Timothy Wade Pegue v. the State of Texas ( 2023 )

Affirmed and Opinion Filed August 4, 2023
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00890-CR
TIMOTHY WADE PEGUE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 2
Rockwall County, Texas
Trial Court Cause No. CR2-21-0357
MEMORANDUM OPINION
Before Justices Partida-Kipness, Reichek, and Miskel
Opinion by Justice Partida-Kipness
In one issue, appellant Timothy Wade Pegue challenges his conviction for
assault causing bodily injury to a family member. See TEX. PENAL CODE §
22.01(a)(1). We affirm.
BACKGROUND
Royce City police officers were called out to the Pegue residence on February
4, 2021. Sharon Pegue, Timothy Wade Pegue’s sister, made the call to 911 to report
a physical altercation between Pegue and her sister-in-law, Ladonya. Sharon stated
Pegue attacked Ladonya as she attempted to break up the altercation.
Officer John Bivins arrived at the scene and briefly made contact with
Ladonya. The State moved to admit Officer Bivins’s body camera footage from the
evening. Pegue objected the statements made by Ladonya on the video were hearsay.
The State responded by arguing the statements were exceptions to the hearsay rule
as present sense impressions, excited utterances, and statements for medical
treatment. The trial court overruled Pegue’s objection, ruling the statements were
exceptions to the hearsay rule and nontestimonial in nature.
Officer Bivins testified he was not aware Ladonya was the victim until she
told him Pegue assaulted both her and Sharon. Officer Bivins observed three to four
large knots on Ladonya’s forehead personally and believed those type of injuries
would have caused Ladonya pain. He entered the residence and encountered Pegue,
who stated he had a verbal disturbance between Ladonya and himself. Pegue said he
told Ladonya to leave and attempted to force her out of the home. Pegue stated at
some point, Ladonya hit her head on the table.
Detective Cindy Carr also was present at the scene. She explained she spoke
with Ladonya and observed large knots of her head she believed “looked painful.”
Detective Carr stated Ladonya was upset and crying, but refused medical treatment
when it was called out. Detective Carr agreed she does not know who instigated the
fight but she believed it was Pegue based on the investigation conducted. Detective
Carr also testified Pegue was uncooperative while being arrested and almost had to
be “tazed.”
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Eric Moody, the administrator for the Rockwall County Jail phone system,
testified regarding jail phone calls Pegue made. The morning following his arrest,
Pegue stated on two different jail calls, that he “beat the b* up,” “she got it good,”
and “she had knots all over her head” while laughing.
The State provided testimony from expert witness Sara Campos, an assistant
clinical director at the Genesis Women’s Shelter and Support. Campos explained to
the jury how victims of domestic violence often feel they will not be believed when
reporting abuse and have fear and blame in the situation. Prior to Campos’s
testimony, Pegue introduced an affidavit of non-prosecution signed by Ladonya in
this case. Ladonya did not testify.
The jury found Pegue guilty of assault as charged. After he pleaded true to an
enhancement paragraph, the trial court made an affirmative finding of family
violence and sentenced Pegue to 210 days in the Rockwall County Jail. This appeal
followed.
ANALYSIS
In his sole issue, Pegue argues the evidence was insufficient to support the
conviction for assault. Pegue alleges without Ladonya’s testimony regarding any
pain suffered, no rational juror could have found bodily injury was proved beyond a
reasonable doubt.
We review a sufficiency challenge by considering all of the evidence in the
light most favorable to the verdict and determine, based on the evidence and
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reasonable inferences therefrom, a rational jury could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
318–19 (1979); Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013);
Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We defer to the fact
finder’s credibility and weight determinations because the fact finder is the sole
judge of the witnesses’ credibility and the weight to be given to their testimony. See
Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013). We presume the
factfinder resolved any conflicting inferences in favor of the verdict, and we defer
to its resolution. Brooks, 323 S.W.3d at 922. The fact finder can choose to believe
all, some, or none of the testimony presented by the parties. Chambers v. State, 805
S.W.2d 459, 461 (Tex. Crim. App. 1991). “Circumstantial evidence is as probative
as direct evidence in establishing the guilt of an actor, and circumstantial evidence
alone can be sufficient to establish guilt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007). Evidence is sufficient if “the inferences necessary to establish
guilt are reasonable based upon the cumulative force of all the evidence when
considered in the light most favorable to the verdict.” Wise v. State, 364 S.W.3d 900,
903 (Tex. Crim. App. 2012).
The essential elements of the offense are those as defined by the
hypothetically correct jury charge for the case. Hernandez v. State, 556 S.W.3d 308,
315 (Tex. Crim. App. 2017); McCall v. State, 635 S.W.3d 261, 272 (Tex. App.—
Austin 2021, pet. ref’d). A hypothetically correct jury charge reflects the governing
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law, the indictment, the State's burden of proof and theories of liability, and an
adequate description of the offense for the particular case. Hernandez, 556 S.W.3d
at 308. It includes the statutory elements of the offense as modified by the
indictment. See id. at 312–13; Johnson v. State, 364 S.W.3d 292, 294 (Tex. Crim.
App. 2012). The relevant elements here are (1) Pegue intentionally, knowingly, or
recklessly (2) caused bodily injury to the complainant. TEX. PENAL CODE §
22.01(a)(1).
“Bodily injury” means “physical pain, illness, or any impairment of physical
condition.” Id. § 1.07(a)(8). Any physical pain, however minor, suffices to establish
bodily injury. Garcia v. State, 367 S.W.3d 683, 688 (Tex. Crim. App. 2012). A
factfinder may infer a victim actually suffered physical pain, and no witness–
including the victim–need testify the victim felt pain. Coleman v. State, 631 S.W.3d
744, 751 (Tex. App.—Houston [14th Dist.] 2021, pet. ref’d). A factfinder is “free to
‘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.’” Aguilar v. State, 263 S.W.3d 430, 434
(Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (quoting Taylor v. State, 71
S.W.3d 792, 795 (Tex. App.—Texarkana 2002, pet. ref’d)). Thus, a “fact finder may
infer that a victim actually felt or suffered physical pain because people of common
intelligence understand pain and some of the natural causes of it.” Garcia v. State,
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367 S.W.3d 683, 688 (Tex. Crim. App. 2012). This includes inferring physical pain
from an altercation itself even without direct evidence. Aguilar, 263 S.W.3d at 434.
Pegue argues because Ladonya did not testify, there was no way to establish
she felt pain. However, the State provided evidence of “pain” through the other
witnesses who testified. Officer Bivins and Detective Carr both encountered
Ladonya and observed large knots on her head. Both officers, through their training
and experience, as well as common knowledge, opined the knots would have caused
Ladonya pain. The jury also saw the body camera footage that showed Ladonya’s
injuries, as well as photographs of her head showing the knots admitted into
evidence. Even the jail calls Pegue placed where he stated he beat Ladonya up to the
point she had “knots all over her head” show he was aware of the injuries he caused.
Based on the evidence provided, the jury could have reasonably used its
common sense and common knowledge to draw the inference that the injuries
Ladonya suffered during the assault caused her pain. The evidence was sufficient to
support Pegue’s conviction for assault. We overrule Pegue’s sole issue.
CONCLUSION
Based on the record before us, we find the evidence sufficient and overrule
Pegue’s issue. We affirm the trial court’s judgment.
/Robbie Partida-Kipness/
220890f.u05 ROBBIE PARTIDA-KIPNESS
Do Not Publish JUSTICE
TEX. R. APP. P. 47.2(b).
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
TIMOTHY WADE PEGUE, On Appeal from the County Court at
Appellant Law No. 2, Rockwall County, Texas
Trial Court Cause No. CR2-21-0357.
No. 05-22-00890-CR V. Opinion delivered by Justice Partida-
Kipness. Justices Reichek and Miskel
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 4th day of August 2023.
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