                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-324-CR

STUART EADS CLEMENTS                                              APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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               FROM COUNTY COURT AT LAW OF WISE COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. Introduction

      In one issue, Appellant Stuart Eads Clements appeals his conviction for

misdemeanor assault, arguing that the evidence is legally insufficient to prove

assault as alleged in the State’s information. We affirm.




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          … See Tex. R. App. P. 47.4.
                               II. Background

      Viola Gasper hired Terry Cobb, a self-employed construction worker, to

install a septic tank in her front yard. When Cobb arrived on the third day to

finish the job, he saw Clements, Gasper’s neighbor, walking around in his front

yard. Cobb did not think anything of it and proceeded to walk to the area in

Gasper’s yard where he had been working. Clements approached the fence

between his and Gasper’s yards and told Cobb that he worked nights and that

the sound of Cobb’s tractor had been keeping him up during the day.         An

argument ensued, resulting in an altercation between Clements and Cobb.

      Cobb filed a formal complaint with the sheriff’s office, which eventually

led the State to charge Clements with assault, a class A misdemeanor. The

information read in pertinent part that: “. . . one STUART EADS CLEMENTS,

did then and there intentionally and knowingly cause bodily injury to TERRY

COBB, to-wit: BY HITTING TERRY COBB IN THE FACE CAUSING PAIN.” The

jury found Clements guilty of assault as charged in the information. The trial

court assessed punishment at 365 days’ confinement in county jail, suspended

Clements’s confinement, placed him on probation for two years, and assessed

a $1,500 fine. This appeal followed.




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                              III. Legal Sufficiency

      In his sole issue, Clements asserts that the evidence is legally insufficient

to support the jury’s finding that he assaulted Cobb by hitting him in the face

because there was no testimony that Cobb was hit in the face.

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all of the evidence in the light most favorable to the prosecution in

order 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); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

      At trial, in addition to seeing photographs of Cobb’s face taken after the

incident, which showed what appears to be abrasions all over Cobb’s face and

a split lip, the jury also heard Cobb’s testimony about the altercation and

Deputy James Rodgers’s observations of what Cobb looked like shortly after

the altercation.

      Cobb testified that Clements walked to the end of the fence, crossed over

into Gasper’s yard, and grabbed Cobb by the jacket. Cobb then

      hit [Clements] in the stomach, which didn’t seem to have a whole
      lot of effect on [Clements]. So [Cobb] jerked [his] jacket off over
      [his] head and kind of went to [Clements], and [they] wound up on
      the ground. Then [they] wound up back again. Then [they] wound



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      up on the ground again. And that’s when the lady [Gasper] come
      out screaming.

When Gasper screamed, “What are y’all doing?”, they both stopped and got up.

Cobb then went into Gasper’s house to clean off his face while Gasper called

the police.

      When asked on cross-examination whether Clements had ever punched

him, Cobb responded, “Yes,” and “I can’t tell you exactly where all. I know I

had knuckle prints in my head where I felt them.” [Emphasis added.] Upon

further questioning about how many times he thought he had been hit in the

head, Cobb responded, “[t]hree to four times.” When shown pictures of his

face taken after the incident and questioned about swelling, Cobb responded,

“My nose is swelled up.”

      Deputy Rodgers, a patrol deputy with the Wise County Sheriff’s Office,

testified that upon arriving at the scene, he met with Cobb inside Gasper’s

house. When he first saw Cobb, Cobb was “being treated for some minor cuts

and looked like, you know, lacerations and scrapes on his face.”     Deputy

Rodgers testified that Cobb looked like he had been punched numerous times

in the face. On cross, Deputy Rodgers conceded that the cuts and abrasions

were also consistent with rolling around on the ground—“could be somebody

dragging somebody’s, you know, face across pavement.” When asked, “Were



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the injuries that you viewed on Mr. Cobb were they consistent with somebody

being assaulted?”, Deputy Rogers responded, “Yes, sir.”          Deputy Rogers’s

report of the incident was admitted into evidence and stated in pertinent part

that: “Clements became very angry and jumped over the fence and assaulted

Cobb.”

      Viewing the evidence in the light most favorable to the verdict, the jury

could have reasonably inferred that Clements hit Cobb in the face, causing the

cut on Cobb’s lip or the swelling of Cobb’s nose as seen in the photographs.

See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Clayton, 235

S.W.3d at 778 (stating that it is the jury’s responsibility to resolve conflicts in

the testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts). Therefore, we hold that the evidence is legally

sufficient to support Clements’s conviction of assault as alleged in the State’s

information. Accordingly, we overrule his sole issue.




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                            IV. Conclusion

     Having overruled Clements’s sole issue, we affirm the trial court’s

judgment.




                                             BOB MCCOY
                                             JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.


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


DELIVERED: July 22, 2010




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