                                         In The

                                  Court of Appeals
                     Ninth District of Texas at Beaumont
                             ____________________
                                NO. 09-12-00276-CR
                             ____________________

                     NABAWANGA KAKEMBO, Appellant

                                           V.

                        THE STATE OF TEXAS, Appellee
_______________________________________________________                ______________

                 On Appeal from the County Court at Law No. 2
                            Jefferson County, Texas
                            Trial Cause No. 289894
________________________________________________________                 _____________

                            MEMORANDUM OPINION

      A jury convicted Nabawanga Kakembo of Class A misdemeanor assault

arising from an altercation she had with her teenage grandson. After sentencing

Kakembo to ninety days in jail and assessing a $100 fine, the trial court suspended

the imposition of the sentence and placed her on probation. On appeal, Kakembo

argues that the evidence is legally insufficient, that there is error in the jury charge,

that the trial court erred in failing to grant a new trial, and that her trial counsel was

ineffective. We overrule each of her issues, and we affirm the judgment.

                                            1
                                    Background

Testimony of A.V.:

      On September 4, 2011, A.V. and Kakembo, his grandmother, got into an

argument over A.V.’s eating too much food. A.V. lived with his grandmother, and

he testified that Kakembo was drinking and that she “was drunk, very drunk.” A.V.

stated that during their argument Kakembo hit him multiple times on his arm with

a hammer, and then she kicked him out of the house. A.V. went to the home of his

neighbor, Robert Sharrod, immediately following the incident. At some point,

EMS was called, and A.V. was taken to the hospital. Photographs taken at the

hospital reveal a few small cuts on one of A.V.’s hands and what witnesses

described as a knot on one of A.V.’s arms.

Testimony of Sharrod:

      After A.V. told Sharrod that he and his grandmother had an argument and

that she hit him on the arm with a hammer, Sharrod went to Kakembo’s residence

to speak to Kakembo. Sharrod testified that it looked as if there had been a struggle

inside Kakembo’s home. In the statement that Sharrod gave to the police, he

explained that “[Kakembo] answered the door . . . with a hammer and wanted to hit

me with it but she put it down and sat down and I tried to talk about what was

going on with [A.V.]”

                                         2
      At trial, Sharrod appeared to distance himself from the comments in the

statement he gave to the police. He testified, “I can’t remember half the things that

went on” and indicated that “[Kakembo] wasn’t threatening to me.” Sharrod

further stated he was “full of drink” on that day, and that when he wrote the

statement, he was drunk. Sharrod then testified that he could not remember where

the hammer was located, but he agreed a hammer was involved. He further

testified that he had no car, and he rode to court with Kakembo for the trial.

Testimony of Officer Epperly:

      Officer Epperly testified that she received a call about the alleged assault

and went to talk to A.V. who was at an apartment where he had gone after the

argument. Epperly testified she found A.V. holding his forearm, and she observed

that he had a medium-to-large-size knot on his arm. A.V. told Epperly that his

grandmother had been drinking all day, and that she hit him on the forearm with a

hammer, threatened to kill him if he got into any trouble, and pulled a knife on

him. The officer went to the grandmother’s location. When Epperly got out of the

car and motioned for Kakembo, she could hear Kakembo was “uttering

statements” that the officer “couldn’t understand.” “[Kakembo] was flaying her

arms about violently[,]” and “she appeared to be out of her head and intoxicated[.]”

Epperly smelled alcohol on Kakembo.

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      Epperly further testified she interviewed a witness (Sharrod) who stated he

saw Kakembo with a hammer in her hand shortly after the incident. When Epperly

spoke to Sharrod, he told her that Kakembo was drinking Thunderbird. Epperly

testified that at the time of the arrest Kakembo was intoxicated, belligerent, and

uncooperative, and she was resisting arrest.

Testimony of Kakembo:

      Kakembo denied the allegations. She told the jury she had no prior

convictions, and she had no arrests other than this one. She stated that she “raised”

A.V. from his birth, and she is the sole caretaker for A.V.’s four siblings. She

explained that the children were all born with drugs in their system. According to

Kakembo, she has used “Ben Taub Hospital children’s ward” and other community

services, because A.V. has a “lot of disabilities.” Kakembo further testified that

A.V. is bipolar and autistic, and he has an anger problem and needs speech

therapy. She explained that police officers came to her address on previous

occasions when she called them to help her because A.V. would “break[] things.”

Kakembo testified A.V. takes ten kinds of medication, and she admitted she has

had fist fights with A.V. in the past, but she denied hitting A.V. on the day in

question.




                                         4
      Kakembo told the jury that the incident did not occur like A.V. stated.

According to Kakembo, A.V. was warming up his food when they began to argue

about how much food he was warming up in the microwave. She testified that she

told him that was “too many,” and he ignored her and put in more. Kakembo stated

that she then “unhooked” the microwave, and that is when A.V. “came and pushed

[her]. [She] fell down. So he pulled -- picked the microwave, that’s why -- the

bruises came from. He hit me here.” Kakembo testified A.V. hit her with the

microwave and said “die, die, die[,]” and then he ran outside. She acknowledged

that Sharrod came over after A.V. left. Kakembo testified that the reason Sharrod

did not see any microwave on the floor when he arrived at the apartment was

because she was cleaning the house and she had put the microwave back in its

place. Kakembo indicated she assumed A.V. hit his arm when he handled the

microwave.

      Disputing the officer’s testimony, Kakembo maintained that she was not

drunk because it was a Sunday. She expressly denied that she hit A.V. with a

hammer, and she denied that she ever had a hammer in her hand when she opened

the door to talk with Sharrod, and she denied telling Sharrod that “I’ll hit you too.”

Although she acknowledged keeping a hammer in the house, she claimed there was

no hammer on the counter when Sharrod came over that day. Kakembo admitted

                                          5
she drinks Thunderbird “[a]s many as times as I can get it[,]” because she is

stressed by the responsibility of taking care of the children.

                                       Assault

      Kakembo was charged with assault under Texas Penal Code Ann. §

22.01(a)(1). A person commits the offense of assault if he intentionally,

knowingly, or recklessly causes bodily injury to another. Tex. Penal Code Ann. §

22.01(a)(1) (West Supp. 2013). The offense is a Class A misdemeanor, unless it is

elevated to a higher punishment range by virtue of another applicable provision. 1

The charge was not elevated in this case, and therefore the range of punishment

was limited to a Class A misdemeanor.

                Legal Sufficiency of the Evidence and Self Defense

      In her first issue, Kakembo argues that the evidence is “legally insufficient

to disprove [her] plea of self-defense.” When determining the legal sufficiency of

the evidence, we must (1) consider the entire record in the light most favorable to

      1
       The offense is elevated to a third-degree felony if it is committed against a
person whose relationship with the defendant is described in sections 71.002(b)
(dating), 71.003 (family), or 71.005 (household) of the Texas Family Code, and the
defendant has been previously convicted of, among other offenses, an assault
involving family violence. See Tex. Penal Code Ann. § 22.01(b)(2)(A) (West
Supp. 2013); Tex. Fam. Code Ann. §§ 71.0021(b), 71.003, 71.005 (West 2014).
Although A.V. was a family member or resided in her household, there was no
evidence in the record that Kakembo had any prior conviction involving family
violence.
                                           6
the verdict and (2) determine whether, based on the record, any rational trier of fact

could have found the defendant guilty of all the essential elements of the offense

beyond a reasonable doubt. Ramos v. State, 407 S.W.3d 265, 268 (Tex. Crim. App.

2013) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In reviewing the

legal sufficiency of the evidence to support the fact finder’s rejection of a

defensive issue, “we look not to whether the State presented evidence which

refuted appellant’s self-defense testimony, but rather we determine whether after

viewing all the evidence in the light most favorable to the prosecution, any rational

trier of fact would have found the essential elements of [the offense] beyond a

reasonable doubt and also would have found against appellant on the self-defense

issue beyond a reasonable doubt.” Saxton v. State, 804 S.W.2d 910, 914 (Tex.

Crim. App. 1991); Henson v. State, 388 S.W.3d 762, 773 (Tex. App.—Houston

[1st Dist.] 2012), aff’d on other grounds, 407 S.W.3d 764 (Tex. Crim. App. 2013).

       After reviewing the record, we conclude that the evidence was sufficient for

a rational trier of fact to have found the essential elements of the offense of assault

on A.V. and to have found against Kakembo on the self-defense issue. The jury

was presented with evidence that Kakembo struck A.V. with a hammer, that A.V.

sustained an injury to his arm, that Kakembo came to the door with a hammer after

the incident and threatened Sharrod, that Kakembo exhibited belligerent behavior

                                          7
that day, that Kakembo was intoxicated, that there were prior disturbance calls to

the residence regarding problems between A.V. and Kakembo, that A.V. had

behavioral problems, and that Kakembo denied hitting A.V.

      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 318-19; Isassi v. State, 330

S.W.3d 633, 638 (Tex. Crim. App. 2010). The jury could have believed the

testimony from A.V., the testimony from the officer, and the written statement

made by Sharrod, and could have rejected Kakembo’s account of the events and

that portion of Sharrod’s testimony at trial that was inconsistent with his prior

written statement.

      Moreover, to raise the issue of self-defense, “the defendant’s defensive

evidence” must essentially admit to having committed the offense. See Shaw v.

State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007); Ex parte Nailor, 149 S.W.3d

125, 134 (Tex. Crim. App. 2004); Young v. State, 991 S.W.2d 835, 838 (Tex.

Crim. App. 1999); see also, e.g., East v. State, 76 S.W.3d 736, 738 (Tex. App.—

Waco 2002, no pet.); Wallace v. State, 75 S.W.3d 576, 586-87 (Tex. App.—

Texarkana 2002), aff’d on other grounds, 106 S.W.3d 103 (Tex. Crim. App. 2003);

Gilmore v. State, 44 S.W.3d 92, 97 (Tex. App.—Beaumont 2001, pet. ref’d);

                                          8
Anderson v. State, 11 S.W.3d 369, 372 (Tex. App.—Houston [1st Dist.] 2000, pet.

ref’d). Kakembo denied she struck A.V. with a hammer; she never admitted that

she struck him at all during the altercation. Rather, Kakembo offered an alternative

reason for his injuries -- he injured himself when he picked up the microwave and

threw it at her.

       Considering all the evidence before us and viewing that evidence in the light

most favorable to the verdict, we conclude that a rational trier of fact could have

found, beyond a reasonable doubt, that Kakembo committed the offense, and could

have found against her on the self-defense issue beyond a reasonable doubt.

Saxton, 804 S.W.2d at 914. We overrule issue one.

                                    Jury Charge

       In her second issue, Kakembo claims the trial court erred in failing to

instruct the jury regarding three defenses found in sections 9.31 (self-defense),

9.41 (protection of one’s own property), and 9.61 (parent-child defense) of the

Texas Penal Code. See Tex. Penal Code Ann. §§ 9.31, 9.41, 9.61 (West 2011).

Kakembo made no objection to the jury charge at the trial court level.

Consequently, we will reverse the conviction only if the error, if any, was so

egregious and created such harm that the defendant did not have a fair and

impartial trial. Woodard v. State, 322 S.W.3d 648, 658-59 (Tex. Crim. App. 2010)

                                         9
(citing Almanza v. State, 686 S.W.2d 157, 171-72 (Tex. Crim. App. 1984) (op. on

reh’g)).

      Sections 9.31, 9.41, and 9.61 presuppose the defendant’s use of force. See

Tex. Penal Code Ann. §§ 9.31, 9.41, 9.61; see, e.g., Mays v. State, 318 S.W.3d

368, 385 n.55 (Tex. Crim. App. 2010); Shaw, 243 S.W.3d at 559; Ex parte Nailor,

149 S.W.3d at 134; Quattrocchi v. State, 173 S.W.3d 120, 122 (Tex. App.—Fort

Worth 2005, pet. ref’d). Because Kakembo never admitted that she assaulted A.V.,

Kakembo would not have been entitled on this record to the respective statutory

instructions. We overrule issue two.

                                   Motion for New Trial

      In issue three, Kakembo argues that the trial court erred in failing to grant a

new trial in the interest of justice. She again references the trial court’s failure to

instruct the jury on the parent-child defense (section 9.61 of the Penal Code),

which we have disposed of in issue two. No motion for new trial is contained in the

record. A motion for new trial “is a prerequisite for the trial court to grant a new

trial; the court may not do so on its own motion.” State v. Zalman, 400 S.W.3d

590, 593 (Tex. Crim. App. 2013). The trial court did not err in failing to grant a

motion for new trial when none was filed. See id.; see also Tex. R. App. P. 33.1(a).

We overrule issue three.

                                          10
                         Ineffective Assistance of Counsel

      Kakembo also argues that her trial attorney provided ineffective assistance

of counsel, because he failed to object to the admission of the testimony of Sharrod

and Epperly and because he failed to object to the alleged incompetency of A.V. to

testify. Defense counsel did not complain at trial or in a motion for new trial

regarding these issues. Kakembo raises the ineffective assistance claim for the first

time on appeal.

      To prevail on a claim of ineffective assistance of counsel, an appellant must

prove two elements by a preponderance of the evidence: (1) trial counsel’s

performance was deficient; (2) harm resulted from that deficiency sufficient to

undermine confidence in the outcome of the trial. Strickland v. Washington, 466

U.S. 668, 687, 694 (1984); Ex parte LaHood, 401 S.W.3d 45, 49-50 (Tex. Crim.

App. 2013). An ineffective assistance of counsel claim “must be ‘firmly founded in

the record’ and ‘the record must affirmatively demonstrate’ the meritorious nature

of the claim.” Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012)

(quoting Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999)).

Ordinarily, the record on direct appeal is simply undeveloped and does not

adequately reflect trial counsel’s failings, especially when counsel’s reasons for

failing to do something do not appear in the record. Id. at 592-93.

                                         11
      Kakembo claims her trial counsel should have objected to the testimony of

Sharrod and Epperly because their testimony merely served to bolster A.V.’s

testimony. See generally State v. Balderas, 915 S.W.2d 913, 919 (Tex. App.—

Houston [1st Dist.] 1996, pet. ref’d) (bolstering unimpeached testimony); see also

Arzaga v. State, 86 S.W.3d 767, 776 (Tex. App.—El Paso 2002, no pet.)

(bolstering to convince fact finder that testimony is worthy of credit). We disagree.

The evidence from Epperly and Sharrod did not merely serve to bolster A.V.’s

testimony. Rather, we conclude the testimony substantively contributed to the

prosecution of the case to make the existence of a fact that is of consequence to the

determination of the action more or less probable than it would otherwise have

been without the evidence. Arzaga, 86 S.W.3d at 776. Sharrod and Epperly were

both at the scene shortly after the incident and were able to testify to the visible

injury to A.V. and to Kakembo’s post-incident mental state and conduct.

Accordingly, trial counsel was not ineffective for failing to assert a bolstering

objection to Epperly’s testimony or to Sharrod’s testimony.

      As to the claim that trial counsel was ineffective because he failed to object

to the incompetency of A.V. to testify, there is, as a general rule, a presumption

that every witness is competent to testify. See Davis v. State, 268 S.W.3d 683, 699

(Tex. App.—Fort Worth 2008, pet. ref’d); see also Tex. R. Evid. 601(a). A witness

                                         12
is competent to testify if (1) he can intelligently observe events at the time of their

occurrence, (2) he has the capacity to recollect those events, and (3) he has the

capacity to narrate those events to the jury. See Robinson v. State, 368 S.W.3d 588,

604 (Tex. App.—Austin 2012, pet. ref’d); see also Tex. R. Evid. 601(a). Rule

601(a)(2) places the power to determine the competency of a child with the trial

court. Broussard v. State, 910 S.W.2d 952, 960 (Tex. Crim. App. 1995); Rodriguez

v. State, 345 S.W.3d 504, 507 (Tex. App.—Waco 2011, pet. ref’d). A child is

considered competent under Rule 601 unless it appears to the court that the child

does not possess sufficient intellect to relate the transaction about which he will

testify. Rodriguez, 345 S.W.3d at 507. As explained by the Court of Criminal

Appeals, the “capacity to narrate” encompasses both “an ability to understand the

questions asked and to frame intelligent answers[,]” as well as a “moral

responsibility to tell the truth.” Watson v. State, 596 S.W.2d 867, 870 (Tex. Crim.

App. 1980). Inconsistent and confusing responses from a child do not necessarily

mean the child is incompetent to testify; rather, such matters speak to the

credibility of his testimony. In re A.W., 147 S.W.3d 632, 635 (Tex. App.—San

Antonio 2004, no pet.).

      According to the record, A.V. answered the questions posed to him and

offered explanations when necessary. He indicated he knew the difference between

                                          13
the truth and a lie. A.V. testified about what happened, and he demonstrated the

capacity to recollect the events, and his responses indicate he had the capacity to

narrate those events to the jury. See Tex. R. Evid. 601. Nothing on the face of the

record causes us to conclude trial counsel was ineffective in failing to challenge

A.V.’s competency to testify. On this record, Kakembo has not demonstrated trial

counsel rendered ineffective assistance of counsel. We overrule issue four.

      Having overruled all of the issues raised by Kakembo, we affirm the

judgment.

      AFFIRMED.



                                                   _________________________
                                                       LEANNE JOHNSON
                                                             Justice

Submitted on March 12, 2014
Opinion Delivered April 23, 2014
Do Not Publish

Before Kreger, Horton and Johnson, JJ.




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