                NUMBERS 13-16-00392-CR AND 13-16-00393-CR

                                  COURT OF APPEALS

                         THIRTEENTH DISTRICT OF TEXAS

                            CORPUS CHRISTI - EDINBURG


MARCUS ESEDE ALI,                                                                   Appellant,

                                                v.

THE STATE OF TEXAS,                                                                  Appellee.


                 On appeal from the County Court at Law No. 4
                           of Travis County, Texas.


                           MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Rodriguez and Benavides
             Memorandum Opinion by Justice Benavides

       Appellant Marcus Esede Ali challenges the sufficiency of the evidence to support

his convictions for misdemeanor assault and unlawful restraint.1 TEX. PENAL CODE ANN.

§§ 20.02(a), 22.01(a)(1). We affirm.




       1 Ali was charged separately for each misdemeanor, but they were tried together. Judgment was
issued separately for each. Both were appealed and the cases were consolidated on appeal.
                                         I.      BACKGROUND

       During trial Megan Anderson testified that she and Ali were at his apartment in

Austin, Texas, in the early morning hours of December 15, 2015.2 After an evening of

movie watching, they began to argue about Ali’s faithfulness in the relationship. According

to Anderson, during their argument, Ali stood up and raised his voice. He sounded

aggressive. Anderson became upset, announced she was leaving, and went into the

bedroom to get her belongings. Ali followed her into the bedroom and grabbed her. She

explained that, “He put his arms around me and pushed me into a wall and held me there.”

Anderson described Ali’s level of force while grabbing her as a six on a scale to ten.

Anderson further testified:

              I told him to let me go and I tried to get away from him, and he grabbed
       my hands and came to me to restrain me. So I struggled to get away until
       he put his arm against my chest and lifted me off the ground. That whole
       ordeal lasted several minutes and I told him I was going to hit him if he didn't
       put me down because I was scared and I wanted to leave.

       During the struggle, Anderson hit Ali to make him turn her loose and continued to

strike him until he let her go. Anderson grabbed her bag and as she turned around, Ali

came at her “and picked me up over his shoulder and then slammed me down on to a mat

that was on the floor.” She again told Ali she was leaving. When she went into the living

room to get her shoes, Ali kicked them under the sofa and began yelling at her saying that

she was worthless, a whore, and “should just go kill herself.” Ali followed her out of the

apartment to her car while he continued to yell at her. He then dumped her belongings on




         2 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, this case was

transferred to this Court from the Third Court of Appeals in Austin. See TEX. GOV’T CODE ANN. § 73.001
(West, Westlaw through 2017 1st C.S.). During the appeal, the case was remanded to the trial court to
appoint new appellate counsel.


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the hood of her car. Anderson testified that she was terrified during the altercation and

very scared when she called 911 from the street outside the apartment complex.

        Anderson requested an emergency protective order the night of the incident based

upon her fear that Ali would “come after [her] and hurt [her] again.” 3 A police officer

photographed Anderson early the morning of December 15. The photographs which were

admitted as exhibits at trial reflected a cut on Anderson’s left middle finger that she got

during the incident with Ali. Additional photographs of Anderson taken several days after

December 15 showed a bruise on her right hip, a bruise on her left bicep, and a bruise on

her right arm. 4 Anderson testified she received those bruises on December 15 from Ali

holding her against the wall and throwing her down.

        Ali testified to a version that differed in significant respects from Anderson’s

testimony. Like Anderson he acknowledged the two had been in a relationship for months

before the December 15 incident. He testified that on previous occasions when Anderson

was angry and threatened to leave, his response was usually to tell her to go. He stated,

“[f]rom previous days she told me that when she's having a flair up, we call them episodes,

that all she wanted from me was to tell her I loved her and to hug her and tell her everything

was going to be okay.” Ali explained that on December 15, 2015, he was just doing what

he thought Anderson wanted him to do—hold her and tell her everything would be all right.

Anderson threatened to hit him if he did not let her go. As a result, he released her but

she still struck him. Photographs of Ali taken December 15 revealed abrasions to his neck




         3 Anderson testified that she had bruising and soft tissue injuries to her upper back from being thrown

to the ground.
        4The trial court admitted as exhibits photographs of both Anderson and Ali taken on December 15
and photographs of Anderson taken a few days later.

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and shoulder as well as an injury to his lip. Ali denied throwing Anderson to the floor.

Instead, he claimed they fell and she landed on top of him. Ali acknowledged calling

Anderson names and going out to her car. He denied grabbing Anderson’s arms during

the incident and characterized the level of force he used to hold her as “barely any.”

        Ali waived his right to a jury trial and elected a bench trial. The trial judge found Ali

guilty of restraining and assaulting Anderson by seizing her and holding her against the

wall. See TEX. PENAL CODE ANN. §§ 20.02(a), 22.01(a)(1). The court sentenced Ali to

thirty days on each offense to run concurrently. Ali timely appealed and the trial court

certified his right to appeal.

                                  II.     SUFFICIENCY OF THE EVIDENCE

        By his sole issue, Ali challenges the sufficiency of the evidence to support assault

or unlawful restraint.

        A.      Standard of Review

        As an initial matter, the Court is required to apply the legal sufficiency standard from

Jackson v. Virginia, 443 U.S. 307, 319 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex.

Crim. App. 2010); see also Williams v. State, No. 03-11-00598-CR, 2013 WL 6921489 at

*6 n.10 (Tex. App.—Austin Dec. 31, 2013, pet. ref’d.) (mem. op., not designated for

publication). The Brooks court held that the Jackson 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.” Id.5 Jackson requires the reviewing court to “view[] the evidence in the light most


         5 “[Texas] no longer employ[s] distinct legal and factual sufficiency standards when reviewing the

sufficiency of the evidence to sustain a criminal conviction.” See Merritt v. State, 368 S.W.3d 516, 525 n.8
(Tex. Crim. App. 2012); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.).


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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.” Jackson, 443 U.S.

at 319 (emphasis in original). When a reviewing court views the evidence in the light most

favorable to the verdict, it “is required to defer to the [fact-finder]’s credibility and weight

determinations because the [fact-finder] is the sole judge of the witnesses’ credibility and

the weight to be given their testimony.” Brooks, 323 S.W.3d at 899.

        B.      Applicable Law and Discussion

        1. Assault-Family Violence

        Ali argues that the evidence to support his conviction for assault is insufficient. A

person commits an assault if he “intentionally, knowingly, or recklessly causes bodily injury

to another, including the person’s spouse.” TEX. PENAL CODE ANN. § 22.01(a)(1).6 Bodily

injury is defined as “physical pain, illness, or any impairment of physical condition,” and is

proved if the evidence shows that the victim suffered “some” pain. See Id. § 1.07(a)(8);

Lane v. State, 763 S.W.2d 785, 787 (Tex. Crim. App. 1989). The definition is purposefully

broad and encompasses even relatively minor physical contacts so long as they constitute

more than mere offensive touching. Lane, 763 S.W.2d at 787; Hernandez v. State, 268

S.W.3d 176, 179 (Tex. App.—Corpus Christi 2008, no pet.). “Any physical pain, however

minor, will suffice to establish bodily injury.” Garcia v. State, 367 S.W.3d 683, 688 (Tex.

Crim. App. 2012).

        Anderson testified that Ali grabbed her and held her against the wall. The trial court

saw photographs of bruises on Anderson’s arms and a cut on her middle left finger that

she testified were caused during the altercation with Ali. She further testified that she felt


        6The trial court also made a finding of family violence pursuant to article 42.013 of the Texas Code
of Criminal Procedure based upon the dating relationship between Anderson and Ali.

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pain while Ali held her up against the wall. Anderson’s testimony provided evidence of the

elements of assault. In addition, Ali admitted that he held Anderson against the wall,

although he denied grabbing her arms.

       Ali argues the evidence is insufficient based on his testimony, not the view the Court

is required to adopt. The fact-finder was charged with making the credibility assessments

necessary to determine Ali’s guilt. This Court may not substitute its judgment for that of

the fact-finder. Brooks, 323 S.W.3d at 899. “We decline to question over 150 years of

criminal and civil jurisprudence in this State and construe constitutional and statutory

mandates to review ‘questions of fact’ to also require direct-appeal courts to sit as

‘thirteenth jurors’ in criminal cases.” See id. at 911. The evidence of assault is sufficient

to meet the requirements of Jackson.

       2. Unlawful Restraint

       Ali also challenges the sufficiency of the evidence to support his conviction for

unlawful restraint, again based upon his version of events. A person commits an unlawful

restraint “if he intentionally or knowingly restrains another person.” TEX. PENAL CODE ANN.

§ 20.02(a). ‘“Restrain’ means to restrict a person's movements without consent, so as to

interfere substantially with the person’s liberty . . . by confining the person. Restraint is

‘without consent’ if it is accomplished by: (A) force, intimidation, or deception . . .” Id. §

20.01(1)(A). Anderson testified that she wanted to leave but Ali prevented her from doing

so by grabbing her and using force to keep her against the wall for a short while. Her

testimony furnishes evidence that Ali used force to intentionally or knowingly restrain her.

Ali’s testimony that he held her against the wall until after she told him to let her go

corroborates her testimony on the issue of restraint. The evidence of unlawful restraint is



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sufficient. See Adelman v. State, 828 S.W.2d 418, 423 (Tex. Crim. App. 1992); Zuniga v.

State, No. 13-12-00346-CR, 2014 WL 586004 at *5 (Tex. App.—Corpus Christi Feb. 13,

2014, pet. ref’d, not designated for publication).

       We overrule Ali’s sole issue.

                                       III.   CONCLUSION

              We affirm the trial court’s judgments.



                                                           GINA M. BENAVIDES,
                                                           Justice


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

Delivered and filed the
28th day of June, 2018.




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