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

NO. 03-05-00442- CR

Win ona Lou O ld, App e lla nt

v. The State of Texas, App ellee

F ROM THE COUNTY COURT AT LAW NO. 2 OF HAY S COUNTY NO. 73622 , HO NORAB LE LINDA A. RODRI GUEZ , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N A jury found appellant Winona L ou Old g uilty of assaulting her sixteen-y ear -old son, Aar on J oseph, for

which the c ourt assesse d a probated sentence of one y ear in jail and a $500 fine. See Tex. Pen. Code Ann. § 22.01 (West Supp. 2006). I n three points of error , Old contends that the evidenc e is leg ally

and fa ctually

insufficient to sustain the jury ’s ver dict, and that she did not rec eive eff ective a ssistance of c ounsel. We will overrule the se conte ntions and aff irm the conviction. This prosec ution arose out of an incident at the r esidenc e of D ebra Wil cox and her daug hter, Vonna , in Dripping Springs. Joseph was Vonna’s boy friend. O ld had re cently moved fr om D ri pp ingSpr ing s to Com a l Co un ty , b ut w ithOl d’ s p e rm iss ion Jose phha d r e ma ine d in Dr ipp ingSpr ing s to a tte nd sc ho ol a nd wa s li vin g wi th t

he Wilc oxe s. On

the nig ht i n q

ue sti on , O ld and her twin sister, Ramona J am es , and their boy friends dr ove to the Wilcox house fr om Comal County , ostensibly

to pick up J oseph’s car, which neede d work. Whil e there, Old and James entere dThe wor d “papa san” is misspelled throug hout the rec ord. 1 2 the re sidence and we nt to Vonna’s bedr oom. What happened a fter that was a matter of dispute at tr ia l. Vonna testified that she went to her room and demanded to know what Old a nd J ames
wer e doing ther e. W i t h i n m oments, J oseph also ente red the room. Old told Vonna that she wa s looking f or Jos eph’s medic ine. Acc ordin g to Vonna, Old beg an “y elling at us and saying that we
wer e all wor

thless.” Old then pus hed J oseph, causing him to fall over a chair and onto a computer:

“ She jus t r e a c he d o ut a

nd pu sh e d him dow n an d he fe ll b a c k o n to p o f— on top of the po pp a zonc ha ir and on top of the computer that was sitting ne x t to the poppazon chair.” Vonna a lso remember ed 1

se e ingOl d s la

p Jose ph , b ut s he c ou ld n ot r e me mbe r w he the r i t w a s b e fo re or a ft e r O ld p us he d h im. Jose ph ’s te sti mony

wa s si mil ar t o Vonn a’s . H e sa id t hat hi s mo the r p us he d h im ba c kw ard s “ and

Ife ll o nto thi s p op pa zonc ha ir ; it ’s lik e a bo wl c ha ir

that si ts o n to p o f, lik e , a

lit tle sta n d
. A n d it r o ll e d o f

f o f it s s ta

n d an d I f

e ll o n to th e c o mp u te r an d h it my s ide on it.” J oseph testified that when he tried to stand up, Old slapped him. Aske d i f he f elt pain when O ld slapped and pushed him, Jos eph answ ere d that he fe lt “the most pain” whe n “the computer hit me in the hip.”

Old testified t hat J oseph has a serious kidney disease, a

nd that she believe d that he sh ou ld n ot b e liv ing

wi th t he Wilc oxe s b e c a

us e of the un sa nit ary c on dit ion of the ir ho us e . Sh e tol d J oseph this w hen he a

nd Vonna c onfronted he r in the bedr oom. Accor ding to Old, Joseph cursed her a nd shoved her

hard a g ainst the fra

me of the door. She said, “I tried to push back. . . . I

didn’t have muc h streng th, but I tried to push back.” Old denied slappingor pushing J oseph. James’s3

descr iption of the incident was substantially simil ar to Old ’s
. S h e testi fied, “ [Old] never struck [J oseph]. She never touc hed him.”

The infor mation alleg ed that Old intenti onally , knowing ly , and re cklessly cause d bodily injury to J oseph by slapping his fac e and pushing him. Se e id . § 22.01(a) (1). Amongother th in g s , “ b o d il y in

ju r y ” me an s p h y s ic al pain. Id . § 1. 07 (a )( 8) . O ld c on te nd s th a t th e e vid e nc e is le g a lly and fa c tua lly ins uf fi c ie nt t o s up po rt

the jur y ’s fi nd ingthat J os e ph e xpe ri e nc e d p hy sic a l pa in
as a result of beingslapped or pushe d by her. She c orre ctly

points out t hat J oseph did not testify that he experienc ed pain a s a re sult of being slapped. As to the pain Jos eph said he felt whe n he hit the computer, Old argues that the e vidence demonstrates that she mere ly pushed Jos eph into the cha ir, and that he struc k the computer only when he tried to stand up. Old re lies on the testimony of De bra Wil cox, who testified that J oseph wa s in the chair when she enter ed the room afte r the fr aca s was larg ely over. I n a le g a l su ff

ic ie nc y re vie w, a ll the e vid e nc e is v ie we d in the lig ht m os t f

a vo ra ble to the verdic t to determine whe ther a rational trier

of fa ct could have found all the eleme nts of the offe nse beyond a re asonable doubt. J ac k so n v . V irg ini a , 44 3 U. S. 30 7, 32 4 ( 19 79 ); Swearingen v. Sta te , 101 S.W .3d 8 9, 95 (Tex. Crim. App. 2003). Viewe d in this l ight, Vonna ’s and Joseph’s testimony is sufficient to s upport a finding that when Old pushe d him, J oseph fe ll into t he papa san chair , which ti pped over and spi lled him onto the computer. Debr a W ilcox did not witness the push, and we must assume the jury disreg arde d her testimony to the ex tent that it contradicts Vonna ’s or J oseph’s. Se e Gr iff

in v . S tat e , 6 1 4 S
. W
. 2 d

1 5 5 , 1 5 9 (T ex . C ri m . Ap p . 1 9 8 1 ) ( ci t i n g Jack son , 443 U.S. at 318-19). The evidenc e is leg ally sufficie nt to support the jury ’s finding that J oseph suffe red4

phy sical pain as a result of Old’s push. See Tex. Pen. Code Ann. § 6.04( a) ( West 2003) (ca usation). Point of error one is overrule d.

I n a fa ctual suff

iciency revie w, all the evidence is considered e qually , including the testimony of def ense w itnesses and the e x i s t ence of a lternative hy potheses. Or on a v . S

tat e , 836 S.W. 2d 31 9, 32 1 (Te x. Ap p. —A us tin 19 92 , n o p e t.) . T he e vid e nc e wi ll b e de e me d f a c tua lly insufficient if the pr oof of guilt, st anding alone, is too weak to suppor t the jury ’s finding bey ond a
rea sonable doubt or if the contra ry evidenc e is so strong that the State could not have met its burden of proof
. Zun iga v . S

tat e , 144 S.W .3d 477, 484-85 (Te x . Crim. App. 2004). Although th e te s ti mo n y o f th e St a te ’ s w it n e s s e s w a s n o t in a g r e e me n t a s to a ll the details, Old overstate s the case when she asserts that the S tate’s evidence reg ardingcausation was “so tenuous as to be laug hable.” Both Vonna and J oseph pl ainly testified that Old pushed Joseph, causinghim to fall into t he unstable c hair a nd then onto the computer . Old and h er s i s t er, on the other ha nd, denied that Old pushe d J oseph. The jur y ’s deter mination that the State’s witnesses we re
more c redible w as not manifestly unjust. Se e J

oh ns on v. Stat e , 23 S.W .3d 1, 9 (Tex. Crim. App. 2000). The evidence is fac tually sufficie nt to support the jury ’s finding that J oseph suffe red phy sical pain as a result of Old’s push. Point of err or two is overr uled. Ol d c on te nd s t

h a t he r t ri a l c ouns e l’ s p e rf

or manc e wa s d e fi c ie nt i n tw o r e sp e c ts. F ir st, she complains that her

attorney failed to re quest a jury

instruction on self-de fense
. See Tex. P en. Code Ann. § 9.31 (West 2003). She argues t hat t he jury could have conclude d from the testimony that J oseph s h o v ed h er first, and that she pushe d and slappe d him to protect herse lf from fur ther attack. Sec ond, Old asser ts that he r lawy er should have asked the court to authorize her conviction5

for the le sser include d offe nse of a ssault by offe nsive cont act. Se e id . § 22.01(a) (3) ( West S upp. 20 06 ). She argue s th a t th e jur y c ou ld h a ve be lie ve d th a t he r c on du c t di d n ot c a us e Jose phbo dil y injury , but that it did consti tute offe nsive contac t car ry i n g a l es s er punishment. Se e id . § 22.01(b), ( c). To preva il on a claim of inef fe ctive assistanc e of c ounsel, an a ppellant must show that
c ouns e l ma de su c h s e ri ou s e rr or s th a t he wa s n ot fu nc tio nin g e ff

e c tiv e ly a s c ouns e l and that th e se
e rr or s p re jud ic e d th e a

pp e lla nt’ s d e fe ns e to s uc h a

de g re e that sh e wa s d e pr ive d o f a fa ir tr ia l. Strickland v. W

ashington , 466 U.S. 668, 687 (1984); He rn an de z v . S tat e , 988 S.W .2d 770, 771-72 (Tex. Crim. App. 1999). I n revie wi n g a cla im of ineffe ctive assistanc e, we must indul g e a strong presumption that counsel’s c onduct fe ll within the wide rang e of re asonable profe ssional assistance. J ac k so n v . S tat e , 877 S.W .2d 768, 771 (Tex. Crim. App. 1994). Old argues that the re asoning employ ed in Va sq ue z v . S tat e , 8 3 0 S. W. 2 d 9 4 8 ( T e x. Crim. App. 1992), applies to this appeal. In Vasquez , a prose cution for possession of a firea rm by
a felon, de fense counsel did not reque st an instruction on nece ssity even thoug h the def

endant’ s testim o n y r a is e d th e is s u e an d

it w o u ld h a v e b e e ne r

r o r f o r th e tr ia l c o u rt t o r e f

u s e th e d e f

e n sive instruction. Id . at 951. The court said that c ounsel should have r ecog nized that the defe ndant was entitled to the instruction a nd that he had nothing to lose by reque sting it. Id . The c ourt conc luded that under the circ umstances, c ounsel’s fa ilure to reque st the instruction render ed his repr esentation constitutionally

defic ient. Id . Simi larly , Old ar gu es that she wa s leg ally entitled to the lesser included off

ense a nd self-de fense instructions, she had nothing to lose by reque sting them, a

nd that
c ouns e l w a s th e re fo re ine ff e c tiv e fo r f

a ili ngto r e qu e st the m.6 A def endant is not entitled to a self-de fense instruction if she denies committing the assaultive ac ts alleg ed ag ainst her. Va nb ra c k le v . S tat e , 1 79 S.W. 3d

70 8, 71 5 ( Te x. Ap p. —A us tin 2005, no pet.). Old testified t hat s he “tried to push back” when Joseph alleg edly shoved her

into the do or fr a me , b ut d id n ot h a ve the str e ng th. She a lso e xplic itl y de nie d sla pp ing Jose ph or

pu sh inghim into the chair or

onto the computer. James, the other de fense wi t n es s , t estified that Old “ne ver tou c he d” Jose ph
. Th e re is no e vid e nc e fr om wh ic h a jur y c ou ld re a so na

bly c onclu de t hat Old justifiably

pushed or slappe d J oseph in self-de fense
. A def endant is entitled to an instruction on a le sser include d offe nse whe n (1) the le sse r o ff e ns e is i nc lud e d w ith in t

he of fe ns e c ha rg e d ( wh ic h is not di sp ut ed her e ) a nd (2 ) t he re is
so me e vid e nc e that w ou ld p e rm it a jur y ratio na lly

to f ind that if the de fe nd ant i s g uil ty , s he is guil ty only of the lesse r off

ense. Ro us se au v . S

tat e , 8 85 S.W. 2d

666, 67 3 ( Te x. Cr im. Ap p. 19 93 ). Ol d argues that she wa s entitled to the offe nsive touching instruction by analog y to the opinion in Bi gn all

v . S tat e , 887 S.W .2d 21 (Tex. Crim. App. 1994). I n that case , the issue was w hether an ag g ravated robber y defe ndant was e ntitled to an instruction on the lesser include d offe nse of thef t. Id . at 22. The State’s e vidence showed that Big nall and his c odefe ndant enter ed a convenie nce store, picke d up c art on s o f b e e r an d cig are tte s, and be g an to le a ve ; w he n th e c a sh ie r a sk e d B ig na ll f or pa y me nt, Big nall threatened him with a pistol. Id
. at 22-23. Big nall and the codef endant testified, on the other hand, that neither of them was a rmed. Id
. at 23. The court of criminal appea ls held that Big nall was entitled to an instruction on the lesser offe nse bec ause a

rational j u ry co u l d have be lieved that B ig na ll a nd his c omp anio n we re no t arm e d wh ile ne ve rt he le ss f ind ingthat th e y

we re g uil ty

of the ft
. Id . at 24.7 Old argues that the jury

in this case could have “se l ec t i v el y believed” the State’s
e vid e nc e and

c on c lud e d th a t sh e pu sh ed or sl a pp e d Jose ph , b ut t

hat th is c on du c t di d n ot r e su lt i n bodily injury . Bu t fo r a le sser include d offe nse to be ra ised, it is not enough that the jur y might dis be lie ve c ru c ia l e vid e nc e pe rt a ini ngto the g re a te r of fe ns e ; th e re mus t be so me e vid e nc e dir e c tly g erma ne to the lesser of

fense for the f

actf inder to consider
. Id
. I n Bi gn all there was such e vidence : both defe ndants testified that they wer e not ar

med. Ther e is n o s u ch ev i d ence in the cause now befor e us. Old and he r sister tes t i fied that Old did not push, slap, or touch Joseph, offensive ly or oth e rw ise . O ld’ s c la im that sh e wa s e nti tle d to the le sse r inc lud e d of fe ns e ins tr

uc tio n is ba se d s ole ly
on the possibili ty that the jury might have disbelieved Joseph’s testimony that Old’s conduc t cause d him phy sical pain.

I n hi s t est imony

at the hea

ring on Old’s motion for new tr ial, her tria l counsel te sti fi e d, “ Ima de a

str a te g ic de c isi on

no t to [ra ise the le sse r inc lud e d of fe ns e ] b e c a

us e my c lie nt t old me from the be g inning of this case that she was not g uilty of any offe nse and I did not wa nt to give t h e j u ry a ch ance to rea ch a c ompromise verdic t.” I n an af fidavit introduced in e vidence at the he ari ng , c ouns e l st a te d, “ Se lf -d e fe ns e wa s n ot a via

ble op tio n b e c a

us e to i nv ok e it o ne mus t f ir st admit doing the a ct . . . . Throug hout this case and he r testimony , Ms. Old was steadf ast in her
asser tion that she never

touched [ the complainant] , only that he had assaulted her. That would be a straig ht not guilty claim, not a self-defe nse claim.” This evidenc e demonstrates that counsel made a conside red de cision not to request the two instructions in question. There is nothing in the r ecor d8

o r i nOl d ’s ar gu m en t s t h at p er s u ad es u s t h at i nei t h er ca s e t h e d ec i s i o nwa s o u t s i d e t h e b ro adra n ge of re asonable profe ssional assistance. Point of er ror thre e is overr

uled. The judg ment of convic tion is affirmed.

__________________________________________ Be a Ann Smith, J ustice Be fore J ustices B . A. Smith, P ury ear and Waldrop Affir med Filed: Oc tober 12, 2006 Do No t Pu

bli sh