                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-09-216-CR


JASON ALAN SW ITZER                                                   APPELLANT

                                            V.

THE STATE OF TEXAS                                                          STATE

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      FROM COUNTY CRIMINAL COURT NO. 5 OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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                                  I. INTRODUCTION

      In one point, appellant Jason Alan Switzer appeals his conviction for Assault

Bodily Injury–Family Member, arguing that the evidence was factually insufficient to

support his conviction. W e will affirm.




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           See Tex. R. App. P. 47.4.
                      II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      At Switzer’s trial, the State provided evidence of the assault through the

testimony of two police officers, Switzer’s wife Caroline Switzer, and the Switzers’

next-door neighbor Mark Stelmas.

      Stelmas testified that Caroline had shown up at his house one night, hysterical

and in fear of her husband. Switzer followed her to Stelma’s house, and Caroline

left with Switzer. Shortly thereafter, the Switzers’ six-year-old daughter C.S. ran to

Stelmas’s house and asked for help because “her father was strangling her mother.” 2

Stelmas called 911.

      Officer Thomas Shelton testified that he had responded to the dispatch call.

W hen he arrived at the Switzers’ house, C.S. told him that she had run next door to

the neighbor’s house because her “daddy was hitting her mommy again.” 3 Officer

Angelina Guerra-Torres testified that she was also dispatched to the Switzers’s

house and that Caroline had told her that Switzer pushed her, causing her to fall to

the ground.4 Both officers testified that Caroline had a large knot on her forehead,

and photographs of her head taken that day were entered into evidence at trial.




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       Switzer objected to hearsay, the State responded that the child’s statement
was an excited utterance, and the trial court overruled Switzer’s objection.
      3
           This testimony was admitted over Switzer’s hearsay objection.
      4
           This testimony was also admitted over Switzer’s hearsay objection.

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      Switzer called both Caroline and C.S. to testify on his behalf.        Caroline

testified that Switzer had not assaulted her but that she had slipped and fallen,

hitting her head on a cabinet. Caroline denied telling the officers that her husband

had pushed her down and testified that she did not want the case to be prosecuted.

C.S. also denied that Switzer had hit Caroline.

      After hearing the evidence, the jury found Switzer guilty. The trial court

sentenced him to one year’s confinement, probated for two years. This appeal

ensued.

                              III. F ACTUAL S UFFICIENCY

      In his sole point, Switzer argues that the evidence was factually insufficient

because the only evidence supporting the verdict consisted of hearsay statements

by Caroline and C.S. that were contradicted by their in-court testimony.

                              A. Standard of Review

      W hen reviewing the factual sufficiency of the evidence to support a conviction,

we view all the evidence in a neutral light, favoring neither party. Steadman v. State,

280 S.W .3d 242, 246 (Tex. Crim. App. 2009); Watson v. State, 204 S.W .3d 404, 414

(Tex. Crim. App. 2006).      W e then ask whether the evidence supporting the

conviction, although legally sufficient, is nevertheless so weak that the factfinder’s

determination is clearly wrong and manifestly unjust or whether conflicting evidence

so greatly outweighs the evidence supporting the conviction that the factfinder’s

determination is manifestly unjust. Steadman, 280 S.W .3d at 246; Watson, 204

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S.W .3d at 414–15, 417. To reverse under the second ground, we must determine,

with some objective basis in the record, that the great weight and preponderance of

all the evidence, although legally sufficient, contradicts the verdict. Watson, 204

S.W .3d at 417.

      Unless we conclude that it is necessary to correct manifest injustice, we must

give due deference to the factfinder’s determinations, “particularly those

determinations concerning the weight and credibility of the evidence.” Johnson v.

State, 23 S.W .3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W .3d at 246.

Evidence is always factually sufficient when it preponderates in favor of the

conviction. Steadman, 280 S.W .3d at 247; see Watson, 204 S.W .3d at 417.

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to overturn [the]

conviction.” Watson, 204 S.W .3d at 417. W e cannot conclude that a conviction is

clearly wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in the

evidence. Id. W e may not simply substitute our judgment for the factfinder’s.

Johnson, 23 S.W .3d at 12; Cain v. State, 958 S.W .2d 404, 407 (Tex. Crim. App.

1997). Unless the record clearly reveals that a different result is appropriate, we

must defer to the jury’s determination of the weight to be given contradictory

testimonial evidence because resolution of the conflict “often turns on an evaluation


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of credibility and demeanor, and those jurors were in attendance when the testimony

was delivered.” Johnson, 23 S.W .3d at 8. Our deference in this regard safeguards

the defendant’s right to a trial by jury. Lancon v. State, 253 S.W .3d 699, 704 (Tex.

Crim. App. 2008).

      An opinion addressing factual sufficiency must include a discussion of the

most important and relevant evidence that supports the appellant’s complaint on

appeal. Sims v. State, 99 S.W .3d 600, 603 (Tex. Crim. App. 2003).

                       B. Evidence was Factually Sufficient

      Here, the issue is one of credibility. The State and Switzer provided conflicting

witness testimony. The two police officers and the Switzers’ neighbor testified to

statements made by Caroline and C.S. showing that the assault had occurred.

Caroline, C.S., and Switzer testified that the assault did not occur.

       But the jury decided to believe the State’s witnesses over Switzer’s witnesses,

and we must give deference to the jury’s determination of credibility. See Tex. Code

Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson, 23 S.W .3d at 8–9; Bowden v.

State, 628 S.W .2d 782, 784 (Tex. Crim. App. 1982) (holding that contradictions in

the evidence are reconciled by the jury and will not result in reversal so long as there

is enough credible testimony to support the verdict). The jury’s decision was not

manifestly unjust merely because it resolved conflicting views of the evidence in

favor of the State, and as an appellate court, we may not find the evidence to be




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factually insufficient merely because there are “reasonably equal competing theories

of causation.”. See Cain, 958 S.W .2d at 410; Steadman, 280 S.W .3d at 247.

      Viewing the evidence in a neutral light, we find no objective basis for holding

that the jury’s verdict was clearly wrong or manifestly unjust or that it was

contradicted by the great weight and preponderance of the evidence.             See

Steadman, 280 S.W .3d at 246; Lancon, 253 S.W .3d at 704; Watson, 204 S.W .3d

at 414–15, 417. Rather, the evidence presented at trial was sufficient to support the

jury’s verdict, and no contrary evidence exists that would render the evidence

factually insufficient under the applicable standard of review. See Lancon, 253

S.W .3d at 704; Watson, 204 S.W .3d at 414–15, 417. Accordingly, we overrule

Switzer’s sole point.

                                  VI. C ONCLUSION

      Having overruled Switzer’s sole point, we affirm the trial court’s judgment.

                                                    PER CURIAM


PANEL: W ALKER, J.; LIVINGSTON, C.J.; and DAUPHINOT, J.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 5, 2010




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