
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS


EMILIO MACIAS,


                            Appellant,

v.

THE STATE OF TEXAS,

                            Appellee.
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No. 08-08-00178-CR

Appeal from the

County Court at Law No. 4

of El Paso County, Texas

(TC# 20060C15213)

O P I N I O N

 A jury found Emilio Macias, Appellant, guilty of assault causing bodily injury, and the trial
court sentenced him to 365 days in jail, probated for 18 months.  On appeal, Appellant challenges
the legal and factual sufficiency of the evidence to support his conviction.  We affirm.
BACKGROUND
	On September 7, 2006, Yolanda Campos asked Appellant to cut the grass at her residence. 
When he arrived the following day, Yolanda, having just exited the shower, answered the door in
her bathrobe.  Yolanda told Appellant to wait outside until she dressed, and then she would help him
rake the grass.  As Yolanda closed the door, Appellant asked to use the bathroom.  Although
Yolanda was uncomfortable allowing Appellant into her house dressed only in a bathrobe, she let
him inside since he was married to her second cousin and she has known him for 20 years.
	While Appellant used the hall bathroom, Yolanda waited on the couch in the living room
with her two-year-old son.  When Appellant finished, he asked whether the backyard needed any
work.  Yolanda responded that it was flooded but allowed Appellant to go out the front door and
around to the back of the house to view the backyard.  Appellant, however, wanted to view the
backyard from a window inside the house.  Consequently, Yolanda took him to her son's bedroom
window.
	As Yolanda opened the window blinds, Appellant, a much larger and stronger person than
she, grabbed her by the shoulders "real hard," causing Yolanda to feel pain, and pulled her to him. 
Yolanda struggled to turn around, and when she did, Appellant forcefully grabbed her arms and
pulled her to him.  Again, Yolanda felt pain.  Yolanda tried to push him away and demanded to be
let go, but Appellant kept pulling her towards him, trying to kiss her.  When Appellant let go of her
arms, he grabbed her face, squeezing real hard and causing pain, and tried to kiss her again.  Yolanda
thought Appellant, a man she trusted, was going to rape her with her son in the next room.  After
fighting back, Appellant let go, and Yolanda ran outside.
	Fearing Appellant would harm her son, Yolanda, instead of running to her neighbors for help,
demanded from the street that he leave.  Appellant, however, stood in the doorway, staring at her. 
After further demands to leave, Appellant started walking away, and Yolanda ran inside and locked
the door.  She called Appellant's wife, and then the police.  Prior to the police's arrival, Appellant
and his wife returned to Yolanda's residence.  Appellant's wife was crying and wanted to talk. 
Appellant said nothing.  Yolanda refused to speak to either of them, and the couple left.
	When Officer John Valles arrived, he noticed that Yolanda had been crying and that she was
still shaking.  Valles observed redness on Yolanda's jaw and neck although the pictures he took did
not show the redness very well.  Yolanda had no redness or contusions on her shoulders.  Yolanda
told Valles that she felt pain during the assault.
	Detective Oscar Gomez followed up on the assault case.  He obtained statements from
Yolanda and Appellant.  Both statements were factually similar concerning the entry, the mode, the
placing of the hands, and the way Appellant exited the house.  Yolanda told Gomez that she felt pain
and discomfort during the assault, even though the black-and-white photographs did not depict any
visible injuries.  However, Gomez knew it was possible to feel pain without exhibiting a visible
injury.  After reviewing both parties' statements, Gomez presented the case to the district attorney,
believing it to have met all of the elements of an assault offense.
	At trial, Appellant's testimony suggested that as they were looking out the window, he
touched Yolanda's shoulder on her back as he bent down to get a better view of the backyard.  At
that point, Yolanda, according to Appellant, went berserk and demanded that he leave.  Appellant's
wife also testified at trial.  She alleged that Yolanda was dishonest and often fought with her
brothers, sister, mother, and husband.  She claimed that when Yolanda called her, Yolanda only
stated that Appellant tried to kiss her and that nothing else happened.
DISCUSSION
	Appellant's first issue contends that the evidence was legally insufficient to show a bodily
injury, and his second complains of the same under a factual-sufficiency analysis.  We disagree.
Standard of Review
	In a legal-sufficiency analysis, we consider all the evidence in a light most favorable to the
verdict and determine whether a rational juror could have found the essential elements proven
beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).  In so doing, we afford due
deference to "the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh
the evidence, and to draw reasonable inferences from basic facts to ultimate facts."  Hooper, 214
S.W.3d at 13.  Indeed, the trier of fact, not the appellate court, is free to accept or reject all or any
portion of a witness's testimony.  Belton v. State, 900 S.W.2d 886, 897 (Tex. App.-El Paso 1995,
pet. ref'd).  Our only duty is to determine whether both the explicit and implicit findings of the trier
of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the
verdict.  Adelman v. State, 828 S.W.2d 418, 421-22 (Tex. Crim. App. 1992).  Thus, any
inconsistencies in the evidence are resolved in favor of the verdict.  Matson v. State, 819 S.W.2d
839, 843  (Tex. Crim. App. 1991) (quoting Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App.
1988)).
	In a factual-sufficiency analysis, all the evidence is considered in a neutral light, and we will
only find the evidence insufficient if:  (1) the evidence supporting the verdict is so weak that the
verdict seems clearly wrong and manifestly unjust; or (2) the evidence supporting the verdict is
outweighed by the great weight and preponderance of contrary evidence, rendering the verdict clearly
wrong and manifestly unjust.  Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). 
However, we cannot reverse a conviction under the "clearly wrong" or "manifestly unjust" standards
simply because, based on the quantum of evidence admitted, we would have voted to acquit.  Watson
v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).  Nor may we declare, based on a conflict in
the evidence, that a new trial is justified simply because we disagree with the jury's resolution of that
conflict.  Id.  Rather, a new trial will only be granted when we determine, on an objective basis, that
the great weight and preponderance of the evidence contradicts the jury's verdict.  Id.  Accordingly,
our review should not substantially intrude upon the fact finder's role as the sole judge of the weight
and credibility given to witness testimony.  Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000);
see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).
	Under either standard, we consider all of the evidence, whether admissible or inadmissible. 
Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006); Marshall, 210 S.W.3d at 625. 
Further, we employ a hypothetically-correct jury charge analysis to evaluate the evidence under both
standards.  Grotti v. State, 273 S.W.3d 273, 280 (Tex. Crim. App. 2008).  As applicable to this case,
therefore, it was the responsibility of the State to prove that (1) Appellant (2) intentionally,
knowingly, or recklessly (3) caused (4) bodily injury (5) to another.  TEX. PENAL CODE ANN. §
22.01(a)(1) (Vernon Supp. 2009).  The Texas Penal Code defines bodily injury as physical pain,
illness, or any impairment of physical condition.  TEX. PENAL CODE ANN. § 1.07(a)(8) (Vernon
Supp. 2009).  Such definition has been held to be broad and to encompass even relatively minor
physical contacts, so long as the contact was more than just offensive touching.  See Lane v. State,
763 S.W.2d 785, 786 (Tex. Crim. App. 1989); Arzaga v. State, 86 S.W.3d 767, 778-79 (Tex.
App.-El Paso 2002, no pet.).
Analysis
	Appellant's sufficiency challenges solely focus on the bodily-injury component of the assault
charge.  Therein, he argues that the evidence was insufficient to show bodily injury, that is, that
Yolanda suffered any pain.  To support his argument, Appellant points out that Yolanda was wearing
a thick, heavy bathrobe, which he concludes absorbed any pain Yolanda may have felt when he
touched her, that Yolanda, by calling his wife, rather than the police, first, and by refusing treatment
at a hospital, further shows that she did not experiencing any pain, and that Officer Valles found no
"strong" injuries, nor did the pictures taken show any injuries.
	We first address the bathrobe defense.  Although Yolanda wore a thick, heavy bathrobe
during the assault, she unequivocally testified that Appellant caused her pain when he grabbed her
shoulders "real hard" and when he "forcefully" grabbed her arms.  Yolanda's testimony was further
supported by Officer Valles and Detective Gomez, who both testified that Yolanda had told them
she felt pain when Appellant grabbed her.  A victim's testimony that she suffered pain is alone
sufficient to satisfy the requirement of physical pain.  See Lane, 763 S.W.2d at 786-87; Lewis v.
State, 530 S.W.2d 117, 118 (Tex. Crim. App. 1975).  Thus, the jury was entitled to reject Appellant's
defense and to believe Yolanda's assertion that she felt pain despite wearing the thick, heavy
bathrobe.
	Moreover, the information and jury charge alleged that Appellant intentionally, knowingly,
or recklessly caused bodily injury to Yolanda by grabbing her face or body.  Even if the jury believed
that Yolanda's bathrobe may have absorbed any pain Appellant caused when he grabbed her arms,
the bathrobe was not covering Yolanda's face when Appellant grabbed her face and "squeezed" it. 
Not only was Yolanda's testimony that she felt pain in this instance sufficient, but the jury could
have inferred that Yolanda actually felt or suffered physical pain when Appellant grabbed and
squeezed her uncovered face.  Randolph v. State, 152 S.W.3d 764, 774 (Tex. App.-Dallas 2004, no
pet.); Wawrykow v. State, 866 S.W.2d 87, 89 (Tex. App.-Beaumont 1993, pet. ref'd); Goodin v.
State, 750 S.W.2d 857, 859 (Tex. App.-Corpus Christi 1988, pet. ref'd) (jurors, as people of
common intelligence, understand pain and some of the natural causes of it).  Such was sufficient to
support the bodily-injury element of assault.
	Appellant also asserts that Yolanda did not experience any pain since she contacted
Appellant's wife, rather than the police, immediately after the assault occurred, and that she declined
to seek treatment at a hospital.  Yolanda, however, testified that she did not call the police first
because she was stressed, crying, and in shock.  She also stated that she did not need to go to the
hospital as she could not afford any more medical bills.  The jury, as the sole judge of the credibility
of the witnesses, was entitled to believe Yolanda's explanations.  See Pierson v. State, No. 14-06-00044-CR, 2007 WL 412357, at *4 (Tex. App.-Houston [14th Dist.] Feb. 8, 2007, no pet.) (mem.
op., not designated for publication) (deferring to jury's finding that complainant suffered bodily
injury even though the contrary evidence was that complainant refused medical treatment and there
was no testimony from the complainant regarding the issue of pain or any photographs depicting an
injury).
	Appellant further asserts that Officer Valles found no strong injuries and that the pictures did
not show any injuries.  However, there is no requirement that bodily injury requires a showing of a
strong injury.  As noted above, bodily injury encompasses even relatively minor physical contacts,
so long as they are more than offensive touching.  See Lane, 763 S.W.2d at 786; Arzaga, 86 S.W.3d
at 778-79.  Here, being grabbed "forcefully" and "real hard," and trying to get away while at the
same time fending off the kiss of a man married to another is more than just offensive touching. 
Further, although the pictures may not have shown any bodily injuries, Officer Valles testified that
he observed redness on Yolanda's jaw and neck area.  The visible redness on Yolanda's jaw and
neck area in conjunction with Yolanda's statements that she felt pain was sufficient to establish the
bodily-injury element. (1)
	This case, in essence, concerned a swearing match.  Yolanda testified that Appellant grabbed
her shoulders, arms, and face, causing her pain, and Appellant testified that he merely touched her
back as he bent down to look out the window.  It was within the jury's exclusive province to evaluate
the credibility and demeanor of the witnesses and choose who to believe.  See Cain v. State, 958
S.W.2d 404, 408-09 (Tex. Crim. App. 1997).  As an appellate court faced with a cold record, we will
not substitute our judgment for that of the fact finder.  Id.  After reviewing the entire record, we find
that the jury could have reasonably found sufficient evidence to show Appellant caused a bodily
injury, and thus, we hold the evidence legally sufficient.  See Jackson, 443 U.S. at 318-19.  Further,
because the evidence supporting the verdict is not so weak, nor is it outweighed by the great weight
and preponderance of contrary evidence, that the verdict is clearly wrong or manifestly unjust, we
find the evidence factually sufficient to support Appellant's conviction.  See Roberts, 220 S.W.3d
at 524.  Accordingly, we overrule Appellant's first and second issues presented for review.
CONCLUSION
	Having overruled Appellant's two issues, we affirm the trial court's judgment.

						GUADALUPE RIVERA, Justice

March 24, 2010

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

(Do Not Publish)
1.   Appellant suggests that since the redness was observed on Yolanda's neck, there was a variance between
the information, which alleged he grabbed her face, and the proof at trial.  However, Officer Valles found redness on
Yolanda's right jaw and neck area.  The jaw is part of the face.  See Webster's New Universal Unabridged
Dictionary 1025 (2003) (defining the jaw as the bones forming the framework of the mouth);  see Webster's at 689
(defining face as the front part of the head from the forehead to the chin).  Further, the information also alleged
Appellant grabbed Yolanda's body, and the body certainly encompasses the neck.  See Webster's at 232 (defining
body as the physical structure of a human being or the physical person of an individual).  Thus, we find no variance
between the information and the proof at trial.

