Opinion issued September 25, 2014




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-13-00907-CR
                           ———————————
                       RANDY MAZUERA, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


          On Appeal from the County Criminal Court at Law No. 1
                           Harris County, Texas
                       Trial Court Case No. 1870669


                         MEMORANDUM OPINION

      Randy Mazuera appeals a judgment convicting him of misdemeanor assault

of a family member. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b) (West Supp.

2014). A jury found Mazuera guilty, and the trial judge sentenced him to 180 days
in county jail. In his sole issue on appeal, Mazuera contends that the evidence is

legally insufficient to support his conviction. We affirm.

                                   Background

      Mazuera and Asusena Cenobio dated from 2003 to 2011. They have two

children together—J.M. and R.M., who were eight and six, respectively, at the time

of the incident.

      At trial, Latoya Archie, who knew neither Mazuera nor Cenobio, testified

that on December 31, 2012, she was driving out of a Wal-Mart parking lot when

she saw Mazuera intentionally slam Cenobio’s head inside a truck door in the

neighboring parking lot of a fast food restaurant. Archie stopped her car and called

9-1-1 because she feared for Cenobio’s safety and because she saw two children

running back and forth between the truck and another car. Archie did not see

Mazuera hit or push Cenobio, but she saw Cenobio fall.

      Cenobio testified that she and Mazuera were no longer romantically

involved in December 2012, but that they agreed to meet at 10:00 a.m. at the fast

food restaurant so that Mazuera could give her grocery money. After Mazuera

arrived with his girlfriend and daughter, the children ate and played in the

playground, and Mazuera gave Cenobio money for groceries.

      Cenobio testified that when she decided to leave, Mazuera grabbed J.M. and

R.M. and said he was taking them with him. Cenobio protested, but Mazuera put



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the children in his truck. Cenobio testified that while she was trying to get her sons

out of the truck, Mazuera “tried to slam the door on [her] head.” Cenobio raised

her arm to protect her head and the door hit her on the shoulder and arm, causing

pain. She testified that Mazuera then slammed her on the concrete, which hurt.

Cenobio testified that after the incident, she went to the home of her mother,

Consuela Perez. She was in a lot of pain, and stayed in bed while at Perez’s house

because she could not move. Cenobio testified that she had bruises on her back

and that she asked Perez to massage her back because it hurt.

      Perez testified. She confirmed that Cenobio cried while at her house, but she

also testified that Cenobio did not complain about any pain. Perez said that

Cenobio did not ask for a massage and that Perez did not see any bruises on

Cenobio. Perez testified that she and Cenobio do not have a good relationship, and

that Cenobio “likes to lie a lot.”

      Maria Magana, Mazuera’s live-in girlfriend of two years, also testified. She

told the jury that, as they were leaving the fast food restaurant, Mazuera asked

Cenobio for her permission to take the kids to visit with his brother, who was

visiting from Colombia. She testified that Mazuera and Cenobio were talking

beside his truck and that Cenobio started “making a scene . . . trying to make [her

kids] feel bad,” and telling the boys to get out of the truck when the boys did not

want to. According to Magana, Cenobio was yanking on the truck door, trying to



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get the boys out of the truck, and fell down. Magana testified that after Cenobio

got up, she slapped Mazuera, and then Cenobio and Mazuera talked calmly by

Cenobio’s car until the police arrived. Magana testified that she did not see

Mazuera push, grab, or slam Cenobio on the ground.

      The complaint and information set forth two manners and means for the

assault—“intentionally and knowingly caus[ing] bodily injury” by “pushing the

Complainant with his hand” and by “striking the Complainant with the door of a

vehicle.” The jury was charged in the disjunctive and returned a verdict of guilty.

                                     Discussion

      In his sole point of error, Mazuera contends that the evidence is legally

insufficient to support his conviction. Specifically, Mazuera argues that a rational

jury could not have found him guilty given Cenobio’s purportedly self-

contradictory testimony and the inconsistencies between Cenobio’s testimony and

that of the other witnesses.

A.    Standard of Review

      “When reviewing the sufficiency of the evidence, we view all of the

evidence in the light most favorable to the verdict to determine whether any

rational fact finder could have found the essential elements of the offense beyond a

reasonable doubt.” McGregor v. State, 394 S.W.3d 90, 109 (Tex. App.—Houston

[1st Dist.] 2012, pet. ref’d) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.



                                          4
2781, 2789 (1979)); see also Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim.

App. 2011) (holding Jackson standard is only standard to use when determining

sufficiency of evidence).

      “The jurors are the exclusive judges of the facts, the credibility of the

witnesses, and the weight to be given to the testimony.” McGregor, 394 S.W.3d at

110 (citing Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008)); see

Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995) (The jury is the

“sole judge of the weight of the evidence and may choose to believe all, some, or

none of it.”). “A jury may accept one version of the facts and reject another, and it

may reject any part of a witness’s testimony.” McGregor, 394 S.W.3d at 110

(citing Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986)). “We may

not re-evaluate the weight and credibility of the evidence or substitute our

judgment for that of the fact finder.” Id. (citing Williams v. State, 235 S.W.3d 742,

750 (Tex. Crim. App. 2007)). We afford almost complete deference to the jury’s

determinations of credibility and we resolve any inconsistencies in the evidence in

favor of the verdict. Id. (citing Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim.

App. 2008); Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)).

B.    Applicable Law

      As relevant here, a person commits assault of a family member if the person

intentionally or knowingly causes bodily injury to a person with whom the actor



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has or has had a dating relationship, or against an individual who is a parent of the

actor’s child. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2); § 71.0021 (West

2011); § 71.003 (West 2011). Bodily injury is defined as “physical pain, illness, or

any impairment of physical condition.” See TEX. PENAL CODE ANN. § 1.07(a)(8)

(West Supp. 2014).

C.    Analysis

      The information charged Mazuera with “intentionally and knowingly

caus[ing] bodily injury” by both “pushing the Complainant with his hand” and by

“striking the Complainant with the door of a vehicle.” The jury was charged in the

disjunctive, and thus the jurors were not required to agree upon a single manner

and means. See Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005);

Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991), cert. denied, 504

U.S. 958, 112 S. Ct. 2309 (1992). Mazuera contends that the inconsistencies in the

testimony render the evidence insufficient to support either of the manner and

means charged.

      We conclude that sufficient evidence supports the jury’s guilty verdict.

Archie, who knew none of the parties, testified that she witnessed Mazuera

intentionally slam Cenobio’s head in the truck door. And Cenobio testified that

Mazuera tried to slam the door on her head, and that she raised her arm to protect

herself, causing the door to slam into her shoulder and arm and cause her pain.



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Cenobio also testified that Mazuera slammed her onto the ground, causing her

further pain. Finally, Cenobio testified that after the assault, she was in a lot of

pain, stayed in bed because she could not move, had bruises on her back, and asked

Perez to massage her back to alleviate the pain. This evidence supports both

manner and means alleged in the information.

      Mazuera points out inconsistencies in the testimony supporting the verdict

and evidence that supported his claims of innocence. For example, Archie testified

that she witnessed Mazuera slam the car door on Cenobio’s head, but Cenobio

testified that he did not slam her head in the truck door. Mazuera also points to the

fact that Archie did not witness him hit or push Cenobio, while Cenobio testified

that he grabbed her and slammed her to the ground. Likewise, Cenobio claimed to

be bruised and to have asked Perez for a massage, but Perez testified that Cenobio

did not complain about pain, show her any bruises, or ask for a massage, and that

Cenobio lies. Finally, Mazuera argues that his girlfriend testified that he did not

assault Cenobio. While the evidence conflicted in some respects, it is the province

of the jury to accept one version of the facts and reject another. See Heiselbetz,

906 S.W.2d at 504 (jury is the “sole judge of the weight of the evidence and can

choose to believe all, some, or none of it”); McGregor, 394 S.W.3d at 109–10

(court of appeals defers to jury’s determinations of credibility and resolves any

inconsistencies in the evidence in favor of the verdict). Because the standard of



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review requires that we view the evidence in the light most favorable to the verdict,

we conclude that a rational juror could have found that Mazuera intentionally or

knowingly caused Cenobio bodily injury by pushing her with his hand or striking

her with the door of a vehicle. See Heiselbetz, 906 S.W.2d at 504; McGregor, 394

S.W.3d at 109–10. Accordingly, we hold that the evidence was legally sufficient

to support the judgment. See, e.g., Starks v. State, 127 S.W.3d 127, 133–34 (Tex.

App.—Houston [1st Dist.] 2003, pet. dism’d) (affirming assault conviction despite

conflicts in witnesses’ testimony because jury was free to believe or disbelieve all

or any part of a witness’s testimony).

                                    Conclusion

      We affirm the trial court’s judgment.




                                               Rebeca Huddle
                                               Justice

Panel consists of Justices Massengale, Brown, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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