                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                              NO. 02-11-00140-CR


WILLIAM BRUCE TOLLESON                                             APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE


                                     ----------

           FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

                                     ----------

                           MEMORANDUM OPINION1
                                     ----------


                                   Introduction

      Appellant William Bruce Tolleson appeals his convictions on two counts of

assault, contending in a single issue that the evidence is legally and factually

insufficient. We affirm.




      1
       See Tex. R. App. P. 47.4.
                               Standard of Review

      The court of criminal appeals has held that there is no meaningful

distinction between the legal sufficiency standard and the factual sufficiency

standard. Brooks v. State, 323 S.W.3d 893, 895, 912 (Tex. Crim. App. 2010)

(overruling Clewis v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App. 1996)).

Thus, the Jackson standard, which is explained below, is the ―only standard that

a reviewing court should apply in determining whether the evidence is sufficient

to support each element of a criminal offense that the State is required to prove

beyond a reasonable doubt.‖ Id. at 912.

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

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, 99 S. Ct. 2781, 2789 (1979); Isassi v. State, 330 S.W.3d 633, 638

(Tex. Crim. App. 2010).

                       Factual and Procedural Background

      A two-count indictment charged Appellant with committing assault against

his live-in girlfriend, Anita Barrett.   Count one alleged that he intentionally,

knowingly, or recklessly impeded Anita’s normal breathing or circulation by

applying pressure to her throat or neck or by blocking her nose or mouth, and

that Anita was a member of his household or a person with whom he had a

dating relationship.    Count two alleged that he intentionally, knowingly, or


                                          2
recklessly caused bodily injury to Anita—a member of his household or a person

with whom he had a dating relationship—by slapping her face, pushing her, and

grabbing her neck and choking her.       Each count in the indictment preceded

enhancement paragraphs alleging Appellant had two previous convictions for

assault family violence.

      A jury found Appellant guilty as charged in both counts and assessed his

punishment at twenty years’ confinement with a $3,500 fine for count one, and

ten years’ confinement plus a $2,500 fine for count two.           The trial court

sentenced Appellant accordingly and ordered that the sentences                 run

concurrently.

      Section 22.01(a)(1) of the penal code provides that a person commits an

offense if he intentionally, knowingly, or recklessly causes bodily injury to

another, including the person’s spouse. Tex. Penal Code Ann. § 22.01(a)(1)

(West 2011). Subsection (b-1) applies to the first count in the indictment and

elevates the offense to a second degree felony if the offense is committed

against a person whose relationship or association with the defendant is

described by sections 71.0021(b), 71.003, or 71.005 of the family code, the

defendant has a previous conviction for assault family violence, and if the offense

is committed by intentionally, knowingly, or recklessly impeding the normal

breathing or circulation of the blood of the other person by applying pressure to

that person's throat or neck or by blocking their nose or mouth. Id. § 22.01(b-1).

Section 71.0021 of the family code describes a ―dating relationship‖ as one


                                        3
between individuals who have been or have had a continuing romantic or

intimate relationship. Tex. Fam. Code Ann. § 71.0021(b) (West Supp. 2011).

Section 71.005 describes a ―household‖ as a unit composed of persons living

together in the same dwelling without regard to whether they are related to each

other. Id. § 71.005 (West 2008).2

      Penal code section 22.01(b)(2) applies to the second count of the

indictment and elevates the offense to a third-degree felony if the actor

intentionally, knowingly, or recklessly caused bodily injury to a person described

in the above cited sections of the family code.         Tex. Penal Code Ann.

§ 22.01(b)(2) (West 2011).

      The evidence at trial showed that in January 2010, Appellant and Anita

Barrett were involved in a dating relationship and were living together in

Granbury. Anita testified that she and Appellant were ―boyfriend-girlfriend‖ and

had been living together for eighteen months. On January 13, they were drinking

as they prepared to move to a different home within their subdivision. At some

point they decided to go to a local bar called TJ’s, and there they continued

drinking. Anita testified that they got into an argument at the bar and that she

left, catching a ride from a woman driving by. After she was dropped off, she told

a neighbor, Sharon McHenry, that she had caught a ride back from the bar. She

then went into her home and went to sleep.


      2
       Section 71.003 defines ―family.‖


                                          4
      When Appellant came home, Anita awoke to him screaming and grabbing

her by her shoulders and throat. Appellant squeezed Anita’s throat, causing her

to cough and nearly black out. She testified that during the attack, he slapped

her, pushed her to the floor, pulled her by the hair, and grabbed her by the jaw.

She managed to escape and run—clad only in a robe and socks––from her

house to Sharon’s.

      On the way to Sharon's, Anita tripped on some flagstones and skinned her

knees. When she got to Sharon’s door, she pounded on it, waking Sharon, who

ushered her inside and tried to find out what had happened. Anita was crying

hysterically but managed to say, ―He’s trying to kill me.‖       Sharon observed

bruising and finger marks on Anita’s neck, bruising on her chin and head, and an

area where some of Anita’s hair had been pulled out. Sharon called 911.

      Hood County Sheriff’s Corporal Lance McLean and Investigator Patrick

Felan and Paramedic Katherine Jolly arrived sometime after 11:00 p.m. Corporal

McLean entered Sharon’s house and was led to a bedroom where he found Anita

sitting on a bed, crying. He noticed abrasions on her knees, as well as red marks

on her face and throat. Paramedic Jolly then examined Anita. She complained

to Jolly of pain to her head, face, and back of her neck, which she said was

caused from her being strangled, punched, and thrown against a wall and the

floor. Jolly testified that her report indicated that Anita’s face and neck were not

discolored, but she added that since Anita had been crying, it would have been




                                         5
hard to notice evidence of trauma due to the redness and puffiness caused by

Anita’s crying. Anita went by ambulance to Granbury Medical Center.

      Officer McLean testified that after he spoke with Anita, he went to the

home she shared with Appellant and found Appellant on a couch and wearing a

gray sweatshirt that appeared to have blood on it. McLean described the house

to be in a state of disarray, and the State had photographs the officer had taken

at the house admitted in evidence. McLean also noticed a mattress on the floor

of the house just inside the front door. Broken pieces of glass were on the

mattress and the floor, cigarettes were strewn about the room, and a crushed

piece of fruit lay on the floor. There was also a broken picture frame on the floor

and a lamp tipped over on its side. McLean also testified that Appellant admitted

that an argument between him and Anita at the house had become ―physical.‖

      At the hospital, emergency room physician Dr. Don Davis treated Anita.

He recorded that she had injuries to her lower extremities, as well as an area of

discomfort in the front of the chest wall along with tenderness near the back of

the neck. At trial, Dr. Davis acknowledged that photographs of Anita’s injuries

taken at the hospital showed redness on her chin and an area of discoloration on

her chest. Anita was discharged the next morning, went to Sharon’s house to

collect some of her things, and then left for her parents’ house.

                                    Discussion

      In a single issue, Appellant argues that there is ―significant reasonable

doubt about the factual sufficiency of the evidence in this case‖ due to


                                         6
misstatements and evidentiary inconsistencies.     This argument invites us to

assess the credibility of alleged misstatements and to weigh evidence that may

or may not be inconsistent with other evidence. Under the applicable standard of

review, however, we can do neither.

       The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Brown v.

State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075

(2009).   When performing an evidentiary sufficiency review, we may not re-

evaluate the weight and credibility of the evidence and substitute our judgment

for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.

App. 2007).    Instead, we ―determine whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence

when viewed in the light most favorable to the verdict.‖ Hooper v. State, 214

S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume that the factfinder

resolved any conflicting inferences in favor of the verdict and defer to that

resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Isassi, 330 S.W.3d at

638.

       Based on our review of the record under the appropriate standard of

review, we hold that a rational jury could have reasonably concluded beyond a

reasonable doubt that Appellant committed each offense as alleged in the

indictment.   Therefore, we hold that the evidence is sufficient to support his

convictions. Accordingly, we overrule Appellant’s sole issue.


                                        7
                                     Conclusion

         Having overruled Appellant’s sole issue, we affirm the judgment of the trial

court.




                                                     LEE GABRIEL
                                                     JUSTICE

PANEL: GARDNER, McCOY, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 23, 2012




                                           8
