                         NUMBER 13-12-00513-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


ERIC GRIMALDO,                                                            Appellant,

                                          v.

THE STATE OF TEXAS,                                                       Appellee.


                    On appeal from the 28th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION

          Before Justices Rodriguez, Benavides, and Longoria
              Memorandum Opinion by Justice Rodriguez
      Appellant Eric Grimaldo challenges his conviction for continuous violence against

a family member. See TEX. PENAL CODE ANN. § 25.11 (West 2011). After a jury found

Grimaldo guilty, the trial court found he was a habitual felony offender and assessed

punishment at twenty-five years in the Institutional Division of the Texas Department of
Criminal Justice.      See id. § 12.42 (West Supp. 2011).                 By three issues, Grimaldo

contends that (1) the evidence is insufficient to support his conviction; (2) counsel

provided ineffective assistance; and (3) the trial court erred in failing to conduct a Garcia

hearing on an alleged conflict of interest. See United States v. Garcia, 517 F.2d 272,

277 (5th Cir. 1975), abrogated on other grounds by Flanagan v. United States, 465 U.S.

259, 263 (1984). We affirm.

                               I.       SUFFICIENCY OF THE EVIDENCE

        By his first issue, Grimaldo complains that the evidence is not sufficient to establish

that his wife, Loretta Sanchez, sustained bodily injury caused by his actions in a July 2011

incident.1 More specifically, he argues that there is no evidence that Sanchez suffered

pain or impairment of any physical condition that would support his conviction.

A.      Standard of Review and Applicable Law

        In evaluating the sufficiency of the evidence supporting a conviction, we view all

the evidence in a light most favorable to the verdict and ask "whether any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt."

Garcia v. State, 367 S.W.3d 683, 686–87 (Tex. Crim. App. 2012) (citing Jackson v.

Virginia, 443 U.S. 307, 319 (1979)). The trier of fact is the sole judge of the credibility of

witnesses and the weight, if any, to be given to their testimony. Id.; Brooks v. State, 323

S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). "The reviewing court must give


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            To convict Grimaldo of continuous violence against the family, the State must have established
the two incidents of violence alleged in the indictment. See TEX. PENAL CODE ANN. § 25.11(a) (West 2011).
The first incident occurred in August 2010, the second in July 2011. Regarding the first incident, the State
elicited testimony from Loretta Sanchez that in August 2010 Grimaldo threw a baby bottle at her and struck
her on the left side of her stomach. According to Sanchez, it caused a red mark, and it hurt. Grimaldo
does not challenge the sufficiency of the evidence to establish this assault. He challenges the evidence
only as to the second incident, which occurred in July of 2011.
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deference to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts."

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at

318–19).

       We measure the sufficiency of the evidence supporting a conviction "by the

elements of the offense as defined by the hypothetically correct jury charge for the case.”

Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997)). "Such a charge is one that accurately sets out

the law, is authorized by the indictment, does not unnecessarily increase the State's

burden of proof or unnecessarily restrict the State's theories of liability, and adequately

describes the particular offense for which the defendant was tried." Villarreal v. State,

286 S.W.3d 321, 327 (Tex. Crim. App. 2009).

       As authorized by the indictment in this case, a person commits continuous

violence against the family if the person (1) over a period of twelve months or less; (2) two

or more times engaged in conduct that constitutes an offense under section 22.01(a)(1)

against another person or persons; and (3) whose relationship to or association with

defendant is described by sections 71.0021(b) (dating), 71.003 (family) or 71.005

(household) of the family code.       See TEX. PENAL CODE ANN. § 25.11(a). A person

commits the offense of assault under section 22.01(a)(1) if he intentionally, knowingly, or

recklessly causes bodily injury to another. See id. § 22.01(a)(1) (West 2011).

       “‘Bodily injury’ means physical pain, illness, or any impairment of physical

condition.” Id. § 1.07(a)(8) (West 2011). This definition is “purposely broad and seems

to encompass even relatively minor physical contacts so long as they constitute more
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than mere offensive touching.” Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App.

1989) (en banc); see Aguilar v. State, 263 S.W.3d 430, 433 (Tex. App.—Houston [1st

Dist.] 2008, pet. ref’d); Wead v. State, 94 S.W.3d 131, 135 (Tex. App.—Corpus Christi

2003) (quoting Lane), rev’d on other grounds, 129 S.W.3d 126 (Tex. Crim. App. 2004).

Accordingly, any physical pain, however minor, will suffice to establish bodily injury.

Garcia, 376 S.W.3d at 688. In addition, the sensation of pain need not be

contemporaneous with the blow, and even when the victim denies that he felt physical

pain at the moment he was struck, his experience of pain later from the injury is sufficient

to show a bodily injury caused by the assault. See Aguilar, 263 S.W.3d at 434.

       The fact finder may also infer that a victim actually felt or suffered physical pain

because people of common intelligence understand pain and some of the natural causes

of it. Garcia, 367 S.W.3d at 688; Morales v. State, 293 S.W.3d 901, 910 n.3 (Tex.

App.—Texarkana 2009, pet. ref’d); Aguilar, 263 S.W.3d at 434; Randolph v. State, 152

S.W.3d 764, 774 (Tex. App.—Dallas 2004, no pet.); Goodin v. State, 750 S.W.2d 857,

859 (Tex. App.—Corpus Christi 1988, pet. ref’d). So the fact of a physical intrusion on

the body in the form of a cut or scrape can itself be sufficient evidence of the associated

physical pain necessary to show “bodily injury.” Goodin, 750 S.W.2d at 857 (citing

Bolton v. State, 619 S.W.2d 166, 167 (Tex. Crim. App. 1981)); but see Garcia, 367

S.W.3d at 688 (merely being very cold for a short period of time is insufficient to show

bodily injury). Such an inference may be made even without testimony from the victim

that he felt pain or that the injuries in question hurt. See Goodin, 750 S.W.2d at 859.

This Court has stated that, “[w]hile it may be preferable to have the complainant testify to

that element [of bodily injury], that testimony is not required to sustain a conviction.”
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Wead, 94 S.W.3d at 135 (finding sufficient evidence in the complainant’s appearance and

specifically his swollen eye to support an inference of physical pain); see Aguilar, 263

S.W.3d at 434; Wawrykow v. State, 866 S.W.2d 96, 99–100 (Tex. App.—Beaumont

1993, no pet.) (explaining that the fact finder may infer that the complainant felt physical

pain from the altercation itself even without direct evidence).

B.       The Evidence

         Grimaldo’s wife, Loretta Sanchez, testified that, in July 2011, she and Grimaldo

were fighting while they were in their van. Sanchez was driving, and Grimaldo was a

passenger. Sanchez explained that she “started bickering at him,” “he just backhanded

me and hit me in my face while we were parked at the red light,” and she started crying.

Sanchez explained that Grimaldo struck her right eye; “[h]e backhanded me with the back

end of his hand, but it was open, because he slapped me.” When asked how she felt

after Grimaldo struck her, Sanchez said, “I guess I was just angry like, I don’t know. It

didn’t hurt at the time, but he did cut me [a little] with his ring he was wearing, his wedding

band.”

         The trial court admitted pictures of Sanchez’s face as State’s Exhibits 1 and 2.

From the exhibits, Sanchez identified her right eye as the one Grimaldo struck that day

and said the pictures showed redness around the eye that was “kind of like slit a little bit in

the corner.”

         The trial court admitted Defendant’s Exhibit 1, which was Sanchez’s written

statement to the police. On cross-examination, when asked why she wrote on her

statement that on July 12, 2011, Grimaldo “lashed at my face” and not that he

“backhanded” her, Sanchez responded that by her choice of words she meant “[h]e just
                                              5
hit me like that,” and “Well, I’m not that smart I guess, hurts. He just backhanded me.”

Sanchez also testified that she made a mistake on her statement when she reported that

Grimaldo hit her left eye. On re-direct, Sanchez testified that Grimaldo hit her right eye

and that after he hit her, her right eye was red and “slit a little bit in the corner.” When

asked to describe how she felt when she filled out the police report, Sanchez responded,

“I was hurt, violated, abused, a lot of things.”

       Police Officer Manuel Dominguez testified for the State.           Office Dominguez

explained that when he responded to the July 2011 call, he observed a minor cut under

Sanchez’s eye.

C.     Discussion

       Grimaldo argues that there is no evidence that Sanchez suffered pain or

impairment of any physical condition that would support a finding that he caused her

bodily injury. The basis for his argument is that Sanchez gave different accounts of what

happened, including which eye was hit. Complaining of the self-contradictory nature of

Sanchez’s testimony, Grimaldo urges that “[n]o reasonable jury should have found Mr.

Grimaldo guilty with this sort of foundation as a basis for a finding of guilty.”          We

disagree.

       Viewing all the evidence in a light most favorable to the verdict, there is sufficient

evidence to show that Sanchez experienced pain, which satisfies the element Grimaldo

challenges on appeal. See Garcia, 367 S.W.3d at 686–87 (citing Jackson, 443 U.S. at

319); Aguilar, 263 S.W.3d at 434. This is established by Sanchez’s own testimony, the

nature of her injuries, and the affirmative indication in her written statement that the injury

was painful.
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       Sanchez testified that Grimaldo struck her in the face with the back of his open

hand and that she started crying. She received a cut under her eye that she said was

caused by Grimaldo’s wedding band. According to Sanchez’s testimony, the pictures of

her face after the incident showed some redness around her eye that was “kind of like slit

a little bit in the corner.” Officer Dominguez supported this testimony, explaining that he

observed a minor cut under Sanchez’s eye when he responded to the July 2011 call.

Sanchez’s written statement also reported that Grimaldo’s conduct was painful, and

Sanchez testified that when she filled out her report she “was hurt, violated, abused, a lot

of things.”

       The fact that Sanchez made contradictory or inconsistent statements does not

destroy her testimony as a matter of law. See McDonald v. State, 462 S.W.2d 40, 41

(Tex. Crim. App. 1971) (evidence legally sufficient to support aggravated assault

conviction based on prosecuting witness's testimony even though her testimony was

inconsistent); Reed v. State, 991 S.W.2d 354, 360 (Tex. App.—Corpus Christi 1999, pet.

ref’d). As the fact finder, the jury is entitled to judge not only the credibility of each

witness, but to accept some portions of a witness's testimony and reject other portions.

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) (en banc); Bowden v.

State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982) (op. on reh’g). Therefore, any

conflicts between Sanchez’s trial testimony and her prior statement were matters for the

jury to reconcile. Reed, 991 S.W.2d at 360. We must presume that the jury resolved

the conflict in favor of the prosecution and defer to that resolution. See Garcia, 367

S.W.3d at 687; Brooks, 323 S.W.3d at 899 n.13; Hooper, 214 S.W.3d at 13.

       Based on the evidence, the trier of fact, who was the sole judge of the credibility of
                                             7
witnesses and the weight to be given to their testimony, could have found by the direct

evidence or by inference that Grimaldo caused Sanchez bodily injury. See Garcia, 367

S.W.3d at 686–88; Goodin, 750 S.W.2d at 859; see also TEX. PENAL CODE ANN.

§§ 22.01(a)(1), 25.11(a).    We conclude the evidence was sufficient to support the

conviction and overrule Grimaldo’s first issue.

                       II.     INEFFECTIVE ASSISTANCE OF COUNSEL

       By the second issue, Grimaldo contends that his trial counsel provided him

ineffective assistance based on a conflict of interest. Grimaldo claims that (1) a conflict

existed because his defense counsel represented Sanchez in an earlier criminal case,

and (2) prejudice should be presumed because the conflict had an adverse effect on trial

counsel’s performance in this case.

A.     Standard of Review and Applicable Law

       We usually analyze ineffective assistance claims under the standard set forth in

Strickland v. Washington. 466 U.S. 668, 687 (1984). However, when one asserts

ineffective assistance based on a conflict of interest, Cuyler v. Sullivan provides the

proper standard for our review. 446 U.S. 335, 350 (1980); Acosta v. State, 233 S.W.3d

349, 352–53 (Tex. Crim. App. 2007) (holding that the Cuyler standard is the proper

standard to analyze claims of ineffective assistance because of a conflict of interest);

Owens v. State, 357 S.W.3d 792, 794 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d);

see Ramirez v. State, 13 S.W.3d 482, 487 (Tex. App.—Corpus Christi 2000, pet. dism’d).

       Under the Cuyler test, the appellant must show that (1) his counsel was burdened

by an actual conflict of interest, and (2) his counsel actually acted on behalf of those other

interests during the trial. Cuyler, 446 U.S. at 349–50; Acosta, 233 S.W.3d at 355. An
                                              8
actual conflict of interest exists if counsel is required to make a choice between advancing

his client's interest or advancing other interests, including his own, to the detriment of his

client's interests. Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997) (en

banc). The mere possibility of a conflict, without more, will not justify reversal. Cuyler,

446 U.S. at 350; Pollan v. State, 612 S.W.2d 594, 596 (Tex. Crim. App. 1981).

B.     Discussion

       Grimaldo claims, under the first prong of Cuyler, that defense counsel had an

actual conflict of interest in this case. See 446 U.S. at 349–50; Acosta, 233 S.W.3d at

355.   He argues that this contention is supported by the fact that counsel neither

thoroughly explored nor developed testimony regarding Sanchez’s assaultive conduct

toward him until the sentencing hearing. At that time, when counsel asked Sanchez, “So

if charges had been filed against you, you would have been guilty of a continuous family

violence charge with Eric Grimaldo as the victim . . . ?”, Sanchez answered, “Probably

so.” Grimaldo asserts that “[t]here may have been a self-defense issue or even a mutual

combat defense, but because [Sanchez’s] prior assaultive behavior was not adequately

brought up in trial, the issues were never put to the jury.”

       First, we disagree that counsel did not develop Sanchez’s assaultive behavior

further at the guilt phase of the trial, as Grimaldo argues.            Instead, during his

cross-examination of Sanchez, counsel elicited testimony that, as recently as two weeks

before trial, she threw something at Grimaldo and he called for an ambulance. Counsel

then attempted to elicit testimony about Sanchez, telling him that she was the one who

started the fight because she was high and that she felt bad about Grimaldo being

arrested. And he asked Sanchez about her own prior drug use and the possibility of
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losing her children to Child Protective Services. At the punishment hearing, counsel

again cross-examined Sanchez about her own assaultive behavior. He also questioned

Sanchez about her drug use, which included buying drugs for both Grimaldo and herself.

        Second, Grimaldo only speculates as to what might have happened had counsel

developed additional testimony during the guilt phase regarding Sanchez’s actions. The

mere possibility of a conflict as Grimaldo attempts to suggest through this argument,

without more, will not justify reversal. See Cuyler, 446 U.S. at 350; Pollan, 612 S.W.2d

at 596. We cannot conclude that there is a conflict of interest in this case based on mere

speculation. See Cuyler, 446 U.S. at 350.

        Finally, there is no evidence regarding any specific privileged information that

counsel obtained because of the prior representation that could have given rise to a

conflict of interest.2 The record does reveal, however, that after the court empanelled

the jury and before trial began, the State notified the court that Sanchez had previously

been represented by Grimaldo’s trial attorney and expressed concern about a possible

conflict of interest. Sanchez confirmed that Grimaldo’s trial counsel had represented her

some seven years earlier on a criminal matter.                     Grimaldo’s counsel admitted that


        2
           As the Texas Court of Criminal Appeals noted, "[G]enerally a claim of ineffective assistance of
counsel may not be addressed on direct appeal because the record on appeal is usually not sufficient to
conclude that counsel's performance was deficient." Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim.
App. 2005). Given that "[t]he reasonableness of counsel's choices often involve facts that do not appear in
the appellate record," "[a] petition for writ of habeas corpus usually is the appropriate vehicle to investigate
ineffective-assistance claims." Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002) (en banc).
Indeed, "[i]n most ineffective[-]assistance claims, a writ of habeas corpus is essential to gathering the facts
necessary to adequately evaluate such claims." Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App.
1997); see also Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) ("A substantial risk of failure
accompanies an appellant's claim of ineffective assistance of counsel on direct appeal. Rarely will a
reviewing court be provided the opportunity to make its determination on direct appeal with a record
capable of providing fair evaluation of the merits of the claim . . . .").


                                                      10
Sanchez had been a prior client and that she brought Grimaldo to his office in connection

with the present case. But counsel claimed that he was not aware of any conflict of

interest. And Sanchez specifically waived any attorney-client privilege that she might

have had concerning her prior communications with counsel and the questions he might

ask her in Grimaldo’s trial.

       Based on the above, more is required before we can conclude that a conflict

actually exists. See Acosta, 233 S.W.3d at 355. Nothing in the record substantiates

Grimaldo’s speculative contentions.       Counsel’s own denial of a conflict and his

cross-examination of Sanchez refute this argument.        The mere fact that Grimaldo’s

defense counsel had represented Sanchez does not prove any actual conflict. Grimaldo

has not shown that his trial counsel was required to make a choice between advancing

Grimaldo's interest or advancing other interests, including Sanchez’s or his own, to

Grimaldo’s detriment. See Monreal, 947 S.W.2d at 564. We conclude that Grimaldo

has not shown that his trial counsel was burdened by an actual conflict of interest. See

Cuyler, 446 U.S. at 350.

       Because Grimaldo did not satisfy the first prong of Cuyler, we need not address the

second prong—that counsel actually acted on behalf of those other interests during the

trial. See id.; see also TEX. R. APP. P. 47.1. We overrule Grimaldo’s second issue.

                                 III.   GARCIA HEARING

       By his third issue, Grimaldo contends that the trial court erred when it failed to

conduct a Garcia hearing, which is an inquiry into the propriety of multiple representations

if the trial court knows or reasonably should know that a particular conflict exists. See

United States v. Greig, 967 F.2d 1018, 1022 (5th Cir. 1992) (citing Garcia, 517 F.2d at
                                            11
277); Ramirez, 13 S.W.3d at 487. Acknowledging that the trial court held a hearing,

Grimaldo claims that it was not a Garcia hearing but was only a hearing to determine

whether Sanchez waived the attorney-client privilege; it was not a hearing to determine

whether Grimaldo would waive the conflict.

       A Garcia hearing is required only if the trial court has been alerted to or knows of

the existence of an actual conflict of interest. See Greig, 967 F.2d at 1022 (citing Garcia,

517 F.2d at 277); Ramirez, 13 S.W.3d at 487. Having concluded that the record, which

includes the hearing referenced by Grimaldo, does not support an actual conflict of

interest, the trial court did not err if it did not conduct a Garcia hearing. We overrule

Grimaldo’s third issue.

                                   IV.     CONCLUSION

       We affirm.

                                                               NELDA V. RODRIGUEZ
                                                               Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
11th day of July, 2013.




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