the police report lacks recordation of the other assaults, the evidence is inherently insufficient.

The State responds by writing, "Appellant's arguments as to the weight or conflicts in witness testimony regarding appellant's intent or bodily injury are meritless because such are merely attacks on credibility." While the State fails to cite any authority for this proposition, it is nonetheless correct. See Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999) (when faced with conflicting evidence, appellate court should presume trier of fact resolved conflict in favor of prosecution); Bradford v. State, 997 S.W.2d 684, 686 (Tex. App.-Texarkana 1999, no pet.) ("[W]e must give due deference to the jury's assessment of the credibility of the witnesses and the weight to be given their testimony."); Paez v. State, 995 S.W.2d 163, 166 (Tex. App.-San Antonio 1999, pet. ref'd) ("As to conflicting versions of fact, these conflicts are for the jury to decide.").

First, the evidence supporting a finding that Chew struck Gaines in the mouth is not "so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust." The jury was free to disbelieve that portion of Gaines' testimony where she stated Chew did not strike her in the mouth. They were also free to accord greater weight to Officer Freeman's testimony that Chew did strike Gaines in the mouth. Such decisions by the jury would not be against the great weight of the evidence presented at trial and are consistent with the verdict. Second, there is no evidence in the record contradicting Gaines' assertion that Chew hit her in the arm while in the kitchen and that this "stung." Nor is there any evidence that refuting Gaines' claim that Chew choked her. Accordingly, we find the evidence is factually sufficient to support the judgment of the trial court. Chew's second point of error is overruled.

We affirm the trial court's judgment.

Jack Carter

Justice

Date Submitted: January 16, 2003

Date Decided: January 27, 2003

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