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NO. 12-10-00038-CR
 
IN
THE COURT OF APPEALS 
 
TWELFTH COURT OF
APPEALS DISTRICT
 
TYLER,
TEXAS
AMBER CHRIE
WHITWORTH,                 §                      APPEAL FROM THE 
APPELLANT
 
V.                                                                    §                      COUNTY
COURT AT LAW #1
 
THE
STATE OF TEXAS,
APPELLEE                                                   §                      ANGELINA
 COUNTY, TEXAS
                                                                                                                                                          

                           MEMORANDUM
OPINION
            Appellant
Amber
Chrie Whitworth appeals her conviction for family violence assault.  She raises
five issues on appeal.  We affirm.  
 
Background
            Appellant
was depressed for two weeks after the birth of her daughter, Ember.  After
listening to her complain for two weeks, William Tuburen, the child’s father,
told Appellant to leave if she was so unhappy.  But Tuburen would not let her
take the baby.  Appellant began to beat on Tuburen’s head and to scratch him. 
He wrapped his arms around her to prevent her hitting him, so she bit him.  Tuburen
called the police, who interviewed him and took photos of the bite mark and the
scratches.  Appellant was so irate that the police were unable to interview her,
but she made several inculpatory comments, including admitting scratching and
biting Tuburen.  Appellant was arrested and charged with family violence
assault.  The information alleged that 
 
on or about the 29th day of
March, A.D. 2009, . . . in the County of Angelina and the State of Texas, one
AMBER CHRIE WHITWORTH, Defendant, did then and there intentionally, knowingly,
or recklessly cause bodily injury to WILLIAM TUBUREN by BITING HIM.
 
            The
couple subsequently went to court and established custody of Ember, but by the
time of Appellant’s trial, the couple had reunited.  Tuburen sought to have the
charges dismissed.  During the trial, Tuburen had difficulty remembering the events
of the evening he made the complaint against Appellant, and offered excuses for
Appellant’s actions.  Tuburen’s main “testimony” came in the form of a
transcript of his previous statements, in which he said, 
 
And she started hitting me in the
back of the head.  There wasn’t no marks from that.  I told the police about
it, but they didn’t take no pictures of the back of my head.  And then she
started choking me.  She bit me, scratched me, and just all kinds of stuff. 
Eventually I went outside the house because I was tired of her beating on me.
 
Tuburen
agreed that these previous statements, which the State read to him on the
record, accurately reflected the facts of the assault that he had previously
stated he could not fully remember.  
            The
arresting officer testified about his investigation of the assault at the
Tuburen household. The officer stated that Tuburen “said that she had scratched
him and bit him.  And she basically said that she had bit him and scratched him
because he was cheating on her.”  He identified six photographs, which were
admitted into evidence and which showed Tuburen’s injuries.  
After
the State closed, Appellant moved for a directed verdict because there “was no
description of any bite by Mr. Tuburen.  He did not testify that any bite
that’s alleged in the Complaint caused any pain.  There’s insufficient evidence
for this case to go to the jury and [we] ask for a directed verdict.”  The
court denied the motion.
Appellant
then testified she was depressed after Ember’s birth, and that on the morning
of the assault, she found “phone messages from some girl, nude pictures or
whatever.”  She testified that she was upset and was going to leave, but then she
and Tuburen got into a confrontation over her taking the baby, and they “both
hit each other.”  She also said that at one point, Tuburen was on her, so she bit
him on the shoulder or arm to make him let her up or get off her.  When she bit
him, he released her, and he then went outside and called the police. Appellant
offered photographs her grandmother had taken of bruises on Appellant’s legs,
and testified that her legs had been bruised in the scuffle.
The
jury convicted Appellant of family violence assault, and the trial court
individually polled the jury to ensure that each of them had found Appellant
“guilty.”  The court sentenced Appellant to ninety days in jail, probated for
one year, and assessed a two hundred dollar fine. 
Appellant
filed two motions for new trial. The first motion alleged insufficiency of the evidence
because there was no testimony by Tuburen that he had received bodily injury or
that he experienced any pain as a result of Appellant’s bite.  The trial court
denied this motion without a hearing.  The second motion alleged jury
misconduct because two jurors were “pressured to vote guilty because it was the
lunch hour.”  After conducting a hearing during which a juror testified about the
deliberations, the trial court denied the motion.
 
Motion For New Trial
 Appellant
complains that the trial court erroneously denied her second motion for new
trial.  In her first issue, she argues that the jury engaged in misconduct by
considering evidence outside the record.  In her fourth issue, she argues that
the trial court erred in denying her motion for new trial based on that
evidence.  
The
Hearing
The
State objected to the court’s conducting a hearing on Appellant’s motion for
new trial, noting that a motion for new trial containing an allegation of jury
misconduct requires a sworn affidavit in support of the motion.  Nonetheless,
the court held a hearing at which Juror Griffin was allowed to testify. 
Griffin testified that the verdict was not “unanimous” because she “felt that
we were being pressured to hurry up for lunch.”  Griffin “strongly” felt
Appellant was not guilty, but she voted “guilty,” and she then told the judge
her vote was “guilty” when the jury was polled.  Griffin testified that she
regretted her decision not to vote her conscience.  She also stated that,
during jury deliberations, another juror said, “Oh, it has probably happened
before.” Griffin said she immediately corrected the juror, explaining that
there was no evidence of any other violence.  And she testified that during the
jury discussions, a juror said that Appellant had “probably done this before.” 
The judge denied the motion after the hearing.
Waiver
            To
preserve error caused by juror misconduct, the defendant must either move for a
mistrial or file a motion for new trial supported by affidavits of a juror or
other person in a position to know the facts of the alleged misconduct.  See
Trout v. State, 702 S.W.2d 618, 620 (Tex. Crim. App. 1985); Menard
v. State, 193 S.W.3d 55, 59 (Tex. App.–Houston [1st Dist.] 2006, pet.
ref’d).  Appellant did not move for a mistrial and did not file an affidavit to
support the allegations of jury misconduct in her motion for new trial. 
Consequently, she has waived her jury misconduct complaint.  See Trout,
702 S.W.2d at 620; Menard, 193 S.W.3d at 59.  But even if we assumed Appellant preserved the issue, she
could not prevail.  
            To demonstrate jury
misconduct, a defendant must show that (1) the misconduct occurred and (2) the
misconduct resulted in harm to the movant.  Gomez v. State, 991
S.w.2d 870, 871 (Tex. App.–Houston [1st Dist.] 1999, pet. ref’d) (citing Garza
v. State, 630 S.W.2d 272, 274 (Tex. Crim. App. [Panel Op.] 1981)).  The
issue of whether jury misconduct occurred is determined by the trial court.  Id.
at 871.  The finding of the trial court that no jury misconduct occurred is
binding on the reviewing court and will be reversed only where a clear abuse of
discretion is shown.  Id.  
            A
new trial must be granted when “after retiring to deliberate, the jury has
received other evidence . . . .”  Tex.
R. App. P. 21.3(f).  Jurors must base their decisions on guilt and
punishment on the “information obtained in the courtroom: the law, the
evidence, and the trial court’s mandates.”  Ocon v. State, 248
S.W.3d 880, 884 (Tex. Crim. App. 2009).  But jurors are prohibited from
testifying “as to any matter or statement occurring during the jury’s
deliberations, or the effect of anything on any juror’s mind or emotions or
mental processes, as influencing any juror’s assent to the verdict.”  Tex. R. Evid. 606(b); State v.
Lewis, 151 S.W.3d 213, 219 (Tex. App–Tyler 2004, pet. ref’d).  However,
a juror may testify about (1) whether any outside influence was improperly
brought to bear upon any juror, or (2) to rebut a claim that the juror was not
qualified to serve.  Tex. R. Evid. 606(b).
            Here,
there was no evidence of influence or evidence from outside the jury room. Griffin
testified about “matter[s] or statement[s] occurring during the jury’s
deliberations,” and the effect of those matters or statements on the
deliberative process.  Rule 606(b) prohibits this testimony.  Because the
record does not include any admissible evidence that provides a proper basis
for granting a motion for new trial, we could not have concluded that the trial
court abused its discretion in denying the motion, even if the issue were
preserved.
            Appellant’s
first and fourth issues are overruled.
 
Evidentiary Sufficiency
            In
her second and third issues, Appellant argues that the evidence is legally and
factually insufficient to support her conviction.  More specifically, she
contends that the State’s evidence fails to establish that the bite she
inflicted on Tuburen caused him any physical pain or any impairment of his
physical condition. 
Standard of Review
            “Legal
sufficiency is the constitutional minimum required by the Due Process Clause of
the Fourteenth Amendment to sustain a criminal conviction.”  Escobedo v.
State, 6 S.W.3d 1, 6 (Tex. App.–San Antonio 1999, pet. ref’d) (citing
Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-88,
61 L. Ed. 2d 560 (1979)).  The standard of review is whether any rational trier
of fact could have found the essential elements of the offense beyond a
reasonable doubt.  Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; LaCour
v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000).  The evidence is
viewed in the light most favorable to the verdict.  Jackson, 443
U.S. at 319, 99 S. Ct. at 2789; LaCour, 8 S.W.3d at 671.  The
conviction will be sustained “unless it is found to be irrational or
unsupported by more than a ‘mere modicum’ of the evidence.”  Moreno v.
State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).  The jury is the
sole judge of the credibility of witnesses and of the weight to be given their
testimony.  Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App.
1994).  Any reconciliation of conflicts and contradictions in the evidence is
entirely within the jury’s domain.  Losada v. State, 721 S.W.2d
305, 309 (Tex. Crim. App. 1986).  If a reviewing court finds the evidence
legally insufficient to support a conviction, the result is an acquittal.  Tibbs
v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d
652 (1982).  
            In
conducting a factual sufficiency review of the evidence supporting the jury’s
verdict, we consider all of the evidence weighed by the jury that tends to
prove the existence of the elemental fact in dispute and compare it to the
evidence that tends to disprove that fact.  See Santellan v. State,
939 S.W.2d 155, 164 (Tex. Crim. App. 1997).  Ultimately, we must ask whether a
neutral review of all the evidence, both for and against the finding,
demonstrates that the proof of guilt is so obviously weak as to undermine our
confidence in the jury’s determination, or the proof of guilt, although
adequate if taken alone, is greatly outweighed by contrary proof.  Johnson
v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Ortiz
v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002) (verdict will be set
aside “only if the evidence supporting guilt is so obviously weak, or the
contrary evidence so overwhelmingly outweighs the supporting evidence, as to
render the conviction clearly wrong and manifestly unjust”); see Sims v.
State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003).  A clearly wrong and
manifestly unjust verdict occurs where the jury’s finding “shocks the
conscience” or “clearly demonstrates bias.”  Jones v. State, 944
S.W.2d 642, 648 (Tex. Crim. App. 1997).
Applicable Law
            A
person commits the offense of family violence assault if she “intentionally,
knowingly, or recklessly causes bodily injury to another, including the person’s
spouse.”  Tex. Penal Code Ann. § 22.01(a)
(Vernon Supp. 2009).  “Bodily injury” is defined as “physical pain, illness, or
any impairment of physical condition.”  Tex.
Penal Code Ann.  § 1.07(8) (Vernon Supp. 2009).  Pain is “an unpleasant
sensation, occurring in varying degrees of severity resulting from injury,
disease, or emotional disorder.”  American
Heritage Dictionary of the English Language 942 (1978).
            The
statutory definition of “bodily injury” appears to be purposefully broad and
seems to encompass even relatively minor physical contacts so long as they
constitute more than mere offensive touching.  Lane v. State,
763 S.W.2d 785, 786 (Tex. Crim. App. 1989).  The failure of a
complaining witness to specifically testify that he felt pain or that his
bruises and strain hurt did not defeat the defendant’s conviction for
aggravated assault. Goodin v. State, 750 S.W.2d 857, 859 (Tex.
App. –Corpus Christi 1988, pet ref’d).  In Goodin, the defendant
drove with the complaining witness hanging onto the hood of a car, causing the
complaining witness strains and bruises.  The court noted that 
 
[t]he terms “physical pain,”
“illness,” and “impairment of physical condition” are terms of common usage,
and when construed “according to the fair import of their terms,” in the
context used  . . . are not “so vague that men of common intelligence must
necessarily guess at its meaning and differ as to their application.” 
 
                People of common
intelligence understand both physical pain and some of the natural causes of
pain.  23 C.J.S. Criminal Law § 902 (1961) recognizes the fundamental [principle]
that “[i]n arriving at their verdict the jury are not confined to a
consideration of the palpable facts in evidence, but they may draw reasonable
inferences and make reasonable deductions therefrom . . . .”  It is a
reasonable inference men of common intelligence could certainly make that [the
victim’s] bruises and muscle strain caused him “physical pain” according to the
fair import of that term as used in section 1.07(a)(7).  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.”
 
 
Id.
(citations and brackets omitted).
Analysis
            Appellant
contends that since Tuburen did not specifically say that the bite she
inflicted caused him any physical pain or impairment, the evidence is legally
insufficient to establish the element of bodily injury.  The State’s primary
evidence is a transcript of Tuburen’s previous statements that Appellant hit
him in the back of the head, choked him, bit him, and scratched him.  There is also
the testimony of the arresting officers who testified Tuburen said Appellant
bit him. Appellant testified and admitting biting Tuburen while he was holding
her.  According to Appellant’s testimony, the bite was so effective (i.e.
painful) that Tuburen released her.  Finally, the State introduced the
photographs the officers took of the scratches and the bite mark, with some of
the photographs showing a glistening surface indicating an abrasion or cut into
the subcutaneous layer of skin.  From this evidence, a rational trier of fact
could have found that Appellant caused bodily injury to Tuburen.  Therefore,
the evidence is legally sufficient to support Appellant’s conviction.
            As
to factual sufficiency of the evidence to show bodily injury, there is no
evidence contradicting that the bite occurred or that Tuburen responded to the
bite by releasing Appellant.  Therefore, the evidence is also factually
sufficient to support Appellant’s conviction.  
            Having
reviewed the record in its entirety, we conclude that the evidence is legally
and factually sufficient to establish that bodily injury occurred.  Therefore,
the jury was entitled to find Appellant guilty of family violence assault.  Accordingly,
Appellant’s second and third issues are overruled.
 
Motion for Instructed Verdict
            In
her fifth issue, Appellant contends the trial court erred in denying her motion
for instructed verdict at the close of the State’s case.  Appellant contends,
as she did in her second and third issues, that because the element of bodily
injury was not established, the trial court erred in denying her motion for
instructed verdict.  We have held that the evidence is legally and factually
sufficient to establish bodily injury.  Therefore, we hold the trial court did
not err in denying her motion for instructed verdict.  Appellant’s fifth issue
is overruled.  
 
Disposition
            The
judgment of the trial court is affirmed.
 
 
   
SAM GRIFFITH   
          
Justice
Opinion delivered September 1, 2010.
Panel
consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                            (DO
NOT PUBLISH)            
 

