Opinion
No. 05-03-01241-CR
Opinion issued July 30, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3 Dallas County, Texas, Trial Court Cause No. F02-56149-QJ. Affirmed.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
OPINION
Reginald Dwayne Chambers appeals his assault conviction. The trial court convicted appellant and assessed punishment at twelve years' confinement and a $10,000 fine. In two points of error, appellant argues the evidence is legally and factually insufficient to support his conviction. We affirm the trial court's judgment. On October 28, 2002, the complainant, appellant's wife, arrived at her home at approximately 7:00 a.m. and found the burglar alarm going off. The complainant lived alone and worked at night, but she thought her cousin might have set off the alarm. She turned off the alarm and heard a shower running. In the bathroom, complainant discovered appellant. The complainant and appellant had not lived together since June, though they were still married. Appellant hugged the complainant who kept asking appellant to "get some help." Complainant received a phone call from her aunt and told her aunt that appellant was in the house. Complainant also received calls from her cousin, a man named Lee, and some other friends. Appellant began "snatching the phones out." He grabbed complainant by her neck, threw her on the stone floor, and started choking her. Appellant also threw complainant against the wall and dragged her to the bedroom where he threatened complainant with the narrow end of a sign and said he was going to kill her. Complainant begged appellant to stop and told him they could get back together. Complainant could not call the police because appellant had damaged all of the phones in the house. Nevertheless, the police eventually arrived at the house. Complainant answered the door and "got out the door." Complainant spoke with the police, and they took photos of her. At appellant's trial, Dallas police officer Cheryl Convery testified she was called to complainant's house on the morning of October 28, 2002, and complainant answered the door. Complainant looked worried and nervous and her eyes were darting back and forth as if she were trying to indicate something. Convery asked if something was wrong, and complainant said to come on in. Convery entered the house and saw appellant sitting on the couch. Convery asked what was going on, and appellant said nothing was going on. Convery could tell there was a problem, so she called for backup and moved appellant outside the house. Appellant was asking complainant why she was doing this to him and telling her not to lie. Convery's partner arrived and they handcuffed appellant on the front step while Convery went in to talk to complainant. Complainant had redness around her neck and on her shoulders, a contusion on the side of her head, and scratches around her neck. Complainant described how she had come home and discovered appellant who became enraged as she continued to receive phone calls and eventually assaulted her over a period of time. Convery observed a hole in the wall where complainant said appellant had punched the wall. The phones in the house were all broken. The trial court convicted appellant of assaulting complainant, and this appeal followed. In two points of error, appellant complains the evidence is legally and factually insufficient to support his conviction. When we review the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). In reviewing the factual sufficiency of the evidence, we are to view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786 at *7 (Tex.Crim. App. April 21, 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that the beyond-a-reasonable doubt standard could not have been met. Id. The fact finder is entitled to judge the credibility of the witnesses and may choose to believe all, some or none of the testimony presented. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1999). A person commits assault if he intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse. Tex. Pen. Code Ann. § 22.01(a)(1) (Vernon Supp. 2004). The indictment in this case alleged appellant intentionally, knowingly, and recklessly caused bodily injury to complainant, a member of appellant's family and household, by throwing her against a wall and the floor. At trial, appellant testified that he moved out of complainant's house in June 2002 but regularly went back. Complainant thought appellant was seeing other women, and that caused many arguments between them. On the evening of October 27, 2002, appellant was with a female friend. As appellant stepped out of the friend's house, complainant and appellant's mother drove up and complainant jumped out of the car and started screaming at appellant. Complainant called the female friend names, and appellant forced complainant back into the car. When he calmed complainant down, appellant said he would "be home maybe later on [that night] or in the morning when [complainant] got off work." Appellant spent the night at his friend's house and went to complainant's house the next morning. Appellant entered the house through an unlocked sliding door because it was raining outside. The alarm went off, but appellant talked to the alarm company and told them that he was complainant's husband and "everything was okay." Appellant was in the shower when complainant came home, and she hugged and kissed appellant before he finished his shower. Appellant heard the phone ringing numerous times. At one point, complainant told appellant she had heard "Sharron" was "supposed to be [his] woman or something." They continued to argue about "Sharron," and complainant called "Sharron" and cursed at her. Appellant hung up the phone with his finger, and complainant "popped [him] in the head with the phone." Complainant started griping at appellant and cursing him and pushing him. Appellant explained one phone was broken when complainant threw it at him. Appellant denied hitting complainant or picking her up by her neck or throwing her down. Despite appellant's version of events, however, the trial judge was free to disbelieve appellant and believe complainant. See Chambers, 805 S.W.2d at 461. Accordingly, we cannot conclude the evidence was legally or factually insufficient to support appellant's conviction. See King, 29 S.W.3d at 562; Zuniga, 2004 WL 840786 at *7. We overrule appellant's first and second points of error. We affirm the trial court's judgment.