NO. 07-11-0112-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JULY 20, 2012

______________________________

KENNETH RAY McCAIN, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE COUNTY COURT AT LAW NO. 1 OF POTTER COUNTY;

NO. 127,946; HONORABLE W.F. “CORKY” ROBERTS, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant, Kenneth Ray McCain, was convicted following a jury trial of assault—

domestic violence, a Class A misdemeanor.1 The trial court sentenced Appellant to 180 

days confinement and a fine of $100, suspending imposition of the jail term in favor of 

one year of community supervision. Appellant asserts the State’s evidence was legally 

insufficient to establish beyond a reasonable doubt that (1) he caused bodily injury to 

 

1

See Tex. Penal Code Ann. § 22.01(a)(1) (West 2011). 
2

the complainant, Felicity Cox, by striking her in the face and (2) his actions were not 

justified under the law of self-defense. We affirm.

BACKGROUND

At trial, Cox testified that, on March 5, 2010, she and Appellant were at a bar 

celebrating her 21st birthday. Appellant had been living at her apartment for three 

weeks and they were in a dating relationship. After leaving the bar, they returned to her 

apartment. At her apartment, she remembered slapping Appellant but could not recall 

the reason. The next thing she remembered was Appellant wiping her face and

apologizing. She then went to bed. She next recalled Appellant waking her up to tell

her the police were there. She testified that, when she awoke, she had two black eyes, 

her nose was black, and there were bruises on her arms, legs, back and neck. She 

could not move her neck and missed work for a month due to back pain. She testified 

the injuries were not accidental or self-inflicted. She also testified that Appellant and his 

baby were the only other persons in the apartment when she was injured. Although she 

gave inconsistent statements to law enforcement officers about what occurred at the 

apartment that night, a consistent aspect of her statements was that Appellant struck 

her.2 At trial, Cox testified, in pertinent part, as follows:

Q. Well, I think you testified earlier that you didn’t remember him hitting 

you after that point?

 

2On March 8, Cox signed a sworn affidavit alleging Appellant sexually assaulted and choked her while 

she was in and out of consciousness. On March 31, she signed a second sworn affidavit recanting her 

sexual assault allegation but indicated she remembered Appellant hitting her, apologizing, and cleaning 

blood from her bleeding nose. On June 28, she signed a sworn affidavit of non-prosecution stating that 

she wanted the prosecution against Appellant dismissed. In her sworn affidavit, she stated “[she] gave 

Detective Krizan a written statement on June 18, 2010, that [Appellant] assaulted [her], [and the] 

statement is true and correct.” 
3

A. I don’t remember him hitting me.

Q. So at this point, that’s really an assumption on your part?

A. Well, I didn’t hit myself.

Q. Well, I understand, but you don’t have a conscious memory of it?

A. No, I do not. 

She further testified she continued to see Appellant after the incident “[b]ecause 

[she] didn’t want to believe that it had happened and [she] was still in love with him.” 

She also wrote him two e-mails indicating that, if she hadn’t hit him--he wouldn’t have hit 

her, and indicated she didn’t remember him hitting her. 

In addition to Cox, five Amarillo police officers testified. Officers Wesley Brown 

and Michael Mogelinski testified they were dispatched to Cox’s apartment at 12:55 a.m. 

on March 6, 2010. When they knocked on her door, there was no answer. The officers

then went outside to view the apartment’s exterior. From there, Officer Mogelinski 

observed there were lights on inside the apartment and the draperies were partially 

open. Both officers next heard what they described as a “blood-curdling scream” 

emanating from inside the apartment. Officer Mogelinski observed that, shortly 

thereafter, the lights in the apartment were turned off and the curtain was closed. Both 

officers ran up the stairs to the third floor apartment and kicked in the door. Between 

the time they heard the scream and entered the apartment, neither officer saw anyone 

enter or exit the apartment. When they entered the bedroom, Cox was lying on the bed 

in a fetal position and appeared unconscious. Appellant was lying next to her holding 

his child on his chest.
4

Officer Mogelinski testified Cox said she hurt, held her hand toward her face and 

indicated Appellant hit her several times. He testified that, with the injuries Cox had 

sustained to her head and eye, it was not feasible to give her any sobriety tests. 

Another officer who had arrived at the scene, Officer Ruben Coronado, testified that, 

when he removed Cox from the bed, large chunks of her hair fell onto the floor. Officer

Coronado and Officer Mary Carmela Smith testified Cox’s face was swollen and there 

was bruising around her eyes. Officer Smith testified Cox’s nose was swollen and she 

had dried blood around her nostrils and lips. She further testified the bruising was pink 

and purple, and that Cox’s injuries appeared to be “fairly recent” or “fresh.” According to 

Officer Smith, Cox appeared to be in pain, smelled of alcoholic beverage and was 

intoxicated. Appellant did not testify. Based upon inconsistencies between Cox's trial 

testimony and her earlier statements, the trial court submitted the issue of self-defense 

to the jury. The jury subsequently found Appellant guilty of assault—domestic violence. 

The court assessed sentence and this appeal followed. 

DISCUSSION

Appellant contends the evidence was legally insufficient to prove (1) he caused

bodily injury to Cox because no one identified him as her assailant; and (2) his actions 

were not justified under the law of self-defense.

STANDARD OF REVIEW

In determining whether the evidence is legally sufficient to support a conviction, a 

reviewing court must consider all of the evidence in a light most favorable to the verdict 

and determine whether, based on that evidence and the reasonable inferences drawn 
5

therefrom, a rational fact-finder could have found the essential elements of the crime 

beyond a reasonable doubt. Lucio v. State, 351 S.W.3d 878, 894 (Tex.Crim.App. 2011) 

(citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 

(1979)); Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App. 2010) (plurality op.).

In reviewing a legal sufficiency challenge, we do not sit as a thirteenth juror and 

may not substitute our judgment for that of the fact-finder by re-evaluating the weight 

and credibility of the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App. 

2010). Rather, we defer to the fact-finder to fairly resolve conflicts in testimony, weigh 

the evidence, and draw reasonable inferences from basic facts to ultimate facts. Id. 

ASSAULT

A person commits assault if he intentionally, knowingly, or recklessly cause 

bodily injury to another. See Tex. Penal Code Ann. § 22.01(a)(1) (West 2011). “When 

there is no direct evidence of the perpetrator’s identity elicited from trial witnesses, no 

formalized procedure is required for the State to prove the identity of the accused.” 

Clark v. State, 47 S.W.3d 211, 214 (Tex.App.—Beaumont 2001, no pet.) (quoting 

Roberson v. State, 16 S.W.3d 156, 167 (Tex.App.—Austin 2000, pet. ref’d)). A 

perpetrator’s identity may be proven by direct or circumstantial evidence. Clark, 47 

S.W.3d at 214. Moreover, circumstantial evidence is not subject to a more rigorous 

standard of review than direct evidence and “[f]or purposes of proving guilt beyond a 

reasonable doubt, direct and circumstantial evidence are equally probative.” Id. 

“Circumstantial evidence alone can be sufficient to establish guilt.” Hooper v. State, 214 

S.W.3d 9, 13 (Tex.Crim.App. 2007). 
6

A jury is entitled to judge the credibility of witnesses and 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). Therefore, even though Cox made some 

conflicting statements, by finding Appellant guilty, the jury implicitly chose to believe the 

circumstantial evidence supporting Appellant’s guilt. See Denman v. State, 193 S.W.3d 

129, 132-33 (Tex.App.—Houston [1st Dist.] 2006, pet. ref’d). Considering all the 

evidence in a light most favorable to the verdict, we find the evidence was sufficient to 

find that Appellant intentionally, knowingly, or recklessly caused bodily injury to Cox, a 

person with whom he had or had had a dating relationship, as defined by the Texas 

Family Code.3 Accordingly, Appellant’s first issue is overruled.

SELF-DEFENSE

"[A] person is justified in using force against another when and to the degree [he] 

reasonably believes the force is immediately necessary to protect [himself] against the 

other's use or attempted use of unlawful force." Tex. Penal Code Ann. § 9.31(a) (West 

2011). The issue of self-defense is an issue of fact to be determined by the jury. 

Saxton v. State, 804 S.W.2d 910, 913-14 (Tex.Crim.App. 1991). 

Relying upon language found in Tidmore v. State, 976 S.W.2d 724, 729 

(Tex.App.--Tyler 1998, pet. ref'd), Appellant contends the evidence presented in this 

case was "legally insufficient to prove beyond a reasonable doubt that [he] did not act in 

self-defense." While the State does have the burden of persuasion to disprove 

evidence of self-defense, it does not have the burden of production. Saxton, 804 

 

3

Tex. Fam. Code Ann. §§ 71.002(b), 71.003, or 71.005 (West 2008). 
7

S.W.2d at 913. In other words, the State does not have the duty to affirmatively 

produce evidence refuting a claim of self-defense (the burden of production); it merely 

has the burden of proving its case of assault beyond a reasonable doubt (the burden of 

persuasion). Id. 

In convicting Appellant of assault, the jury clearly believed Appellant assaulted 

Cox, and it just as clearly believed Appellant's actions, whatever they may have been, 

were not "immediately necessary to protect [him] against [her] use or attempted use of 

unlawful force.” Whether the jury believed Appellant's use of force was excessive or 

unnecessary is of no import to us because we must defer to the jury's determination if 

otherwise supported by the evidence. See Jackson, 443 U.S. at 326. Based upon our 

own review of the record, we find the jury was rationally justified in rejecting Appellant's 

claim of self-defense and in its finding of guilt beyond a reasonable doubt. See Bufkin 

v. State, 179 S.W.3d 166, 169-70 (Tex.App.—Houston [14th Dist.] 2005), aff’d, 207 

S.W.3d 779 (Tex.Crim.App. 2006). Appellant’s second issue is overruled.

CONCLUSION

The trial court’s judgment is affirmed.

Patrick A. Pirtle

 Justice

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