Opinion filed October 26, 2017




                                       In The


          Eleventh Court of Appeals
                                    __________

                                 No. 11-15-00309-CR
                                     __________

                  RANDALL LEE SAMFORD, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee

                     On Appeal from the 29th District Court
                          Palo Pinto County, Texas
                         Trial Court Cause No. 15355


                      MEMORANDUM OPINION
      The jury convicted Randall Lee Samford of the offense of aggravated assault
family violence with a deadly weapon, a first-degree felony. TEX. PENAL CODE ANN.
§ 22.02(b)(1) (West 2011). The jury assessed his punishment at confinement for
fifteen years and a fine of $10,000. Appellant presents five issues on appeal. We
affirm.
      In Appellant’s first issue, he argues that the evidence is insufficient to sustain
his conviction because there was no evidence to prove that “Appellant knowingly or
intentionally struck” the victim, and no evidence to prove that the blood on the
weapon belonged to the victim. In his second and third issues, Appellant contends
that the trial court erred when it admitted into evidence a photograph of the weapon
and photographs of the victim’s injuries, respectively, because the photographs had
a “prejudicial effect.” In Appellant’s fourth issue, he argues that the trial court erred
when it overruled his objection to a portion of the State’s closing argument during
the guilt/innocence phase because the State made improper arguments to the jury
that “impermissibly shifted the burden of proof to Appellant” and “inflamed the
passions of the jury.” In his fifth issue, Appellant argues that the trial court erred
when it overruled his objection to a portion of the State’s closing argument during
the punishment phase because the State’s argument was “outside of the record.”
      In Appellant’s first issue, he argues that the evidence is insufficient to sustain
his conviction because “there was no evidence presented which proved Appellant
knowingly or intentionally struck” the victim and because there was no evidence
presented that the blood on the weapon belonged to the victim. To prove the first-
degree felony offense of aggravated assault family violence with a deadly weapon
under Section 22.02(b)(1), the State must show that the defendant intentionally,
knowingly, or recklessly caused serious bodily injury to a person whose relationship
with the defendant is described by Section 71.0021(b), 71.003, or 71.005 of the
Texas Family Code and that the defendant used a deadly weapon during the
commission of the assault. See PENAL § 22.02(a)(1), (b)(1). Appellant argues that,
because “[t]here was no evidence presented which proved Appellant knowingly or
intentionally struck [the victim] with the shovel” and “no evidence was presented to




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prove that the blood on the shovel and on Appellant’s hands was that of the [victim],”
the jury could not have found Appellant guilty.
      We review the sufficiency of the evidence, whether denominated as a legal or
a factual sufficiency claim, under the standard of review set forth in Jackson v.
Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet.
ref’d). Under the Jackson standard, we examine all of the evidence in the light most
favorable to the verdict and determine whether, based on that evidence and any
reasonable inferences from it, any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319;
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).               Evidence is
insufficient under this standard in four circumstances: (1) the record contains no
evidence probative of an element of the offense; (2) the record contains a mere
“modicum” of evidence probative of an element of the offense; (3) the evidence
conclusively establishes a reasonable doubt; and (4) the acts alleged do not constitute
the criminal offense charged. Brown v. State, 381 S.W.3d 565, 573 (Tex. App.—
Eastland 2012, no pet.) (citing Jackson, 443 U.S. at 314, 318 n.11, 320).
      Appellant lived in a residence with his wife at the time, Cienna Marie Green,
along with their son, Cienna’s father, and Cienna’s grandmother.              Cienna’s
seventeen-year-old sister, Louanna Janel Ruth Green, and her son also lived in the
residence. On May 12, 2014, a conflict arose among Appellant, Cienna, and
Louanna about who should help clean the residence. Louanna told Appellant that
he needed to help clean the residence along with everyone else. Appellant became
angry and went to the bedroom he shared with Cienna, closed the door, and locked
it.




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          In response, Louanna went to the bedroom, knocked on the door, and said to
Appellant, “You need to come out and help us.” Louanna became angry, and she
knocked on, kicked, and banged on the door. After Louanna became calmer, she
went to her room, closed the door, and fell asleep. Cienna then went to her bedroom,
and Appellant let her in. Cienna testified that, at the same time, Appellant “busted
through” their bedroom door, which knocked the door off its hinges and into the
hallway. Cienna said that Appellant then “busted through” Louanna’s bedroom door
and “beat” her with a shovel that had been by their bedroom door. Cienna testified
that she saw Appellant strike Louanna approximately nine times.
          Cienna testified that she hit Appellant in the back of the head and “tackled
him to the ground.” Appellant then went to his and Cienna’s bedroom; when Cienna
saw him, he was on the phone with 9-1-1. On the 9-1-1 recording, which the State
introduced into evidence, Appellant admitted that he hit Louanna.             Billy Jay
Hutchens, an investigator with the Palo Pinto County Sheriff’s Office, responded to
the 9-1-1 call. When he arrived at the scene, Investigator Hutchens saw that
Appellant had blood on his hands and that Louanna was “bleeding very profusely.”
He also saw a shovel in the hallway with blood on it. Louanna testified that she
could not see who hit her.
          Appellant testified that he was not the person who assaulted Louanna. He
testified that, because he “panicked,” he “unintentionally made a false statement”
when he told the 9-1-1 operator that he was the one who assaulted Louanna.
Appellant also testified that he believed he did not have blood on his clothes and that
he had blood on his hands because “maybe [he] picked something up that had blood
on it.”
          On appeal, Appellant argues that, although Cienna testified that she witnessed
Appellant assault Louanna, she “later testified that she did not clearly see . . .


                                             4
Appellant strike [Louanna].” Appellant also argues that Louanna did not see who
hit her, that Investigator Hutchens did not see any blood on Appellant’s T-shirt or
overalls, and that law enforcement did not test the blood on the shovel to determine
if it was Louanna’s blood. Appellant argues that, therefore, there was insufficient
evidence to support his conviction. We disagree.
      The jury, as the trier of fact, was the sole judge of the credibility of the
witnesses and of the weight to be given their testimony. TEX. CODE CRIM. PROC.
ANN. art. 36.13 (West 2007), art. 38.04 (West 1979). As such, the jury was entitled
to accept or reject any or all of the testimony of any witness. Adelman v. State, 828
S.W.2d 418, 421 (Tex. Crim. App. 1992). Furthermore, the jury was entitled to draw
reasonable inferences from the evidence. Jackson, 443 U.S. at 319. When the record
supports conflicting inferences, we presume that the factfinder resolved the conflicts
in favor of the verdict and, therefore, defer to that determination. Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007).            Additionally, “circumstantial
evidence is as probative as direct evidence in establishing . . . guilt.” Hooper v.
State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007).                 Cienna’s testimony,
Investigator Hutchens’s testimony, the 9-1-1 recording, and the picture of a shovel
with blood on it constituted evidence that Appellant used a shovel to cause serious
bodily injury to Louanna. Here, the jury chose to believe the State’s witnesses and
not Appellant. A rational juror could have found beyond a reasonable doubt that
Appellant assaulted Louanna with a deadly weapon. We hold that the evidence was
sufficient to find Appellant guilty of aggravated assault family violence with a
deadly weapon. Appellant’s first issue is overruled.
      In Appellant’s second issue, he asserts that the admission into evidence of a
photograph of the shovel with blood on it violated Rule 403 of the Texas Rules of
Evidence. In his third issue, Appellant asserts that the admission into evidence of


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photographs of Louanna’s injuries violated Rule 403 of the Texas Rules of Evidence.
We review a trial court’s ruling on the admission of evidence under an abuse of
discretion standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006);
Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001); Montgomery v. State,
810 S.W.2d 372, 391 (Tex. Crim. App. 1991). We will uphold a trial court’s
evidentiary ruling when it is within the zone of reasonable disagreement. Torres v.
State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002); Powell, 63 S.W.3d at 438.
Additionally, “[w]e will uphold the trial court’s ruling on the admission or exclusion
of evidence if the ruling was proper under any legal theory or basis applicable to the
case.” Massingill, 2016 WL 5853180, at *1; see Martinez v. State, 91 S.W.3d 331,
336 (Tex. Crim. App. 2002).
      Under Rule 403, a trial court may exclude relevant evidence if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury or by considerations of undue delay or needless
presentation of cumulative evidence. TEX. R. EVID. 403; see Young v. State, 283
S.W.3d 854, 874 (Tex. Crim. App. 2009). “Rule 403 favors admission of relevant
evidence and carries a presumption that relevant evidence will be more probative
than prejudicial.” Massingill, 2016 WL 5853180, at *1; see Hayes v. State, 85
S.W.3d 809, 815 (Tex. Crim. App. 2002). Evidence is unfairly prejudicial when it
has an undue tendency to suggest an improper basis for reaching a decision. Reese v.
State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000); Render v. State, 347 S.W.3d 905,
921 (Tex. App.—Eastland 2011, pet. ref’d). When we review a trial court’s
determination under Rule 403, we reverse the trial court’s judgment “rarely and only
after a clear abuse of discretion.” Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim.
App. 1999) (quoting Montgomery, 810 S.W.2d at 392). An analysis under Rule 403
includes, but is not limited to, the following factors: (1) the probative value of the


                                          6
evidence, (2) the potential to impress the jury in some irrational yet indelible way,
(3) the time needed to develop the evidence, and (4) the proponent’s need for the
evidence. Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012);
Shuffield, 189 S.W.3d at 787.
      We hold that the trial court did not abuse its discretion when it determined
that the prejudicial effect of the evidence did not substantially outweigh its probative
value. Under the first factor, the photograph of the shovel with blood on it was
probative of Appellant’s use of a deadly weapon during the commission of the
offense.   Similarly, the photographs of Louanna’s injuries were probative of
Louanna’s serious bodily injury. Appellant contends that the photographs were not
probative and not needed because (1) Cienna testified that Appellant hit Louanna
with a shovel, (2) Investigator Hutchens testified about the extent of Louanna’s
injuries that he saw, (3) Louanna showed the jury her scars from her injuries, and
(4) the State introduced Louanna’s medical records into evidence. The State was
required to prove beyond a reasonable doubt that Appellant used a deadly weapon
during the commission of the assault and that Appellant caused Louanna serious
bodily injury. See PENAL § 22.02(b)(1). Additionally, in order to determine
“whether the evidence supports a finding of serious bodily injury, the relevant issue
is the quality of the injury as it was inflicted, not the quality of the injury after its
effects are ameliorated with medical treatment.” Gonzales v. State, 191 S.W.3d 741,
753 (Tex. App.—Waco 2006, pet. ref’d). We hold that the trial court did not abuse
its discretion when it admitted the photographs. Based on our review of the record,
we conclude that all four factors weighed in favor of admissibility of the
photographs. Appellant’s second and third issues are overruled.
      In his fourth and fifth issues, Appellant argues that the trial court erred when
it overruled his objections to portions of the prosecutor’s closing argument during


                                            7
the guilt/innocence phase and the punishment phase, respectively. In his fourth
issue, Appellant specifically contends that the prosecutor “impermissibly shifted the
burden of proof to Appellant” and “inflamed the passions of the jury.” In his fifth
issue, Appellant argues that a portion of the State’s argument was “outside of the
record.”
      We review a trial court’s ruling on an objection to improper jury argument
under an abuse of discretion standard. See Davis v. State, 329 S.W.3d 798, 825 (Tex.
Crim. App. 2010).      Proper jury argument generally falls within four areas:
(1) summation of the evidence, (2) reasonable deduction from the evidence,
(3) answer to argument of opposing counsel, or (4) plea for law enforcement.
Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008); Esquivel v. State, 180
S.W.3d 689, 692 (Tex. App.—Eastland 2005, no pet.). Counsel is allowed wide
latitude to draw inferences from the record, as long as the inferences are reasonable,
fair, legitimate, and offered in good faith. Shannon v. State, 942 S.W.3d 591, 597
(Tex. Crim. App. 1996).
      The State contends that Appellant did not preserve error for our review in
Appellant’s fourth issue. The following occurred during the prosecutor’s closing
argument in the guilt/innocence phase:
             [PROSECUTOR]: Now, to believe that he wasn’t the one, you
      would have to believe the absolute outrageous story is: Well, I was
      raised to be - -
             [DEFENSE COUNSEL]: Improper argument, Your Honor.
      Interjecting his personal opinion.

            THE COURT: Ladies and gentlemen, I give fair - - quite a bit of
      leeway in closing argument. What the attorneys say is not evidence.
      You’ll be guided by your own independent recollection of the evidence.
      So with that, your objection is overruled.
             ....


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             [PROSECUTOR]: No. I think what this case boils down to is
      this: Two things. The credibility of the witnesses. Who is more
      credible? The young lady that saw her sister being savagely beaten with
      this and took action - - took action herself to stop the beating? Or the
      person accused of the beating with this cock-and-bull story that he told
      you? The credibility of the witnesses. No contest. No contest.

      Appellant argues on appeal that the State “impermissibly shifted the burden
of proof to Appellant” because “the prosecutor invited the jury to choose between
which side it found more credible,” and “impermissibly inflamed the passions of the
jury by arguing that, Appellant’s story was cock-and-bull.” We agree with the State
that Appellant did not timely object to the prosecutor’s comments that the “case
boil[ed] down to . . . [t]he credibility of the witnesses” or that “Appellant’s story was
cock-and-bull.” In order to preserve jury argument error, the complaining party must
make a contemporaneous objection and receive an adverse ruling. Cooks v. State,
844 S.W.2d 697, 727 (Tex. Crim. App. 1992); see TEX. R. APP. P. 33.1(a). Because
defense counsel did not make a contemporaneous objection, Appellant has not
preserved error for our review in regard to his argument that the State “impermissibly
shifted the burden” and “inflamed the passions of the jury.” See Bullis v. State,
No. 11-14-00240-CR, 2016 WL 5853267, at *7 (Tex. App.—Eastland Sept. 30,
2016, no pet.) (mem. op., not designated for publication) (holding that error was not
preserved because defense counsel did not timely object to the prosecutor’s closing
argument). Therefore, Appellant’s fourth issue is overruled.
      In his fifth issue, Appellant argues that the State’s closing remarks during the
punishment phase were improper. Appellant specifically points to the prosecutor’s
comment in which he asked “how many more blows would it have taken” to “be
here talking to you about murder?” Appellant asserts that this statement was
“outside of the record.”



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      At trial, Cienna testified that Appellant repeatedly struck Louanna. Louanna
testified that she “black[ed] in and out” during the attack; that she suffered a
fractured skull, a fractured elbow, and two fractured legs; and that she had a cut on
her face so deep that she could touch her teeth through her cheek.
Investigator Hutchens testified that Louanna “was bleeding very profusely” after the
attack and that EMS immediately put Louanna in an ambulance and transported her
to Fort Worth for treatment. The prosecutor’s suggestion that Louanna would have
died if Appellant had continued to strike her is a reasonable deduction from this
evidence. Therefore, the argument was not improper. Appellant’s fifth issue is
overruled.
      We affirm the judgment of the trial court.




                                               JIM R. WRIGHT
                                               CHIEF JUSTICE


October 26, 2017
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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