                                       NO. 07-08-0119-CR

                                 IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                             PANEL C

                                           JULY 7, 2009

                             ______________________________


                              PHILLIP W. MORRIS, APPELLANT

                                                  V.

                             THE STATE OF TEXAS, APPELLEE

                           _________________________________

              FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2005-410,322; HONORABLE CECIL G. PURYEAR, JUDGE1

                            _______________________________


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                   MEMORANDUM OPINION


       Appellant, Phillip W. Morris, was convicted by a jury of assault of a family member

enhanced and sentenced to eight years confinement. In a single issue, he contends the

State’s evidence is legally insufficient to support his conviction. We affirm.


       1
        Hon. Ron Chapm an (Ret.), sitting by assignm ent, presiding. Tex. Gov’t Code Ann. §75.002(a)(3)
(Vernon 2005).
                                             Background


        On September 28, 2005, a Lubbock County Grand Jury returned an indictment

charging Appellant with assault of a family member, enhanced by a prior conviction of

assault of a family member, making his offense a third-degree felony.2 See Tex. Penal

Code Ann. § 22.01(a) & (b) (Vernon Supp. 2008). The indictment alleged that, on

February 16, 2005, Appellant assaulted his wife, Theresa Morris, by choking her, biting her,

causing her to strike the floor, shaking her, and squeezing her arms.


        At trial, D’Jane Brown testified that, on February 16, 2006, she lived across the

street from the Morris residence. That afternoon, she went to the front door facing the

street when she heard a commotion. She observed Appellant’s wife, Theresa Morris,

crossing the street followed by Appellant. Appellant was angry and arguing with his wife.

Appellant pushed Theresa down to the ground and, after Theresa rose to her feet, they

argued in a neighbor’s yard. Afterwards, they went back into their house. Shortly

thereafter, Theresa emerged from the house holding a puppy and hobbling. Appellant also

emerged and was gesturing with his arms. She heard Theresa say loudly: “Just take me

to the hospital.” Appellant yelled: “No.” Theresa then entered the car and moved quickly

across the front seat to the passenger side attempting to leave the car. Appellant grabbed

her by the hair and pulled her down onto the seat. Brown could see Appellant hovering

        2
         The indictm ent also contained a felony enhancem ent paragraph stating Appellant had a prior felony
conviction for unauthorized use of a m otor vehicle. At the punishm ent phase, the trial court found the
enhancem ent to be true, m aking the offense punishable as a second-degree felony. See Tex. Penal Code
Ann. § 12.42(a)(3) (Vernon Supp. 2008).

                                                     2
over her in the car. When Brown saw Theresa’s leg come up but could not see the rest

of her body, she became frightened for Theresa’s safety and called 911.


       Theresa testified that she and Appellant had been together for seventeen years and

had two sons, age fifteen and thirteen. She testified that she and Appellant were laying

around the house when he grabbed their new puppy. He held the puppy “real tight.” She

began to cry and asked him to stop. Appellant held the puppy more tightly. She rose to

leave telling him: “I don’t want to see this. I just don’t want to hear it. Just let her go.” She

testified that he never hurt the dogs–it was like a “bully thing.” As she was attempting to

leave the room, Appellant picked her up and threw her backwards. When she hit the floor,

something in her back popped. She told him: “This time it’s really hurt me. You hurt me

this time.”


       Thereafter, she testified Appellant then picked her up and began shaking her up and

down. She wanted him to let her go but he continued shaking her saying,” I’m going to fix

it, I’m going to fix it.” She then exited the house and was getting into the car to go to the

hospital when, according to her testimony, he insisted that he take her to the hospital.

They began to argue and Appellant choked her with both hands while she was in the car.

As a result, she almost stopped breathing. She testified that she sustained injuries from

Appellant throwing her on the floor, choking her, squeezing her in a bear hug numerous

times, and shaking her.




                                               3
       Theresa also testified that Appellant injured her because he was angry. She

testified that he was extremely bipolar and had been suffering from the mental illness for

eighteen years. On February 16, she could tell that he was being affected by his illness

because he had a blank look–“like he [didn’t] know what he [was] doing.” She testified that,

after these episodes, he couldn’t recall what he had done. She testified his doctor was

prescribing the wrong medications for him and that she hid his medication because he was

suffering side effects such as seizures, back pain, and liver problems. Usually, when she

could tell he was being affected by his mental illness, she would leave as quickly as

possible. She testified that, on February 16, she just did not leave fast enough.


       Rick Lewis, a corporal for the Slaton Police Department, testified he responded to

Brown’s 911 call. When he arrived at the Morris residence, he observed Theresa crying

uncontrollably in a car parked in the driveway. Although Theresa claimed she had fallen,

he was skeptical. Theresa was having a hard time standing or moving and he observed

a knot on her head about the size of an egg. There was also a knot over her eye. At first,

she screamed that Appellant’s mother would be mad at her if Appellant went back to prison

for what he had done to her. She then jumped up and started screaming that Appellant

was going to pay for what he had done to her. She told Officer Lewis that Appellant had

bitten her on the top of the head, choked her, picked her up in a bear hug, and shook her

violently two or three times, and slammed her onto the floor on her back. Officer Lewis

placed Appellant under arrest.



                                             4
       Tad Ellis, detective and felony investigator for the Slaton Police Department, arrived

at the Morris residence after Lewis. He testified Theresa was crying and complaining of

lower back pain. At one point, Theresa became confrontational with Appellant and yelled

that she was not going to take it anymore. She also told Detective Ellis that she did not

want to press charges. He testified that it was not uncommon for a victim of domestic

violence to not want to press charges.


       The jury convicted Appellant of the charges in the indictment, the trial court

assessed punishment, and this appeal followed.


                                        Discussion


       Appellant contends the State failed to offer legally sufficient evidence to establish

beyond a reasonable doubt that Appellant engaged in the assaultive conduct voluntarily

and with the requisite culpable mental state. Appellant asserts he was unaware of his

actions due to a bipolar episode which was precipitated by being deprived of his

medications by his wife. Accordingly, he contends that his actions were involuntary and

that he lacked the requisite criminal intent.




                                                5
       I.     Standard of Review - Legal Insufficiency


       It is a fundamental rule of criminal law that one cannot be convicted of a crime

unless it is shown beyond a reasonable doubt that the defendant committed each element

of the alleged offense. U.S. Const. amend. XIV; Tex. Code Crim. Proc. Ann. art. 38.03

(Vernon Supp. 2008); Tex. Penal Code Ann. § 2.01 (Vernon 2007). In a sufficiency of the

evidence review, the essential elements of the offense are those of a hypothetically correct

jury charge for the offense in question (i.e., one that accurately sets out the law and

adequately describes the offense for which the appellant was tried without increasing the

state’s burden of proof or restricting the state’s theory of criminal responsibility). Hooper

v. State, 214 S.W.3d 9, 14 (Tex. 2007); Malik v. State, 953 S.W.2d 234, 240

(Tex.Crim.App. 1997).


       In assessing the legal sufficiency of the evidence to support a criminal conviction,

a reviewing court must consider all the evidence in the light most favorable to the verdict

and determine 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. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979); Hooper, 214 S.W.3d at 13. In our analysis, we must give deference to the

responsibility of the jury to fairly resolve conflicts in testimony, weigh the evidence, and

draw reasonable inferences from that evidence. Id.




                                             6
        Circumstantial evidence alone is sufficient to establish an element of the offense

and the sufficiency standard of review is the same for both direct and circumstantial

evidence cases. Hooper, 214 S.W.3d at 13. Each fact need not point directly and

independently to the guilt of the accused, so long as the cumulative force of the probative

evidence, when coupled with reasonable inferences to be drawn therefrom, is sufficient to

support the conviction. Evans v. State, 202 S.W.3d 158, 166 (Tex.Crim.App. 2006).


        II.     Legal Sufficiency–Assault of a Family Member


        A person commits the offense of assault of a family member if he or she

intentionally, knowingly, or recklessly caused bodily injury to a family member. See Tex.

Penal Code Ann. § 22.01(a)(1) (Vernon Supp. 2008).3 Because the statute expresses

three culpable mental states in the disjunctive, proof of any one of the three is sufficient

to support a conviction. Perez v. State, 704 S.W.2d 499, 501 (Tex.App.–Corpus Christi

1986, no pet.).


        “A person acts intentionally, or with intent, with respect to . . . a result of his conduct

when it is his conscious objective or desire to . . . cause the result.” Tex. Penal Code Ann.

§ 6.03(a) (Vernon 2003). “A person acts knowingly, or with knowledge, with respect to a

result of his conduct when he is aware that his conduct is reasonably certain to cause the




        3
        Appellant does not deny that Theresa qualifies as a fam ily m em ber, nor does he contest that he
caused her bodily harm .

                                                   7
result.” Tex. Penal Code Ann. § 6.03(b) (Vernon 2003).4 A culpable mental state may be

inferred from circumstantial evidence such as acts, words, and conduct of the defendant

and surrounding circumstances. Guevara v. State, 152 S.W.3d 45, 50 (Tex.Crim.App.

2004).


         “Texas law, like that of all American jurisdictions, presumes that a criminal

defendant is sane and that he intends the natural consequences of his acts.” Ruffin v.

State, 270 S.W.3d 586, 592 (Tex.Crim.App. 2008). Further, Texas does not recognize

diminished capacity as an affirmative defense, i.e., a lesser form of the defense of insanity.

Jackson v. State, 160 S.W.3d 568, 573 (Tex.Crim.App. 2005).5 The diminished capacity

doctrine at issue here is “simply a failure-of-proof defense in which [Appellant] claims that

the State failed to prove that [he] had the required state of mind at the time of the offense.”

Id. This doctrine does not permit the defense to argue that he does not have the capacity,

or is absolutely incapable of forming the frame of mind. Id. at 574-75; Mays v. State, 3223

S.W.3d 651, 654 (Tex.App.–Texarkana 2007, no pet.). Rather, evidence of a mental

disease or defect may be offered to rebut or disprove the State’s evidence establishing the

defendant’s culpable mens rea. Ruffin, 270 S.W.3d 586; Jackson, 160 S.W.3d at 574-75.



         4
          Because we ultim ately find the evidence is legally sufficient to support a finding that Appellant acted
“intentionally” or “knowingly,” we need not discuss the definition of “recklessly.”

         5
         The affirm ative defense of insanity excuses the person from crim inal responsibility even though the
State has proven every elem ent of the offense, including the mens rea, beyond a reasonable doubt. Ruffin,
270 S.W .3d at 592. The test for determ ining insanity is whether, at the tim e of the conduct charged, the
defendant did not know his conduct was “wrong” because of a severe m ental disease or defect. Id. Appellant
did not assert an insanity defense at trial.

                                                        8
As with other evidence, it is up to the jury to hear the evidence, determine its weight, and

decide whether Appellant possessed the requisite mens rea to commit this offense. Id. at

574.


       Here, Appellant argues that the State failed to offer any evidence he acted

voluntarily or possessed a culpable mental state. We disagree. Appellant’s initial violent

outburst was “set off” by Theresa’s reaction to an activity Appellant often engaged

in–bullying their dogs. Angered by her reaction, Appellant threw her against the floor. He

was aware of the fact that his actions caused Theresa injuries because, afterwards, he

tried to “fix it.” Thus, a jury could reasonably infer that Appellant was not under the

influence of a bipolar episode, but rather acted voluntarily and possessed a culpable

mental state.


       When Theresa was able to exit the house, she testified that Appellant insisted that

he take her to the hospital. Another sign that he was aware of the consequences of his

actions, i.e., he had injured Theresa. When she refused his offer, he again became angry,

attacked her in the car, and began choking her. The impetus for this second attack being

her refusal to permit him to drive her to the hospital. Finally, after this attack, Theresa did

not blame Appellant’s bipolar condition when speaking with police officers but asserted she

had fallen, that Appellant’s mother would be mad if her son went to prison for what he had

done, and threatened that Appellant would pay for what he had done.




                                              9
       This evidence, when viewed in a light most favorable to the prosecution, is sufficient

to enable a rational jury to find, beyond a reasonable doubt, the essential elements of

assault of a family member.        See Schumacher v. State, 814 S.W.2d 871, 873

(Tex.App.–Austin 1991, no pet.). Thus, the evidence is legally sufficient to support the

jury’s verdict of guilty.


       Appellant’s single issue is overruled.


                                       Conclusion


       The trial court’s judgment is affirmed.




                                                  Patrick A. Pirtle
                                                      Justice

Do not publish.




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