                                  NO. 07-09-00275-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                  FEBRUARY 7, 2011


                         RODNEY W. WOOTEN, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


          FROM THE COUNTY COURT AT LAW NO. 2 OF LUBBOCK COUNTY;

              NO. 2008-451,360; HONORABLE DRUE FARMER, JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION

      Appellant Rodney W. Wooten appeals from his conviction by jury of the

misdemeanor offense of domestic violence assault 1 and the resulting sentence of fifteen

days of imprisonment in the county jail and a fine of $3,000. Through three issues,

appellant contends the State failed to disclose evidence in violation of Brady v.

Maryland, the trial court erred in refusing to include in the court=s charge an instruction

of consent as a defense to assault, and the evidence was factually insufficient to

support his conviction. We affirm.

      1
          See Tex. Penal Code Ann. § 22.01(a)(1) (West 2003).
                                         Background


       The victim of appellant’s assault was his wife, Wendi. She testified at trial, along

with the 911 operator, the responding officer, and a Women’s Protective Services

advocate. Appellant presented the testimony of his son. The evidence indicated police

were called to the couple’s Lubbock apartment in response to a domestic disturbance.

Wendi told the responding officer that she and her husband argued over a MySpace

account and he slammed the bedroom door on her leg and threw her against the wall.

She attempted to call 911 at that time but her husband took the phones away from her.

She called 911 from a neighbor’s apartment. The officer described Wendi as crying,

scared, and in pain. He observed she had a bruise on the inner side of her leg.


       Wendi went to her doctor the next day. She had small bruises on her knee and

her arm. The doctor prescribed a painkiller and anti-inflammatory medication. She

returned to the doctor a day later because she was not feeling well.


       When the responding officer spoke with appellant on the phone, appellant told

the officer he did not assault Wendi. The officer told appellant to stay somewhere else

that   night    or   he   would   be   arrested.      Appellant   did   not   testify   at   trial.


                                           Analysis


Brady Violation


       In his first issue, appellant argues the State failed to disclose favorable evidence

in violation of Brady v. Maryland. 2 The evidence of which appellant complains is a


       2
           Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
report regarding a prior incident of abuse committed against Wendi. Appellant argued

the report showed that instance of violence was mutual combat between Wendi and

appellant. The State contends this issue was not preserved for appellate review. At oral

argument, appellant conceded the State is correct. After a review of the record, we

agree and overrule appellant=s first issue.


Jury Instruction


       In appellant=s second issue, he contends the trial court erred in failing to include

a defensive instruction on consent pursuant to section 22.06 of the Penal Code. See

Tex. Penal Code Ann. § 22.06 (West 2007).


       On a timely request, a defendant has the right to an instruction on any defensive

issue raised by the evidence, whether such evidence is strong or weak, unimpeached or

contradicted, regardless of what the trial court may or may not think about the credibility

of this evidence. See Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App. 1996); Miller

v. State, 815 S.W.2d 582, 585 (Tex.Crim.App. 1991) (op. on reh'g). When evidence

from any source raises a defensive issue, and the defendant properly requests a jury

charge on that issue, the trial court must submit the issue to the jury. See Muniz v.

State, 851 S.W.2d 238, 254 (Tex.Crim.App. 1993), cert. denied, 510 U.S. 837, 126 L.

Ed. 2d 82, 114 S. Ct. 116 (1993). Thus, if the issue is raised by any party, refusal to

submit the requested instruction is an abuse of discretion. Id. When the evidence fails,

however, to raise a defensive issue, the trial court commits no error in refusing a

requested instruction. Id.


                                              3
      Under the Penal Code, it is a defense to the offense of simple assault that the

victim effectively consented to the offender's assaultive conduct or that the offender

reasonably believed that the victim consented, at least so long as the conduct did not

threaten or inflict serious bodily injury. Tex. Penal Code Ann. ' 22.06 (West 2007); Allen

v. State, 253 S.W.3d 260, 261 (Tex.Crim.App. 2008). The Texas Penal Code defines

"consent" as "assent in fact, whether express or apparent." Tex. Penal Code Ann. '

1.07(a)(11) (West 2003). Thus, the issue is whether there was any evidence, viewed in

the light most favorable to appellant, to show (1) Wendi effectively consented to the

assault, i.e., whether there was any evidence that she assented in fact, either expressly

or impliedly, or (2) appellant reasonably believed Wendi effectively consented. See

Bufkin v. State, 179 S.W.3d 166, 173 (Tex.App.—Houston [14th Dist.] 2005), aff’d 2006

Tex.Crim.App. LEXIS 2111 (Tex.Crim.App. Nov. 1, 2006).


      Appellant contends consent can be implied from Wendi=s testimony that when

she entered the bedroom after their argument to look for cigarettes, appellant grabbed

her arm and she slapped him in the face. She then left the room but later returned to

find the door closed and barricaded. She tried to force her way into the room and

appellant slammed the door on her leg before she was able to move it out of the way.

Shortly thereafter, appellant attempted to leave the house and Wendi came up behind

him. He pushed her into a wall. Appellant argues the issue of consent to mutual

combat was raised by Wendi’s testimony because it shows Wendi was the instigator of

the confrontations.




                                            4
      The State disagrees, noting that Wendi did not dare, entice, or induce appellant

to assault her. See, e.g., Allen, 253 S.W.3d at 267 (evidence of the victim=s words

such as Ago ahead,@ Acome on,@ Aslap me,@ and Ado it@ could be sufficient to raise

evidence of consent); Pierce v. State, No. 04-02-00749-CR, 2003 Tex.App. LEXIS

9799, at *13 (Tex.App.BSan Antonio Nov. 19, 2003, pet. ref=d) (mem. op., not

designated for publication) (victim testified she had been Aegging him on@ right before he

pushed her off the bed but, under the circumstances, the statement was no more than a

Asmart-alec@ remark and was not consent).


      In Pierce, the court concluded that the victim’s statement of “go ahead” before

defendant struck her was no more than a “smart-alec” remark and was not consent.

Pierce, No. 04-02-00749-CR, 2003 Tex.App. LEXIS 9799, at *13. The court further

noted that even viewed in the light most favorable to the defense, the statement shows

that the alleged consent occurred only after the assaultive conduct had begun and the

victim thus could not have consented to being hit, choked, grabbed, scratched or

knocked down. Id. The rationale of Pierce is applicable here. The testimony to which

appellant points shows Wendi slapped him only after appellant grabbed Wendi=s arm.

Her action cannot be seen as giving implied consent to his physical actions of slamming

her leg in the door or pushing her into a wall. Id. at *13; Tex. Penal Code Ann. ''

1.07(19), 22.06 (West 2003).      See Allen, 253 S.W.3d at 268 (noting “[c]ommon

experience tells us that such apparent bravado (‘go ahead,’ ‘come on,’ ‘slap me,’ ‘do it’)

in the face of an expressed threat does not normally communicate a genuine desire to



                                            5
be assaulted; it far more likely constitutes a backhanded warning of potentially dire

consequences to the threatener should she actually carry out her threat”). Neither of

Wendi’s other two actions, attempting to enter their shared bedroom and coming up

behind appellant as he was leaving their apartment, provide evidence she consented to

his assaultive conduct. Moreover, appellant did not testify and offered no evidence,

testimonial or otherwise, that he formed a reasonable belief that Wendi consented to

being hit. Pierce, No. 04-02-00749-CR, 2003 Tex.App. LEXIS 9799, at *13; Tex. Penal

Code Ann. § 22.06 (West 2007).        Having reviewed the entire record, we find the

circumstances described in the record would not lead an ordinary and prudent man to a

reasonable belief 3 his wife effectively was consenting to his slamming a door on her leg

or pushing her into a wall.


       Because the evidence failed to raise the defense of consent, the trial court did

not commit error in refusing the requested instruction on consent. Granger v. State, 3

S.W.3d 36, 38 (Tex.Crim.App. 1999). We overrule appellant=s second issue.


Sufficiency of the Evidence


       In appellant’s last issue, he challenges the factual sufficiency of the evidence to

support his conviction. Since appellant’s brief was filed, however, the Court of Criminal

Appeals decided Brooks v. State, 323 S.W.3d 893, 2010 Tex.Crim.App. LEXIS 1240


       3
        See Tex. Penal Code Ann. § 1.07(a)(42) (West 2003) (reasonable belief
Ameans a belief that would be held by an ordinary and prudent man in the same
circumstances as the actor@).



                                            6
(Tex.Crim.App. 2010). In that case, the court determined the sufficiency of the evidence

should be reviewed only under the standard set forth in Jackson v. Virginia, 443 U.S.

307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We will therefore review the evidence

in a light most favorable to the verdict for appellant’s sufficiency claim. 4


       The legal sufficiency standard mandates that an appellate court defer to the

factfinder's credibility and weight determinations. Brooks, 323 S.W.3d 893, 2010 Tex.

Crim. App. LEXIS 1240, at *8. After giving proper deference to the factfinder's role, we

will uphold the verdict unless a rational factfinder must have had reasonable doubt as to

any essential element. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009).


       A person commits assault if the person intentionally, knowingly or recklessly

causes bodily injury to another, including the person's spouse. See Tex. Penal Code

Ann. ' 22.01(a)(1) (West 2003). Therefore, the State was required to prove appellant

intentionally, knowingly or recklessly caused bodily injury to Wendi. We note appellant

       4
         The previously-applied factual sufficiency standard considers whether the
evidence supporting guilt, though legally sufficient, is so weak that the jury's verdict
seems clearly wrong and manifestly unjust, or evidence contrary to the verdict is such
that the jury's verdict is against the great weight and preponderance of the evidence.
Grotti v. State, 273 S.W.3d 273, 283 (Tex.Crim.App. 2008); Watson v. State, 204
S.W.3d 404, 414-15 (Tex.Crim.App. 2006). Under that standard, the ultimate question is
whether, considering all the evidence in a neutral light, the jury was rationally justified in
finding guilt beyond a reasonable doubt. Grotti, 273 S.W.3d at 283. Even had we
applied such a standard to review of the evidence, we could not sustain appellant's
contention. From our review of the entire record, the finding of appellant's assaultive
conduct was neither clearly wrong and manifestly unjust nor against the great weight
and preponderance of the evidence.




                                               7
does not challenge the evidence supporting these elements but instead reiterates his

consent or mutual combat argument. 5        Although we have already discussed and

rejected appellant’s consent argument, we nevertheless will briefly address the

evidence supporting each element of the offense in our sufficiency review.


       First, the State had to prove appellant was the person who committed the

assault. Wendi identified appellant as the person who assaulted her. Appellant did not

deny that he was the person who committed the assaultive actions.               Appellant

acknowledges he and Wendi were husband and wife, members of the same household.

See Tex. Fam. Code Ann. § 71.005 (West 2009) (Ahousehold@ means a unit composed

of persons living together in the same dwelling without regard to whether they are

related to each other).


       Next, the State had to prove appellant caused Wendi bodily injury. ABodily injury@

means physical pain, illness, or any impairment of physical condition. See Tex. Penal

Code Ann. ' 1.07(8) (West 2003). Wendi testified at trial appellant slammed the door on

her Areally hard@ and part of her knee was Asmashed in the door.@ She also testified that

appellant pushed her into the wall with two hands, causing both of her arms to go

Aflying.@ Her arm hit the doorway to their bedroom and her back hit the closet door. She

agreed that this hurt. The officer who responded on the day of the incident testified that

when he made contact with Wendi, A[s]he was crying. You could tell she was in pain,


       5
        Appellant insists that Wendi, by slapping him in the face, indicated her desire to
enter into a violent and aggressive encounter and consented to appellant=s assaultive
conduct, rendering the evidence insufficient to support his conviction.

                                            8
and she was very scared.@ Photographs were admitted at trial showing a bruise on

Wendi=s arm and knee. Wendi testified that she went to the doctor because her arm was

hurting and was prescribed pain relievers and anti-inflammatories. She testified she

returned to the doctor the following day because she still was not feeling well physically.

This evidence is sufficient to support the “bodily injury” element of the assault offense.


       Last, the State had to prove appellant intentionally, knowingly, or recklessly

caused bodily injury to Wendi. Because section 22.01 authorizes three culpable mental

states disjunctively, proof of any one of the three is sufficient to support a conviction.

Perez v. State, 704 S.W.2d 499, 501 (Tex.App.BCorpus Christi 1986, no pet.). A person

acts intentionally with respect to a result of his conduct when it is his conscious

objective or desire to cause the result. Tex. Penal Code Ann. § 6.03(a) (West 2003). A

person acts knowingly with respect to a result of his conduct when he is aware that it is

reasonably certain to cause the result. Id. § 6.03(b). A person acts recklessly with

respect to a result of his conduct when he is aware of, but consciously disregards, a

substantial and unjustifiable risk that the result will occur. Id. § 6.03(c). Intent may be

inferred from circumstantial evidence such as acts, words, and the conduct of the

appellant, as well as circumstances surrounding the offense. Morris v. State, 07-08-

0119-CR, 2009 LEXIS 5198, *3-4 (Tex.App.BAmarillo July 7, 2009, no pet.) (mem. op.,

not designated for publication), citing Guevara v. State, 152 S.W.3d 45, 50

(Tex.Crim.App. 2004).




                                             9
       Wendi testified appellant intentionally caused her injuries. The record shows

sufficient evidence from which the jury could have inferred appellant at least knowingly

caused Wendi bodily injury when he grabbed her arm and, at the very least, recklessly

caused bodily injury when he slammed the door with Wendi=s leg still in it and pushed

Wendi into a wall. 6


       As sole judge of the credibility of the witnesses and the weight to be given to their

testimony, the jury chose, as they were entitled to do, to believe Wendi's version of

events. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979 & Supp. 2009); Vasquez

v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002). Applying the appropriate standard

of review set forth in Brooks, we find the evidence sufficient to support the jury's verdict.

We overrule appellant=s last issue and affirm the judgment of the trial court.




                                                         James T. Campbell
                                                              Justice



Do not publish.




       6
        Again, we note appellant does not dispute that he intentionally, knowingly, or
recklessly took physical action against Wendi. He argues only that Wendi=s actions
manifested implied consent to his conduct and that a person who slaps another should
expect a physical reaction.
                                             10
