




02-10-433-CR





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-10-00433-CR
 
 



Fred Harris Johnson


 


APPELLANT




 
V.
 




The State of Texas


 


STATE



 
 
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FROM Criminal
District Court No. 4 OF Tarrant COUNTY
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OPINION
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I. 
Introduction
          Appellant
Fred Harris Johnson appeals his conviction and six-year sentence for assault
causing bodily injury to a family member with a prior conviction.[1]
 He contends in three points that the evidence is insufficient to support his
conviction and that the verdict and his punishment should be set aside because
the trial court mistakenly announced when reading the verdict forms that the
jury had found him guilty of “aggravated assault-bodily injury.”  We affirm.
II. 
Background
          Tabatha
Clark is Appellant’s wife.  Clark testified that she went to an apartment
complex in Arlington on June 5, 2009, to meet her friend Felicia for lunch.  While
she waited for Felicia to arrive, she stood outside conversing with Kevin
Samuels, a mutual acquaintance of hers and Appellant’s.[2]
 Clark further testified, however, that Appellant arrived unexpectedly and
began fighting with Samuels.  Clark testified that she tried to stop the fight
and ran up a flight of stairs when she was unable to do so.  Appellant followed
her up the stairs, grabbed her, punched and kicked her, and held her over the
balcony railing.  Clark said that it hurt when Appellant kicked and hit her.  Clark
testified that Appellant eventually resumed fighting with Samuels before
leaving.  Clark also testified that she sustained a stab wound at some point
during the altercation but that she never saw a knife in Appellant’s hands and
did not know when she was stabbed.  Clark further stated that she did not think
Appellant intentionally stabbed her.
          Appellant
testified after being admonished and said that he had overheard a telephone
conversation between Clark and Samuels and that because of what he heard, he
borrowed a neighbor’s car and drove to Samuels’s apartment.  Appellant
testified that he entered Samuels’s apartment and found Samuels naked and Clark
naked from the waist down, along with a plate of cocaine and marijuana.  Appellant
described Samuels as the aggressor in that Samuels grabbed a steak knife soon
after the fight began, and he testified that he retaliated against Samuels.  Appellant
said that he accidentally stabbed Clark when she tried to break up the fight, and
he testified that he left when Samuels followed him to the door with a gun.  Appellant
denied hitting, punching, or holding Clark over the balcony railing during the
incident.  He did acknowledge, though, that he had twice been convicted of
assaulting Clark.
          The
indictment alleged in count one that Appellant intentionally or knowingly
caused bodily injury to Clark, a member of his family or household, by stabbing
or cutting her with a deadly weapon, a knife, and it alleged in count two that
Appellant intentionally or knowingly caused bodily injury to Clark, a member of
his family or household, by striking her with his hand or by kicking her with
his foot.  The jury found Appellant not guilty of the offense alleged in count
one, but it found him guilty of the offense alleged in count two.  After
hearing additional evidence during the punishment phase, the jury assessed a
six-year sentence of imprisonment.  The trial court subsequently entered a
judgment of acquittal as to count one of the indictment and a judgment of
conviction in accordance with the jury’s verdict and punishment assessment as
to count two.  This appeal followed.
III. 
Sufficiency of the Evidence
          Appellant
argues in his third point that the evidence is legally and factually
insufficient to support the jury’s verdict.  Specifically, he argues that “[i]t
is more likely than not that the injuries received by Clark were a result of
her attempting to break up the fight between the Appellant and Samuels and were
not intentionally inflicted by the Appellant.”
A. 
Standard of Review
The
court of criminal appeals has held that there is no meaningful distinction
between the legal sufficiency standard and the factual sufficiency standard.  Brooks
v. State, 323 S.W.3d 893, 895, 912 (Tex. Crim. App. 2010) (overruling Clewis
v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App. 1996)).  Thus, the Jackson
standard, which is explained below, 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. at 912.
In our
due-process review of the sufficiency of the evidence to support a conviction,
we view all of the evidence in the light most favorable to the verdict to
determine whether 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 (1979); Isassi v. State, 330
S.W.3d 633, 638 (Tex. Crim. App. 2010).
          This
standard gives full play to the responsibility of the trier of fact to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.  Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638.  The trier of
fact is the sole judge of the weight and credibility of the evidence.  See
Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Brown v. State, 270
S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075
(2009).  Thus, when performing an evidentiary sufficiency review, we may not
re-evaluate the weight and credibility of the evidence and substitute our
judgment for that of the factfinder.  Williams v. State, 235 S.W.3d 742,
750 (Tex. Crim. App. 2007).  Instead, we Adetermine
whether the necessary inferences are reasonable based upon the combined and
cumulative force of all the evidence when viewed in the light most favorable to
the verdict.@  Hooper v. State, 214 S.W.3d 9,
16–17 (Tex. Crim. App. 2007).  We must presume that the factfinder resolved any
conflicting inferences in favor of the verdict and defer to that resolution.  Jackson,
443 U.S. at 326, 99 S. Ct. at 2793; Isassi, 330 S.W.3d at 638.
B. 
Application
          Count
two of the indictment alleged that Appellant “intentionally or knowingly
cause[d] bodily injury to Tabatha Clark, a member of [his] family or household,
by striking her with his hand” or “by kicking her with his foot” and that
Appellant had been convicted for an instance of assault causing bodily injury
to a family member, the assault occurring on August 24, 2007.  The court’s
charge tracked the language in the indictment.  Appellant does not dispute that
Clark was a member of his family or household or that he had previously been
convicted of assault causing bodily injury to a family member.
          Appellant
argues that there is insufficient evidence that he intentionally or knowingly
injured Clark because “it is more likely than not” that she was injured while
attempting to break up the fight.  However, Appellant seems to focus only on
Clark’s stab wound, ignoring both the indictment’s allegations that he struck
her with his hand or kicked her with his foot and Clark’s testimony that
Appellant followed her up the stairs, grabbed her, punched and kicked her, and
held her over the balcony railing after she had attempted to break up the fight
between Appellant and Samuels.  Samuels did not testify, and Appellant denied
hitting, punching, or holding Clark over the balcony railing during the
incident.  But the jury is the sole judge of the weight and credibility of the
evidence, and it resolves conflicts in the testimony, weighs the evidence, and
draws reasonable inferences from that evidence.  See Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638; Brown,
270 S.W.3d at 568; see also Tex. Code Crim. Proc. Ann. art. 38.04.  In
carrying out its factfinding functions, the jury could have chosen to believe
Clark and to not believe Appellant.  Viewing all of the evidence in the light
most favorable to the verdict, we hold that a rational trier of fact could have
determined beyond a reasonable doubt that Appellant intentionally or knowingly
caused bodily injury to Clark, a member of his family or household, by striking
her with his hand or by kicking her with his foot.  See Jackson, 443
U.S. at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638; see also
Tex. Penal Code Ann. § 22.01(a), (b).  We therefore overrule Appellant’s
third point.
IV. 
Pronouncement of Verdict
          Appellant
contends in his first point that the trial court accepted an incorrect verdict
and that “[t]he acceptance of an incorrect verdict by the Court and the jury is
a nullity and should be set aside.”  Appellant argues in his second point that
the trial court’s incorrect pronouncement affected the jurors’ deliberations on
punishment and that his punishment should be set aside.
          The
court’s charge in the guilt-innocence stage authorized the jury to find
Appellant guilty of either “Aggravated Assault with a Deadly Weapon” or
“Assault Causing Bodily Injury to Another — prior conviction family member.”  As
indicated on the verdict forms, the jury found Appellant not guilty of
aggravated assault with a deadly weapon but found him guilty of assault causing
bodily injury with a prior conviction.  When the trial court read the jury’s
verdict aloud in open court, the trial court incorrectly stated that the jury
had found Appellant “guilty of the offense of aggravated assault, bodily
injury, to another, prior conviction family member as alleged in Count Two of
the indictment.”[3]  Neither side objected to
the trial court’s misstatement, and each member of the jury indicated when
polled that it was their individual verdict.  Further, the court’s charge on
punishment submitted the correct offense of assault bodily injury to a family
member with the appropriate sentencing range of two to ten years’ imprisonment.
 See Tex. Penal Code Ann. § 12.34(a); see also id. § 22.01(a),
(b).  After deliberating, the jury assessed a six-year sentence of confinement,
and the trial court’s written judgment correctly provides that Appellant was
convicted of assault bodily injury to a family member and was sentenced to six
years’ confinement.  Although he asks that the verdict and sentence be set
aside, Appellant acknowledges that he has not cited any authority that would
authorize us to do so.
          Our
sister court recently addressed a similar but not identical scenario in Cross
v. State, No. 13-11-00041-CR, 2011 WL 3840505, at *1–2 (Tex. App.—Corpus
Christi Aug. 29, 2011, no pet.) (mem. op., not designated for publication). 
Cross had originally pleaded guilty to tampering with a governmental record,
but the trial court stated that it found her guilty of tampering with physical
evidence when adjudicating her guilty and revoking her community supervision.  Id.
at *1.  The trial court’s judgment, however, correctly reflected that Cross had
pleaded guilty to tampering with a governmental record.  Id.  The
appellate court noted that the trial court’s misstatement did not involve the
oral pronouncement of sentence and that the written judgment would thus control
over the oral pronouncement, and the court held that Cross was not harmed by
the minor discrepancy between the trial court’s oral statement and its written
judgment.  Id. at *2.
          Appellant
argues in his first and second points that the trial court accepted an
incorrect verdict, that the jury was affected by the trial court’s misstatement
in its deliberations, and that the verdict and his sentence must therefore be
set aside.  We disagree.  First, Appellant did not object at the time of the
trial court’s misstatement and has therefore not preserved his complaint for
appellate review.  See Tex. R. App. P. 33.1(a)(1); Lovill v. State,
319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009).  Also, the trial court’s written
documents generally control over oral pronouncements—except for the oral
pronouncement of a defendant’s sentence—meaning the trial court’s misstatement
is harmless because it did not involve the oral pronouncement of Appellant’s
sentence and because the charge on punishment and the written judgment
correctly recited the offense for which the jury found Appellant guilty, that
being assault causing bodily injury to a family member.  Compare Eubanks v.
State, 599 S.W.2d 815, 817 (Tex. Crim. App. 1980) (“The written order of
the court controls over an oral announcement.”), with Coffey v. State,
979 S.W.2d 326, 328 (Tex. Crim. App. 1998) (“[W]hen there is a variation
between the oral pronouncement of sentence and the written memorialization of
the sentence, the oral pronouncement controls.”).  We thus overrule Appellant’s
first point.
          Appellant
also argues that the jury was affected in its deliberations by the trial
court’s erroneous statement that his offense was aggravated.  Again, we note
that Appellant did not object when the trial court misspoke, and we further
note that Appellant has cited nothing in the record to suggest that the jury
was misled or otherwise affected by the mistake.  The court’s charge on
punishment correctly listed the offense for which the jury had found Appellant
guilty and correctly identified the applicable sentencing range.  Absent
evidence to the contrary, we presume that the jury followed the trial court’s
instructions as set forth in the charge.  See Resendiz v. State, 112
S.W.3d 541, 546 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 1032
(2004); Walker v. State, 300 S.W.3d 836, 850 (Tex. App.—Fort Worth 2009,
pet. ref’d).  Further, the jury assessed six years’ imprisonment when it could
have assessed as many as ten years.  See Tex. Penal Code Ann. § 12.34(a). 
Thus, Appellant has not shown that the jury was affected in its deliberations
by the trial court’s oral misstatement.  We thus overrule Appellant’s second
point.
V. 
Conclusion
          Having
overruled each of Appellant’s three points, we affirm the trial court’s
judgment.
 
 
ANNE GARDNER
JUSTICE
 
PANEL: 
GARDNER,
MCCOY, and GABRIEL, JJ.
 
PUBLISH
 
DELIVERED:  May 31, 2012




 




[1]See Tex. Penal Code
Ann. § 22.01(a), (b) (West 2011) (defining offense of assault); id. §
12.34(a) (West 2011) (authorizing term of imprisonment “of not more than 10
years or less than 2 years” for a third-degree felony).


[2]Samuels and Appellant had
previously been roommates.


[3]The trial court correctly
stated that the jury had found Appellant not guilty as to Count One.


