Affirmed as Modified and Opinion Filed October 10, 2016 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-15-00852-CR EARNEST E. STARNES III, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 292nd Judicial District Court Dallas County, Texas Trial Court Cause No. F12-20976-V 

### MEMORANDUM OPINION Before Chief Justice Wright, Ju stice Myers, and Justice Brown Opinion by Chief Justice Wright A jury convicted Ernest E. Starnes III for assault involving family violence, having a prior conviction for assault involving family vi olence. The trial court assessed punishment, enhanced by a prior felony convict ion, at ten years’ imprisonment, probated for four years, and a $1,500 fine. In two issues, appellant contends the evidence is insufficient to support his conviction and the trial court’s j udgment should be modified to delete restitution. We modify the trial court’s judgment and affirm as modified.
E VIDENCE P RESENTED Amber Starnes, the complainant, was appellant’s wife at the time of the assault. At trial, Amber testified she and appellant had a “verball y abusive relationship” and were not happy in their relationship. On the evening before the assault, Amber and appellant went to a bar in–2– DeSoto and had several drinks. When they retu rned home, Amber went to bed and appellant fell asleep on the couch. The next morning, Amber woke appellant for work. After appellant showered and got dressed, he mentioned he wa nted to go to his mother’s house on Sunday. Amber replied that she did not want to go because appellant’s mother did not like her. Appellant immediately jumped on her and pinned her down on the bed. Appellant head-butted her several times, grabbed her throat with both his hands, and he slapped her in the face and on the leg repeatedly. Amber testified she sustained bruise s on her arms and leg, and a lump on her head. When she freed herself from appellant, she ran out the back door toward a park next to her house. She dialed 911 on her cell phone and asked for police assistance. Amber testified she ended the 911 call abruptly when appellant came outside because she was afraid. A short time later, the 911 operator called he r back. While Amber talked w ith the 911 operator, appellant asked her why she was calling the police. Appellan t left the premises before the police arrived. Amber further testified that after she talked with the police, she m oved out of the house that day and stayed with a friend. She eventually moved out of state. Appellant was arrested about six months after the assault. Appellant as ked her to sign an affidavit for non-prosecution, telling her that if he went to trial, he would sa y he was never there that day and that she made upthe entire assault story to “get back at him.” Amber testified she signed the affidavit of nonprosecution because she wanted to be done with appellant. During cross-examination, Amber testified she had been arrested for fam ily violence and public intoxication in 2011 Audio recordings of the two 911 calls were ad mitted into evidence. During the first call, Amber stated her husband had beat her and she needed the police. Amber stated she fled the house and was walking to a nearby park behind her house. Amber stated “here he comes” before she disconnected from the call. During the se cond call, Amber said “yes” when the operator–3– asked if her husband was there wi th her. A man’s voice stated “now I’m going to lose my new job.” DeSoto police officer Steven Hall testified he answered a domestic disturbance call on May 25, 2012 involving Amber Starne s. Hall testified Amber was distraught and upset when he arrived, and she stated she had been assaulted by her husband. Hall testified he saw a “raised part on her forehead” and “marks” on different parts of her body that matched what she was telling him. Hall took Amber’s statement, photogr aphed her injuries, and gave her information about shelters, protective orders , counseling, and other resources. Photographs of Amber taken at the scene were admitted into evidence; a videotape of the o fficers arriving at Amber’s house and interviewing her was also admitted into eviden ce. On the videotape, Hall stated he had been called to the same house the previous week, he que stioned Amber about the assault, and he stated he saw a “raised” area on her fore head and bruises on her arm and leg. Aaron Fouts testified on appellant’s behalf . Fouts, who owns a construction company, often used appellant as a sub-contractor for re pairs, roofing, painting, an d handyman jobs. Fouts testified that on May 24, 2012, appellant came to his house around 6:30 p.m. and they “hung out” in Fouts’s backyard. Amber kept calling ap pellant’s cell phone, asking appellant to come to bar and pay her tab. Appellant ev entually turned off his phone. F outs testified he and appellant “cooked out” in the backyard that evening. Appellant stayed overnig ht on the couch. When they awoke the next morning, they went their separate ways to different jobs. Fouts further testified he had no idea how appellant’s voice could be on a 911 call on the same day appellant stayed overnight with him. Appellant denied he assaulted Amber and testified he was not even home at the time of the alleged assault because he spen t the night with Fouts. Appellant testified he went to work the next morning after leaving Fouts’s home. He returned to his house af ter work. Appellant–4– testified that while visiting with Fouts the day of the alleged assault, Amber continually called appellant’s cell phone asking him to come to a tavern and pay her bar tab. Appellant testified he refused and turned off his cell phone. When he we nt home after work the next day, he greeted Amber as he came in. According to appellant, Amber said, “you’ll see,” and then ignored him because she was angry that he did not come home the night before. Appellant denied it was his voice on the 911 call. During cross-examination, appellant admitted he had head-butted Amber in the past, and he had slapped her on a prior occasion only because she ha d slapped him twice. Appellant testified he had prior convictions for theft, criminal mischief, four DWIs, and a 2004 conviction for assault in volving family violence ag ainst his first wife.
I NSUFFICIENT E VIDENCE In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and dete rmine whether a rational tr ier of fact could have found the essential elements of th e offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319 (1979); Wise v. State , 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). We are required to defer to the jury’s credibility and wei ght determinations because the jury is the sole judge of the witnesses’ cr edibility and the weight to be given their testimony. See Jackson , 443
U.S. at 326. To obtain a conviction for a ssault involving family violence, having a prior assault involving family violence, the State had to prove beyond a reasonabl e doubt that appellant intentionally, knowingly, or reckle ssly caused bodily injury to Amber Starnes, a member of appellant’s household, by striking her with his head and his hands, and that appellant was legally convicted of a previous assault involv ing family violence in December 2004. See T EX
. P ENAL C ODE A NN
. § 22.01(a)(1) (West Supp. 2015); T EX
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. C ODE A NN
. §§ 71.0021, 71.005 (West–5– 2014 & Supp. 2015). “Bodily injury” means physical pain, illness, or any impairment of physical condition. T EX
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. § 1.07(a)(8) (West 2011). In his first issue, appellant contends the evidence is insuffi cient to support his conviction because his defense at trial shows he was not at home at the time Amber was injured. Appellant asserts Amber’s testimony was not credible b ecause she had a history of calling the police whenever they had disagreements, she was trying to “get him” as a parting shot to their marriage, and she admitted they had a vola tile relationship. Appellant ar gues Amber’s signed affidavit of non-prosecution, coupled with the lack of phy sical or medical evidence to substantiate the allegations, weighs against the ju ry’s findings. The State responds that the evidence is sufficient to support the conviction because th e jury, as fact finder, rejected appellant’s alleged defense and found him guilty of the offense. Conflicting evidence was presented to the ju ry. Amber testified appellant pinned her down on the bed, head-butted her, grabbed her neck with both hands, and slapped her on the leg several times. After Amber fled the house, she dialed 911. One of the 911 calls between Amber and the 911 operator contained the voice of a man whom Amber iden tified as appellant. Officer Hall testified he interviewed Amber and her injuri es appeared to be consistent with what she described happened to her during the assault. On the other hand, both Fouts and appellant testified that appellant spent the night with Fouts and was not home at the time of the alleged assault. Appellant further denied that the male voice heard on the 911 call belonged to him. It was the jury’s function as the trier of fact to resolve any conflicts in the evidence, and the jury was free to accept or reject any and all of the evidence presented by either side. See T EX . C ODE C RIM . P ROC . A NN . art. 38.04 (West 1979); Wesbrook v. State , 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). Viewing the evidence under the proper standard, we conclude a rational trier of fact could find beyond a reasonable doubt that appellant knowingly caused bodily injury to Amber by hitting her–6– with his head and hands. Thus, the evidence is sufficient to sustain the conviction for assault involving family violence. We overrule appellant’s first issue.
M ODIFY J UDGMENT In his second issue, appellant contends th e trial court’s judgment should be modified by deleting the $427.20 restitution. The record s hows that during the punishment phase, the prosecutor asked the trial court to include a co ndition of community supervision that appellant reimburse the State for the “flight arrangements” for Amber in the amount of $427.20. Both the
State and defense reasoned the reimbursement woul d be similar to court costs and that the trial court should order the reimbursement as a conditi on of community supervision. The trial court granted the State’s request and ordered appellan t to reimburse the State in the amount of $427.20 as a condition of his community supervision. The tr ial court’s judgment, however, incorrectly recites the $427.20 as restitution. When a variation between the oral pronouncement of the sentence and the written memorialization of the sentence exists, the oral pronouncement controls. See Coffey v. State , 979 S.W.2d 326, 329 (Tex. Crim. A pp. 1998). We sustain appellant’s second issue. The State agrees that the judgment should be m odified to delete restitution. We modify the trial court’s judgm ent to delete the $427.20 restitution. See T EX
. R. A PP
. P. 43.2(b); Bigley v. State , 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State , 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref'd). As modified, we affirm the trial court’s judgment.

Do Not Publish T EX
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. P. 47 150852F.U05 /Carolyn Wright/ CAROLYN WRIGHT CHIEF JUSTICE–7– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
EARNEST E. STARNES III, Appellant
No. 05-15-00852-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 292nd Judicial District Court, Dallas County, Texas Trial Court Cause No. F12-20976-V. Opinion delivered by Chief Justice Wright. Justices Myers and Br own participating. Based on the Court’s opinion of this da te, the judgment of the trial court is MODIFIED as follows: The section entitled “Restitution” is modified to show “N/A.” As modified, we AFFIRM the trial court’s judgment.
Judgment entered October 10, 2016.