
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
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).  
          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
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
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
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
jury, and did not ask for an affirmative finding until after sentencing.
  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
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.
 
Conclusion
          For the foregoing reasons, we affirm the trial court’s judgment.   
 
                                                     Mackey K. Hancock
Justice


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