Opinion filed July 30, 2009




                                              In The


   Eleventh Court of Appeals
                                          ____________

                                      No. 11-08-00002-CR
                                          __________

                        FABIAN DERELL BROWN, Appellant

                                                 V.

                                STATE OF TEXAS, Appellee


                              On Appeal from the 350th District Court

                                       Taylor County, Texas

                                   Trial Court Cause No. 8119D


                              MEMORANDUM OPINION

       Fabian Derell Brown appeals from a guilty verdict for assault-family violence. We affirm.
                                         Background Facts
       Appellant was charged with intentionally, knowingly, and recklessly causing bodily injury
to Tomasa Garcia, a member of his family or household, by striking her on and about her face with
his hand. The indictment was enhanced to a third degree felony based on a prior conviction for
assault-family violence. Appellant pleaded not guilty to the charge but entered a plea of true to the
enhancement paragraph and proceeded to a jury trial.         The jury found him guilty and the
enhancement allegation true, and the court assessed his punishment at confinement for twenty-five
years in the Texas Department of Criminal Justice, Institutional Division.
                                          Issues on Appeal
       Appellant asserts in two issues that the evidence is legally and factually insufficient to sustain
his conviction for assault-family violence.
                                         Standard of Review
       In order to determine if the evidence is legally sufficient, we review all of the evidence in the
light most favorable to the verdict and 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 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). The factfinder is the sole
judge of the credibility of the witnesses and the weight to be given their testimony. TEX . CODE
CRIM . PROC. ANN . art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979). The factfinder may choose
to believe or disbelieve all or any part of any witness’s testimony. Sharp v. State, 707 S.W.2d 611,
614 (Tex. Crim. App. 1986).
       To determine if the evidence is factually sufficient, we review all of the evidence in a neutral
light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v.
State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim.
App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922
S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, we determine whether the evidence supporting the
verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is
against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-
15; Johnson, 23 S.W.3d at 10-11.
                                              Analysis
       A person commits an assault-family violence if he intentionally, knowingly, or recklessly
causes bodily injury to another, including the person’s spouse. TEX . PENAL CODE ANN . § 22.01(a)
(Vernon Supp. 2008). “Bodily injury” means physical pain, illness, or any impairment of physical
condition. TEX . PENAL CODE ANN . § 1.07(8) (Vernon Supp. 2008). The definition of bodily injury
is broad and encompasses even relatively minor physical contacts as long as they constitute more
than mere offensive touching. Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989).


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        Officer Santos Perez testified that he was dispatched to a domestic disturbance call. When
he arrived at the scene, Officer Perez saw appellant with his finger in Garcia’s face yelling at her.
Officer Perez told appellant to step away from Garcia and to settle down, but appellant ignored
Officer Perez and continued to yell and point his finger at Garcia. Officer Perez then grabbed
appellant and took him to his patrol car. Officer Perez smelled alcohol on appellant, and he believed
him to be intoxicated. Officer Perez placed appellant under arrest for public intoxication.
Officer Perez testified that Garcia looked scared and that she had been crying. Officer Perez further
testified that Garcia told him that she had a cut on the inside of her mouth but that he did not observe
it.
        Officer Martin Walker testified that he received a call regarding a domestic disturbance.
Officer Walker interviewed Garcia at the scene. Garcia told him that she and appellant had gotten
into an argument and that appellant had struck her three times on the side of her face.
Officer Walker testified that he saw cut marks on the inside of her lip and on the left side at the
crease of her mouth. Officer Walker did not take pictures of Garcia’s injury because a camera was
not available at that time. On cross-examination, Officer Walker testified that he did not see
appellant strike Garcia.
        Garcia testified that she and appellant had been married for eight years. Garcia further
testified that she did not want to testify against her husband but that she would tell the truth. On the
night of the assault, Garcia was staying with her friend when appellant knocked on the door looking
for her. When she opened the door, appellant slapped her across the face and busted her lip. She
further testified that, at some point during the argument, appellant grabbed her by the hair and threw
her down the stairs. Garcia also gave a statement regarding the assault three days after the incident.
In her statement, she stated that she wanted to press charges against appellant and that she had a cut
inside her mouth. On cross-examination, Garcia testified that she was using crack cocaine and
marihuana on the day of the incident and that she continued to use drugs up until her incarceration
for a state jail felony.
        Appellant argues that the evidence is insufficient to show that he caused bodily injury to
Garcia because of Garcia’s conflicting testimony and her wish not to testify against appellant.
Appellant also argues that no jury could have found appellant guilty because neither of the officers


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saw appellant hit Garcia. We disagree. Both officers testified that Garcia told them she had a cut
on the inside of her mouth from appellant slapping her on the left side of her face. Officer Perez
witnessed appellant pointing his finger in Garcia’s face, yelling at her, and refusing to get away from
her. Garcia testified that, when appellant slapped her across the face, he caused a cut on the inside
of her mouth. Further, her testimony regarding the facts of the night of the assault was the same as
the statement she gave days after the incident. Even though Garcia stated that she did not want to
testify against appellant, her testimony was clear that, when appellant slapped her across the face,
he caused a cut on the inside of her mouth.
        Considering the entire record, the evidence is legally and factually sufficient to show that
appellant caused bodily injury to Garcia. We overrule appellant’s first and second issues on appeal.
                                              Conclusion
       We affirm the judgment of the trial court.




                                                               RICK STRANGE
                                                               JUSTICE


July 30, 2009
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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