                                  NO. 12-16-00039-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

JUAN LOPEZ-FLORES,                               §      APPEAL FROM THE
APPELLANT

V.                                               §      COUNTY CRIMINAL COURT NO. 4

THE STATE OF TEXAS,
APPELLEE                                         §      DALLAS COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Juan Lopez-Flores appeals his conviction for assault, family violence. Appellant raises
four issues on appeal. We affirm.


                                         BACKGROUND
       Appellant was charged by indictment with assault, family violence. The indictment
alleged that Appellant committed the offense against his wife, Delia Lopez, by intentionally,
knowingly, and recklessly causing bodily injury to her by grabbing, squeezing, and pushing her.
Appellant pleaded “not guilty.”
       The State and Appellant previously had announced ready for a trial. But on the October
14, 2015, trial date, the State requested a continuance so that it could obtain recently discovered
records of jail phone calls between Appellant and Delia.
       Appellant opposed the State’s motion for continuance, but, in the alternative, argued that
if the court granted the continuance, it should allow him to be released from jail on a personal
recognizance bond. The State did not oppose Appellant’s request, and the court reset the jury
trial for October 27, 2015.
       On October 15, 2015, the State filed a notice of flight risk, notifying the trial court that
Appellant had been placed on a detainer by the Immigration and Customs Enforcement Division
of the Department of Homeland Security.           The trial court revoked Appellant’s bond, and
Appellant was again incarcerated pending trial.
         At trial, Delia testified that, on Saturday, April 26, 2015, she returned from a birthday
party with her children where she found Appellant, who was intoxicated. She further testified
that when she encountered Appellant, he erupted into a rage toward her because she was not
caring for him and shouted, “You’re worthless!” Delia stated that she responded, “If I’m
worthless, then you need to go your way and I’ll go my way. We don’t need to be married no
more because I think I’ve done the best I could as being a wife.”
         Delia testified that she retreated to their bedroom, but Appellant kicked in the bedroom
door and grabbed her on her arm and around her neck. She further testified that Appellant
pushed her against the bed railing and the bedroom wall. Delia initially stated she did not feel
pain in her back, but did feel pain from the “strong” pressure Appellant had exerted on her chest.
She further stated that Appellant demanded she give him his loaded .45 caliber handgun so he
could “finish” her off. Delia testified that she was not too worried about any pain in her back at
this time, but was concerned for her and her children’s safety. She further testified that when she
began shouting for help, Appellant left the apartment and she dialed 9-1-1. The Dallas police
department investigated the incident. The matter also was reported to the apartment complex’s
security.
         Appellant later returned to the apartment complex. While attempting to kick in the back
door to the apartment, he was confronted by the apartment complex’s security guard, Nawaf
Jameel. Jameel testified that Appellant was in a violent rage and appeared determined to harm
Delia.
         Dallas Police Department Patrol Officer Holly Carter testified that she interviewed Delia
following her 9-1-1 call for the purpose of filling out a family violence packet. Delia told Carter
that she was in pain and feared what Appellant would do to her.
         Dallas Police Department Patrol Officer Michael Slay testified that he arrested Appellant
following Delia’s detailed description of Appellant’s attack on her. He testified that she clearly
was “in fear [for] her life and for her kids’ life.” Delia also turned over Appellant’s loaded
handgun to the police.
         After the State rested its case, Appellant moved for a directed verdict based on Delia’s
purportedly inconsistent testimony regarding whether she suffered pain. The trial court denied



                                                  2
Appellant’s motion. Ultimately, the jury found Appellant “guilty” of assault, family violence,
and the trial court sentenced Appellant to confinement for 180 days. This appeal followed.


                                   EVIDENTIARY SUFFICIENCY
       In his first issue, Appellant contends the trial court erroneously denied his motion for
directed verdict based on the State’s failure to prove that Delia felt pain. In his second issue,
Appellant challenges the sufficiency of the evidence to support his conviction.
Standard of Review
       When reviewing a judgment for legal sufficiency of the evidence, the relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact would 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, 61 L. Ed. 2d 560 (1979). Viewing
the evidence “in the light most favorable to the verdict” under a legal sufficiency standard means
that the reviewing court is required to defer to the jury’s credibility and weight determinations
because the jury is the sole judge of the witness’s credibility and the weight to be given to their
testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
       The duty of the reviewing court is simply to ensure that the evidence presented supports
the jury’s verdict and that the State has presented a legally sufficient case of the offense charged.
Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). When the reviewing court
is faced with a record supporting contradicting inferences, the court must presume that the jury
resolved any such conflicts in favor of the verdict, even if not explicitly stated in the record. Id.
Circumstantial evidence is as probative as direct evidence in establishing the guilt of the actor,
and circumstantial evidence alone may be sufficient to establish guilt. Dobbs v. State, 434
S.W.3d 166, 170 (Tex. Crim. App. 2014). A challenge to the denial of a motion for directed
verdict is essentially a challenge to the legal sufficiency of the evidence. Rice v. State, 195
S.W.3d 876, 879 (Tex. App.–Dallas 2006, pet. ref’d.).
Applicable Law
       A person commits assault, family violence, when he intentionally, knowingly, or
recklessly causes bodily injury to another, including the person’s spouse. TEX. PENAL CODE
ANN. § 22.01(a)(1) (West Supp. 2016). “Bodily injury” means physical pain, illness, or any
impairment of physical condition.       Id. at § 1.07(8) (West Supp. 2016).         This definition



                                                 3
encompasses even relatively minor physical contact if it constitutes more than offensive
touching. Laster v. State, 275 S.W.3d 512, 524 (Tex. Crim. App. 2009). Direct evidence that a
victim suffered pain is sufficient to show bodily injury. Id. Moreover, a factfinder may infer
that a victim actually felt or suffered physical pain because people of common intelligence
understand pain and some of the natural causes of it. See Garcia v. State, 367 S.W.3d 683, 688
(Tex. Crim. App. 2012).
Analysis
       In ruling on Appellant’s motion for directed verdict, the trial court stated it was denying
the motion because there was “a scintilla of evidence” of pain suffered by Delia. Appellant
contends that a “scintilla of evidence” is like the “modicum” of evidence described by the United
States Supreme Court in Jackson. We disagree. In Jackson, the Supreme Court stated that a
“modicum” of evidence was relevant evidence that had a tendency to make the existence of an
element of a crime slightly more probable than it would be without the evidence. Jackson, 443
U.S. at 320, 99 S. Ct. at 2789. In other words, the U.S. Supreme Court was referring to legally
sufficient evidence needed to sustain a conviction. Id.
       On the other hand, the scintilla-of-evidence rule is a common law doctrine setting forth
that even if the slightest amount of relevant evidence exists on an issue, a motion for directed
verdict should not be granted and the issue must go to the jury. See scintilla-of-evidence rule,
BLACK’S LAW DICTIONARY (10th ed. 2014). The “modicum” of evidence referred to by the
Supreme Court refers to legally sufficient evidence to sustain a conviction. A scintilla of
evidence refers to the amount of relevant evidence needed to defeat a motion for direct verdict.
The trial court determined there was a scintilla of evidence regarding the pain suffered by Delia
and, as a result, allowed the matter to proceed to the jury for consideration.
       The jury heard testimony from Delia about the pain she suffered. And while, in one
instance, she stated that she did not feel pain in her back because of her fear for her life and her
children’s lives, at other points during her testimony, she specifically described feeling pain. We
are mindful that the jury could have resolved any conflicts in Delia’s testimony in favor of the
verdict. See Montgomery, 369 S.W.3d at 192. The jury also was permitted to infer that Delia
felt pain based on her description of the assault. See Garcia, 367 S.W.3d at 688. Thus, we hold
that there was legally sufficient evidence to support the jury’s verdict. Because the evidence is
legally sufficient to support the jury’s verdict, we further hold that the trial court did not err in



                                                  4
denying Appellant’s motion for directed verdict. See Rice, 195 S.W.3d at 879. Appellant’s first
and second issues are overruled.


                                   MOTION FOR CONTINUANCE
       In his third issue, Appellant contends that the trial court abused its discretion by granting
the State’s motion for continuance because the State failed to demonstrate good cause. See TEX.
CODE CRIM. PROC. ANN. § 29.02 (West 2006) (“a criminal action may be continued by consent
of the parties thereto, in open court, at any time on a showing of good cause, but a continuance
may only be for as long as it is necessary”).
       The granting of an oral motion for continuance is within the sound discretion of the trial
court and is reviewable only for an abuse of discretion. See Renteria v. State, 206 S.W.3d 689,
699 (Tex. Crim. App. 2006); O’Raaden v. State, 777 S.W.2d 455, 459 (Tex. App.–Dallas 1989,
pet. ref’d.). An appellant must show that he was actually prejudiced by the trial court’s decision
to grant the continuance. Williams v. State, 172 S.W.3d 730, 733 (Tex. App.–Fort Worth 2005,
pet. ref’d) (citing Vasquez v. State, 67 S.W.3d 229, 240 (Tex.Crim.App.2002)).
       In the instant case, the record reflects that the Appellant opposed the motion for
continuance.    Therefore, Article 29.02’s provision for a continuance by agreement is
inapplicable. Accordingly, we must determine whether the trial court abused its discretion in
granting the continuance. Appellant contends that he spent one hundred eighty-six days in jail
because the jury trial was continued from October 14, 2015, to October 27, 2015. The maximum
punishment for the Class A misdemeanor with which he was charged was one hundred eighty
days. See TEX. PENAL CODE ANN. § 22.01(b) (West Supp. 2016). Moreover, whether the
inability to avoid or circumvent punishment enhancements is the type of “prejudice” meant to be
avoided by the granting of the motion for continuance is questionable. Williams v. State, 172
S.W.3d 730, 733 (Tex. App.–Fort Worth 2005, pet ref’d.).
       In the instant case, Appellant has presented no support for his assertion that he was
prejudiced by spending an extra six days in jail past his potential maximum sentence. See id.
Without any such support or legal authority offered to support Appellant’s contention that he was
prejudiced, we cannot hold that the trial court abused its discretion in granting the State’s motion
for continuance. See id. Appellant’s third issue is overruled.




                                                 5
                                          SPEEDY TRIAL
       In his fourth issue, Appellant contends that the trial court violated his Sixth Amendment
right to a speedy trial. The State responds that Appellant waived his right to a speedy trial and,
alternatively, he failed to make the required threshold showing that he was prejudiced.
       In assessing whether Appellant has been deprived of his right to a speedy trial, we
consider the length of delay, the reason for the delay, the defendant’s assertion of his right to a
speedy trial, and prejudice to the defendant. See Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct.
2182, 2192, 33 L. Ed. 2d 101 (1972). However, before a court engages in an analysis of each
Barker factor, the accused must first make a threshold showing that “the interval between
accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial’
delay.” Gonzalez v. State, 435 S.W.3d 801, 808 (Tex. Crim. App. 2014) (citing Doggett v. U.S.,
505 U.S. 647, 651–52, 112 S. Ct. 2682, 2686, 120 L. Ed. 2d 520 (1992)). The Texas Court of
Criminal Appeals has set forth that “presumptive prejudice” simply marks the point in which
courts deem the delay unreasonable enough to trigger further enquiry. See id. (citing State v.
Munoz, 991 S.W.2d 818, 821–22 (Tex. Crim. App. 1999)). The length of the delay is measured
from the time the defendant was arrested or formally accused. State v. Thomas, 453 S.W.3d 1, 4
(Tex. App.–Dallas 2014, pet. ref’d.) (citing Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim.
App. 2003)).
       Even if we assume, without deciding, that Appellant preserved error, his contention that
his Sixth Amendment rights were violated fails.         Appellant’s trial took place six months
following his arrest. In Thomas, the defendant’s trial took place seven months after his arrest.
Id. There, the court determined that the defendant failed to make the initial showing that “the
interval between accusation and trial has crossed the threshold between ordinary from
‘presumptively prejudicial’ delay.” Id. at 5 (citing Gonzalez, 435 S.W.3d at 808). When there is
no “presumptively prejudicial” delay to trigger a Sixth Amendment analysis, there is no reason
to consider the remaining Barker factors. Id. Because Appellant has not met his burden, we
cannot conclude that the trial court abused its discretion. Appellant’s fourth issue is overruled.


                                           DISPOSITION
       Having overruled Appellant’s first, second, third, and fourth issues, we affirm the trial
court’s judgment.



                                                 6
                                                                JAMES T. WORTHEN
                                                                   Chief Justice




Opinion delivered May 24, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




                                                          7
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                              MAY 24, 2017


                                         NO. 12-16-00039-CR


                                      JUAN LOPEZ-FLORES,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                           Appeal from the County Criminal Court No. 4
                        of Dallas County, Texas (Tr.Ct.No. MA-1555247-E)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
