                                    NO. 07-07-0263-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL A

                                  SEPTEMBER 24, 2008

                          ______________________________


                           JOEL L. HERNANDEZ, APPELLANT

                                              v.

                           THE STATE OF TEXAS, APPELLEE

                        _________________________________

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

                  NO. 2006-499,028; HON. RUSTY LADD, PRESIDING

                          _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                         OPINION


       Appellant, Joel L. Hernandez, appeals his conviction for assault-domestic violence,

and sentence of 365 days incarceration and fine of $4,000 contending that the evidence

was legally and factually insufficient. Further, appellant contends that the trial court erred

in making an affirmative finding of domestic violence. We affirm.
                                        Background


       On April 3, 2006, Rebecca Rodriguez drove appellant to a liquor store in Lubbock,

Texas, and stopped at the drive up window where Jon Fisher was working. Fisher took

their order for a six pack of beer and left the window to retrieve their order. When Fisher

returned to the window, Rodriguez was upset and began asking for help. Rodriguez left

the vehicle and ran into the store screaming for help with appellant coming into the store

shortly after Rodriguez. Fisher, his store manager, and another employee came to

Rodriguez’s aid and kept appellant away from her. The store manager called 911 and

convinced appellant to leave the store. Fisher noticed injuries to Rodriguez including

scratches to her neck and red marks on her face. When Corporal Harvey arrived, he took

a statement from Fisher and Rodriguez as well as photographs of Rodriguez’s injuries.

Other personnel from the Sheriff’s Office located appellant approximately a mile away.

Harvey, as the lead officer in the investigation, went to the site where appellant was

stopped and spoke with appellant. Upon receiving appellant’s version of the incident

wherein he claimed he was the victim of an assault by Rodriguez, Harvey examined

appellant but did not find any injuries. Harvey then decided to arrest appellant for assault-

domestic violence.


       At trial, Rodriguez recanted her statement that appellant had assaulted her and

testified that some of the injuries photographed by Harvey were injuries she sustained

while doing yard work earlier in the day. Further, Rodriguez explained that her hysteria,

as observed by the store employees, was actually a panic attack due to an adverse


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reaction to medication she was taking for anxiety and depression. Rodriguez also stated

that further injuries were sustained when, as a passenger in the vehicle, she attempted to

get out of the moving car and appellant tugged on her seat belt to prevent her from hurting

herself. Finally, Rodriguez testified that she had signed a non-prosecution affidavit and did

not wish for the State to prosecute appellant for any assaultive offense against her that

evening. The jury convicted appellant and sentenced him to 365 days incarceration and

a fine of $4,000.


       Appellant now appeals by two issues, contending that the evidence was not legally

or factually sufficient to uphold the conviction and that the trial court erred in making an

affirmative finding of family violence because the evidence did not show that appellant and

Rodriguez were married, the parents of any children, or lived in the same household at the

time of the offense. We affirm.


                                    Sufficiency Review


       In assessing the legal sufficiency of the evidence, we review all the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v. State, 133

S.W.3d 618, 620 (Tex.Crim.App. 2004). In conducting a legal sufficiency review, an

appellate court may not sit as a thirteenth juror, but rather must uphold the jury’s verdict

unless it is irrational or unsupported by more than a mere modicum of evidence. Moreno

v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988).

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       By charging appellant with assault, the State must prove that appellant intentionally

and knowingly or recklessly caused bodily injury to another. TEX . PENAL CODE ANN . §

22.01(a)(1) (Vernon Supp. 2008). An assault conviction is considered a domestic violence

assault if the trial judge “. . . determines that the offense involved family violence, as

defined by Section 71.004 [of the Texas] Family Code.” TEX . CODE CRIM . PROC . ANN . art.

42.013 (Vernon 2006). Appellant contends that the evidence is insufficient to show that

appellant caused injury to Rodriguez as well as insufficient to show a relationship

necessary to support a conviction for domestic violence assault.


       The evidence in this cause showed, and it is uncontested, that Rodriguez did suffer

several injuries. At trial, Rodriguez testified that, although some of the injuries occurred

while doing yard work, she testified that the injuries on her neck were caused by appellant

while he was keeping her in the moving car. Therefore, it is also undisputed that appellant

did cause bodily injury to appellant. However, appellant’s state of mind when he caused

Rodriguez’s bodily injuries is contested. Although Rodriguez testified at trial that appellant

did not assault her, but was protecting her, the jury heard testimony about Rodriguez’s

statement to the employees of the liquor store and Harvey where she claimed that

appellant had assaulted her. Further, the jury heard from these witnesses that Rodriguez

appeared afraid of appellant and that Rodriguez stated that appellant had attacked her.

Thus, contrary to Rodriguez’s in-court testimony, the jury had evidence before it that

appellant had intentionally, knowingly, or recklessly assaulted her. As to the parties’

relationship, the jury heard from Rodriguez that the parties were living together at the time

of the assault. Consequently, the jury had evidence as to appellant’s state of mind when

                                             -4-
he caused bodily injury to Rodriguez as well as to the parties’ relationship. Hence, we

conclude that the evidence, viewed in the light most favorable to the verdict, was sufficient

to allow a rational trier of fact to find the essential elements of the offense beyond a

reasonable doubt. Ross, 133 S.W.3d at 620.


       Having found the evidence legally sufficient, we next review the factual sufficiency

challenge. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). When an

appellant challenges the factual sufficiency of the evidence supporting his conviction, the

reviewing court must determine whether, considering all the evidence in a neutral light, the

jury was rationally justified in finding the appellant guilty beyond a reasonable doubt. See

Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In performing a factual

sufficiency review, we must give deference to the fact finder’s determinations if supported

by evidence and may not order a new trial simply because we may disagree with the

verdict. See id. at 414. As an appellate court, we are not justified in ordering a new trial

unless there is some objective basis in the record demonstrating that the great weight and

preponderance of the evidence contradicts the jury’s verdict. See id. at 417. Additionally,

an appellate opinion addressing factual sufficiency must include a discussion of the most

important evidence that appellant claims undermines the jury’s verdict. Sims v. State, 99

S.W.3d 600, 603 (Tex.Crim.App. 2003).


       Appellant argues that Rodriguez’s testimony and her affidavit of non-prosecution

demonstrates that Rodriguez was not assaulted. However, as a reviewing court, we defer

to the jury’s determination of the credibility of the witnesses. See Watson, 204 S.W.3d at


                                             -5-
414. The jury could have disregarded Rodriguez’s in-court testimony and focused on the

photographs of Rodriguez’s injuries and her statements that appellant had assaulted her

that she made to the store employees and the sheriff’s deputy on the night of the incident.

Appellant also argues that the employees’ testimony is not probative because the

employees never testified to seeing appellant actually assault Rodriguez.


       However, circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004).

Circumstantial evidence alone is sufficient to establish guilt. Id. Furthermore, the standard

of review on appeal is the same for both direct and circumstantial evidence cases. Id.


       In this cause, the employees testified as to Rodriguez’s demeanor when she ran into

the store and her fear of appellant, whom she claimed had assaulted her.                The

photographs of Rodriguez also show injuries that Harvey testified were not consistent with

Rodriguez’s account of the injuries being caused by yard work or a seat belt, but were

rather consistent with several strikes or blows to Rodriguez. Finally, though appellant

claims that some ambiguity existed as to whether he was living with Rodriguez at the time

of the assault, appellant fails to reference this court to any specific testimony supporting

his position. However, the record does indicate that Rodriguez stated that appellant was

living with her on the date of the assault. As an appellate court, we are not justified in

ordering a new trial unless there is some objective basis in the record demonstrating that

the great weight and preponderance of the evidence contradicts the jury’s verdict. See

Watson, 204 S.W.3d at 417. We do not find an objective basis in the record that the great


                                             -6-
weight and preponderance of the evidence contradicts the jury’s verdict. Therefore, we

conclude that, considering all the evidence in a neutral light, the jury was rationally justified

in finding appellant guilty beyond a reasonable doubt. See id. at 415.


                          Affirmative Finding of Domestic Violence


       In an assault case, a trial judge must make an affirmative finding of domestic

violence if he “determines that the offense involved family violence.” TEX . CODE CRIM .

PROC . ANN . art. 42.013 (Vernon Supp. 2006); Butler v. State, 189 S.W.3d 299, 302

(Tex.Crim.App. 2006). In reviewing a trial court’s ruling on a mixed question of law and

fact: (1) if the resolution turns on an evaluation of credibility and demeanor, we afford

almost total deference to the trial court’s finding of fact, viewing the evidence in the light

most favorable to the ruling; and (2) we review de novo a resolution that does not turn on

evaluation of credibility. State v. Cagle, 77 S.W.3d 344, 347 (Tex.App.–Houston [14th

Dist.] 2002, pet. ref’d). The Texas Family Code defines “family violence” to include an

assault “. . . by a member of a family or household against another member of a family or

household. . . .” TEX . FAM . CODE ANN . § 71.004(1) (Vernon Supp.2002). A “household,” in

turn, is “a unit composed of persons living together in the same dwelling, without regard

to whether they are related to each other.” Id. at § 71.005.


       First, appellant complains that the State did not give notice of its intent to seek an

affirmative finding in the information, did not present any evidence on family violence to the




                                               -7-
jury, and did not ask for an affirmative finding until after sentencing.1 However, appellant

has not cited any authority demonstrating that the State was required to give notice of its

intention to seek an affirmative finding. See Thomas v. State, 150 S.W.3d 887, 888-89

(Tex.App.–Dallas 2004, pet. ref’d) (no harm, even if the information did not formally inform

appellant of the State’s intent to seek affirmative finding). Further, article 42.013 of the

Texas Code of Criminal Procedure places the duty of making an affirmative finding of

domestic violence upon the trial judge if “the court determines that the offense involved

family violence, as defined by Section 71.004 [of the Texas] Family Code.” TEX . CODE

CRIM . PROC . ANN . art. 42.013 (Vernon 2006). Finally, under article 42.013, the trial court

has no discretion in entering a family violence finding once it determines the offense

involved family violence. Thomas, 150 S.W.3d at 889. In this case, only Rodriguez

presented evidence as to whether her relationship with appellant could be classified as a

familial, dating, or household relationship. Considering that, as a general rule, an appellate

court should afford almost total deference to a trial court’s finding of fact, especially when

its finding is based on an evaluation of credibility and demeanor, see Guzman v. State, 955

S.W.2d 85, 89 (Tex.Crim.App. 1997), we will not overturn a trial court’s determination

absent an abuse of discretion. See id. Since Rodriguez testified that appellant was living




       1
          Arguably, appellant has waived his right to raise any complaint on appeal of the
trial court’s affirmative finding of domestic violence since he did not object at the time the
trial court made the finding. TEX . R. APP. P. 33.1; Villarreal v. State, No. 01-01-00053-CR,
2002 WL 501605, at *2 (Tex.App.–Houston [1st Dist.] April 4, 2002, no pet.) (not
designated for publication). However, in an abundance of caution, we will analyze
appellant’s contention.

                                             -8-
with her at the time of the offense, we conclude that the trial court did not err in making an

affirmative finding of domestic violence.2


                                         Conclusion


       For the foregoing reasons, we affirm the trial court’s judgment.




                                    Mackey K. Hancock
                                         Justice


Publish.




       2
        Appellant has also argued constitutional implications of the affirmative finding of
domestic violence, but he has provided no citations and, thus, has inadequately briefed this
issue. TEX . R. APP. P. 38.1(h). Since the affirmative finding of domestic violence does not
raise the punishment range in the instant case, no harm is evident, see Butler v. State, 189
S.W.3d 299, 303 (Tex.Crim.App. 2006). Further, any contention that an affirmative finding
could detrimentally affect appellant in future family violence assault cases is premature
and, consequently, not ripe for review. See Butler v. State, 162 S.W.3d 727, 732
(Tex.App.–Fort Worth 2005, pet. granted) aff’d 189 S.W.3d 299 (Tex.Crim.App. 2006).

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