      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-02-00637-CR



                                    Jeffrey Moore, Appellant


                                                 v.


                                  The State of Texas, Appellee




             FROM THE COUNTY COURT AT LAW NO. 4 OF TRAVIS COUNTY
              NO. 202-1121, HONORABLE MIKE DENTON, JUDGE PRESIDING



                            MEMORANDUM OPINION


               After a bench trial, appellant Jeffrey Moore was convicted of assault with bodily

injury and family violence. See Tex. Pen. Code Ann. § 22.01(a)(1), (b)(2) (West 2003). In this

appeal, appellant argues that the evidence is factually insufficient to support the judgment. We will

affirm.


                                         BACKGROUND

               On March 27, 2002, Barbara Wright called emergency services to report that

appellant, with whom she had been living for several months, had assaulted her. According to

Wright, appellant had struck her once in the face and she was afraid appellant was going to hit her
again. Austin Police Officer Randy Dear arrived at the apartment shortly after Wright’s call and

identified appellant as the man attempting to leave the scene. Dear handcuffed him and placed him

in the patrol car. Appellant told Dear that another man had come to the apartment and that Wright

“went crazy,” striking appellant several times. Appellant maintained that he had pushed Wright

away and may have scratched her in an attempt to defend himself. Dear noticed that appellant had

no visible injuries. In interviewing Wright about the complaint, Dear noticed that she was visibly

injured. On Dear’s application, the county court at law issued an emergency protective order that

appellant stay away from Wright. See Tex. Fam. Code Ann. § 83.001 (West 2002).

                 A few days later, appellant called Wright and asked her to drop the charges. In

response, Wright signed an affidavit in the presence of appellant’s counsel saying that appellant had

not assaulted her. The State, however, continued to prosecute the alleged offense. At trial, Wright

recanted, stating that the affidavit was not true and that she had been afraid of appellant at the time

she signed it.

                 The trial court found appellant guilty of assault with bodily injury and family

violence. See Tex. Pen. Code Ann. § 22.01(a)(1), (b)(2). Because appellant’s indictment alleged

four prior convictions for assault with bodily injury and family violence, this offense was a third-

degree felony. Id. § 22.01(b)(2). The trial court sentenced appellant to five years’ imprisonment.

In this appeal, appellant disputes the factual sufficiency of the evidence. According to appellant,

because Wright is not a credible witness, the trial court should have disregarded her testimony.

Appellant contends that without Wright’s testimony, the remaining circumstantial evidence is



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insufficient to support the trial court’s conclusion that appellant caused bodily injury to Wright or

that his actions were intentional.


                                           DISCUSSION

               A person commits assault with bodily injury if he intentionally, knowingly, or

recklessly causes bodily injury to another. Id. § 22.01(a)(1). Bodily injury is defined as “physical

pain, illness, or any impairment of physical condition.” Id. § 1.07(a)(8) (West 2003). An offense

under section 22.01(a)(1) is a third-degree felony when committed against a member of the

defendant’s family or household if the defendant has previously been convicted of an offense against

a member of his family or household under section 22.01. Id. § 22.01(b)(2). Appellant argues that

the evidence was factually insufficient to support the trial court’s finding that he struck or scratched

Wright or acted with criminal intent.

               In a factual sufficiency review, we view the evidence in a neutral light favoring

neither party to determine if the evidence of guilt is so weak as to render the verdict clearly wrong

or manifestly unjust, or if the finding of a vital fact is so contrary to the weight and preponderance

of the evidence as to be clearly wrong. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000);

see also Zuliani v. State, 97 S.W.3d 589, 593 (Tex. Crim. App. 2003); Goodman v. State, 66 S.W.3d

283, 285 (Tex. Crim. App. 2001). We do not realign, disregard, or re-weigh the evidence.

Rodriguez v. State, 939 S.W.2d 211, 218 (Tex. App.—Austin 1997, no pet.). The trier of fact has

the responsibility of weighing all the evidence, resolving evidentiary conflicts, and drawing

reasonable conclusions from the evidence. Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App.


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2001). A decision is not manifestly unjust simply because the trier of fact resolves conflicting views

of the evidence in the State’s favor. Roise v. State, 7 S.W.3d 225, 233 (Tex. App.—Austin 1999,

pet. ref’d). A trial court’s findings of fact entered after a bench trial have the same force and dignity

as a jury’s verdict. In re B.M., 1 S.W.3d 204, 206 (Tex. App.—Tyler 1999, no pet.).

                Appellant argues that Wright is not a credible witness because she signed a sworn

affidavit contradicting her testimony at trial and admitted at trial that she had “deliberately lied” to

appellant’s counsel. Appellant introduced evidence that Wright had visited appellant in jail on

numerous occasions and had confronted appellant about the name of another woman on his visitation

list. Appellant argues that, because Wright’s testimony contradicts her sworn affidavit and because

Wright continued to maintain a relationship with appellant after the alleged assault, her testimony

is not credible. Appellant further contends that because Wright’s testimony should have been

disregarded, the remaining circumstantial evidence is factually insufficient to support the finding that

appellant acted with intent or caused harm to Wright.

                Wright’s credibility was an issue for the fact finder, which had the responsibility of

weighing all the evidence, resolving evidentiary conflicts, and drawing reasonable conclusions from

the evidence. Garcia, 57 S.W.3d at 441. The trier of fact is the sole judge of weight and credibility

of testimony. Wilkerson v. State, 881 S.W.2d 321, 324 (Tex. Crim. App. 1994); Sharp v. State, 707

S.W.2d 611, 614 (Tex. Crim. App. 1986). The fact finder may believe a witness even though some

of the witness’s testimony may conflict with other evidence in the record. Sharp, 707 S.W.2d at 614.

The fact finder was free to believe Wright’s testimony at trial even though it conflicted with her



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affidavit. Any contradiction went only to the weight of Wright’s testimony. Therefore, the trial

court was permitted to rely on Wright’s testimony in reaching its conclusion.

               Even if the trial court could not have relied on Wright’s testimony, the circumstantial

evidence would be sufficient to support conviction. In circumstantial evidence cases, it is not

necessary that every fact point directly and independently to the accused’s guilt. Robinson v. State,

570 S.W.2d 906, 909 (Tex. Crim. App. 1978). Rather, the evidence is sufficient if the fact finder’s

conclusion is warranted by the combined and cumulative force of all the incriminating

circumstances. Id. at 909. The State presented several elements of a circumstantial case of assault

with bodily injury. Dear authenticated the photographs, testified as to Wright’s visible injuries, and

testified that appellant did not seem injured. When Dear approached appellant, appellant told Dear

that he and Wright had been involved in an argument but that nothing else had happened; appellant

later told Dear that Wright had attacked him, and that he might have scratched her in an attempt to

defend himself. Taken together, the circumstantial evidence is factually sufficient to support

conviction because it is not so weak as to be clearly wrong or manifestly unjust. In response to the

State’s testimony, appellant replied that Wright became physically aggressive during their argument

and struck appellant several times, forcing appellant to defend himself. There is nothing about

appellant’s testimony that would suggest that the finding of guilt was contrary to the weight and

preponderance of the evidence. We hold that the evidence is factually sufficient to support the

judgment.




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                                         CONCLUSION

               Because the evidence is factually sufficient to support the finding that appellant

intentionally caused bodily injury to Wright, we affirm the trial court’s judgment.




                                              Mack Kidd, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: June 26, 2003

Do Not Publish




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