












 
 
 
 
 
 
                                               COURT OF APPEALS
                                                 SECOND
DISTRICT OF TEXAS
                                                                FORT
WORTH
 
 
                                        NO.
2-06-373-CR
 
 
JOE LEE JAMES                                                                  APPELLANT
 
                                                   V.
 
THE STATE OF TEXAS                                                                STATE
 
                                              ------------
 
           FROM
THE 213TH DISTRICT COURT OF TARRANT COUNTY
 
                                              ------------
 
                                MEMORANDUM
OPINION[1]
 
                                              ------------
I.  Introduction
In three points, Appellant
Joe Lee James appeals his conviction of assault causing bodily injury to a
family member.  We affirm.
 
 




II.  Factual and Procedural Background
On March 14, 2006, Laura
Perkov was at her sister=s apartment
doing her laundry when James, her boyfriend, showed up about 1:00 p.m. and
ordered her to return home.  They began
arguing over whether Perkov was taking too much time doing the laundry.  Perkov argued with James as they walked back
to the apartment they shared with Perkov=s younger sister, Amanda, in Euless. Back at their apartment, the
argument continued and escalated into a screaming match to the point where it
could be heard by the neighbors.  The
argument subsequently became physical after Perkov pushed James to get him away
from her.  James pushed Perkov back,
slapped her, and hit her.  Thereafter,
Perkov hit, pushed, and slapped James several more times throughout the
forty-five minute argument.  Perkov tried
to leave the apartment, but James would not allow her to go.




While the two were arguing,
Amanda knocked on the apartment door, and Perkov gave Amanda the keys to Perkov=s truck and asked her to move it because James had a pattern of taking
her truck and leaving.  After Amanda
left, James grabbed Perkov by the neck with both hands and squeezed her
throat.  Perkov testified that this
caused her pain and made it hard for her to breathe, and James=s long fingernails left cuts on the side of her neck.  James released Perkov when Amanda returned to
the apartment, and Perkov took the opportunity to run out the back door.
Perkov went to the apartment
complex office and asked an employee to call the police.  Perkov then returned to her apartment because
she did not want James to know what she had done.  Officers arrived, saw the injuries to Perkov=s neck, and arrested James. 
Perkov posted James=s bond.  In July 2006, Perkov
told James=s defense
counsel and a prosecutor at the district attorney=s office that the assault never happened and that she had received her
injuries in a fight at a club.  At trial,
however, she testified that she lied when she said no assault occurred because
she still loved James and wanted to work things out with him.
James was charged with
assault on a family member with one prior conviction, and he stipulated to his
prior conviction at trial.  The jury
found James guilty.  Punishment was assessed
by the trial court.  The State introduced
a pen packet containing proof of James=s prior conviction for robbery causing bodily injury.  Perkov also testified about several other
instances in which James had assaulted her. After hearing the evidence, the
trial court assessed punishment at forty-five years= confinement.
 
 




III.  Self-Defense
In his first point, James
asserts error on the part of the trial court by failing to charge the jury on
his requested issue of self-defense.  
A.  Standard of Review
The standard of review for alleged error in the charge of the court is
generally set forth in article 36.19 of the code of criminal procedure:
 
Whenever
it appears by the record in any criminal action upon appeal that any requirement
of Articles 36.14, 36.15, 36.16, 36.17 and 36.18 has been disregarded, the
judgment shall not be reversed unless the error appearing from the record was
calculated to injure the rights of defendant, or unless it appears from the
record that the defendant has not had a fair and impartial trial.  All objections to the charge and to the
refusal of special charges shall be made at the time of the trial.  
 
Tex. Code Crim. Proc.
Ann. art. 36.19 (Vernon 2006).  
Assuming that the alleged
error was timely brought to the attention of the trial court, our court of
criminal appeals has explained that for reversible error to be found, we must
hold that the error was calculated to injure the rights of the defendant, which
means that there must be some harm to the accused resulting from the
error.  Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh=g), cert. denied, 481 U.S. 1019 (1987).  
 
 




B.  Legal Analysis
James was justified in using
self-defense Awhen and to
the degree he reasonably believe[d] the force [was] immediately necessary to
protect himself against the other=s use or attempted use of unlawful force.@  Tex. Penal Code Ann. ' 9.31(a) (Vernon 2003).  By
asserting the issue of self-defense, James bore the burden on the issue.  In other words, he was required to produce
some evidence that supported his theory, that is, evidence that he intended to
use force against Perkov but only did so because he reasonably believed that it
was necessary to prevent her use of unlawful force.  See Ex parte Nailor, 149 S.W.3d 125,
132 (Tex. Crim. App. 2004); Zuliani v. State, 97 S.W.3d 589, 594 (Tex.
Crim. App. 2003).  The evidence to be
considered by this court is viewed in the light most favorable to the defendant.  Ferrel v. State, 55 S.W.3d 586, 591
(Tex. Crim. App. 2001).  




While a defendant is never
required to testify, including in order to raise the issue of self-defense, it
is rarely raised when he does not testify. 
Smith v. State, 676 S.W.2d 584, 587 (Tex. Crim. App. 1984); Lavern
v. State, 48 S.W.3d 356, 360 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d).  It can be raised without
direct testimony from the defendant by other evidence, such as witness
testimony regarding the circumstances, actions, and statements surrounding the
incident that reveals the defendant=s subjective state of mind, as measured by the statute.  Smith, 676 S.W.2d at 587.  For example, in the Smith case, Smith=s mother testified that Smith had told her that the complainant had
been trying to hurt him; additionally, Smith=s fiancee testified that the complainant had pointed a gun at Smith
and that the complainant said that he was going to hurt Smith.  Id. 
The court of criminal appeals found that even without testimony from
Smith himself, the testimony of these witnesses raised the issue of
self-defense.  Id. at 586B87.
Likewise, in VanBrackle v.
State, witnesses testified that the complainant pointed a pistol at
VanBrackle, who called for help and disarmed the complainant.  179 S.W.3d 708, 714 (Tex. App.CAustin 2005, no pet.). 
Additionally, testimony indicated that the complainant was reaching into
his pocket as if to pull out another object when he was shot by VanBrackle, who
did not testify.  Id.  The court found that VanBrackle=s call for help was an observable manifestation of his belief that it
was necessary to defend himself against the pointed pistol and that shooting
the complainant was some evidence of the believed necessity to protect
himself.  Id.  Hence, the issue of self-defense was properly
raised.




In addition to the foregoing,
the force used by the defendant in self-defense must be reasonable from the
defendant=s point of
view.  Dyson v. State, 672 S.W.2d
460, 463 (Tex. Crim. App. 1984).  There
must also be some evidence of the defendant=s state of mind or observable manifestations thereof at the time the
alleged self-defense act occurred.  Reed
v. State, 703 S.W.2d 380, 385 (Tex. App.CDallas 1986, pet. ref=d).  In Hidalgo v. State,
the complainant shoved Hidalgo twice when Hidalgo Agot in his [the complainant=s] face,@ and then
Hidalgo threatened and cut the complainant. 
No. 03-05-00260-CR, 2006 WL 3680622, at *1 (Tex. App.CAustin Dec. 15, 2006, pet. dism=d) (not designated for publication) (mem. op.).  The court held that no self-defense issue was
required because there was no reasonable apprehension of danger.  Id. at 2B3.  In a different Smith v.
State case, a fellow inmate testified that the jailers manhandled and
struck Smith, who did not fight back. 
No. 06-05-00117-CR, 2005 WL 3198968, at *5 (Tex. App.CTexarkana Dec. 1, 2005, no pet.) (not designated for
publication).  The court observed that
there was no testimony of what Smith said during the altercation, so there was
no evidence of his state of mind.  The
court held that if Smith did participate in the altercation nothing in the
record indicated that Smith feared the immediate use of unlawful force; hence,
there was no evidence of an observable manifestation of his state of mind.  Id. 
Therefore, it was not shown that Smith believed reasonable force was
necessary to protect himself, so a self-defense issue was not warranted.  Id.
 




C.  Factual Analysis
In the case before us,
nothing shows that James reasonably believed that the use of force was
immediately necessary to protect himself from Perkov when he choked her;
rather, Perkov testified that she pushed James to get away from him and that
after she did this he pushed her, slapped her, and hit her.  Further, she denied that James was acting in
self-defense when she was choked, and it was Perkov who tried, based on James=s  actions and voice from the
time he arrived at the apartment to escape from James, not the reverse.  Perkov also testified that James would have
assaulted her even if she had not pushed him first; that James had pushed and
hit her first in every argument they had ever had; and that she was aware of his
temper and his pattern of violence in their relationship, which had
necessitated calls to the police. 
Additionally, James stood 5=11@ to Perkov=s 5=3@.
We hold that the record
contains no direct evidence of James=s state of mind, nor evidence of an observable manifestation of his
state of mind at the time he used force against Perkov; therefore, there is
insufficient evidence to show that James reasonably believed that his use of
force was immediately necessary to protect himself from Perkov.  Accordingly, the issue of self-defense was
not raised.  James=s first point is overruled.
 




IV.  Culpable Mental State
In his second and third
points, James asserts the legal and factual insufficiency of the evidence to
sustain his conviction because he alleges that he did not have the requisite
culpable mental state to cause bodily injury to the complainant because he
acted out of self-defense.
A.  Standards of Review
In reviewing the legal
sufficiency of the evidence to support a conviction, we view all the evidence
in the light most favorable to the verdict 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); Hampton v.
State, 165 S.W.3d 691, 693 (Tex. Crim. App. 2005).




This standard gives full play
to the responsibility of the trier of fact to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts.  Jackson,
443 U.S. at 319, 99 S. Ct. at 2789.  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
(Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App.
2000).  Thus, when performing a legal
sufficiency review, we may not re-evaluate the weight and credibility of the
evidence and substitute our judgment for that of the fact-finder.  Dewberry v. State, 4 S.W.3d 735, 740 (Tex.
Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000).  We must resolve any inconsistencies in the
evidence in favor of the judgment.  Curry
v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
The sufficiency of the
evidence should be measured by the elements of the offense as defined by the
hypothetically correct jury charge for the case.  Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997); Bowden v. State, 166 S.W.3d 466, 470 (Tex. App.CFort Worth 2005, pet. ref=d).  Such a charge would be one
that accurately sets out the law, is authorized by the indictment, does not
unnecessarily restrict the State=s theories of liability, and adequately describes the particular
offense for which the defendant was tried. 
Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001); Malik,
953 S.W.2d at 240.  The law as
authorized by the indictment means the statutory elements of the charged
offense as modified by the charging instrument. 
See Curry, 30 S.W.3d at 404.




When reviewing the factual
sufficiency of the evidence to support a conviction, we view all the evidence
in a neutral light, favoring neither party. 
Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas
v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005).  We then ask whether the evidence supporting
the conviction, although legally sufficient, is nevertheless so weak that the
fact-finder=s
determination is clearly wrong and manifestly unjust or whether conflicting
evidence so greatly outweighs the evidence supporting the conviction that the
fact-finder=s determination
is manifestly unjust.  Watson, 204
S.W.3d at 414-15, 417; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim.
App. 2000).  To reverse under the second
ground, we must determine, with some objective basis in the record, that the
great weight and preponderance of all the evidence, though legally sufficient,
contradicts the verdict.  Watson,
204 S.W.3d at 417.




In determining whether the
evidence is factually insufficient to support a conviction that is nevertheless
supported by legally sufficient evidence, it is not enough that this court Aharbor a subjective level of reasonable doubt to overturn [the]
conviction.@  Id. 
We cannot conclude that a conviction is clearly wrong or manifestly
unjust simply because we would have decided differently than the jury or
because we disagree with the jury=s resolution of a conflict in the evidence.  Id. 
We may not simply substitute our judgment for the fact-finder=s.  Johnson, 23 S.W.3d at
12; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).  Unless the record clearly reveals that a
different result is appropriate, we must defer to the jury=s determination of the weight to be given contradictory testimonial
evidence because resolution of the conflict Aoften turns on an evaluation of credibility and demeanor, and those
jurors were in attendance when the testimony was delivered.@ Johnson, 23 S.W.3d at 8. 
Thus, we must give due deference to the fact-finder=s determinations, Aparticularly those determinations concerning the weight and
credibility of the evidence.@  Id. at 9.
An opinion addressing factual
sufficiency must include a discussion of the most important and relevant
evidence that supports the appellant=s complaint on appeal.  Sims
v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).  Moreover, an opinion reversing and remanding
on factual insufficiency grounds must detail all the evidence and clearly state
why the finding in question is factually insufficient and under which ground.  Goodman v. State, 66 S.W.3d 283, 287
(Tex. Crim. App. 2001); Johnson, 23 S.W.3d at 7.
B.  Analysis
A person commits the criminal
offense of assault when he intentionally, knowingly, or recklessly causes
bodily injury to another, including the person=s spouse.  Tex. Penal Code Ann. ' 22.01(a)(1) (Vernon Supp. 2006). 
Acting in self-defense negates the mental state required to support a
conviction for assault.  Denman v.
State, 193 S.W.3d 129, 133B34 (Tex. App.CHouston [1st
Dist.] 2006, pet. ref=d).




As pointed out by the State,
however, in Denman, the court of appeals rejected the argument that the
evidence was legally and factually insufficient to prove the defendant=s intent to commit aggravated assault when the defendant had called
witnesses who testified to past incidents of violence between the defendant and
complainant.  The court noted that a jury
does not have to accept a defendant=s testimony that he acted in self-defense, so a defendant=s own statement regarding his intent is not enough to render the
evidence insufficient.  The court further
reasoned that just as a defendant=s own statement regarding his intent is not enough to render the evidence
insufficient, neither does the testimony of a defendant=s witnesses, standing alone, Aprove@
self-defense so as to render the evidence insufficient.  Id. at 132B33.




The jury is exclusively
empowered to determine the issue of intent. 
Moreno v. State, 702 S.W.2d 636, 641 (Tex. Crim. App. 1986); Moore
v. State, 54 S.W.3d 529, 539 (Tex. App.CFort Worth 2001, pet. ref=d).  Intent may be inferred from
the defendant=s conduct
and surrounding circumstances.  Moore,
54 S.W.3d at 539.  The record in this
case shows that it was James who initiated the confrontation between himself
and Perkov when he ordered her to return home from her sister=s apartment.  They argued on the
way back to their apartment, and the argument escalated into physical violence
once they got home.  Perkov tried to
leave the apartment, but James would not let her go.  Instead, James grabbed Perkov by the neck
with both hands and squeezed her throat. 
Perkov testified that this caused her pain and made it hard for her to
breathe and that James=s
fingernails left cuts on the side of her neck. 
James released Perkov only when her sister, Amanda, interrupted him by
knocking on the door.  Perkov was able to
escape out the back door and immediately went to the apartment complex office
and asked an employee to call the police.
While Perkov testified that
she pushed James first, she also testified that she pushed him only to get him
away from her.  She denied that James was
acting in self-defense when he choked her, and the record contains no evidence
that he assaulted her only because he was trying to protect himself.  James was taller and stronger than Perkov,
standing 5=11@ to Perkov=s 5=3@.
Perkov testified that from
the moment James arrived at her sister=s apartment, his tone of voice indicated to her that the argument was
going to get physical, and James would have assaulted her even if she had not
pushed him.  She was sure of this because
he had pushed her and hit her first in every other argument they had, and she
knew his temper.  James=s use of physical violence was a pattern in their relationship, and
she had been forced to call the police on him on previous occasions.




Whether viewed in the light
most favorable to the verdict or in a neutral light, these facts are sufficient
to support the jury=s
determination that James intentionally, knowingly, or recklessly caused bodily
injury to Perkov.  There is no evidence
that he was acting in self-defense when he did so.  The evidence is therefore legally and
factually sufficient to support the jury=s verdict, and we overrule James=s second and third points.
V.  Conclusion
Having overruled James=s three points, we affirm the trial court=s judgment.  
 
 
BOB MCCOY
JUSTICE
 
PANEL B:   LIVINGSTON, WALKER, and MCCOY, JJ.
 
LIVINGSTON,
J. concurs without opinion.
 
DO
NOT PUBLISH
Tex. R. App. P. 47.2(b)
 
DELIVERED:
June 7, 2007




[1]See Tex. R. App. P. 47.4.


