                         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
      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).
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


      2
          Samuels and Appellant had previously been roommates.


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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.




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                          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).




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      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

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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.


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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

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


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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


                                           8
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


                                         9
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




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