                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                 §
  RAUL SANCHEZ VALENCIA,                                         No. 08-17-00050-CR
                                                 §
                         Appellant,                                   Appeal from
                                                 §
  v.                                                          County Court at Law No. 4
                                                 §
  THE STATE OF TEXAS,                                          of El Paso County, Texas
                                                 §
                         Appellee.                               (TC # 20150C05658)
                                                 §


                                          OPINION

       A jury convicted Appellant Raul Sanchez Valencia of assault causing bodily injury to a

family member. Appellant’s sole complaint on appeal is that the evidence is insufficient to support

the conviction. We disagree and affirm.

                                        BACKGROUND

       On the evening of June 15, 2015, El Paso 911 operators received two calls regarding an

assault. In the two calls, Jasmin Valencia told the 911 operators that Appellant had assaulted Raul

Valencia, Sr. (father to both Appellant and Jasmin), and that he was bleeding and in need of

paramedics. When the police arrived, Appellant was acting irrationally to the point that he was
tasered. Thereafter, the State presented an information charging Appellant with assault causing

bodily injury (a Class A misdemeanor).1

          At trial, both 911 calls were played to the jury. The responding police officers also

testified. However, Jasmin Valencia, the originator of the 911 call, recanted what she told the 911

operator. Instead, she claimed to have no first-hand knowledge of the incident and stated that she

only assumed there had been an assault. Raul Valencia, Sr., the victim, also denied that there was

any assault, but instead claimed that he cut himself by accident after tripping. Nonetheless, the

jury convicted Appellant, who was sentenced by the trial judge to a sixteen-month term of

probation and a mostly probated fine.

          On appeal, Appellant challenges the sufficiency of the evidence to sustain the conviction.

On the strength of the 911 call, and the responding officer’s testimony, the State claims that the

verdict should stand. In some family violence situations, the State argues, the jury must decide if

the recantation or non-cooperation of the victim or other family-member witnesses is legitimate,

or whether it is based on a misplaced sense of familial loyalty. The State claims that the jury had

sufficient evidence to determine that the recantation here was the latter.2


1
    TEX.PENAL CODE ANN. § 22.01(a)(1) and (2).
2
  Recantation is indeed a recognized phenomenon in family violence cases. See Tom Lininger, Prosecuting Batterers
After Crawford, 91 Va.L.Rev. 747, 768 (2005)(“Recent evidence suggests that 80 to 85 percent of battered women
will recant at some point.”); Salazar v. State, 13-15-00583-CR, 2016 WL 6124640, at *3 (Tex.App.--Corpus Christi
Oct. 20, 2016, no pet.)(mem. op., not designated for publication)(quoting same statistics); Njeri Mathis Rutledge,
Turning A Blind Eye: Perjury in Domestic Violence Cases, 39 N.M. L. Rev. 149 (2009)(“False statements in domestic
violence cases are a significant problem and considered an epidemic with an estimated 40 to 90 percent of domestic
violence victims recanting.”). As another commentator concluded:

          Non-cooperation by recantation or failure to appear at trial is an epidemic in domestic violence
          cases. Persons qualified to give expert testimony at trial on domestic violence, including
          psychologists, counselors, police detectives, directors of battered women’s shelters, and victim
          advocates, consistently testify that, in their experience, it is commonplace for domestic violence
          victims to recant or minimize initial reports of abuse. The head of the Family Violence Division of
          the Los Angeles District Attorney’s Office estimates that ninety percent of domestic violence
          victims recant.


                                                          2
                                      STANDARD OF REVIEW

        Appellant’ sole point of error contends the evidence is legally insufficient to sustain the

jury’s verdict on the assault charge. Evidence is legally sufficient when, viewed in the light most

favorable to the verdict, any rational jury could have found the essential elements of the offense

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89,

61 L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010)(establishing

legal insufficiency under Jackson v. Virginia as the only standard for review of the evidence).

        The jury is the sole judge of credibility and the weight attached to the testimony of each

witness. Dobbs v. State, 434 S.W.3d 166, 170 (Tex.Crim.App. 2014). It is the fact finder’s duty

“to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts.” See Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.

2007), quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781. The jury also may choose to believe or

disbelieve that testimony. Lancon v. State, 253 S.W.3d 699, 707 (Tex.Crim.App. 2008); Belton v.

State, 900 S.W.2d 886, 897 (Tex.App.--El Paso 1995, pet. ref’d). When the record supports

conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict, and

we defer to that determination. Dobbs, 434 S.W.3d at 170; see also Jackson, 443 U.S. at 319, 99

S.Ct. at 2789.

        Circumstantial evidence is as probative as direct evidence in establishing guilt, and

circumstantial evidence alone may be sufficient to establish guilt. Dobbs, 434 S.W.3d at 170;

Carrizales v. State, 414 S.W.3d 737, 742 n.20 (Tex.Crim.App. 2013), citing Hooper v. State, 214

S.W.3d 9, 13 (Tex.Crim.App. 2007). Each fact need not point directly and independently to the




Douglas E. Beloof & Joel Shapiro, Let the Truth Be Told: Proposed Hearsay Exceptions to Admit Domestic Violence
Victims’ Out of Court Statements As Substantive Evidence, 11 Colum. J. Gender & L. 1, 3 (2002).


                                                      3
guilt of the appellant, so long as the cumulative force of all the incriminating circumstances is

sufficient to support the conviction. Dobbs, 434 S.W.3d at 170; Hooper, 214 S.W.3d at 13.

       We remain mindful that “[t]here is no higher burden of proof in any trial, criminal or civil,

and there is no higher standard of appellate review than the standard mandated by Jackson.”

Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). Nonetheless, if a rational fact finder could

have found the defendant guilty, we will not disturb the verdict on appeal. Fernandez v. State, 479

S.W.3d 835, 838 (Tex.Crim.App. 2016).

       We measure the evidence against the elements of the offense as defined by a hypothetically

correct jury charge--one that accurately sets out the law, is authorized by the indictment, does not

unnecessarily restrict the State’s theories of liability, and adequately describes the offense for

which the defendant was tried. Hooper, 214 S.W.3d at 14.

                                             ASSAULT

       “A person commits an offense if the person . . . intentionally, knowingly, or recklessly

causes bodily injury to another[.]” TEX. PENAL CODE ANN. § 22.01(a)(1). Bodily injury “means

physical pain, illness, or any impairment of physical condition.” TEX.PENAL CODE ANN. § 1.07(8).

The Texas Court of Criminal Appeals has broadly interpreted this bodily injury definition to

include “even relatively minor physical contacts so long as they constitute more than mere

offensive touching.” Lane v. State, 763 S.W.2d 785, 786 (Tex.Crim.App. 1989); see also State v.

Vigil, No. 08-13-00273-CR, 2015 WL 2353507, at *4 (Tex.App.--El Paso May 15, 2015, pet.

ref’d)(not designated for publication). The victim is not required to testify directly that they

suffered pain, and instead, the jury is permitted to “draw reasonable inferences from the evidence,

including an inference that the victim suffered pain as a result of [their] injuries.” Arzaga v. State,

86 S.W.3d 767, 778 (Tex.App.--El Paso 2002, no pet.). In addition, the existence of a cut, bruise,



                                                  4
or scrape on the body is sufficient evidence of physical pain necessary to establish “bodily injury”

within the meaning of the statute. Id.

                                                  DISCUSSION

          In his first issue, Appellant contends that the evidence fails to show an assault. He focuses

on Jasmin Valencia’s trial testimony that she did not witness any assault and mistakenly reported

that Appellant had assaulted Raul Sr. to 911.3 Appellant also focuses on Raul’s testimony denying

any assault and his claim that he struck his head by accident.4 Appellant’s second issue contends

that the State failed to present any evidence of pain, which would then negate the necessary

element of bodily injury. For this issue, Appellant focuses on Raul Sr.’s denial that the cut to his

head caused any pain.5


3
    For instance:

          [PROSECUTOR]: So what you’re telling me is if you made that call were you lying then or then
          are you lying now?

          [JASMIN]: I wasn’t lying then or now. I just assumed things. I was awakened by a noise and I
          called and I just assumed, you know, I was panicking. I mean, what was I supposed to do?
4
    For instance:

          [DEFENSE COUNSEL]: And this cut that happened when you hit the door or fell against the door
          had nothing to do with anything that your son may or may not have done that evening at the house;
          is that correct?

          [RAUL SR.]: Definitely, it has nothing to do with it.

          [DEFENSE COUNSEL]: No hit or anything like that that Raul, your son -- do you even specifically
          remember whether he even hit you?

          [RAUL SR.]: He didn’t hit me. It was an accident.
5
    For instance:

          [PROSECUTOR]: Okay. And is the gash you’re talking about from where you hit yourself?

          [RAUL SR.]: Yes.

          [PROSECUTOR]: Were you in pain?

          [RAUL SR.]: No.


                                                           5
       As powerful as that testimony might have been, the State impeached both Jasmin and

Raul’s denial of an assault. Jasmin was confronted with the two 911 calls, admitted without

objection. In the first call, she stated “My brother is acting very weird and he already, he hit my

Dad, and he is talking weird sh*t.” The 911 operated asked what Appellant hit Raul with, and she

responded, “He pushed him. . . .” She was asked if they needed paramedics and she said, “Yes,

please go ahead and send them over” because her father was bleeding from his face.

       Jasmin made a second call, some six minutes later, and told the operator, “My brother’s

being violent. . . . I’m afraid he’s gonna’ hurt the babies that are inside and my mother. . . . He

already hurt my dad. . . .” She added that “He’s saying crazy stuff . . . like I think he literally went

crazy . . . he starts hitting stuff like crazy. . . .” She made the second 911 call while outside the

house with her father, stating that she was “Right here at the corner, of uh, I’m outside the house

because I am afraid, he already injured my father, and he’s right here, my father’s with me.”

       A rationale jury could have discounted her recantation for several reasons. First and

foremost, how would she have learned the specific detailed information that she conveyed to 911

if not either from personally witnessing it, or by being told by her father. She said in the 911 calls

that Appellant was “being violent” “hitting stuff like crazy” and “already injured my father.” By

the time of the second call, she was standing outside the house with her father because she was

“afraid.” The responding police officer testified that when he first arrived, she and her father were

standing two houses down. A rationale jury could have concluded that people do not stand two

houses away from their residence at 2:30 a.m. following a simple trip and fall accident.




       [PROSECUTOR]: You’re telling me that you were bleeding?

       [RAUL SR.]: Yes, but it didn’t hurt.

                                                   6
         Second, Jasmin contradicted herself during her trial testimony. At trial, she testified to

calling 911 once, and did not remember the second call, though the evidence clearly showed there

was a second call. In that second 911 call, she stated Appellant was acting crazy, yet she denied

he was acting that way at trial. The State further put on evidence from the police officers that

Appellant tried to rush one of them, and once he was subdued, made a number of bizarre

statements.6 Jasmin claimed to have only later learned from her father “what really happened” but

she testified at trial that she never bothered to inform law enforcement, the District Attorney’s

office, or even defense counsel that her first report was wrong. She also denied giving any written

statements about the event, both when questioned by the prosecutor, and Appellant’s counsel. But

in fact Jasmin gave a notarized statement some two weeks after the incident where she denied

having firsthand knowledge of any assault. When confronted with the statement, she then denied

having any memory of the circumstances of signing it. A rationale jury could have concluded that

a truthful witness would have had better recall of these matters.

         Similarly, the jury could have discounted Raul Valencia’s claim that the injury resulted

from an accident. At trial, he testified that when the police arrived, he was standing just outside

his doorway because he wanted some fresh air. Yet the responding officer testified that he was

two houses away, standing with his daughter. Raul testified that he did not tell his daughter what

happened before she made the 911 calls. Yet she made two calls, that were at least five minutes

apart, and she was standing with him. A rationale jury could have concluded that it would be

improbable for a daughter to not ask, and not be told why her father had a gash on his forehead




6
  Officer Christopher Sipe testified that after they subdued Appellant, he starting yelling, “Look to the stars. Look to
the sky” and “Turn on the lights.” “He repeated 6:00 a.m. dozen[s] of times.” “Three plus three equals six. He stated
a couple of times, I didn’t kill my daughter.”

                                                           7
before calling the 911 operator. It would be even more bizarre for her having been told nothing

about the injury to then to call 911 and accuse her brother of committing an assault.

       Raul Sr. also provided a circumstantial backdrop that supported the State’s theory of the

assault. Raul Sr. was awakened by Appellant who wanted to leave the house. Raul Sr. did not

want him to leave because it was late and the “police can catch him or something.” Raul Sr.

conceded he was having a disagreement with his son and while both were at the front door, the

“accident” occurred. The jury would have the benefit seeing his demeanor, which even on the

written record reflects he was at times not responsive to the prosecutor’s questions and repeatedly

volunteered exculpatory statements.

       The jury also heard from Luis Gonzales, the police officer who investigated the incident.

He took a series of photographs that document a cut to Raul’s scalp, and show his bloodied t-shirt.

When he arrived, the officer first spoke to Raul and Jasmin. Raul was excited, mumbling,

breathing hard, and speaking quickly. Jasmin was yelling and crying, and both appeared in shock

Though the trial court sustained objections to what they said, the officer testified without objection

as follows:

       [OFFICER GONZALEZ]: Well, after he explained to me what happened, I
       determined that there was an assault that occurred and that Mr. Valencia’s father
       was the victim and the injury that he did have at the time was sustained because of
       that assault.
                                           .      .      .
       [PROSECUTOR]: So you determined that an assault had occurred based on the
       information you were given?
       [OFFICER GONZALEZ]: That is correct. Yes, ma’am.
Officer Gonzalez then approached the front door of the house. He heard a male and female yelling.

The officer attempted to open the door, but it was pulled closed and locked. Just as the officer was

about to breach the door, it suddenly opened and Appellant charged towards the officer. The


                                                  8
officer was able to move out of the way and put Appellant in a bear hug from behind. The two

continued to struggle with Appellant screaming and yelling erratically. They continued to struggle

until another officer arrived and Appellant was eventually subdued with a Taser gun.

       We give deference to the jury in resolving conflicts in testimony, weighing the evidence,

and drawing reasonable inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13;

Davila v. State, 346 S.W.3d 587, 590 (Tex.App.--El Paso 2009, no pet.). Based on the evidence

presented, a rational juror could have concluded beyond a reasonable doubt that Appellant

intentionally, knowingly, or recklessly caused Raul Sr. bodily injury.         The 911 call, and

information apparently conveyed to the responding officer support a rationale inference of an

assault on Raul Sr. Appellant’s erratic and aggressive behavior towards the officer further supports

that inference. Viewing the evidence in the light most favorable to the verdict, we find that a

rational fact finder could have concluded that the witnesses’ recantation was based on familial

loyalty and that the evidence supports the verdict. Cf. Amaro v. State, 08-14-00052-CR, 2016 WL

3344568, at *12 (Tex.App.--El Paso June 14, 2016, no pet.)(not designated for publication)

(upholding family violence assault conviction supported by video statement, photographs of

injury, and officer’s testimony despite recantation by victim); Carrillo v. State, 08-11-00076-CR,

2013 WL 1229011, at *7 (Tex.App.--El Paso Mar. 27, 2013, no pet.)(not designated for

publication)(upholding family violence assault verdict based on police officer’s testimony,

photographs, 911 recording and prior family-violence assault conviction despite victim recanting

at trial). Moreover, the photos of the wound and evidence of obvious bleeding support a rationale

inference of pain. Cf. Delgado v. State, 08-15-00041-CR, 2018 WL 2424052, at *4 (Tex.App.--

El Paso May 30, 2018, no pet.)(not designated for publication)(evidence supported that assault

caused pain when assailant struck victim with McDonald’s “Happy Meal”); Dawson v. State, 08-



                                                 9
11-00203-CR, 2013 WL 4017433, at *5 (Tex.App.--El Paso Aug. 7, 2013, no pet.)(not designated

for publication)(affirming assault verdict when ex-wife struck husband in the back with a tennis

racket).

         We overrule Appellant’s first and second issues and affirm the conviction.7


January 30, 2019
                                              ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)




7
  The State asserts a conditional cross-point complaining of the exclusion of Raul Sr. and Jasmin’s statements to the
police officer at the scene as excited utterances. As we affirm the conviction, the conditional cross-point is denied as
moot.

                                                          10
