                                  NO. 12-19-00274-CR

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 MICHAEL CAIN CARDEN,                             §      APPEAL FROM THE
 APPELLANT

 V.                                               §      COUNTY COURT AT LAW

 THE STATE OF TEXAS,
 APPELLEE                                         §      HOUSTON COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Michael Cain Carden appeals his conviction for assault/family violence. In a single issue,
Appellant contends the evidence is insufficient to support his conviction. We affirm.


                                          BACKGROUND
       Appellant was charged by information with assault/family violence. The State alleged
Appellant injured Tracy Hopper Smith by striking her with his fists or hands. The State further
alleged that either Smith was a member of Appellant’s household or Appellant and Smith had a
dating relationship. Appellant pleaded “not guilty” and the matter proceeded to a jury trial. The
jury ultimately found Appellant “guilty.”      Following the punishment phase, the trial court
sentenced Appellant to 365 days confinement. Appellant filed a motion for new trial, which was
denied. This appeal followed.


                                SUFFICIENCY OF THE EVIDENCE
       In his sole issue, Appellant argues the evidence is insufficient to support his conviction.
Standard of Review and Governing Law
       In Texas, the Jackson v. Virginia 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. Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010). The relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, 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, 61 L. Ed. 2d 560 (1979). This standard gives full play to the
responsibility of the trier of fact to fairly resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts. Padilla v. State, 326 S.W.3d
195, 200 (Tex. Crim. App. 2010). The jury is the sole judge of the witnesses’ credibility and the
weight to be given their testimony. Brooks, 323 S.W.3d at 899.
        When the record supports conflicting inferences, we presume that the fact finder resolved
the conflicts in favor of the prosecution and therefore defer to that determination. Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Direct and circumstantial evidence are treated
equally. Id. Circumstantial evidence is as probative as direct evidence in establishing the guilt of
an actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007). A conclusion of guilt can rest on the combined and
cumulative force of all the incriminating circumstances. Hernandez v. State, 190 S.W.3d 856, 864
(Tex. App.–Corpus Christi 2006, no pet.).
        A person commits the offense of assault if he intentionally, knowingly, or recklessly causes
bodily injury to another, including the person’s spouse. TEX. PENAL CODE ANN. § 22.01 (West
Supp. 2019). “Family violence” means: (1) an act by a member of a family or household against
another member of the family or household that is intended to result in physical harm, bodily
injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of
imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive
measures to protect oneself; or (3) dating violence.” TEX. FAM. CODE ANN. § 71.004(1), (3) (West
2019). “Dating violence” means an act, other than a defensive measure to protect oneself, by an
actor that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a
threat that reasonably places the victim or applicant in fear of imminent physical harm, bodily
injury, assault, or sexual assault. Id. § 71.0021(a)(2) (West 2019). “Bodily injury” is defined as
“physical pain, illness, or any impairment of physical condition.” TEX. PENAL CODE ANN.
§ 1.07(a)(8) (West Supp. 2019). “Dating relationship” means a relationship between individuals




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who have or have had a continuing relationship of a romantic or intimate nature. TEX. FAM. CODE
ANN. § 71.0021(b) (West 2019).
Analysis
        Appellant urges that the evidence is insufficient to support his conviction for
assault/family violence. Specifically, he contends that the location of Smith’s injury does not
comport with being punched while Appellant was driving a vehicle. In addition, he contends the
evidence as a whole does not establish that he intended to strike or injure Smith.
        At trial, Shannon North, the 911 operator who took Smith’s call testified. The recording
of the 911 call was also admitted into evidence and played for the jury. North testified that Smith
sounded afraid and was crying when she called for help. Smith told North that Appellant hit her
in the mouth during an argument in his truck. Appellant had pushed Smith out of the truck, and
she hurt her leg when she hit the ground. North dispatched deputies from the Houston County
Sheriff’s Department to Smith’s location and remained on the phone until they arrived.
        Deputy Ryan Martin of the Houston County Sheriff’s Office responded to the 911 dispatch
regarding an assault victim. When Deputy Martin arrived, he saw Smith on the side of the road
with blood on her shirt and arms. Her lip was bleeding and she appeared visibly upset and crying.
Smith told Martin that she had been in the truck with her boyfriend, Appellant, when they got into
an argument. Smith said that during the argument, Appellant punched her in the face with his
closed fist. Martin testified that the injury on Smith’s lip appeared consistent with her story.
Martin took photographs of Smith’s injuries, which were admitted into evidence and shown to the
jury.
        Smith testified that she and Appellant had been dating and living together for three years.
Specifically, Smith stated that she and Appellant were in an intimate dating relationship and living
in the same residence on the day of the alleged assault. According to Smith, she and Appellant
went to work together on July 30, 2018. Shortly after arriving to work, they argued, and Appellant
demanded she leave with him. After they left the job site, the two continued arguing in Appellant’s
truck. Smith testified that Appellant became very angry and started swinging at the dog in the
backseat. Appellant’s demeanor scared Smith, so she decided to get out of the truck at the next
stop sign. Before the truck stopped, Appellant punched her twice in the face with his fist. The
second punch made Smith’s lip bleed, and she dialed 911 before exiting the truck. She testified
that while she was on the phone with the 911 operator and preparing to exit the truck, Appellant



                                                 3
pushed her out of the truck while it was still rolling. She hit her knee, elbow, and shoulder on the
road when she fell out of the truck.
       William “Bo” Gardner, a deputy with the Houston County Sheriff’s Office, testified that
he responded to a call on July 30, 2018, regarding Smith. When he arrived, Smith was speaking
with Deputy Martin. He observed Smith had a “busted lip, blood all over her shirt, shorts; a lot of
blood everywhere.” Gardner testified that Smith appeared upset; however, she did not have trouble
describing what had transpired. Gardner stated that Smith told him that she and Appellant got into
an argument while in Appellant’s truck. During the argument, Appellant punched Smith. When
Appellant stopped the vehicle, Smith tried to get out and Appellant punched her again. Gardner
testified that EMS was dispatched to the scene, and Smith was treated for her injuries.
       Joshua Glover, a paramedic for Houston County EMS, testified that he was dispatched to
Smith’s alleged assault. When he arrived, Smith was speaking with two officers. Glover observed
that Smith was covered in blood on her face, shirt, arms, and legs. Smith complained of lip pain
from where she had been punched by her “husband.” Her pain scale was a four out of ten. Glover
testified that he and his partner treated Smith’s lip and stopped the bleeding. He also noted Smith’s
heart rate was elevated, which could have been caused by a number of factors, and he
recommended she go to the hospital. Smith also complained of shoulder, arm, and knee pain from
being pushed out of a moving vehicle.
       The jury is the sole judge of the witnesses’ credibility and the weight to be given to the
evidence. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Based on the evidence
at trial, the jury could have reasonably found that Appellant and Smith were in a dating relationship
on July 30, 2018, and that Appellant struck her in the face with his hand or fist while driving during
an argument. And the jury was entitled to consider Appellant’s conduct before, during, and after
the offense when determining intent, including the method used to produce Smith’s injuries, the
extent of Smith’s injuries, and the parties’ relative size and strength. See Cary v. State, 507 S.W.3d
750, 758 (Tex. Crim. App. 2016); see also Herrera v. State, 367 S.W.3d 762, 771 (Tex. App.—
Houston [14th Dist.] Apr. 7, 2012, no pet.). The jury heard consistent testimony from Smith, two
deputies, and a paramedic regarding the alleged assault and Smith’s injuries, specifically hearing
evidence that she was upset and bleeding from being struck in the mouth and required treatment.
As a result, the jury was free to discredit Appellant’s theory that Smith’s injuries could not have
occurred while Appellant was driving. Therefore, after viewing the evidence in the light most



                                                  4
favorable to the verdict, we conclude that a rational jury could have found, beyond a reasonable
doubt, that Appellant knowingly, intentionally, or recklessly caused bodily injury to Smith, a
person with whom he had a dating relationship, by striking her with his hand or hands. See TEX.
PENAL CODE ANN. § 22.01; see also TEX. FAM. CODE ANN. § 71.0021(b); Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d at 912. As a result, we conclude the evidence is legally
sufficient to support the verdict. Appellant’s sole issue is overruled.


                                                  DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.




                                                                  GREG NEELEY
                                                                     Justice

Opinion delivered April 8, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             APRIL 8, 2020


                                         NO. 12-19-00274-CR


                                    MICHAEL CAIN CARDEN,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                Appeal from the County Court at Law
                     of Houston County, Texas (Tr.Ct.No. 19-02-00013-CR)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
