### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 5 -00 577 -CR

Le o M ay , A ppe lla nt
v. The State of Texas, App ellee

F ROM THE COUNTY COURT OF MI LAM COUNTY NO. CR2784 4 , HO NORAB LE F RANK SUM MERS , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N A jury convicted a

ppellant L eo May of assa

ult on a family

member, a

nd the trial cour

t assessed his punishment at 90 day s in the county jail. See Te x. Pe na l Co de Ann. § 2 2. 01 (We st Sup p. 20 06 ). I n tw o p oin ts o f e rr or , a pp e llan t con ten ds that th e e vid e nc e is l e g a lly and fa c tua lly ins uf fi c ie nt t o s us ta in h is c on vic tio n. We a ff ir m th e tr ia l c ourt ’s jud g me nt. On April 21, 2005, Ke n Fr eema n, appellant’ s first cousin, ca lled the police to re port a fig ht betwee n appellant a nd appellant’ s g irlfriend, Shame ra H olmes. Fre eman testified a bout the events he witnessed that nig ht and stated that he g ave the police a oral stateme nt, but that the written statement pre pare d by

the police wa s not acc urate . Fr ee m an t estified that the police office r who wrote dow n the statement “ put in his own terms” and “ put in his o wn wo rds that he wishe d,” althoug h Fr eema

n admitted that he re ad and signe d the statement the nig ht of the incident. F ree man2

also said, “I

was wa sted that nig ht. Irea lly was wa sted. But I do reme mber the situation to a deg ree as to what ha

ppened.” Fr eema n testified that shortly

befor e 9:00 p.m
. on April 21, he and appellant drove from F ree man’s house to a ppellant’s house, w here Holmes was sitti ng on the porch. Holmes asked appellant to drive her to c heck on he r childre n, but he re fuse d b ec ause he “didn’t have the g as.” Fr eema n testified that ang ry

words we re e x chang ed betwee n appellant and Holmes, and that he tried “to kee p it from esca lating a nd g etting out of

h an d , ” talking H olmes into walking to he r mother’ s
ne arb y ho me . F re e man a

nd Ho lme s b e g an wal king awa y , a nd a pp e lla nt f oll ow e d, c on tin

uin g to argue with Holmes, but Fr eema n said, “I was—just as long as they ’re not hitti n g each other or
no thi nglik e tha

t, t hat w a s f ine wi th m e .” F re e man te sti fi e d that Ho lme s g ot tir e d of arguin g wi th appellant a

nd abruptly

started r unning a way , but she tripped and fell, and appe llant walked ove r and laug hed at he r. F ree man t es t i fied that he “knew then that that situation was fixi ng to ge t out of control,” so he ran acr oss the railroa d trac ks and ca lled 911 and “tr ied to g et them over there as quick as” the y could. Fr eema

n reme mbere d making the 911 call and admitted that he told the police that
a pp e lla nt w a s “ be a tin g up his g ir lf ri e nd ” and that the y sh ou ld se nd “ tw o or t hr e e un its ” fr om “ bo th way s, front and back” beca use appe llant would “try

and run.” Howeve r, he de nied see ing a ppellant pu shor dr a g Ho lme s, say ing he c ou ld no t have se e n su c h e ve nts be c a us e he wa s a c ro ss t

he tr a c ks , waiting for the police. Fr eema n admitted that he “may have said” appellant was “i n a d o p e- fiend rag e,” but sa id that he “sa id a lot of things [he] can’t re member” and that the police told him he was “pre achingto them” and “ babbling ” about having se en the de vil.3 Shor t l y af t er the incident, at about 9:30 p.m., Fr eema n g ave a n oral stateme nt, and
a po lic e of fi c e r t ra ns c ri be d it for F re e man’ s r e vie w a nd sig natur e . A c c or din g to t he state me nt, Fr eema n said that appe llant threw Holm es t o t h e ground and was “a cting cra zy .” The statement
rec ites that appellant thre w Holmes ar ound by her hair and her shirt and drag g ed her behind a house. At trial, howeve r, F ree man denied se eing appellant throw Holmes down and sa id that although he
rea d and sig ned the state ment, it was not true. Free man testified that he told the police that Holmes fe ll w hil e sh e wa s r

un nin g , b ut t

hat th e of fi c e r “ pu t it

in h is ow n wor ds a s the y a lw ay s d o. ” He sa id he sig ned the state ment beca use he w as intox icated a

nd wanted to lea

ve the police station. Fr eema n was c alled bac k to the stand for r ebuttal and wa s asked whether he “made a stateme nt—a written stateme nt to the police that [appellant] had thrown Ms. H olmes to the g round by her hair.” Fr eema

n responde d, “As far as I reme mber, y es, sir.” F ree man was the n asked w hether that statement was true or false, and he said he could not remember be cause he had be en drinking all day and wa s intox icated, but he did not “ believe” that his statement was true . Fr eema n was a sked whether he sawappellant throwHolmes to the g round by her hair, and he said, “No,” a nd “I can’ t
reme mber, I

can’ t remembe r him throwing her to the g round or a ny thing like that.” Offic er Ma

rk Nowe ll was the first off icer to arrive on the s ce n e an d testified that when he arr ived, the first thing he saw was appellant pulling Holmes by her shirt. Now ell testified that he re cog nized appellant and Holmes be cause he had “ dealt with them in the past on numerous
occa sions.” Appellant was “swe aty , disheveled, obviously upset,” a nd Holmes’s shirt was “ torn and pu lle d” and on ins ide -o ut and ba c kw ard s. He te sti fi e d that sh e a lso ha d g ra ve l and du st i n h e r h a ir
and sc ra pe mark s o n h e r e lbo w a

nd arm . Wh e n N ow e ll a sk e d Hol me s for an expla natio n, sh e fi rs t said nothing ha d h ap p en ed, so Nowe ll said, “Shamera , don’t lie to me. I ’ve done this too l ong . I4

know y ou.” Holmes then told Nowe ll that appellant had “ thrown her down”; Nowe ll said, “All she admitted to me, sir, was that he had thrown her dow n.” Nowe ll testified that he was the office r who took Fre eman’ s statement at the police sta t i o n an d said he wr ote down F ree man’s “dic tated” statement “w ord for word.” Nowell testified that Fr eema n had a “ slight alc oholic smell” and wa s “ver y ag itated,” but Nowe ll did not t hink Fre eman wa s drunk. Offic er Jeff Hinojosa also responde d to the 911 call and drove Holmes to the police statio n to g ive a

state me nt. Hi no

jos a sa id H olm e s w a s sh a kin g and ha d gra ss on he r c lot

he s a nd in he r h a ir . A t the statio n, Hi no jos a too k dow n Hol me s’ s sta te me nt, and he te sti fi e d th a t H olm e s d id not say any thing a bout having tripped and fallen over a log or tre e stump. Holmes’s statement wa s not introduced into evidenc e, and she did not testify at trial. I n tw o p oin ts o f e rr or , a

pp e lla nt c la ims that th e e vid e nc e is l e g a lly and fa c tu ally insufficient to prove that he thre w Holmes to the g round by her ha ir or that he c aused bodily injury or pain to H olmes, arguing that the State’s evide nce w as entire ly circ umstantial and does not show bey ond a re asonable doubt that he committed the cha rg ed off ense. We disag ree . I n revie wing the leg al suffic iency of the evidence supporting a cr iminal conviction, we view the evidenc e in the lig ht most favorable to the verdic t and ask whe ther a rational trier

of fa ct could have found the e ssential elements of the crime be y ond a re asonable doubt. Jack son v. Vi rg ini a , 4 43 U. S. 3 07 , 3 19 (1 97 9) ; J oh ns on v . S

tat e , 2 3 S
. W
. 3 d 1 , 7 ( T e x . C r i m . A p p . 2 0 0 0 )
. In revie wing the fa ctual suff iciency o f t h e evidence, we consider a ll the evidence equally , including testimony by defe nsive witnesses and e vidence supporting a l t er n ati ve hy potheses. See Clewis v. Sta te , 9 22 S.W. 2d 12 6, 12 9 ( Te x. Cr im. Ap p. 19 96 ); Or on a v . S tat e , 8 3 6 S. W. 2 d

3 1 9 , 3 2 1 ( T e x. Ap p. —A us tin

19 92 , n o p e t.) . A lth ou g h we g ive du e de fe re nc e to t he fa c t- fi nd e r’ s d e te rm inatio ns ,5

particula rly those involving the w eig ht and cr edibility of the e vidence, we m ay d i sag ree with the result to preve nt a manifest injustice. Johnson , 2 3 S. W.2 d at 9; Cai n v . S tat e , 958 S.W .2d 404, 407 (T e x. Cr im. Ap p. 19 97 ). Ev ide nc e is f a c tua lly ins uf fi c ie nt i f t he e vid e nc e su

pp or tin g the ve rd ic t is
so we a k a s to make the fi nd ingof g uil t c le arl y

wr on g or manif e stl y un jus t, o r i f t

he ve rd ic t is a g a ins t the g reat w eig ht a

nd preponde ranc e of the available evidenc e. W ats on v . S tat e , No. PD-469-05, 2006 Te x. Cr im. Ap p. L EX I S 20 40 , at *3 0- 31 (T e x. Cr im. Ap p. Oc t. 1 8, 20 06 ); Johnson , 23 S.W .3d at 11 . T he sta

nd ard is the same fo r dir e c t and c ir c ums tanti a l evi de nc e , a nd the State may

pr ov e its c a se solely throug h circ umstantial evidence
. Ba rn es v . S tat e , 62 S.W.3 d 2 88 , 2 97 (T e x. Ap p. —A us tin 2001, pet. ref

’d). The jury is the sole judge of the weig ht a nd cre dibilit y

of witness testimony
. Id . at 29 8. Th e fa c t- fi nd e r m ay a c c e pt or re je c t any or a ll o f a wi tne ss’ s te sti mony , ma

y dr aw r e a so na

ble infere nces f

rom the evide nce, a

nd must resolve evide ntiary conflicts. Id
. Ap pe lla nt w a s c ha

rg e d w ithint e nti on a lly , kn ow ing ly , o r r e c kle ssl y c a us ingbo dil y i n j u r y t o H o l m e s “ b y t h r o w i n g h e r t o t h e g r o u n d

b y h e r h a i r . ” A s s a

u l t i s d e f i n e d a s “ i n t e n t i o n a l l y, knowing ly , or re cklessly

caus[ing] bodily injury to a nother.” Tex. Pena l Code Ann. § 22.01(a )(1)
. Bodily injury is defined a s “ph y s i ca l p ai n, illness, or any impairment of phy sical condition,” id
. § 1.07(a) (8) ( West S upp. 2006), and is proved if the evidenc e shows that the victim suffe red “ some” pain. Se e Lan e v . S

tat e , 763 S.W .2d 785, 786-87 (Te x . Crim. App. 1989). The jury may infer that the victim suffer ed pain ba sed on evide nce of injuries or the c i rc u m s tance s of the assa ult. See Go od in v . S tat e , 750 S.W .2d 857, 859 (Tex. App.—Corpus Christi 1988, pet. denied). Offic er N owell furthe r t estified that when he ar rived on the sc ene, he saw a ppellant p u l l i n g Ho l m es b y

h er s h i rt , wh i ch wa s t o rn , s t re t ch ed , an d o n i n s i d e- o u t an d b ac kwa rd s . Al t h o u gh she initially

said nothing ha d happene d, Holmes eve ntually told Now ell that appellant ha d thrown6

he r t o th e g ro un d. No we ll a nd Hi no jos a te sti fi e d th a t H olm e s had g ra ve l, g ra ss, and du st in he r h a ir and clothes. N owell saw sc ratc hes on H o l m es ’s arm, a nd Hinojosa testified that Holmes wa s shaking during her drive t o the pol ice station. Nowell testi fied that he wrote down F ree man’s ora l statement “w ord for

word,” and F ree man ad m i t t ed t hat the wr itten statement say s that he saw
a pp e lla nt dr a g g ing Ho lme s by he r ha ir and sh ir t. F re e man a lso a dmi tte d th a t in his 91 1 c a ll, he sa id appellant wa s acting cra zy and wa s beating Holmes. The jury could have considere d Fr eema n’s
c los e fa mil y re la tio ns hip to a

pp e lla nt an d co nc lud e d tha

t Fr e e man’ s initi a l sta te me nts we re tr uth fu l, rathe r than his re cantation at trial. Thus, the jury could have rea sonabl y

disreg arde d Fr eema

n’s testimony that he did not see a

ppellant push or drag Holmes. I nstead, the jury rea sonably

could have believed that Fre eman saw appellant throw Holmes to the ground by her hair and could have inferr ed from Holmes’s shaken deme anor, he r scr atche d arm, a nd disheveled a p p ea ranc e that she suf fer ed
so me pa in a s a re su lt of a

pp e lla nt’ s a ssa ult
. Th e e vid e nc e is b oth

le g a lly and fa c tua lly su ff ic ie nt t o show that appe llant intentionally , knowing ly , or rec klessly injured Holmes and cause d her pa in. See Tex. P enal Code A nn. §§ 1.07(a) (8), 22.01( a)( 1).

__________________________________________ David Pury ear , J ustice Be fore J ustices B . A. Smith, P ury ear and Waldrop Affir med Filed: De cembe r 5, 2006 Do No t Pu

bli sh