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 M c CAIN, 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 communit y 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 und er the law of self

- defense. We affirm.

B ACKGROUND
At trial, Cox testified that, on March 5, 2010, she and Appellant were at a bar celebrating her 21 st 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. A t 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 m ove her neck and misse d 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 state ments to law enforcement officers about what occurred at the apartment tha t 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 y ou didn’t remember him hitting you after that point?

2 On March 8, Cox signed a sworn affidavit alleging Appellant sexually assaulted and chok ed 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 p olice o fficers testified. Officers Wesley Brown and Michael Mogelinski testified they were dispatched to Cox’s apartment at 1 2:55 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 par tially 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. Bot h 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 th e bed in a fetal position and appeared unconscious. Appellant was lying next to her holding his child on his chest.4

Officer Mogelin ski testified Cox said she hurt, held her hand toward her f ace 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 C ox from the bed, large chunks of her hai r fell onto the floor. Officer Co ronado 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 li ps. 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 intoxi cated

. 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. T he jury subsequently found Appellant guilty of a ssault

— domestic viol ence
. T he court assessed sentence and this appeal followed.

D ISCUSSION Appellant contends the evidence was legally insufficient t o prove (1) he cause d 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.
S TANDARD OF R EVIEW 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 whethe r, based on that evidence and the reasonable inferences drawn5

there from , 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. Vir

ginia , 443 U.S. 307, 318

- 19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); Br

o oks v. State , 323 S.W.3d 893, 895 (Tex.Crim.App. 2010) (plurality op.). In reviewing a legal sufficiency challenge, w e 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 def er to the fact

- finder to fairly resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Id.

A SSAULT 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 n o 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, c ircumstantial evidence is not subject to a more rigorous standard of revie w tha n 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, e ven though Cox made some conflicting statements , b y fin ding Appellant guilty, the jury implicitly chose to believe the circumstantial eviden ce supporting Appellant’s guilt

. See Denman v. State , 193 S.W.3d 129, 132
- 33 (Tex.App.

— Houston [1 st 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 cause d bodily injury to Cox, a person with whom he had or had had a dating relationsh ip, as defined by the Texas Family Code. 3 Accordingly, Appellant’s first issue is overruled.
S ELF - 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) (We st 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 n ot 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. I n 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 "immediat ely necessary to protect [him] against [her] use or attempted use of unlawful force.” W hether 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 supp orted 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. S tate, 179 S.W.3d 166, 169

- 70 (Tex.App.

— Houston [14 th Dist.] 2005), aff’d , 207 S.W.3d 779 (Tex.Crim.App. 2006). Appellant’s second issue is overruled.
C ONCLUSION The trial court’s judgment is affirmed.

Patrick A. Pirtle Justice

Do not publish.