Opinion
NO. 02-15-00457-CR
05-26-2016
DILLON BRANNON PIERSON APPELLANT v. THE STATE OF TEXAS STATE
FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
TRIAL COURT NO. 1339084D MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. INTRODUCTION
Pursuant to a plea bargain, Appellant Dillon Brannon Pierson pleaded guilty to aggravated assault with a deadly weapon. See Tex. Penal Code Ann. § 22.02(a)(2) (West 2011). In accordance with the terms of the plea bargain, the trial court sentenced Pierson to four years of deferred adjudication community supervision. The State subsequently filed a petition to proceed to adjudication, alleging that Pierson had violated his community-supervision conditions by committing an assault on Ceasar Reyna causing serious bodily injury and by consuming marijuana. Pierson pleaded not true to the allegations, and the trial court, after conducting an adjudication hearing, found that the allegations were true and sentenced Pierson to ten years' confinement. In two issues, Pierson contends that the evidence was insufficient to establish that he assaulted Reyna causing serious bodily injury and that evidence establishing his consumption of marijuana should have been excluded. We will affirm.
The State alleged other grounds in its petition but waived those grounds at the adjudication hearing.
II. BACKGROUND OF THE ASSAULT ON REYNA
On the evening of December 21, 2015, Reyna had a party at his duplex in Arlington. The party started out small, but more and more people arrived, until there were between twelve and eighteen people at the party. Reyna had not met Pierson prior to the night of the party. Reyna testified that Pierson became involved in an argument in the backyard with Reyna's neighbor, Elvis Gomez, after Pierson said something that offended Gomez's wife. Reyna testified that Pierson was yelling "not so tough now" and other "negative things." Reyna went up to Pierson and told him to be quiet and go back inside the duplex. When Pierson found out that Reyna was the owner of the duplex, he complied and went back inside.
Things calmed down for a little while, but towards the end of the night Reyna asked Pierson to leave the party. According to Reyna, Pierson then punched a hole through Reyna's front door. Reyna testified that when he asked Pierson to leave again, Pierson attempted to punch him. The two of them spilled out into the front yard where—according to Reyna—Pierson punched Reyna on the side of his face. Reyna testified that he could not "remember much going on after that . . . . [as things went] kind of black." The next thing he remembered was waking up in his bathtub with people attending to his injuries.
It is unclear what prompted Reyna to ask Pierson to leave.
Reyna later went to the hospital where he was treated by Dr. William Somers. Dr. Somers testified that Reyna had bruising under his left eyelid, abrasions and swelling to his nose, and deformity of the cartilage in the front of his neck. A CAT scan revealed that Reyna had a maxillary sinus wall fracture, a nasal bone fracture, a hard pallet fracture in his mouth, and a fracture of the cartilage in his neck. Reyna testified that he had to have surgery as a result of his injuries because he had a "splintered larynx." Dr. Somers testified that had Reyna not received medical treatment, Reyna could have experienced permanent damage to his speech.
Gomez—Reyna's neighbor—testified that he attended the party at Reyna's duplex. Gomez testified that he was in the backyard when he heard "[s]ounds of people screaming and of a fight going on." Gomez rushed to front of the duplex and saw Reyna on the ground with Pierson on top of Reyna "beating him up." Gomez testified that Pierson was striking Reyna with his fist and that he did not see Reyna striking Pierson. Gomez testified that he attempted to break up the fight but was tripped by Pierson who "started beating [Gomez] up as well." Gomez testified that Reyna was bleeding from his mouth, nose, and around his eye.
James Mulane testified that he was spending the night of December 21, 2014, at his girlfriend's house when he awoke to a loud noise outside the window. Mulane looked outside and saw a "pig pile" of people. Mulane put on his pants and ran out of his girlfriend's house toward the pile of people. Mulane testified that he saw Pierson in the pile throwing punches. Mulane grabbed Pierson from the pile and Pierson "cocked back as if he was going to hit" Mulane but stopped. Mulane then walked Pierson to Pierson's car, and Pierson eventually left.
Michael Bennett testified on behalf of Pierson. Bennett testified that he became intoxicated at the party and called Pierson to pick him up and give him a ride home. According to Bennett, as he and Pierson were leaving, Reyna smashed a beer bottle and approached Pierson in a fighting stance. Bennett testified that Reyna then punched Pierson in the chin. According to Bennett, Pierson and Reyna began fighting but Pierson was only "defending himself." Bennett testified that Gomez and two females then began attacking Pierson. Bennett averred that Reyna smoked marijuana at the party and had become heavily intoxicated after drinking whiskey and beer. Bennett also testified that Gomez was drinking alcohol at the party.
Reyna admitted that he threw his beer bottle "to the side" after Pierson attempted to punch him the first time, but averred that he did not throw it at Pierson.
Bennett testified that this was the "first hit."
Reyna admitted that he consumed between eight and ten alcoholic beverages on the night of the party and was intoxicated but denied that he smoked marijuana at the party.
Gomez admitted that he consumed "at least eight" alcoholic beverages by the time the fight occurred and that he was intoxicated.
III. ADJUDICATION OF GUILT
In his first issue, Pierson argues that the evidence was insufficient to proceed to an adjudication of guilt based on Pierson's assault of Reyna causing serious bodily injury.
A. Standard of Review
A trial court's determination on a motion to adjudicate is reviewable in the same manner as the determination on a motion to revoke community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 2015). We review an order revoking community supervision under an abuse-of-discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). In a revocation proceeding, the State must prove by a preponderance of the evidence that the defendant violated the terms and conditions of community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and we review the evidence in the light most favorable to the trial court's ruling. Cardona, 665 S.W.2d at 493; Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981). If the State fails to meet its burden of proof, the trial court abuses its discretion in revoking the community supervision. Cardona, 665 S.W.2d at 493-94.
Proof by a preponderance of the evidence of any one of the alleged violations of the conditions of community supervision is sufficient to support a revocation order. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980); Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980). Consequently, when there is one sufficient ground, we do not need to address the other contentions. See Sanchez, 603 S.W.2d at 871; Long v. State, No. 02-12-00090-CR, 2013 WL 1337975, at *2 n.7 (Tex. App.—Fort Worth Apr. 4, 2013, pet. ref'd) (mem. op., not designated for publication).
B. The Evidence is Sufficient to Support a Finding that Pierson
Assaulted Reyna Causing Serious Bodily Injury
The State alleged in its petition to proceed to adjudication that Pierson committed the new offense of assault causing serious bodily injury. A person commits assault if he intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Penal Code Ann. § 22.01(a)(1) (West Supp. 2015). An assault becomes an aggravated assault when the State proves that the defendant caused serious bodily injury to another. Id. § 22.02(a)(1) (West 2011). "Bodily injury" is defined as "physical pain, illness, or any impairment of physical condition." Id. § 1.07(a)(8) (West Supp. 2015). "Serious bodily injury" is "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Id. § 1.07(a)(46).
One of Pierson's conditions of community supervision was that he not commit any offense against the laws of Texas. Another condition was that he abstain from using marijuana.
Here, there was evidence that Pierson intentionally caused serious bodily injury to Reyna. Reyna testified that Pierson punched him on the side of the face after he asked Pierson to leave the party. Gomez testified that he saw Reyna on the ground with Pierson on top of Reyna "beating him up." While Bennett offered the contrary testimony that Pierson was merely defending himself, the trial court, as the sole judge of the credibility of the witnesses and the weight to be given to their testimony, was within its discretion to find the testimony of Reyna and Gomez credible while finding Bennett's testimony not credible. See Cardona, 665 S.W.2d at 493; Garrett, 619 S.W.2d at 174.
Pierson argues that Reyna and Gomez's testimony "should be disregarded" because "more [than] likely both were falling down drunk." But as pointed out by the State, "the ability of Reyna and Gomez to perceive and remember the events they are testifying to is a question regarding their credibility and is not a legal disqualification to their testimony." See, e.g., Vasquez v. State, 67 S.W.3d 229, 237 (Tex. Crim. App. 2002) (holding influence of illegal drug upon testifying witness is factor to consider in assessing witness's credibility); Horace v. State, No. 09-11-00172-CR, 2012 WL 983337, at *2 (Tex. App.—Beaumont Mar. 21, 2012, pet. ref'd) (mem. op., not designated for publication) ("The possibility that the witness was intoxicated at the time of trial was a factor the jury could have considered in evaluating her credibility."); Perry v. State, 236 S.W.3d 859, 865 (Tex. App.—Texarkana 2007, no pet.) ("[T]he right to cross-examination includes the right to impeach the witness with evidence that might go to any impairment or disability affecting the witness' credibility."). We defer to the trial court on issues of credibility of a witness and the weight to be given their testimony. See Cardona, 665 S.W.2d at 493; Garrett, 619 S.W.2d at 174.
There was also evidence that Reyna suffered serious bodily injury as a result of the assault. Reyna suffered a maxillary sinus wall fracture, a nasal bone fracture, a hard pallet fracture in his mouth, and a fracture of the cartilage in his neck—what Dr. Somers described as a "deformity of the cartilage in the front of the neck"—and had to have surgery as a result of his injuries. Dr. Somers testified that had Reyna not received medical treatment, Reyna could have experienced permanent damage to his speech. Viewing this evidence in the light most favorable to the trial court's ruling, we hold that the trial court did not abuse its discretion in determining that the State had proved by a preponderance of the evidence that Pierson intentionally caused serious bodily injury to Reyna.See Cardona, 665 S.W.2d at 493; Garrett, 619 S.W.2d at 174; see also Brown v. State, 605 S.W.2d 572, 575 (Tex. Crim. App. 1980) (holding evidence was sufficient to prove "serious bodily injury" where victim's nose was broken and deformed on the day of the offense but was later set to prevent disfigurement and impairment of function), overruled on other grounds by Hedicke v. State, 779 S.W.2d 837 (Tex. Crim. App. 1989).
We note that "[a]ssault by committing bodily injury is a lesser-included offense of aggravated assault by inflicting serious bodily injury." Hall v. State, 225 S.W.3d 524, 531 (Tex. Crim. App. 2007). We also note that probation may be revoked if the State proves a lesser-included offense than what has been alleged. See Greer v. State, 783 S.W.2d 222, 224 (Tex. App.—Dallas 1989, no pet.) ("Since an accused may be tried and convicted of a lesser included offense other than that alleged in an indictment, we conclude that a probationer is likewise accountable for lesser offenses included within the offense alleged in the motion to revoke."); Wahab v. State, No. 01-95-00948-CR, 1998 WL 4119, at *2 (Tex. App.—Houston [1st Dist.] Jan. 8, 1998, pet. ref'd) (not designated for publication) ("It is well settled that probation may be revoked if the State proves a lesser included offense of what it has alleged."). While we hold that the trial court did not abuse its discretion by finding that Pierson committed the offense of assault causing serious bodily injury, we note that the trial court also could have proceeded to adjudicate based on the lesser-included offense of assault causing bodily injury. See Greer, 783 S.W.2d at 224; Wahab, 1998 WL 4119, at *2.
Viewing the evidence in the light most favorable to the trial court's ruling, and deferring to the trial court on questions of the credibility of witnesses and the weight to be given their testimony, we hold that the trial court did not abuse its discretion in finding that the State proved by a preponderance of the evidence that Pierson assaulted Reyna causing serious bodily injury, a violation of the conditions of Pierson's community supervision.
We overrule Pierson's first issue.
Because we hold that the trial court did not abuse its discretion in adjudicating guilt based on Pierson's assault of Reyna causing serious bodily injury, we do not address Pierson's second issue concerning whether evidence establishing his consumption of marijuana should have been excluded. See Tex. R. App. P. 47.1; Moore, 605 S.W.2d at 926; Sanchez, 603 S.W.2d at 871; Long, 2013 WL 1337975, at *2 n.7. --------
IV. CONCLUSION
Having overruled Pierson's first issue, we affirm the trial court's judgment.
/s/ Sue Walker
SUE WALKER
JUSTICE PANEL: WALKER, MEIER, and SUDDERTH, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: May 26, 2016