                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-12-00347-CR

Hubert Ray                                §   From Criminal District Court No. 2

                                          §   of Tarrant County (1229140D)

v.                                        §   January 31, 2013

                                          §   Opinion by Justice Walker

The State of Texas                        §   (nfp)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS



                                       By_________________________________
                                         Justice Sue Walker
                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-12-00347-CR


HUBERT RAY                                                         APPELLANT

                                         V.

THE STATE OF TEXAS                                                      STATE

                                      ----------

      FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

                                      ----------

                           MEMORANDUM OPINION1

                                      ----------

      A jury found Appellant Hubert Ray guilty of aggravated assault with a

deadly weapon and assessed his punishment at seven years’ confinement. The

trial court sentenced Ray accordingly.         In his sole issue on appeal, Ray

challenges the sufficiency of the evidence to support his conviction. We will

affirm.




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


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      On January 31, 2011, Ray and one of his friends, James Conner, were at

a bar. Another group of people, consisting of Joshua Mooney and some of his

friends, were at the same bar. After last call, as people were exiting the bar,

Conner took a drumstick from one of Mooney’s friends; the drumstick was a

souvenir from a band that Mooney and his friends had seen play earlier in the

evening. Outside the bar, a scuffle broke out between Mooney and Conner as

Mooney attempted to retrieve the drumstick. Mooney put Conner in a headlock,

said, “If I let you go, this is over,” released Conner, and walked back toward his

friends. Ray, who had retrieved a golf club from the trunk of his car, took the

cover off of the club and approached Mooney saying, “Let’s tee it up. You want

to go.”   Ray swung the club like a baseball bat; conflicting evidence exists

concerning whether he hit Mooney on the first swing or swung multiple times

before he struck Mooney. The golf club struck Mooney in the head, and Mooney

fell to the ground. As a result, Mooney suffered a closed-head injury, a skull

fracture, a scalp laceration, lung bruising, and a broken leg.

      Ray asserts in his sole issue on appeal that the evidence is insufficient to

support his conviction for aggravated assault with a deadly weapon.           Ray

committed the offense of aggravated assault with a deadly weapon if he (1)

intentionally or knowingly2 (2) caused bodily injury to Mooney (3) while using or

exhibiting a deadly weapon, to-wit: a golf club. See Tex. Penal Code Ann. §§

      2
        The indictment did not allege that the assault was caused recklessly, and
the jury charge did not authorize Ray’s conviction based on reckless conduct.


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22.01(a)(1), 22.02(a)(2) (West 2011).          Ray argues that the evidence is

insufficient to establish that he acted either knowingly or intentionally.

      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); Wise v. State, 364 S.W.3d 900, 903 (Tex.

Crim. App. 2012). 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; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App.

2011).

      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); Wise, 364

S.W.3d at 903. Thus, 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. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011). We must presume that the factfinder resolved any conflicting




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inferences in favor of the verdict and defer to that resolution. Jackson, 443 U.S.

at 326, 99 S. Ct. at 2793; Wise, 364 S.W.3d at 903.

      Here, Ray points out that conflicting evidence exists in the record

concerning how many times he swung the golf club before striking Mooney––Ray

argues that the evidence shows that he was trying only to threaten Mooney into

retreating or to scare Mooney away, not that he was knowingly or intentionally

trying to cause bodily injury to Mooney.       Ray also points out that conflicting

evidence exists in the record concerning the positions and postures of Mooney

and Ray when Ray struck Mooney; one witness––Conner––testified that Ray

was telling Mooney to “get back” and that Ray himself was actually “stepping

back” as Mooney continued to taunt him.

      This conflicting evidence, however, does not automatically render the

entirety of the evidence insufficient to support Ray’s conviction. We must view all

of the evidence in the light most favorable to the conviction to determine whether

any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Wise,

364 S.W.3d at 903. The uncontroverted evidence establishes that Ray went to

his car and retrieved the golf club; that he took the head cover off of the club; that

he approached Mooney with the club; that he swung the club; and that he struck

Mooney in the head with the club. The jury was free to disregard the testimony

of Conner––Ray’s friend––concerning the position and the posture of Ray and

Mooney when Ray struck Mooney.            See Wise, 364 S.W.3d at 903.           The


                                          5
cumulative force of the evidence when viewed in the light most favorable to the

jury’s verdict also supports the reasonable inference that Ray either knowingly or

intentionally caused bodily injury to Mooney because he retrieved the club,

removed the head cover from the club, and swung the club at Mooney’s head; he

did not jab at Mooney or swing at Mooney’s shins. See, e.g., Castillo v. State,

899 S.W.2d 391, 393 (Tex. App.—Houston [14th Dist.] 1995, no pet.).

      Because the evidence is sufficient to support Ray’s conviction for

aggravated assault with a deadly weapon, including that he knowingly or

intentionally caused bodily injury to Mooney, we overrule Ray’s sole issue. We

affirm the trial court’s judgment.


                                                  SUE WALKER
                                                  JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

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

DELIVERED: January 31, 2013




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