## NO. 12

- 14

- 00355

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DONALD ERNEST POWELL , APPELLANT

V.
THE STATE OF TEXAS, APPELLEE §

§

§ APP

EAL FROM THE

COUNTY COURT AT LAW NO

. 2

SMITH COUNTY, TEXAS

MEMORANDUM OPINION
Donald Ernest Powell appeals his conviction for “assault causes bodily injury family member.” In a single issue, Appellant contends the evidence is legally insufficient to support his
conviction. We affirm.

B ACKGROUND Around 7:00 a.m. on May 20, 2012, Smith County Sheriff’s Detective Jennifer
Stockwell 1 was dispatched to a convenience store in Chapel Hill. She was told she would be meeting with a victim regarding an assa ult in the Chapel Hill area. When she arrived, the victim’s soon

- to

- be

- ex

- husband pointed her in the direction of Lydia Koonce, the victim. Koonce was bruised, and her face was swollen. She explained to the detective that she was assaulted approximately two hours earlier by her boyfriend, Appellant. Following her discussion with Koonce, Detective Stockwell obtained a written statement in which Koonce confirmed Appellant physically assaulted her “about the face.”

1 Between the time of the offense and trial, Deputy Jennifer Burkhalter married and was promoted to detective.2

After completing Koonce’s report, Dete ctive Stockwell and another deputy went to Koonce’s residence to interview Appellant. After speaking with Appellant, and based upon Koonce’s report, Detective Stockwell arrested Appellant for assault. Appellant was charged by information with assaulting Koonce by striking her with his hand or hands. The information included an allegation that Appellant and Koonce were involved in a dating relationship. Appellant was tried before a jury and found guilty of “assault causes bodily injury family member” as charged in the information. The trial court assessed his punishment at sixty days of confinement and a $1,000 fine. Appellant timely appealed.

S UFFICIENCY OF THE E VIDENCE In his sole issue, Appellant contends the evidence is legally insufficient to sup port the jury’s determination that he was the person who caused bodily injury to Koonce. Standard of Review and Governing Law The Texas Court of Criminal Appeals has held that the Jackson v. Virginia legal sufficiency standard is the only standard a revie wing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the state is required to prove beyond a reasonable doubt. See Brooks v. State
, 323 S.W.3d 893, 894

– 95 (Tex. Crim. App. 2010) (plur ality op.). Under the single sufficiency standard, 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 crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); see also Brooks
, 323 S.W.3d at
902. We defer to the trier of fact's responsibility to resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from basic fa cts to ultimate facts. Hooper v. State
, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The trier of fact also is the sole judge of the witnesses’ credibility. Winfrey v. State , 393 S.W.3d 763, 768 (Tex. Crim. App. 2013). Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.
Id

. A person commits the offense of assault if he intentionally, knowingly, or recklessly

causes bodily injury to another, including the person’s spouse. T EX

. P ENAL C ODE A NN

. § 22.01 (West 201 1 ). “Bodily injury” is defined as “physical pain, illness, or any impairment of physical3

condition.” Id

. § 1.07(a)(8) (West 201 1 ). “Dating relationship” mea ns a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature.
T EX

. F AM

. C ODE A NN

. § 71.0021(b) (West 201 4 ). Analysis Appellant argues that the evidence shows Koonce had no recollection of who cau sed her injuries. Therefore, he urges, her injuries “could have been from Mr. Powell, anyone else at the house, or some other person.” Koonce’s written statement, which was admitted into evidence, states as follows:

I was in my home at 16786 Red Oak Rd

. [and] Mr. Don Powell became upset with me [and] proceeded to physically assault me about the face. I asked him to leave [and] he refused so I called my ex

- husband to meet me with the children. I do wish to file formal charges for assault.

At trial, how ever, Koonce testified that she did not remember meeting with Detective Stockwell, giving a statement, or being assaulted. According to Koonce, she and Appellant had been drinking with friends at her residence. The next thing she remembered, she said, wa s waking up bruised and swollen. When confronted with her written statement, Koonce testified that she did not recall writing or signing it. However, she recognized her handwriting and her signature and did not deny writing the statement.
Detective Sto ckwell testified that when she met with Koonce shortly after the alleged assault, Koonce was very “upset [and] distraught,” and her face was bruised and swollen. She
said Koonce told her that Appellant had assaulted her at approximately 5:00 a.m. that mor ning. Detective Stockwell recounted that she and another deputy went to Koonce’s residence to interview Appellant, and they found him asleep on the couch in the living room. She recalled noticing a strong odor of alcohol on Appellant’s person and breath

. She also stated that Appellant claimed to not remember anything that happened that morning or the preceding evening. And she recalled that Appellant had defensive wounds on his eye and stomach. Detective Stockwell testified that these injuries appeare d to be fresh and indicated that he had been in an altercation “that evening or that night.” As Appellant points out, Koonce testified that she had been drinking the night before the assault and that she had also taken some antidepressants and anxiety m edication. However,
Detective Stockwell testified that she did not smell alcohol on Koonce’s breath and did not4

observe any other signs of intoxication during their meeting. The detective further testified that, pursuant to Smith County Sheriff’s Departm ent policy, she would not have taken a statement
from Koonce if she was intoxicated. She also stated that she did not believe Koonce was intoxicated when the assault report or the written statement was made. Finally, Detective
Stockwell said she warned K oonce that she could be charged with “f alse r eport to a peace

o fficer ” if it was later determined that she lied in the statement. The jury could have chosen to believe Detective Stockwell ’s trial testimony and Koonce’s written statement over Koonce’s trial testimony. The jury is the sole judge of witness credibility , and we must defer to their determinations

. See Winfrey
, 393 S.W.3d at 768

. Viewing the evidence in the light most favorable to the jury verdict, we conclude the evidence is legally sufficien t to support the verdict. Appellant’s sole issue is overruled.

D ISPOSITION Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

J AMES T. W ORTHEN Chief Justice
Opinion delivered October 14 , 2015

. Panel consisted of Worthen, C. J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

OCTOBER 14 , 2015

NO. 12

- 14

- 00355

- CR

DONALD ERNEST POWELL ,

Appellant V. THE S TATE OF TEXAS, Appellee

Appeal from the County Court at Law No

. 2 of Smith County, Texas (Tr.Ct.No. 002

- 81591

- 14) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed , and that this decision be certified to the court
below for observance.

James T. Worthen , Chief Justice

. P anel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.