                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

                                                 §
 ARVIN SAENZ,                                                     No. 08-11-00341-CR
                                                 §
                              Appellant,                            Appeal from the
                                                 §
 v.                                                            County Court at Law No. 2
                                                 §
 THE STATE OF TEXAS,                                            of El Paso County, Texas
                                                 §
                              Appellee.                           (TC# 20080C11300)
                                                 §

                                           OPINION

       Arvin Saenz appeals from the trial court’s judgment convicting him of family violence

assault. In two issues, Saenz argues the evidence is insufficient and his counsel was ineffective.

We affirm.

                     FACTUAL AND PROCEDURAL BACKGROUND

       Saenz was alleged to have assaulted his wife, Flor Saenz, by striking her “about the hand

with a rock.” At trial, Saenz admitted that after arguing with Flor, he threw rocks at her truck, the

last one thrown “in desperation” because he “believe[d] she was going to run [him] over.” Flor

testified that a rock thrown by Saenz broke the driver’s side window and struck her “forearm about

two inches down from her wrist.”

       Following the incident, Flor called 911. Upset and crying, Flor “request[ed] a police

officer” because “[s]he had been injured, and there was also damage to her vehicle.” El Paso
Police Department Officer Michael Arzaga testified that Flor “was visibly upset” when he spoke to

her at the scene and that he noticed Flor’s “left wrist swollen, a little bit of blood coming out from

her thumb.” According to Officer Arzaga, Flor attributed the cause of her injury to a rock thrown

by Saenz. At trial, Flor was asked if she was “hurt” when hit by the rock or if she felt any pain

after being struck. Flor replied, “No.”

                             SUFFICIENCY OF THE EVIDENCE

       In his first issue, Saenz argues the evidence is insufficient to prove Flor sustained “bodily

injury” because she testified she was not hurt or felt pain. We disagree.

                                        Standard of Review

       The legal sufficiency standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99

S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), is the only standard a reviewing court applies in

determining whether the evidence is sufficient to support a conviction. Brooks v. State, 323

S.W.3d 893, 894-95 (Tex.Crim.App. 2010)(finding no meaningful distinction between the legal

and factual sufficiency standards and no justification for retaining both standards, therefore

overruling the factual sufficiency review adopted in Clewis v. State, 922 S.W.2d 126, 133

(Tex.Crim.App. 1996)). When reviewing the sufficiency of the evidence to support a criminal

conviction, we view the evidence in the light most favorable to the verdict to determine whether,

based on that evidence and reasonable inferences therefrom, a rational juror could have found the

essential elements of the offense beyond a reasonable doubt. Hooper v. State, 214 S.W.3d 9, 13

(Tex.Crim.App. 2007), quoting Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89. Under a legal

sufficiency review, we may not substitute our judgment for that of the jury, who is the exclusive

judge of the facts, the credibility of the witnesses, and the weight to be given to the evidence.


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Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App. 2007). We therefore defer to the jury’s

resolution of these issues and to its responsibility to draw reasonable inferences from basic facts to

ultimate facts. Hooper, 214 S.W.3d at 13, citing Jackson, 443 U.S. at 318-19, 99 S.Ct. at

2788-89. In resolving what the facts are and what reasonable inferences may be drawn from

them, the jury may accept one version of the facts and reject another, and it may reject any part of

a witness’s testimony, even if uncontradicted. See Margraves v. State, 34 S.W.3d 912, 919

(Tex.Crim.App. 2000), overruled on other grounds, Laster v. State, 275 S.W.3d 512

(Tex.Crim.App. 2009); Henderson v. State, 29 S.W.3d 616, 623 (Tex.App.--Houston [1st Dist.]

2000, pet. ref’d).

                                          Applicable Law

        A person commits the offense of family violence 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)(West 2011). “Bodily injury” is defined as “physical pain, illness, or any

impairment of physical condition.” TEX.PENAL CODE ANN. § 1.07(8)(West Supp. 2012); Laster,

275 S.W.3d at 524. This statutory definition is purposefully broad and encompasses even

relatively minor physical contact if it constitutes more than offensive touching. Laster, 275

S.W.3d at 524, citing Lane v. State, 763 S.W.2d 785, 786 (Tex.Crim.App. 1989).

        Proof of bodily injury is not dependent on the degree of injury sustained by the victim as

long as some resulting physical pain, illness, or impairment of physical condition can be identified.

Lane, 763 S.W.2d at 787; see also Bolton v. State, 619 S.W.2d 166, 167 (Tex.Crim.App.

1981)(evidence of cut sufficient to show bodily injury); Arzaga v. State, 86 S.W.3d 767, 778

(Tex.App.--El Paso 2002, no pet.)(existence of cut, scrape, or bruise sufficient evidence of


                                                  3
physical pain necessary to establish bodily injury within meaning of statute). Testimony that a

victim experienced physical pain is not required to prove bodily injury. Arzaga, 86 S.W.3d at

778-79. Rather, evidence of a visible injury allows for an inference of pain. See Arzaga, 86

S.W.3d at 778 (jury permitted to draw inferences from evidence, including inference that victim

actually felt or suffered physical pain); Goodin v. State, 750 S.W.2d 857, 859 (Tex.App.--Corpus

Christi 1988, pet. ref’d)(although victim did not testify he suffered “pain,” jury could infer bruises

and muscle strain caused “physical pain”).

                                             Discussion

       When viewed in the light most favorable to the verdict, the evidence was sufficient for a

rational juror to find beyond a reasonable doubt that Saenz caused bodily injury to Flor. The State

adduced evidence that Flor suffered a cut or abrasion. Flor testified a rock thrown by Saenz

struck her and Officer Arzaga testified that Flor’s left wrist was swollen and her thumb had some

blood on it. The State also adduced evidence that Flor was upset and crying when she called 911

to report her injury and remained “visibly upset” when she spoke to Officer Arzaga. Thus, even

though Flor testified she was not hurt and did not feel pain, the jury could have inferred from her

swollen wrist, bloody thumb, and state of distress that Flor suffered physical pain. See Arzaga, 86

S.W.3d at 778-79; Goodin, 750 S.W.2d at 859; see also Whitworth v. State, No. 12-10-00038-CR,

2010 WL 3431595, *5 (Tex.App.--Tyler Sept. 1, 2010, no pet.)(mem. op., not designated for

publication)(despite victim’s failure to testify he suffered pain, jury could infer from photographs

depicting abrasions to arm and from testimony describing the bite that he did). Because the

evidence is legally sufficient to establish that bodily injury occurred, the jury was entitled to find




                                                  4
Saenz guilty of family violence assault.1

         Saenz’s first issue is overruled.

                              INEFFECTIVE ASSISTANCE OF COUNSEL

         In his second and final issue, Saenz complains that his counsel was ineffective because

counsel failed to ask that Flor be compelled to answer questions about her role in the incident.

We disagree.

                                      Standard of Review/Applicable Law

         A defendant is entitled to reasonably effective assistance of counsel.                            Strickland v.

Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); King v. State, 649

S.W.2d 42, 44 (Tex.Crim.App. 1983). To establish that counsel provided ineffective assistance,

Saenz must show by a preponderance of the evidence that his counsel’s representation fell below

the standard of prevailing professional norms and that there is a reasonable probability that, but for

counsel’s deficiency, the result of the trial would have been different. Strickland, 466 U.S. at 687,

104 S.Ct. at 2064; Davis v. State, 278 S.W.3d 346, 352 (Tex.Crim.App. 2009); Hernandez v. State,

988 S.W.2d 770, 770 (Tex.Crim.App. 1999).

         In evaluating whether counsel’s representation fell below the standard of prevailing

professional norms, we look to the totality of the representation and the particular circumstances of

each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). The issue is whether


1
  Saenz also seems to argue that because Flor testified she was struck on the arm, rather than on the hand or wrist,
“there was no evidence that [he] assaulted [Flor] by striking her on the hand” as alleged in the information.
Disregarding for the moment the evidence that Flor was struck “about the hand,” Saenz fails to explain how this
alleged variance prejudices his substantial rights. As the Texas Court of Criminal Appeals recently explained in
Johnson v. State, 364 S.W.3d 292 (Tex.Crim.App. 2012), variations in pleading and proof with respect to
non-statutory allegations do not prejudice a defendant’s substantial rights so long as the variance is not so great that the
proof at trial “shows an entirely different offense” than what was alleged in the charging instrument. Id. at 295.
Here, the proof at trial does not show that an entirely different offense than what was alleged in the charging
instrument was committed.
                                                             5
counsel’s assistance was reasonable under all the circumstances and prevailing professional norms

at the time of the alleged error. See Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2064-65.

Review of counsel’s representation is highly deferential, and the reviewing court indulges a strong

presumption that counsel’s conduct fell within a wide range of reasonable representation. Salinas

v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005); Mallett v. State, 65 S.W.3d 59, 63

(Tex.Crim.App. 2001). A reviewing court will rarely be in a position on direct appeal to fairly

evaluate the merits of an ineffective assistance claim. Salinas, 163 S.W.3d at 740; Thompson, 9

S.W.3d at 813-14. “In the majority of cases, the record on direct appeal is undeveloped and

cannot adequately reflect the motives behind trial counsel’s actions.” Salinas, 163 S.W.3d at 740,

quoting Mallett, 65 S.W.3d at 63. To overcome the presumption of reasonable professional

assistance, “any allegation of ineffectiveness must be firmly founded in the record, and the record

must affirmatively demonstrate the alleged ineffectiveness.” Id., quoting Thompson, 9 S.W.3d at

813. It is not appropriate for an appellate court to simply infer ineffective assistance based upon

unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex.Crim.App. 2007).

       In evaluating whether there is a reasonable probability that, but for counsel’s deficiency,

the result of the trial would have been different, we must be convinced that counsel’s errors were

so serious that they deprived the appellant of a fair trial; that is, a trial with a reliable result.

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In other words, an appellant bears the burden to

establish that there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. Id. at 694, 104 S.Ct. at 2068. A reasonable

probability is a probability sufficient to undermine confidence in the outcome. Id. The ultimate

focus of our inquiry must be on the fundamental fairness of the proceeding in which the result is


                                                 6
being challenged. Strickland, 466 U.S. at 697, 104 S.Ct. at 2070.

                                            Discussion

       Saenz has failed to establish that his counsel was ineffective. Although Saenz asserts that

his counsel erred by failing to ask that Flor be compelled to answers questions “regarding her

aggressive behavior towards [him][,]” the record belies Saenz’s claim. As demonstrated below,

Saenz’s counsel did ask the trial court to compel Flor to answer his questions:

       [COUNSEL]: And once you walked out of the house, that you picked up some
       rocks from the landscaping; is that right?

       [FLOR]: On the advice of counsel I respectfully refuse to answer the question on
       the grounds that it may incriminate me.

       [COUNSEL]: And with those rocks you actually threatened to hit my client’s car;
       isn’t that right?

       [FLOR]: On the advice of counsel I respectfully refuse to answer the question on
       the grounds that it may incriminate me.

       [COUNSEL]: Your husband came out of the house at that point; is that right?

       [FLOR]: On the advice of counsel I respectfully refuse to answer the question on
       the grounds that it may incriminate me.

       [COUNSEL]: At some point you got into your vehicle, your truck; is that right?

       [FLOR]: On the advice of counsel I respectfully refuse to answer the question on
       the grounds that it may incriminate me.

       [COUNSEL]: Your Honor, at this point I would ask that the witness be compelled
       to answer the questions despite her invocation of the Fifth Amendment because, in
       fact, if the answer to the question is yes, she got into her truck, that isn’t criminal
       activity, your honor?

       To the extent Saenz is complaining that counsel should have done more than move on after

being asked at the ensuing bench conference if it was necessary to continue in light of Flor’s

refusal “to answer anything,” Saenz has not shown how counsel’s performance prejudiced him.

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Without citing authority or providing reasoned argument, Saenz simply asserts counsel’s

performance “was prejudicial to [his] ability to completely present his defense . . . .” But there is

simply nothing in the record demonstrating a reasonable probability that the result of the

proceeding would have been different had counsel insisted that Flor be compelled to answer the

questions she refused to answer. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

        Contrary to Saenz’s assertion, Saenz was not precluded from presenting his case because

of his counsel’s failure to insist that Flor be compelled to testify about her role in the incident.

Assuming Flor had testified that she picked up some rocks with the intention of throwing them at

Saenz’s car and climbed into her truck at some point, her testimony would have been cumulative to

Saenz’s testimony he threw the rock in self-defense. This defense was included in the trial court’s

charge and, undoubtedly, considered by the jurors while deliberating. Thus, even if Flor had

testified about her aggressive behavior towards Saenz, the jury would have been free to disbelieve

her testimony and determine that Saenz did not act in self-defense. See Williams, 235 S.W.3d at

750 (noting that jurors are the exclusive judges of the facts, the credibility of the witnesses, and the

weight to be given to the testimony); Margraves, 34 S.W.3d at 919 (noting that a jury may accept

one version of the facts and reject another, and it may reject any part of a witness’s testimony).

By rejecting Saenz’s claim of self-defense and convicting him of assault, the jury clearly did so.

In light of the foregoing, we conclude that Saenz has not shown his counsel provided ineffective

assistance. See Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064-65.

        Saenz’s second issue is overruled.

                                              CONCLUSION

        Having overruled both of Saenz’s issues, we affirm the trial court’s judgment.


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July 24, 2013
                                                   YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)




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