                                  NO. 12-17-00304-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 MARK TYRONE JOHNSON,                             §      APPEAL FROM THE 241ST
 APPELLANT

 V.                                               §      JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                         §      SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Mark Tyrone Johnson appeals his conviction for “assault/family violence.” In a single issue,
Appellant argues the evidence is legally insufficient to support his conviction. We affirm.


                                          BACKGROUND
       Appellant was arrested and charged by indictment with “assault/family violence.” It was
alleged that Appellant caused bodily injury to his wife, Cassandra Johnson, by striking her with his
hand or hands. Appellant pleaded “not guilty” and the matter proceeded to a jury trial. The jury
found Appellant “guilty” as charged. After Appellant pleaded “true” to an enhancement paragraph,
the jury heard evidence in the punishment phase of trial. The jury assessed his punishment at seven
years of confinement and a $10,000 fine. This appeal followed.


                                 SUFFICIENCY OF THE EVIDENCE
       In his sole issue, Appellant contends the evidence is insufficient to support his conviction.
Specifically, he contends the State failed to prove the manner and means of the alleged assault.
Standard of Review and Governing Law
       In Texas, the Jackson v. Virginia standard is the only standard that a reviewing court should
apply in determining whether the evidence is sufficient to support each element of a criminal
offense that the state is required to prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010). The relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 2789, 61 L. Ed. 2d 560 (1979). This standard gives full play to the responsibility of the trier
of fact to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Padilla v. State, 326 S.W.3d 195, 200 (Tex. Crim.
App. 2010). The jury is the sole judge of the witnesses’ credibility and the weight to be given their
testimony. Brooks, 323 S.W.3d at 899.
       When the record supports conflicting inferences, we presume that the fact finder resolved
the conflicts in favor of the prosecution and therefore defer to that determination. Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Direct and circumstantial evidence are treated
equally. Id. Circumstantial evidence is as probative as direct evidence in establishing the guilt of an
actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007). A conclusion of guilt can rest on the combined and
cumulative force of all the incriminating circumstances. Hernandez v. State, 190 S.W.3d 856, 864
(Tex. App.–Corpus Christi 2006, no pet.).
       A person commits the offense of assault if he intentionally, knowingly, or recklessly causes
bodily injury to another, including the person’s spouse. TEX. PENAL CODE ANN. § 22.01 (West
Supp. 2017). “Bodily injury” is defined as “physical pain, illness, or any impairment of physical
condition.” Id. § 1.07(a)(8) (West Supp. 2017).
Analysis
       Appellant argues the evidence introduced at trial failed to show that Cassandra suffered
bodily injury. He further contends that the evidence was insufficient to establish that he hit
Cassandra with his hand or hands.
       At trial, the jury heard two versions of events. Appellant testified that he is married to
Cassandra and that the two had been experiencing marital problems. He attributed their issues to
the fact that they both are “recovering addicts.” He testified that Cassandra had her own apartment.
Appellant further testified that she has trouble sleeping and takes medication to help her sleep. The
night before the alleged incident, Cassandra’s daughter called to ask to borrow Cassandra’s car.
According to Appellant, Cassandra “was kind of woozy” when she woke up to take her daughter
the car. When Cassandra walked out of the door, she fell into a bush. Appellant got Cassandra out



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of the bush, took the car to her daughter, and walked to his own apartment. Later that evening,
Appellant took a muscle relaxer for his back and fell asleep. When Cassandra arrived at Appellant’s
residence, she accused him of having a girlfriend in his room. Appellant denied hitting Cassandra
and claimed her injuries were a result of her falling in the bush that morning.
        Cassandra did not testify at trial. However, the jury heard the 911 call in which Cassandra
called to report that Appellant shot at her and punched her in the eye. Cassandra gave the dispatcher
Appellant’s address and waited down the street from his residence for an officer to arrive. Officer
Justin Utley of the Tyler Police Department responded to the 911 call. When he arrived at the scene,
he spoke with Cassandra. The information she gave him corresponded with the information that
she gave to the dispatcher. Officer Utley took photographs of Cassandra’s injuries, which included
a bloodshot right eye with redness around the eye. Cassandra told him that she sustained her eye
injury when she was punched. Cassandra also had a scratch on her arm. Officer Utley further
testified that Cassandra sustained bodily injury and that she told him it was caused by Appellant
striking her.
        Detective Nathan Elliott with the Tyler Police Department was assigned to investigate the
alleged assault after Officer Utley completed his report. After receiving the assignment, Detective
Elliott spoke with Cassandra twice: once on the phone and once in person. He testified that the
information Cassandra gave him was consistent with the police reports, 911 call, and information
from the patrol officer. She also remained consistent in her identification of her perpetrator. Based
on his experience investigating “hundreds” of assaults, he characterized Cassandra’s injuries as
“bodily injury.” Detective Elliott also interviewed Appellant. Appellant claimed to have witnesses
who were inside his residence that could corroborate his version of the events. However, the witness
that Detective Elliott was able to contact refused to speak with him. Following his investigation,
Detective Elliott obtained a warrant for Appellant’s arrest and arrested him for felony assault family
violence. Additionally, the State introduced photographs of Cassandra’s injuries into evidence.
        It was the province of the jury to determine which of this conflicting testimony to credit and
which to reject. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The jury
reasonably could have rejected Appellant’s testimony regarding his version of the events and
credited the testimony of Officer Utley and Detective Elliott. From their testimony, the photographs
of Cassandra’s injuries, and the other evidence presented at trial, the jury could have determined
that Appellant punched Cassandra. While there was no direct testimony that Appellant punched



                                                  3
Cassandra using his hand or hands, the jury could make a rational inference from the evidence that
Appellant struck her with his hand. See Padilla, 326 S.W.3d at 200; see also Johnson v. State, No.
14-01-00410-CR, 2002 WL 370199, at *3 (Tex. App.—Houston [14th Dist.] March 7, 2002, pet.
ref’d) (op., not designated for publication) (trial court free to assign “punch” its ordinary meaning,
which is “to hit with a sharp blow of the fist”); Murphy v. State, 44 S.W.3d 656, 662 (Tex. App.—
Austin 2001, no pet.) (“Jurors are presumed to know and apply the common and ordinary meaning
of words.”).
         After viewing the evidence is the light most favorable to the verdict, we conclude that a
rational jury could have found, beyond a reasonable doubt, that Appellant knowingly, intentionally,
or recklessly caused bodily injury to his wife by striking her with his hand or hands. See TEX.
PENAL CODE ANN. § 22.01; see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323
S.W.3d at 912. As a result, we conclude the evidence is legally sufficient to support the verdict.
Appellant’s sole issue is overruled.


                                                   DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.


                                                                  BRIAN HOYLE
                                                                     Justice

Opinion delivered October 3, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                              (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                          OCTOBER 3, 2018


                                         NO. 12-17-00304-CR


                                   MARK TYRONE JOHNSON,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                                 Appeal from the 241st District Court
                         of Smith County, Texas (Tr.Ct.No. 241-0497-17)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
