      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-05-00520-CR



                                     Jeremy Garst, Appellant

                                                  v.

                                   The State of Texas, Appellee




             FROM THE COUNTY COURT AT LAW NO. 4 OF TRAVIS COUNTY
              NO. 669894, HONORABLE MIKE DENTON, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found appellant Jeremy Garst guilty of the misdemeanor offense of assault

causing bodily injury, for which the court assessed a $4000 fine. See Tex. Pen. Code Ann.

§ 22.01(a)(1) (West Supp. 2005). Appellant contends that the evidence is legally and factually

insufficient to sustain the jury’s verdict, and that the exclusion of testimony denied him his right to

cross-examination. Finding no reversible error, we affirm the judgment.


                      FACTUAL AND PROCEDURAL BACKGROUND

               Appellant and his fiancee at the time, Lindsey Koenig, drove to Lake Travis on July

4, 2004, with Koenig’s friend, Ashley Elizondo, to meet friends. They arrived around 2 p.m. and,

shortly thereafter, appellant left on a boat with other friends, leaving Koenig and Elizondo on shore

with a group of about eight others. Both groups were drinking alcohol. When appellant returned,
he argued with Koenig and accused her of flirting. Appellant and Koenig left the lake to eat at a

nearby fast-food restaurant. In the truck on the way to the restaurant, they argued about the volume

of the stereo. Koenig testified that when she turned the volume down, appellant hit her in the chest

with his closed fist, knocking the wind out of her.

               They continued on to the restaurant, where appellant ordered food only for himself

from the drive-through window, parked nearby, and ate in front of Koenig. Koenig got out of the

truck and began to walk away. She testified that she returned to the vehicle only after appellant

threatened her. Koenig testified that appellant then used both of his hands to choke her until she

passed out. She testified that when she regained consciousness, appellant was “in [her] face” yelling

that the altercation was her fault. Koenig testified that as they drove back to the lake, appellant hit

her on the wrist for crying and continued to yell at her. Once back at the lake, Koenig told Elizondo

that appellant had hit her, and asked Elizondo to get in the truck. Elizondo testified that as she

walked away to get her wallet, appellant drove off with Koenig.

               While driving up a hill to exit the park, Koenig testified that she jumped out of the

moving truck to escape from appellant, sustaining injuries to her hip and shoulder. Koenig stated

that at this point, appellant got out of the truck, yelled at her, picked her up by her hair, threw her

back into the car, and twice hit her head on the steering wheel. According to Koenig, they then drove

to the duplex they shared, but drove past it when appellant saw Elizondo waiting outside. Koenig

stated that while they were parked nearby waiting for Elizondo to leave, she attempted to get out of

the car, but appellant threatened “do you think you can actually run faster than me, you are hurting.”

She further testified that after she promised not to tell anyone about the altercation, appellant

returned her to the duplex and she walked immediately inside. Koenig stated that appellant refused

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to allow her to leave, but that after he fell asleep she used his cellular phone, the only working phone

in the duplex, to call her parents, who arrived shortly thereafter to pick her up. Koenig’s parents

drove her to the hospital, where Koenig’s injuries were treated, and where an officer from the Austin

Police Department took her statement and photographs.

               Appellant was charged with assault. At the close of the one-day trial, the jury

returned a verdict of guilty.


                                             ANALYSIS

               In three issues on appeal, appellant challenges the legal and factual sufficiency of the

evidence to support his conviction and further contends that the exclusion of testimony denied him

his rights to cross-examination and to present a defense.


Legal and Factual Sufficiency

               Appellant urged at trial that Koenig was not a credible witness and that she fabricated

the story because she was angry with appellant. He contends that there was no evidence that any of

the alleged acts caused her pain. In a legal sufficiency challenge, we view the evidence in the light

most favorable to the prosecution and determine whether any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). In a factual sufficiency

challenge, we view the evidence in a neutral light, not favoring either side, and determine whether

the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State,

144 S.W.3d 477, 484 (Tex. Crim. App. 2004); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App.

2000). Evidence may be found factually insufficient when the evidence supporting the verdict,

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considered alone, is too weak to support the finding of guilt beyond a reasonable doubt, or the

evidence contrary to the verdict is so strong that the standard of beyond a reasonable doubt could not

have been met. Zuniga, 144 S.W.3d at 484-85. It is within the exclusive province of the jury to

judge the credibility of witnesses, decide the weight to be given their testimony, and reconcile

conflicts in the evidence. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).

               Appellant contends that the State failed to prove that he caused bodily injury to

Koenig. To prove the misdemeanor offense of assault, the State must show that a person

intentionally, knowingly, or recklessly caused bodily injury to another. See Tex. Pen. Code Ann.

§ 22.01(a)(1). Bodily injury is defined as “physical pain, illness, or any impairment of physical

condition.” Id. § 1.07(a)(8) (West Supp. 2005). The jury may draw reasonable inferences and make

reasonable deductions from the evidence that she suffered bodily injury. See Arzaga v. State, 86

S.W.2d 767, 778-79 (Tex. App.—El Paso 2002, no pet.).

               Koenig testified that appellant hit her in the chest hard enough to knock the wind out

of her; choked her to the point of unconsciousness; picked her up by her hair and threw her into the

truck; and twice hit her head on the truck’s steering wheel. She further testified that the contact with

the steering wheel left a knot and bruise on her forehead that was examined by an emergency room

doctor. Koenig described these acts and injuries to the jury. Furthermore, the jury could have

inferred physical pain from appellant’s threat to Koenig, “do you think you can actually run faster

than me, you are hurting,” and from Elizondo’s testimony that she saw Koenig crying in the truck,

and that Koenig kept repeating, “he hit me.”

               Viewed in the light most favorable to the verdict, and giving due deference to the fact

finder’s assessment of the witnesses’ credibility and resolution of evidentiary conflicts, we cannot

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say that the evidence was legally insufficient to support a conviction. Furthermore, we find that the

evidence of guilt was not too weak, nor was any contrary evidence too strong, to support a finding

of guilt beyond a reasonable doubt. We overrule appellant’s first and second issues.


Exclusion of choke hold testimony

                  In his third issue, appellant argues that the exclusion of testimony from a police

officer resulted in a denial of his rights to cross-examination and to present a defense.

                  During the cross-examination of Dale Stevenson, the Austin police officer who took

Koenig’s statement at the hospital, defense counsel asked if Stevenson had ever been trained to

administer a choke hold. The following testimony occurred:


       [Defense]:           In the police academy or in your military training, have you been
                            trained how to administer any sort of like a choke hold or anything
                            like that?

       [Stevenson]:         In military, yes, sir.

       [State]:             Your Honor, the State objects to this line of questioning, it’s
                            irrelevant.

       [Court]:             Why is it relevant how the military may teach somebody how to do
                            something?

       [Defense]:           Well he might be an expert as to proper administration how to
                            choke someone out, how long it takes to choke somebody out, how
                            much time it takes to put somebody unconscious by choking.

       [Court]:             I’m going to sustain the objection.

       [Defense]:           I don’t have any other questions.




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               On appeal, appellant contends that the “police officer’s testimony was not particularly

important to the case as a whole, but what that officer had to say about what level of force it takes

to choke someone unconscious could have impeached [Koenig’s] testimony.” When the substance

of the testimony is not apparent from the context of the question, the offering party is required to

make an offer of proof. See Tex. R. Evid. 103(a)(2). Because appellant failed to make an offer of

proof, nothing is preserved for review. We overrule appellant’s third issue.


                                         CONCLUSION

               We overrule appellant’s issues on appeal and affirm the judgment of conviction.




                                              Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Pemberton

Affirmed

Filed: May 3, 2006

Do Not Publish




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