                         COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                              NO. 02-12-00394-CR

WILLIAM ERNESTO PACHECO                                              APPELLANT
PERAZA A/K/A WILLIAM ERNESTO
PERAZAPACHECO


                                          V.

THE STATE OF TEXAS                                                         STATE

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          FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

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                           MEMORANDUM OPINION1

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                                   I. INTRODUCTION

      Appellant William Ernesto Pacheco Peraza a/k/a William Ernesto

PerazaPacheco waived his right to a jury trial and pleaded not guilty to assault of

a family member with a previous conviction.          See Tex. Penal Code Ann. §

22.01(b)(2)(A) (West 2011). The trial court found William guilty and, after a



      1
       See Tex. R. App. P. 47.4.
punishment hearing, sentenced him to five years’ confinement in the Institutional

Division of TDCJ. In one issue on appeal, William contends that the evidence is

insufficient to support his conviction. We will affirm.

                    II. FACTUAL AND PROCEDURAL BACKGROUND

      William and Emma Peraza married in 2006. They moved to Texas that

same year after Emma was diagnosed with leukemia. They have two children

together. In 2007 and again in 2008, William pleaded guilty to and was convicted

of assault against Emma. On June 28, 2009, William and Emma got into an

argument over a missed truck payment. Based on what transpired during their

argument, William was charged with assault of a family member with a previous

conviction.

      At trial, Emma testified that a couple of weeks prior to the incident, she had

moved out of the house she shared with William because he hit her. She and the

children moved in with her parents. After William called her and agreed to get

counseling, she and the children moved back into the house.          The day that

Emma moved back into the house, she told William that she had used the money

for their monthly truck payment for her chemotherapy. William got upset, and he

began throwing things and yelling at Emma. He pushed her down on the couch

and hit her in the face multiple times around the eye area. He left the room

briefly, returning with a pair of scissors. Emma testified that he tried to stab her

with the scissors but stopped when their children entered the room.          Emma



                                          2
asked William to let her and the children leave the house, and she promised not

to call the police. William left the house.

      Emma did not have a phone so she went next door to ask if she could use

her neighbors’ phone to call the police. Both her next-door neighbors and her

neighbor across the street, Neal Moss, refused to allow Emma to use their

phones. Eventually, another neighbor let Emma borrow her phone, and Emma

called the police. The police arrived about thirty to forty-five minutes after the

incident. The responding officer, Officer Julisa Flores, took photos of Emma’s

injuries. Officer Flores testified that Emma was upset and crying when the officer

arrived. Officer Flores testified that Emma had cuts on her right side and that, by

the time the officer left, Emma’s right eye was swollen completely shut. Officer

Flores did not obtain any evidence from the scene other than the photos.

      William testified that he and Emma had separated a few weeks prior to the

incident; he kicked her out of the house after learning that she had been

unfaithful to him. He testified that on the day of the incident, Emma brought the

children to the house to visit him. He testified that when he confronted Emma

about the missing truck payment, she did not indicate to him that she had used

the money for medical purposes. Rather, she laughed and said that she had

“wasted the money on other things.” William testified that Emma asked if she

could move back in with him. When he told her that he “didn’t want her back,”

Emma became angry and hit the stereo, knocking it to the ground. William left

the house because Emma was angry and frustrated; he walked over to Moss’s

                                          3
house. About thirty minutes or an hour later, Emma came out of the house

yelling for help and saying that she needed a phone to call police. William got in

his truck and drove off to talk to his pastor. After viewing the photographs of

Emma’s injuries, admitted at trial as State’s Exhibits 4–10, William testified that

he did not cause the injuries to Emma’s face and that he did not hit her at all that

day. He also testified that he did not use any scissors to injure her that day.

      Moss testified that he was sitting in front of his house with William when

Emma came out of her house and hollered, “Somebody call the police, . . . he

just beat me up.” Moss said that Emma did not specify who “he” was. He said

Emma did not ask to borrow his phone. Moss did not notice any injuries or torn

clothing on Emma.

                          III. SUFFICIENCY OF THE EVIDENCE

      In his sole issue, William contends that the evidence is insufficient to

support his conviction.

                              A. Standard of Review

      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); Wise v. State, 364 S.W.3d 900, 903 (Tex.

Crim. App. 2012).



                                         4
      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; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App. 2011).

      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); Wise, 364

S.W.3d at 903. 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. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011). 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; Wise, 364 S.W.3d at 903.

                        B. Assault of a Family Member

      A person commits assault if the person intentionally, knowingly, or

recklessly causes bodily injury to another, including the person’s spouse. Tex.

Penal Code Ann. § 22.01(a)(1). The offense is enhanced to a third-degree felony

when “it is shown on the trial of the offense that the defendant has been

previously convicted of an offense under this chapter, Chapter 19, or Section

20.03, 20.04, 21.11, or 25.11 against a [family member].” Id. at § 22.01(b)(2)(A).

                                        5
                            C. Evidence Is Sufficient

      Here, William argues that the evidence is insufficient to support his

conviction specifically because: (1) Emma’s eye injuries could have occurred

after he left the house; (2) the scratches to Emma’s body are inconsistent with

the type of injuries that scissors would cause; (3) Moss testified that he did not

observe injuries to or torn clothing on Emma immediately following the argument;

and (4) Emma did not clearly identify William in court as the perpetrator.

      The trial judge, as the factfinder, heard evidence that William got mad at

Emma and that he hit her in the face with his hand multiple times. He heard

evidence that Emma and William engaged in a struggle in which he tried to stab

her with a pair of scissors. He saw State’s Exhibits 4–10, which show Emma

with a swollen eye, bruises on her face, a torn shirt, and scratch marks on her

chest. He also saw State’s Exhibits 1–3, showing William’s prior convictions for

assault against Emma.

      Despite William’s contention that it would be unusual for an eye to take

forty-five minutes to swell shut and despite his contention that an injury from

scissors would be a gash wound, not a scratch, it was up to the trial judge, as the

factfinder, to resolve conflicts in the testimony, to weigh the evidence, and to

determine whether Emma’s testimony was credible. See Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Wise, 364 S.W.3d at 903; Blackman, 350 S.W.3d at 595.

The trial judge determined that Emma’s testimony was credible. Finally, contrary



                                         6
to William’s assertion on appeal, Emma did clearly identify William in court; she

testified that he was her husband and the person who assaulted her.2

         Viewing the evidence in the light most favorable to the trial court’s verdict,

we hold that a rational trier of fact could have found beyond a reasonable doubt

that William committed the offense of assault of a family member with a previous

conviction. See Tex. Penal Code Ann. § 22.01(b)(2)(A); Jackson, 443 U.S. at

326, 99 S. Ct. at 2793; Wise, 364 S.W.3d at 903. Accordingly, we hold that the

evidence is sufficient to support William’s conviction. We overrule William’s sole

issue.

                                    IV. CONCLUSION

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



                                                PER CURIAM

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 15, 2013




         2
        Counsel for the State asked Emma if she saw her “husband, the
Defendant, William Peraza Pacheco” in the courtroom. She said that she did,
and the record reflects she pointed him out when asked by the prosecutor to
“point in [William’s] general direction.”
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