                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo
                                   ________________________

                                       No. 07-18-00218-CR
                                   ________________________


                                HOLDEN NORMAN, APPELLANT

                                                    V.

                               THE STATE OF TEXAS, APPELLEE



                            On Appeal from the 364th District Court
                                    Lubbock County, Texas
           Trial Court No. 2017-412,687; Honorable William R. Eichman II, Presiding


                                             August 1, 2019

                                 MEMORANDUM OPINION
                        Before QUINN, CJ., and PIRTLE and PARKER, JJ.


        Appellant, Holden Norman, was convicted following a jury trial of the offense of

domestic assault and sentenced by the court to fifteen years confinement.1 On appeal,


         1 See TEX. PENAL CODE ANN. § 22.01(a)(1) (West 2019). Appellant stipulated during trial that he

had previously been convicted of an offense under chapter 22 of the Penal Code against a member of his
household, family, or with whom he had a dating relationship in October 2013. Accordingly, the charged
offense was enhanced from a Class A Misdemeanor to a felony of the third degree. Id. at (b)(2). In addition,
Appellant later pleaded “true” to a felony enhancement, making the offense punishable as a second degree
felony. See TEX. PENAL CODE ANN. § 12.42(a) (West 2019). An offense punishable as a higher offense
raises the level of punishment, not the degree of the offense. Oliva v. State, 548 S.W.3d 518, 526-27 (Tex.
Crim. App. 2016).
he raises three issues. He asserts the trial court erred by (1) admitting an inculpatory

statement made in the course of a custodial interrogation undertaken by two law

enforcement officers without administering the proper warnings, (2) denying a request for

a jury instruction for a lesser-included offense, and (3) submitting the case to the jury

when the evidence was insufficient. We affirm the trial court’s judgment.


      BACKGROUND

      In April 2018, an amended indictment alleged that on June 15, 2017, Appellant

intentionally, knowingly, or recklessly caused bodily injury to Betty Norman, a member of

his family/household, as described by sections 71.003 and 71.005 of the Texas Family

Code, and an individual sixty-five years or older, by grabbing her with his hand or arm, or

by causing her to strike a hard object, or striking her with a hard object. The amended

indictment further alleged that in October 2013, in Lubbock County, Appellant had

previously been convicted of an offense under chapter 22 of the Texas Penal Code

against a member of Appellant’s family or a member of his household or a person with

whom he had a dating relationship as described by sections 71.003, 71.005, and

71.002(b) of the Family Code.


      The State’s first witness was a crime scene investigator, Officer Steve Fulgham.

Officer Fulgham photographed Betty, Appellant’s grandmother, at her residence shortly

after the incident. He described a trail of blood originating on the garage floor leading

inside the house. He also testified that bruising was present on her forehead and around

her left eye, her nose was swollen, and there were red marks on the bridge of her nose

and upper lip.




                                            2
        Betty testified that she was eighty-two years old and Appellant was her grandson

who had lived with her all his life. She testified that on the day of the incident she had

fallen on a couch when Appellant attempted to retrieve from her a box she was holding.

After he retrieved the box, he knocked a piece of pizza away from her mouth and told her

not to eat the pizza until she had washed her hands. She further testified that after the

pizza incident, two unknown women rushed out of her house, knocking her into a door,

thereby injuring her face, head, and nose.                 Shortly after the women left, Appellant

borrowed her car and she called 9-1-1 to find out whether the police would keep a lookout

for her car because she did not know where her grandson was going. Before she

completed the call, however, Appellant returned with the car and went to his room. On

the way to his room, Appellant flipped over a couch because he was angry that the two

women had taken his wallet and some other object.


        Officer Tyler Dowell responded to Betty’s 9-1-1 call. His body camera recorded

his investigation and the video was played for the jury while he commented on its

contents.2 The video showed that when he arrived at the residence, he noticed Betty

looking at her car in the garage. On approaching, he immediately noticed her nose and

one eye were purple and the wounds were recent. He asked her, “[w]hat happened to



        2 The State authenticated the contents of the video as a business record and offered Betty’s
statements made on the video as prior inconsistent statements. The State also asserted Appellant’s
statements on the video were voluntary and not the result of a custodial interrogation. Appellant objected
that the contents of the video were hearsay within hearsay and barred by the confrontation clause, and
Appellant’s statements were inadmissible because they were made in response to a custodial interrogation
without having received the mandated statutory warnings. The trial court overruled Appellant’s objections
and instructed the jury as follows prior to playing the video:

        A witness may be impeached by showing that he or she has made other and different out-
        of-court statements from those made before you in trial. Such impeachment evidence may
        be considered by you to aid in determining, if it does so, the weight, if any, to be given the
        testimony of the witness at trial and his or her credibility, but such impeaching evidence, if
        any, is not to be considered as tending to establish the alleged guilt of the defendant in
        such case.
                                                       3
[your] nose?” She told the officers that her grandson was out of control, throwing things,

and tearing things up. She intimated that she feared he would become more combative

when the officers left. In response to Officer Dowell’s questions, she indicated that she

was in the garage when Appellant intentionally pushed her with his hands because he

was mad. She told the officers to go in and speak with her grandson.


       When the officers entered the living room, Appellant was holding a large glass

bottle of whiskey that was half empty. Officer Dowell asked him to stand up and speak

with him. Appellant remained sitting and asked whether he could have another drink.

After Officer Dowell responded, “[n]o,” Appellant took a drink from the bottle. The second

officer told Appellant he had had enough to drink and to relax. Appellant took another

drink and then set the bottle down. Officer Dowell moved the bottle away from Appellant

and the two officers handcuffed him behind his back. Officer Dowell then asked Appellant,

“[w]hat was going on?” and “[w]hat happened to [his] grandmother’s nose?”


       Appellant responded that he had earlier thrown a piece of pizza at his

grandmother. He told the officers that he didn’t “bust” her nose but only threw a piece of

pizza at her in the process of trying to protect her. He said the incident was accidental.


       Officer Dowell subsequently questioned Betty a second time and she told him that

Appellant had hit her. She explained that when she grabbed a long-tubed object in a box,

she spilled what was in the container and Appellant became angry and grabbed the

object. He then grabbed her neck but did not impede her breathing. He also cause her

to fall. She also indicated that the blood spots in the house and garage were from her

nose. At first, she denied Appellant threw pizza at her but then stated that he may have.



                                             4
          After the video’s conclusion, Officer Dowell testified without objection that Betty

told him many times that Appellant had hit her. During the police investigation, Betty did

not mention the presence of two women in the house and there was no physical evidence

of anyone else having been in the house. Officer Dowell also testified that Appellant

stated he hit his grandmother with a piece of pizza but did not mention the presence of

any women in the house.             By his appearance and odor, Officer Dowell concluded

Appellant was intoxicated.


          Officer Dowell further testified that Appellant was handcuffed because he was

being detained in order to complete the investigation into the circumstances that resulted

in Betty’s injuries. He was also concerned Appellant was intoxicated and noncompliant,

would not quit drinking, and was holding a large glass bottle which could be used as a

weapon.3 Officer Dowell testified that when the police entered the room, they had no

intention of placing Appellant under arrest and handcuffed him solely to assure their

safety. Appellant was detained because he had not been interviewed and the officers

wanted to hear both sides of the story. Based on the grandmother’s statements outside

the house and the fact that her injuries did not appear to be the result of being hit with a

piece of pizza, the officers escorted Appellant to a police car where he was placed under

arrest.


          In jailhouse visitation videos between Appellant and his grandmother,4 he talked

over her and bossed, cursed, and degraded her.                     He ordered her to sign a non-


        Prior to entering the living room, Appellant’s grandmother had warned the officers that Appellant
          3

was combative.

         4 The State authenticated the videos as business records of the jail. On the video-recording

machines, there were visual and auditory warnings that visitations were being recorded. In addition to
officer safety inside the jail, another purpose for monitoring calls is to find out what information is being
passed along during visitations related to gangs and drug trades.
                                                     5
prosecution affidavit telling law enforcement that she was injured in a fall. He asked her

to tell the police that he did not give her a nosebleed and that she lied in her previous

statement to the police at her residence on the day of the incident.


       During one visitation with his grandmother, he introduced a theory that there were

two girls in the house when Betty grabbed a bong and fell over the couch hitting her head

on a pizza box. He indicated that he was trying to keep the bong away from her because

there were drugs inside the bong, and he wanted to protect her from those drugs. He told

her she needed to meet with his attorney and sign an affidavit telling how she was injured

by a pizza box and then have his attorney sell the same story to the district attorney.

During the remaining visitations, he continued to forcefully assert that there were two

women in the house that caused her injuries, she lied in her statement to the officers, it

was her fault he was going to prison, and “[i]f she loved [him], [she] would tell them.”


       Following the presentation of the videotaped visitations to the jury, the State rested

and Appellant rested. At the charge conference, Appellant requested an instruction on a

lesser-included offense or Class C misdemeanor assault. See TEX. PENAL CODE ANN. §

22.01(a)(3), (c) (West 2019). The trial court overruled his request for the submission of

the lesser-included offense, and thereafter, the jury found Appellant guilty as charged.

Appellant pleaded true to a prior felony conviction making his offense punishable as a

felony of the second degree and he was sentenced by the court to fifteen years

confinement. Appellant gave timely notice of appeal and this appeal followed.




                                             6
       ISSUE ONE—CUSTODIAL INTERROGATION

       In his first issue, Appellant complains that the trial court erred in admitting

statements he made on an officer’s body video camera in response to a custodial

interrogation without being provided the requisite Miranda warnings.5 We disagree.


       We review a trial court’s evidentiary rulings for an abuse of discretion. Rhomer v.

State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). The trial court abuses its discretion

when it acts without reference to any guiding rules and principles or acts arbitrarily or

unreasonably. Id. (citing Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.

1991)). The trial court does not abuse its discretion if the decision to admit or exclude the

evidence is within the zone of reasonable disagreement. See Rhomer, 569 S.W.3d at

677. If the trial court’s evidentiary decision is supported by the record and there is any

theory of law that would support the ruling, it is not an abuse of discretion. See Osbourn

v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002).


       For a statement obtained during a custodial interrogation to be admissible against

a suspect, the United States Constitution requires that the suspect be warned by police

that “he has the right to remain silent, that any statement he does make may be used

against him, and that he has the right to the presence of an attorney.” Miranda, 384 U.S.

at 444. Texas law additionally requires that police inform the suspect he has a right to

terminate the interview at any time. See TEX. CODE CRIM. PROC. ANN. art. 38.22 (West

2018); Williams v. State, 257 S.W.3d 426, 432 (Tex. App.—Austin 2008, pet. ref’d). To

preclude a statement from being used against him at trial, a defendant bears the initial

burden of proving the subject statement was the product of a custodial interrogation.



       5   See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
                                                    7
Gardner v. State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009). Thus, we must first

address whether Appellant was in custody during Officer Dowell’s questioning. See id.


       The Court of Criminal Appeals describes “at least four general situations” that may

constitute custody: (1) when the suspect is physically deprived of his freedom in any

significant way, (2) when a law enforcement officer tells the suspect he is not free to leave,

(3) when a law enforcement officer creates a situation that would lead a reasonable

person to believe that his freedom of movement has been significantly restricted, and (4)

when there is probable cause to arrest and a law enforcement officer does not tell the

suspect he is free to leave. State v. Saenz, 411 S.W.3d 488, 496 (Tex. Crim. App. 2013).


       In evaluating whether an individual was in custody, we must determine whether,

given the circumstances surrounding the interrogation, a reasonable person would have

perceived detention by law enforcement officers to be a restraint on his movement

comparable to the restraint of a formal arrest. Thompson v. Keohane, 516 U.S. 99, 112,

116 S. Ct. 457, 133 L. Ed. 2d 383 (1995). An assessment of whether a suspect has been

detained to the degree associated with an arrest is made on a case-by-case basis;

Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996), and when determining

whether a reasonable person would believe his freedom has been restrained to the

degree of formal arrest, we look only to the objective factors surrounding the detention.

State v. Ortiz, 382 S.W.3d 367, 372-73 (Tex. Crim. App. 2012).


       A person held for investigative detention is not in “custody.” Dowthitt, 931 S.W.2d

at 255. An investigative detention involves detaining a person reasonably suspected of

criminal activity in order to determine his identity or to momentarily maintain the status

quo in order to garner more information. Terry v. Ohio, 392 U.S. 1, 20-21, 88 S. Ct. 1868,

                                              8
20 L. Ed. 2d 889 (1968). This sort of “Terry stop” must be temporary, must last no longer

than necessary to effectuate the purpose of the detention, must involve an actual

investigation, and must use the least intrusive means possible. See Davis v. State, 947

S.W.2d 240, 244-45 (Tex. Crim. App. 1997) (holding that detention may continue only so

long as “articulable facts” support reasonable suspicion that suspect is engaged in

criminal activity).


       There is no bright line establishing when a person who is handcuffed is per se in

custody. In re S.C., 523 S.W.3d 279, 283 (Tex. App.—San Antonio 2017, pet. denied).

See Martinez v. State, 304 S.W.3d 642, 653 (Tex. App.—Amarillo 2010, pet. ref’d)

(collected cases cited therein). Handcuffing for purposes of an investigative detention—

including investigation, maintenance of the status quo, and officer safety—does not

necessarily give rise to a custodial investigation. Id. at 652. A suspect who is temporarily

handcuffed and placed in the back of a patrol car for purposes of an investigatory

detention is not necessarily in custody, particularly when the officer tells the suspect he

is not under arrest. In re S.C., 523 S.W.3d at 283. If an officer tells an individual he is

not under arrest, this is the “most important” circumstance offsetting physical restraint in

determining whether the individual is in custody for purposes of Miranda. Id. at 284.

(quoting Howes v. Fields, 565 U.S. 499, 515-16, 132 S. Ct. 1181, 182 L. Ed. 2d 17

(2012)).


       ANALYSIS

       Here, the officers responded to Betty’s 9-1-1 call and discovered her in the garage

with a bruised nose and forehead, a black eye, and facial cuts. She indicated that her

injuries were intentionally caused by her twenty-eight-year-old grandson when he pushed

her down with his hands. She described her grandson as destroying things, tearing things
                                             9
up, acting out-of-control, and being combative. The officers responded that they would

like to talk to him and see what he had to say. At this point, Betty asked the officers to

enter the house and speak with her grandson.


       When they discovered Appellant, he was drinking from a large glass bottle of

whiskey. The officers asked him to stand up and talk to them. He ignored their requests

and continued drinking from the bottle multiple times while remaining seated. When one

officer attempted to lift him up by his arm, Appellant asked, “[w]hat are you doing?” The

officer responded that he “just want[ed] to talk to him for a second.” Appellant responded

by apologizing. In response to queries about what occurred that day and the source of

his grandmother’s injuries, Appellant denied that he “busted” his grandmother’s nose. He

told the officers that she “got hit by a piece of pizza.” Because her injuries were more

consistent with Betty’s version of the facts than they were with Appellant’s version, both

officers began escorting Appellant to their patrol car. In route, he volunteered that all he

did was throw a piece of pizza and that it was accidental. When he reached the patrol

car, he was placed under arrest.


       In this case, Appellant was physically restrained by handcuffs. The use of the

handcuffs does not automatically convert a temporary detention into an arrest. State v.

Shepard, 271 S.W.3d 281, 289 (Tex. Crim. App. 2008). Here, Officer Dowell testified that

Appellant was placed in handcuffs for officer safety since he had been described by his

grandmother as combative, he was noncompliant, and the large glass bottle of whiskey

he was holding could have been used as a weapon. Further, the officer’s response to

Appellant’s question regarding what they were doing indicated that they were detaining

him only until an investigation could be completed. It was not until Appellant advanced

the improbable reason for his grandmother’s injuries, i.e., he had only thrown a piece of
                                            10
pizza at her, that the officers raised Appellant to his feet and began escorting him to the

patrol car where he was placed under arrest.


         Based on the evidence, we conclude the temporary restriction on Appellant’s

freedom of movement did not rise to the degree associated with an arrest and would not

lead a reasonable person to believe that he was under arrest. See In re S.C., 523 S.W.3d

at 284. Under the circumstances, Officer Dowell’s use of handcuffs was necessary to

effectuate his goals to conduct an investigation, maintain the status quo, and assure

officer safety. Rhodes v. State, 945 S.W.2d 115, 118 (Tex. Crim. App. 1997), cert denied,

522 U.S. 894, 118 S. Ct. 236, 139 L. Ed. 2d 167 (1997). Because Appellant was not in

custody, his responses to Officer Dowell’s questions were not the result of a custodial

interrogation and they were not, therefore, subject to an objection based on the failure to

provide any Miranda warnings. Accordingly, the trial court did not abuse its discretion by

admitting the disputed portions of the video into evidence. We overrule Appellant’s first

issue.


         SECOND ISSUE—LESSER-INCLUDED OFFENSE

         By his second issue, Appellant asserts the trial court erred when it denied his

request that the jury be allowed to consider whether he committed the lesser-included

offense of a Class C misdemeanor assault. During the charge conference, Appellant

asserted that his statements taken from the video of Officer Dowell’s body camera that

he slapped a piece of pizza out of his grandmother’s hand, even though for protective

reasons, could be viewed as offensive or provocative, entitling him to a lesser-included-

offense charge. We disagree.




                                            11
       An offense is a lesser-included offense if:

       (1) it is established by proof of the same or less than all the facts required
       to establish the commission of the offense charged;

       (2) it differs from the offense charged only in the respect that a less serious
       injury or risk of injury to the same person, property, or public interest suffices
       to establish its commission;

       (3) it differs from the offense charged only in the respect that a less culpable
       mental state suffices to establish its commission; or

       (4) it consists of an attempt to commit the offense charged or an otherwise
       included offense.


TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006).


       We use a two-pronged test to determine whether a defendant is entitled to an

instruction on a lesser-included offense. Cavazos v. State, 382 S.W.3d 377, 382 (Tex.

Crim. App. 2012); Sweed v. State, 351 S.W.3d 63, 67 (Tex. Crim. App. 2011). The first

step is a question of law, in which the court compares the elements alleged in the

indictment with the elements of the lesser offense to determine if the proof necessary to

establish the charged offense also includes the lesser offense. Cavazos, 382 S.W.3d at

382. The second step of the lesser-included-offense analysis is to determine if there is

some evidence from which a rational jury could acquit the defendant of the greater offense

while convicting him of the lesser-included offense.         Sweed, 351 S.W.3d at 67-68.

Because this fact question depends on the evidence presented at trial, we review the

entire record in making this determination on appeal. Id.


       The indictment in this case alleges that Appellant assaulted his grandmother by

intentionally, knowingly, or recklessly causing bodily injury to her by grabbing her with his

hand or arm or by causing her to strike a hard object or by striking her with a hard object.

See TEX. PENAL CODE ANN. § 22.01(a)(1) (West 2019). A person commits a Class C
                                              12
misdemeanor offense under section 22.01(a)(3) if he “intentionally or knowingly causes

physical contact with another when the person knows or should reasonably believe that

the other will regard the contact as offensive or provocative.” Id. at (a)(3). A comparison

of the elements of the two offenses shows that the manner and means of an assault

causing physical contact that is offensive or provocative is not included within the

elements of an assault causing bodily injury.     Thus, the proof necessary to establish the

charged offense does not include the offense asserted as being a lesser-included offense.

Furthermore, even if we were to assume that the Class C offense of assault by offensive

or provocative contact differs from the offense charged only in the respect that a less

serious injury or risk of injury to the same person suffices to establish its commission (a

conclusion we expressly do not reach), we find that there was no evidence from which a

rational jury could acquit the defendant of the greater offense while convicting him of the

lesser-included offense.    Accordingly, the trial court did not abuse its discretion by

overruling Appellant’s request for a lesser included instruction related to section

22.01(a)(3) of the Penal Code. Id. Appellant’s second issue is overruled.


       THIRD ISSUE—SUFFICIENCY OF EVIDENCE

       Appellant next asserts that the State’s evidence underlying his conviction is

insufficient. In support, he asserts the evidence was insufficient to establish that he

inflicted the injuries suffered by his grandmother because she testified at trial that he did

not injure her. He also contends that because his grandmother’s statements taken from

the video of Officer Dowell’s body camera were admitted solely for impeachment

purposes pursuant to the trial court’s limiting instruction, the State failed to come forward

with any evidence he injured his grandmother. We disagree.



                                             13
       At trial, the State was required to prove Appellant intentionally, knowingly, or

recklessly caused bodily injury to Betty (a member of his family/household as described

by sections 71.002(b), 71.003, and 71.005 of the Texas Family Code) by grabbing her

with his hand or arm, or causing her to strike a hard object or striking her with a hard

object. Because Appellant does not challenge whether his grandmother was a family

member or member of his household, our query is limited to whether the State’s evidence

was sufficient to establish that Appellant intentionally, knowingly, or recklessly caused

bodily injury to Betty by grabbing her with his hand or arm, or causing her to strike a hard

object or striking her with a hard object.


       STANDARD OF REVIEW

       The only standard that a reviewing court should apply in determining whether the

State’s evidence is sufficient to support each element of a criminal offense the State is

required to prove beyond a reasonable doubt is the standard set forth in Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Adames v.

State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011); Brooks v. State, 323 S.W.3d 893,

912 (Tex. Crim. App. 2010). Under that standard, in assessing the sufficiency of the

evidence to support a criminal conviction, this court considers all the evidence in the light

most favorable to the verdict and determines whether, based on that evidence and

reasonable inferences to be drawn therefrom, a rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at

319; Brooks, 323 S.W.3d at 912. This standard gives full play to the responsibility of the

trier of fact to resolve conflicts in testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319. See

Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).

                                             14
       Further, the trier of fact is the sole judge of the weight of the evidence and credibility

of the witnesses; TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979); Margraves v. State,

34 S.W.3d 912, 919 (Tex. Crim. App. 2000), and we may not re-evaluate the weight and

credibility determinations made by the fact finder. Febus v. State, 542 S.W.3d 568, 573

(Tex. Crim. App. 2018). Thus, we resolve any inconsistencies in the evidence in favor of

the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).


       In our review, we must evaluate all the evidence in the record, whether admissible

or inadmissible. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013). Direct

and circumstantial evidence are equally probative, and circumstantial evidence alone may

be sufficient to uphold a conviction so long as the cumulative force of all the incriminating

circumstances is sufficient to support the conviction. Zuniga v. State, 551 S.W.3d 729,

733 (Tex. Crim. App. 2018). The State may prove a defendant’s criminal culpability by

either direct or circumstantial evidence, coupled with all reasonable inferences from that

evidence. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016).


       ANALYSIS

       Reviewing the evidence in a light most favorable to the verdict, we conclude that

there is sufficient evidence to support Appellant’s conviction because a rational trier of

fact could have found that Appellant intentionally, knowingly, or recklessly caused bodily

injury to his grandmother. Appellant is correct that his grandmother’s statements taken

from the video of Officer Dowell’s body camera, i.e., that it was Appellant who hit her,

were admitted by the State solely for impeachment purposes.               However, the same

evidence was admitted when Officer Dowell testified, without objection, to the same

statements, i.e., that Appellant’s grandmother told him many times Appellant had hit her.

Bryant v. State, 282 S.W.3d 156, 165 (Tex. App.—Texarkana 2009, pet. ref’d) (quoting
                                               15
Massey v. State, 933 S.W.2d 141, 149 (Tex. Crim. App. 1996)) (“If a defendant objects

to the admission of evidence but the same evidence is subsequently introduced from

another source without objection, the defendant waives his earlier objection.”).


       Aside from Officer Dowell’s testimony, there is also substantial circumstantial

evidence that Appellant caused bodily injury to his grandmother. First, he was alone on

the premises when Officer Dowell arrived; there was no mention by either Appellant or

his grandmother of any unknown women being in the house; and Officer Dowell testified

there was no evidence anyone else had been on the premises. Although his grandmother

testified at trial that she was injured by two unknown women leaving the house, judging

from the verdict, the jury did not find her testimony credible. Margraves, 34 S.W.3d at

919 (jury is the sole judge of the credibility of witnesses). See Curry, 30 S.W.3d at 406

(inconsistencies in the evidence is resolved in favor of the verdict). This is particularly so

given the recorded jail visitations where Appellant attempts to browbeat his grandmother

into signing an affidavit stating two women in the house caused her injuries or one of the

women grabbed a bong from her causing her to fall over the couch and hit her head on a

pizza box. Further, Appellant’s correspondence from jail with his grandmother contains

additional attempts to persuade her to adopt this alternative theory that two unknown

women caused her injuries.


       There was also the testimony of the officers describing his grandmother’s injuries.

Officer Fulgham testified she had bruising on her forehead and around her left eye in

addition to a swollen nose and red marks on the bridge of her nose and upper lip. His

testimony was documented by photographs displayed for the jury. In addition, Officer

Dowell testified that on approaching Appellant’s grandmother, he observed that her nose

and one eye were purple and the wounds were recent. He also indicated that judging
                                             16
from the appearance of the wounds, he did not believe they were caused by a pizza box.

From this testimony and Officer Fulgham’s photographs, the jury could reasonably infer

that Betty’s injuries were caused by Appellant causing her to strike, or striking her with, a

hard object rather than a piece of pizza. Margraves, 34 S.W.3d at 919.


       Accordingly, we find there is sufficient evidence to support each element of the

offense alleged in the indictment pursuant to the standard in Jackson v. Virginia.

Appellant’s third issue is overruled.


       CONCLUSION

       The trial court’s judgment is affirmed.




                                                  Patrick A. Pirtle



Do not publish.




                                             17
