                                        COURT OF APPEALS
                                     EIGHTH DISTRICT OF TEXAS
                                          EL PASO, TEXAS


                                                        §
    SHANE THOMAS DOWDY                                                    No. 08-15-00061-CR
    A.K.A. SHANE T. DOWDY,                              §
                                                                             Appeal from the
                                     Appellant,         §
                                                                           372nd District Court
    v.                                                  §
                                                                        of Tarrant County, Texas
    THE STATE OF TEXAS,                                 §
                                                                             (TC# 1359575D)
                                     Appellee.          §


                                               OPINION

         In one issue, Appellant Shawn Dowdy challenges the legal sufficiency of the evidence

underpinning his conviction for one count of assault of a family or household member, as

enhanced by a previous conviction. We will affirm.1

                                              BACKGROUND

         Complainant Shelly Rexrode is Appellant’s half-sister. She and Appellant had the same

mother, Linda Munro, who passed away in 2014. Before their mother’s death, Appellant lived

with Munro, but he moved out of Munro’s house when Rexrode moved back into their mother’s

house in 2012. Following their mother’s death, Rexrode retained possession of the house and


1
 We hear this case on transfer from the Second Court of Appeals in Fort Worth and apply that court’s precedent
where our precedent would otherwise be inconsistent. See TEX.R.APP.P. 41.3.
Appellant lived elsewhere. Munro’s will had not been probated, and Appellant alluded at trial

that there are still outstanding issues regarding title to the home.

       At trial, Rexrode testified that on February 2, 2014, she arrived home at around 2 a.m.

and walked out of her truck when she heard something. She turned around, and saw a man she

identified as Appellant standing in front of her with a long, silver-colored metal object.

According to Rexrode, Appellant then struck her on the left side of the head. Rexrode fell

against her truck, and Appellant fled. Rexrode further testified that later that same evening, at

around 10 p.m., while she was speaking to her son in the driveway of her home, she saw

Appellant running toward her neighbor’s house from her backyard. Rexrode, fearing that her life

was in danger, went inside the house, retrieved a handgun, then exited the house and fired the

gun in the air before calling police.

       Appellant, waiving his Fifth Amendment privilege and testifying on his own behalf,

denied being at the scene of the assault and stated that on February 2, 2014, at 2 a.m., he was

asleep in bed with his then-girlfriend. He did not call his ex-girlfriend to testify and admitted

that she would be the only person who could corroborate his alibi. Appellant stipulated that he

had previously been convicted of the offense of assaulting a family member.

       Following a bench trial, Appellant was convicted of assaulting a family member, as

enhanced by a prior conviction. This appeal followed.

                                           DISCUSSION

       In one issue, Appellant contends the evidence is legally insufficient to establish both his

identity as Rexrode’s assailant, and the fact that Rexrode was assaulted in the manner in which

she described at trial. We disagree.

                                         Standard of Review



                                                   2
       On legal sufficiency review, we assess all trial evidence “in the light most favorable to

the prosecution,” to determine whether “any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” [Emphasis omitted]. Clayton v. State, 235

S.W.3d 772, 778 (Tex.Crim.App. 2007), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 2789, 61 L.Ed.2d 560 (1979).          We review all record evidence in making this

determination—direct or circumstantial, properly admitted or not. Clayton, 235 S.W.3d at 778.

“Each fact need not point directly and independently to the guilt of the appellant, as long as the

cumulative force of all the incriminating circumstances is sufficient to support the conviction.”

Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). We measure legal sufficiency based

on the statutory elements of the offense as modified by the allegations set out in the indictment.

Malik v. State, 953 S.W.2d 234, 239 (Tex.Crim.App. 1997).

       In this procedural posture, we are not permitted to sit as “thirteenth juror” and substitute

our judgment for that of the fact finder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App.

2010), Goodman v. State, 66 S.W.3d 283, 286 n.4 (Tex.Crim.App. 2001). Even so, we act as a

procedural failsafe against irrational verdicts, and we may reverse a conviction on legal

sufficiency grounds where no rational juror could find guilt beyond a reasonable doubt based on

the evidence presented at trial. Clayton, 235 S.W.3d at 778. This encompasses both situations in

which the State has failed to prove an essential element of the crime as a matter of law and

situations in which some evidence exists on every element, but no reasonable person could

convict in light of the state of evidence as a whole, even when viewed most favorably to the

prosecution. See Jackson, 443 U.S. at 320, 99 S.Ct. at 2789 (constitutional legal sufficiency

standard in criminal cases higher than “mere modicum” evidence standard); Brooks v. State, 323

S.W.3d 893, 906-07 (Tex.Crim.App. 2010).



                                                3
                                             Analysis

       The main thrust of Appellant’s argument on appeal is that the photographs of Rexrode’s

injuries taken after the alleged assault are not consistent with her trial testimony. Specifically,

Rexrode testified that she was hit in the head with a long, metal object yet, according to

Appellant, the injuries on her face depicted in police photographs appear to be scratches or

“scraping” injuries without any bruising. Because of this supposed discrepancy, Appellant

maintains that the trial court could not rationally find that Rexrode was credible or even that she

was assaulted by being struck with a metal object as she described.

       The judge as fact finder was entitled to determine the facts, assess the credibility of the

witnesses, and weight their testimony. We defer to those findings, resolve any evidentiary

inconsistencies in favor of the judgment, and overturn a conviction only if it is irrational.

Brooks, 323 S.W.3d at 899; Laster v. State, 275 S.W.3d 512, 517-18 (Tex.Crim.App. 2009). The

indictment charged Appellant with striking Rexrode with “A METAL OBJECT OR WITH AN

OBJECT OF THE EXACT KIND UNKNOWN TO THE GRAND JURY.”                                   While one

photograph appears to show Rexrode with the “scraping” scratch-like injuries Appellant

describes, two other photographs purportedly taken closer in time to the assault also show her

with a bleeding wound to the head. The State only needed to prove that Appellant struck

Rexrode with a metal object or an unknown object, because the pictures depict physical injuries

to her head, because she positively identified Appellant as her assailant in court, and because

Appellant could not corroborate his alibi defense despite apparently having the ability to call his

ex-girlfriend to the stand, we cannot say that the trial court’s conviction verdict was irrational.

The evidence is legally sufficient to support his conviction for assault of a family member.

       Issue One is overruled. The judgment of the trial court is affirmed.



                                                4
October 5, 2016
                                           YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




                                              5
