                                     NO. 12-10-00038-CR

                          IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

AMBER CHRIE WHITWORTH,                             §                 APPEAL FROM THE
APPELLANT

V.                                                 §                 COUNTY COURT AT LAW #1

THE STATE OF TEXAS,
APPELLEE                                           §                 ANGELINA COUNTY, TEXAS


                                     MEMORANDUM OPINION
       Appellant Amber Chrie Whitworth appeals her conviction for family violence assault. She
raises five issues on appeal. We affirm.


                                                BACKGROUND
       Appellant was depressed for two weeks after the birth of her daughter, Ember. After
listening to her complain for two weeks, William Tuburen, the child‟s father, told Appellant to
leave if she was so unhappy. But Tuburen would not let her take the baby. Appellant began to beat
on Tuburen‟s head and to scratch him. He wrapped his arms around her to prevent her hitting him,
so she bit him. Tuburen called the police, who interviewed him and took photos of the bite mark
and the scratches. Appellant was so irate that the police were unable to interview her, but she made
several inculpatory comments, including admitting scratching and biting Tuburen. Appellant was
arrested and charged with family violence assault. The information alleged that


       on or about the 29th day of March, A.D. 2009, . . . in the County of Angelina and the State of Texas,
       one AMBER CHRIE WHITWORTH, Defendant, did then and there intentionally, knowingly, or
       recklessly cause bodily injury to WILLIAM TUBUREN by BITING HIM.


       The couple subsequently went to court and established custody of Ember, but by the time of
Appellant‟s trial, the couple had reunited. Tuburen sought to have the charges dismissed. During
the trial, Tuburen had difficulty remembering the events of the evening he made the complaint
against Appellant, and offered excuses for Appellant‟s actions. Tuburen‟s main “testimony” came
in the form of a transcript of his previous statements, in which he said,

        And she started hitting me in the back of the head. There wasn‟t no marks from that. I told the police
        about it, but they didn‟t take no pictures of the back of my head. And then she started choking me.
        She bit me, scratched me, and just all kinds of stuff. Eventually I went outside the house because I
        was tired of her beating on me.


Tuburen agreed that these previous statements, which the State read to him on the record, accurately
reflected the facts of the assault that he had previously stated he could not fully remember.
        The arresting officer testified about his investigation of the assault at the Tuburen
household. The officer stated that Tuburen “said that she had scratched him and bit him. And she
basically said that she had bit him and scratched him because he was cheating on her.” He
identified six photographs, which were admitted into evidence and which showed Tuburen‟s
injuries.
        After the State closed, Appellant moved for a directed verdict because there “was no
description of any bite by Mr. Tuburen. He did not testify that any bite that‟s alleged in the
Complaint caused any pain. There‟s insufficient evidence for this case to go to the jury and [we]
ask for a directed verdict.” The court denied the motion.
        Appellant then testified she was depressed after Ember‟s birth, and that on the morning of
the assault, she found “phone messages from some girl, nude pictures or whatever.” She testified
that she was upset and was going to leave, but then she and Tuburen got into a confrontation over
her taking the baby, and they “both hit each other.” She also said that at one point, Tuburen was on
her, so she bit him on the shoulder or arm to make him let her up or get off her. When she bit him,
he released her, and he then went outside and called the police. Appellant offered photographs her
grandmother had taken of bruises on Appellant‟s legs, and testified that her legs had been bruised in
the scuffle.
        The jury convicted Appellant of family violence assault, and the trial court individually
polled the jury to ensure that each of them had found Appellant “guilty.” The court sentenced
Appellant to ninety days in jail, probated for one year, and assessed a two hundred dollar fine.

                                                          2
       Appellant filed two motions for new trial. The first motion alleged insufficiency of the
evidence because there was no testimony by Tuburen that he had received bodily injury or that he
experienced any pain as a result of Appellant‟s bite. The trial court denied this motion without a
hearing. The second motion alleged jury misconduct because two jurors were “pressured to vote
guilty because it was the lunch hour.” After conducting a hearing during which a juror testified
about the deliberations, the trial court denied the motion.


                                      MOTION FOR NEW TRIAL
         Appellant complains that the trial court erroneously denied her second motion for new trial.
In her first issue, she argues that the jury engaged in misconduct by considering evidence outside
the record. In her fourth issue, she argues that the trial court erred in denying her motion for new
trial based on that evidence.
The Hearing
       The State objected to the court‟s conducting a hearing on Appellant‟s motion for new trial,
noting that a motion for new trial containing an allegation of jury misconduct requires a sworn
affidavit in support of the motion. Nonetheless, the court held a hearing at which Juror Griffin was
allowed to testify. Griffin testified that the verdict was not “unanimous” because she “felt that we
were being pressured to hurry up for lunch.” Griffin “strongly” felt Appellant was not guilty, but
she voted “guilty,” and she then told the judge her vote was “guilty” when the jury was polled.
Griffin testified that she regretted her decision not to vote her conscience. She also stated that,
during jury deliberations, another juror said, “Oh, it has probably happened before.” Griffin said she
immediately corrected the juror, explaining that there was no evidence of any other violence. And
she testified that during the jury discussions, a juror said that Appellant had “probably done this
before.” The judge denied the motion after the hearing.
Waiver
       To preserve error caused by juror misconduct, the defendant must either move for a mistrial
or file a motion for new trial supported by affidavits of a juror or other person in a position to know
the facts of the alleged misconduct. See Trout v. State, 702 S.W.2d 618, 620 (Tex. Crim. App.
1985); Menard v. State, 193 S.W.3d 55, 59 (Tex. App.–Houston [1st Dist.] 2006, pet. ref‟d).
Appellant did not move for a mistrial and did not file an affidavit to support the allegations of jury

                                                   3
misconduct in her motion for new trial.        Consequently, she has waived her jury misconduct
complaint. See Trout, 702 S.W.2d at 620; Menard, 193 S.W.3d at 59. But even if we assumed
Appellant preserved the issue, she could not prevail.
       To demonstrate jury misconduct, a defendant must show that (1) the misconduct occurred
and (2) the misconduct resulted in harm to the movant. Gomez v. State, 991 S.w.2d 870, 871 (Tex.
App.–Houston [1st Dist.] 1999, pet. ref‟d) (citing Garza v. State, 630 S.W.2d 272, 274 (Tex. Crim.
App. [Panel Op.] 1981)). The issue of whether jury misconduct occurred is determined by the trial
court. Id. at 871. The finding of the trial court that no jury misconduct occurred is binding on the
reviewing court and will be reversed only where a clear abuse of discretion is shown. Id.
       A new trial must be granted when “after retiring to deliberate, the jury has received other
evidence . . . .” TEX. R. APP. P. 21.3(f). Jurors must base their decisions on guilt and punishment on
the “information obtained in the courtroom: the law, the evidence, and the trial court‟s mandates.”
Ocon v. State, 248 S.W.3d 880, 884 (Tex. Crim. App. 2009). But jurors are prohibited from
testifying “as to any matter or statement occurring during the jury‟s deliberations, or the effect of
anything on any juror‟s mind or emotions or mental processes, as influencing any juror‟s assent to
the verdict.” TEX. R. EVID. 606(b); State v. Lewis, 151 S.W.3d 213, 219 (Tex. App–Tyler 2004,
pet. ref‟d). However, a juror may testify about (1) whether any outside influence was improperly
brought to bear upon any juror, or (2) to rebut a claim that the juror was not qualified to serve. TEX.
R. EVID. 606(b).
       Here, there was no evidence of influence or evidence from outside the jury room. Griffin
testified about “matter[s] or statement[s] occurring during the jury‟s deliberations,” and the effect of
those matters or statements on the deliberative process. Rule 606(b) prohibits this testimony.
Because the record does not include any admissible evidence that provides a proper basis for
granting a motion for new trial, we could not have concluded that the trial court abused its
discretion in denying the motion, even if the issue were preserved.
       Appellant‟s first and fourth issues are overruled.


                                     EVIDENTIARY SUFFICIENCY
       In her second and third issues, Appellant argues that the evidence is legally and factually
insufficient to support her conviction. More specifically, she contends that the State‟s evidence

                                                   4
fails to establish that the bite she inflicted on Tuburen caused him any physical pain or any
impairment of his physical condition.
Standard of Review
       “Legal sufficiency is the constitutional minimum required by the Due Process Clause of the
Fourteenth Amendment to sustain a criminal conviction.” Escobedo v. State, 6 S.W.3d 1, 6 (Tex.
App.–San Antonio 1999, pet. ref‟d) (citing Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct.
2781, 2786-88, 61 L. Ed. 2d 560 (1979)). The standard of review is whether any rational trier of
fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson,
443 U.S. at 319, 99 S. Ct. at 2789; LaCour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000).
The evidence is viewed in the light most favorable to the verdict. Jackson, 443 U.S. at 319, 99 S.
Ct. at 2789; LaCour, 8 S.W.3d at 671. The conviction will be sustained “unless it is found to be
irrational or unsupported by more than a „mere modicum‟ of the evidence.” Moreno v. State, 755
S.W.2d 866, 867 (Tex. Crim. App. 1988). The jury is the sole judge of the credibility of witnesses
and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim.
App. 1994). Any reconciliation of conflicts and contradictions in the evidence is entirely within the
jury‟s domain. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). If a reviewing court
finds the evidence legally insufficient to support a conviction, the result is an acquittal. Tibbs v.
Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982).
       In conducting a factual sufficiency review of the evidence supporting the jury‟s verdict, we
consider all of the evidence weighed by the jury that tends to prove the existence of the elemental
fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v.
State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Ultimately, we must ask whether a neutral
review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so
obviously weak as to undermine our confidence in the jury‟s determination, or the proof of guilt,
although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23
S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App.
2002) (verdict will be set aside “only if the evidence supporting guilt is so obviously weak, or the
contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the
conviction clearly wrong and manifestly unjust”); see Sims v. State, 99 S.W.3d 600, 601 (Tex.
Crim. App. 2003). A clearly wrong and manifestly unjust verdict occurs where the jury‟s finding

                                                   5
“shocks the conscience” or “clearly demonstrates bias.” Jones v. State, 944 S.W.2d 642, 648 (Tex.
Crim. App. 1997).
Applicable Law
       A person commits the offense of family violence assault if she “intentionally, knowingly, or
recklessly causes bodily injury to another, including the person‟s spouse.” TEX. PENAL CODE ANN.
§ 22.01(a) (Vernon Supp. 2009). “Bodily injury” is defined as “physical pain, illness, or any
impairment of physical condition.” TEX. PENAL CODE ANN. § 1.07(8) (Vernon Supp. 2009). Pain
is “an unpleasant sensation, occurring in varying degrees of severity resulting from injury, disease,
or emotional disorder.” AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 942 (1978).
       The statutory definition of “bodily injury” appears to be purposefully broad and seems to
encompass 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). The failure of a
complaining witness to specifically testify that he felt pain or that his bruises and strain hurt did not
defeat the defendant‟s conviction for aggravated assault. Goodin v. State, 750 S.W.2d 857, 859
(Tex. App. –Corpus Christi 1988, pet ref‟d). In Goodin, the defendant drove with the complaining
witness hanging onto the hood of a car, causing the complaining witness strains and bruises. The
court noted that


       [t]he terms “physical pain,” “illness,” and “impairment of physical condition” are terms of common
       usage, and when construed “according to the fair import of their terms,” in the context used . . . are
       not “so vague that men of common intelligence must necessarily guess at its meaning and differ as to
       their application.”

                People of common intelligence understand both physical pain and some of the natural causes
       of pain. 23 C.J.S. Criminal Law § 902 (1961) recognizes the fundamental [principle] that “[i]n
       arriving at their verdict the jury are not confined to a consideration of the palpable facts in evidence,
       but they may draw reasonable inferences and make reasonable deductions therefrom . . . .” It is a
       reasonable inference men of common intelligence could certainly make that [the victim‟s] bruises and
       muscle strain caused him “physical pain” according to the fair import of that term as used in section
       1.07(a)(7). The fact of a physical intrusion on the body in the form of a cut or scrape can itself be
       sufficient evidence of the associated physical pain necessary to show “bodily injury.”



Id. (citations and brackets omitted).
Analysis
       Appellant contends that since Tuburen did not specifically say that the bite she inflicted
caused him any physical pain or impairment, the evidence is legally insufficient to establish the
                                              6
element of bodily injury. The State‟s primary evidence is a transcript of Tuburen‟s previous
statements that Appellant hit him in the back of the head, choked him, bit him, and scratched him.
There is also the testimony of the arresting officers who testified Tuburen said Appellant bit him.
Appellant testified and admitting biting Tuburen while he was holding her.                According to
Appellant‟s testimony, the bite was so effective (i.e. painful) that Tuburen released her. Finally, the
State introduced the photographs the officers took of the scratches and the bite mark, with some of
the photographs showing a glistening surface indicating an abrasion or cut into the subcutaneous
layer of skin. From this evidence, a rational trier of fact could have found that Appellant caused
bodily injury to Tuburen. Therefore, the evidence is legally sufficient to support Appellant‟s
conviction.
       As to factual sufficiency of the evidence to show bodily injury, there is no evidence
contradicting that the bite occurred or that Tuburen responded to the bite by releasing Appellant.
Therefore, the evidence is also factually sufficient to support Appellant‟s conviction.
       Having reviewed the record in its entirety, we conclude that the evidence is legally and
factually sufficient to establish that bodily injury occurred. Therefore, the jury was entitled to find
Appellant guilty of family violence assault. Accordingly, Appellant‟s second and third issues are
overruled.


                                MOTION FOR INSTRUCTED VERDICT
       In her fifth issue, Appellant contends the trial court erred in denying her motion for
instructed verdict at the close of the State‟s case. Appellant contends, as she did in her second and
third issues, that because the element of bodily injury was not established, the trial court erred in
denying her motion for instructed verdict. We have held that the evidence is legally and factually
sufficient to establish bodily injury. Therefore, we hold the trial court did not err in denying her
motion for instructed verdict. Appellant‟s fifth issue is overruled.


                                             DISPOSITION
       The judgment of the trial court is affirmed.




                                                   7
                                                                    SAM GRIFFITH
                                                                      Justice
Opinion delivered September 1, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




                                                                8
