                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-13-00162-CR


                                SHAYE JOHNSON, APPELLANT

                                                  V.

                               THE STATE OF TEXAS, APPELLEE

                         On Appeal from the County Court at Law No. 2
                                     Lubbock County, Texas
                 Trial Court No. 2012-471,559, Honorable Drue Farmer, Presiding

                                           April 9, 2014

                                 MEMORANDUM OPINION
                       Before CAMPBELL and HANCOCK and PIRTLE, JJ.


       Appellant, Shaye Johnson, appeals the trial court’s judgment finding him guilty of

misdemeanor assault1 and imposing a punishment of 364 days in the Lubbock County

Jail and a $4,000 fine. On appeal, he brings to this Court one point of error, contending

that the evidence is insufficient to sustain said conviction. We will affirm.




       1
           See TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2013).
                             Factual and Procedural History


       On the evening of August 25, 2012, an argument occurred between appellant

and his pregnant girlfriend of several years, Paige Johnson. Also at the house where

the argument began were Paige’s older sister, Erica Shumaker, and Erica’s husband,

Aaron Shumaker. We know from the record that Erica ultimately called 911 to summon

police assistance, reporting that appellant had assaulted Paige. The precise details of

the interaction between appellant and Paige are mired in the conflicting accounts from a

reluctant complaining witness and the accounts from the two other witnesses at the

scene, accounts which are not clear and not entirely consistent with one another.

Officer Cade Reddish of the Lubbock Police Department was one of the responding

officers and testified at trial. The details of the witnesses’ testimony will be described

more fully in our later evaluation of the evidence.


       By the end of the evening, appellant had been arrested for assault. A Lubbock

County jury found him guilty of the charged offense and assessed punishment at 364

days in the Lubbock County Jail and a fine of $4,000. On appeal, appellant advances

one point of error, challenging the sufficiency of the evidence to support his conviction.


                                   Standard of Review


       In assessing the sufficiency of the evidence, we review all 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 offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State,

323 S.W.3d 893, 912 (Tex. Crim. App. 2010). “[O]nly that evidence which is sufficient in

                                             2
character, weight, and amount to justify a factfinder in concluding that every element of

the offense has been proven beyond a reasonable doubt is adequate to support a

conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful

that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no

higher standard of appellate review than the standard mandated by Jackson.”             Id.

When reviewing all of the evidence under the Jackson standard of review, the ultimate

question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07

n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d

404, 448–50 (Tex. Crim. App. 2006), as outlining the proper application of a single

evidentiary standard of review). “[T]he reviewing court is required to defer to the jury’s

credibility and weight determinations because the jury is the sole judge of the witnesses’

credibility and the weight to be given their testimony.” Id. at 899.


                                          Analysis


       Again, appellant challenges the sufficiency of the evidence supporting his

conviction for the assault on Paige. In support of his position, he maintains that “[t]he

drastically inconsistent testimony of the State’s two primary witnesses was so disparate

that no rational jury could have believed them to establish guilt beyond a reasonable

doubt.” He also contends that “[t]he alleged victim in the case was unreliable as a

witness in the case due to her changing story and admi[ssion] that she lied to officers.”


The Evidence


       The jury heard Reddish’s recording of the accounts of Paige, Erica, Aaron, and

appellant at the scene. It also heard Reddish’s recollections of each person’s account

                                             3
at the scene. Paige, Erica, and Aaron testified at trial, enabling the jury to hear each

witness’s recollection of the night and evaluate any inconsistencies between the

accounts at trial and the accounts of the events on the night of August 25, 2012.


       Paige


       Twenty-year-old Paige came to the courthouse with appellant on the first day of

trial. She testified that she and appellant had been a couple for several years and

remained a couple at the time of trial. She admitted that she did not want to be at trial

that day and explained that she thought that it was unnecessary for this matter to be

taken to trial, that the proceeding was “pointless.” She testified that she was angry at

Erica for calling police that evening and explained that Erica was “crazy” and had a

habit of making false reports to the police. Initially, Paige could not recall whether she

and appellant were arguing on the evening of August 25, 2012, but later she recalled

that they were, in fact, in a strictly verbal argument. She consistently denied throughout

her testimony that appellant ever grabbed her, hit her, or otherwise contacted her in a

physically violent manner. She denied, too, that appellant ever tried to kick in the front

door or issued any threats against her or her family.


       She recalled having talked to officers on the evening in question, but she did not

recall what she had told them. She added, however, that, if she had reported to officers

that appellant hit her, she had lied to them at the scene, probably because she was

mad.   At trial, she explained that she and appellant simply started arguing and he

walked outside. She did admit that, because she was mad at appellant, she had thrown

juice on him before he walked outside or, perhaps, tried unsuccessfully to walk outside


                                            4
over the now-slippery floor. She testified that he may have gone back into a bedroom

instead. She remained in the kitchen.


       She confirmed that she had an injury to her lip that day but did not recall what

type of injury it was or how she got it. She claimed that she was unaware of the injury

until the police pointed it out to her. She did recall having told the officers at the scene

that she often picks at her lips and causes them to bleed. She testified that the officer

did not believe her when she mentioned that at the scene. She also testified that she

had gotten mad at appellant earlier that day over an incident relating to a girl at the mall;

she characterized herself as “the jealous type” and “actually bipolar.”


       Erica


       Erica testified that she was cooking at the house when an argument began

between appellant and Paige. Erica recalled the argument beginning in the direction of

a bedroom in which appellant and Paige were located and there being “a lot of banging

around.” She recalled that Paige came out of the bedroom and that appellant also

came out and went into the living room. Paige got angry and threw juice as she stood in

the doorway of the bedroom. After Paige threw the juice, appellant grabbed Paige by

the hair and pulled her into the living room. There, Erica said, appellant hit Paige in the

face several times—perhaps even more than ten times—with a closed fist. She testified

that appellant was hitting Paige “pretty hard” and causing a “big bump” and a bruise to

start to form under her eye. Paige, who looked to be in pain, was raising her hand in an

effort to push him away from her. Appellant leaned Paige over the couch and continued




                                             5
to punch her in the face and stomach. She described Paige as trying to cover her

stomach to protect herself from appellant’s punches. Scared, Erica then called 911.


      Erica testified that appellant threatened to kill them all, just as he had threatened

in the past. Appellant had left the house for a short time, but he returned, proceeded to

kick in the front door, and regained entry into the house where he continued his threats

against them. She testified that she did report to the responding officers that appellant

threatened them that day.


      Aaron


      At trial, Aaron testified that appellant and Paige were in a dating relationship and

that Paige was pregnant with appellant’s child at the time. He recalled that there had

been some arguing between appellant and Paige that day but did not recall the topic of

disagreement. He was in his room when he first heard the verbal disagreement begin

between the couple in the living room. He testified that, as he came out of the bedroom

and into the living room on his way outside to smoke a cigarette, he heard the argument

continue and saw appellant “punch [Paige] in the jaw.” He explained that the juice

incident happened right before the verbal exchange took place between the couple. He

confirmed that Paige threw the juice in appellant’s direction, though Aaron was

uncertain whether Paige threw it directly at appellant and whether any juice actually

contacted him.


      Aaron admitted that there were “some parts where I wasn’t paying attention, and

parts [he] was,” so he could not be certain that appellant’s blow to Paige’s jaw was the

first blow. He did not witness Paige strike a blow at appellant. Of the portion of the

                                            6
altercation to which he was paying attention, he observed appellant hit Paige in the jaw

with a closed fist and hit her in the stomach with either a closed or open fist. Aaron

described Paige’s reaction to being hit in the jaw as one in which her head “whipped

back” somewhat to the side and backward. He testified that it appeared that Paige

experienced pain as a result of that blow. He also testified that, when appellant then hit

her in the stomach, Paige doubled over with her forearms over her abdomen for a

“second” but then stood back up. Aaron qualified his account of appellant’s blow to

Paige’s stomach because he was not able to view it fully; rather, he was off to the side

when he witnessed the blow to her stomach. Aaron added that, either that night or a

night following shortly thereafter, the expectant Paige began to bleed and had to be

rushed to the hospital.


       After the blows that Aaron saw, appellant again approached Paige who, Aaron

testified, put her hands up in an attempt to push him back or halt his advance toward

her. Again, explaining that he was not paying very close attention, he was not certain

whether Paige ever actively pushed him away from her. After seeing appellant hit his

pregnant sister-in-law twice, Aaron “turned around and walked out,” presumably to go

smoke the cigarette he first came from the room to do. He explained that his back hurt

that day and he did not want to “get into anybody else’s business.” He acknowledged

that he thought the assault on Paige was “wrong” but “wanted them to handle it

themselves.”    Aaron testified that, at some point after appellant assaulted Paige,

appellant went outside.     One of the three remaining occupants locked the door

apparently, and appellant, wishing to regain access to the residence, kicked in the front

door, which Aaron would later repair.


                                            7
       Aaron testified that he did report to the police that appellant had also grabbed

Paige by her hair, but he was uncertain whether he independently remembered that fact

at trial because he does not “really keep things in [his] mind that much.” He does

confirm, though, that, as he sat on the stand, he independently recalled seeing

appellant hit Paige in the face. Unlike Erica, who had testified that she was scared,

Aaron testified that what he saw that day did not alarm him that much.


       Officer Reddish


       Reddish testified that, at the scene, appellant denied having hit Paige but

admitted to having grabbed her by the neck. That night at the scene, Paige reported to

Reddish that appellant had assaulted her, that he had punched her.                  She also

demonstrated to Reddish how appellant had hit her by twice punching her own closed

fist into her open palm. As he was talking with Paige, he noticed that the left part of her

lower lip was swollen and was bleeding on the inside, an injury he described as

consistent with having been the result of a hit to the face with a closed fist. Reddish

testified that a crime scene officer was unavailable at that time to come out and take

higher resolution images of Paige’s injuries, but he documented the injury to her lip by

recording it on his in-car video recording equipment. Frames of the video, in addition to

the video itself, were introduced to show that Paige had a laceration to the inside of her

lip that night. Though it is not clearly visible in the images, Reddish testified that, earlier

in the evening, there had been blood coming from the laceration.


       At trial, Reddish did not recall that Erica had reported to him that appellant had

threatened them that evening. He also did not recall that there was damage to the front


                                              8
door consistent with Erica’s and Aaron’s accounts of appellant kicking at the front door.

After referring to his report, however, Reddish did note that Erica had reported to him

that appellant threatened to “whip all of y’all.”


       The jury also heard a recording of Erica’s call to 911 that evening and the

Lubbock County Jail’s recording of a phone call between appellant and Paige recorded

the day after the incident in which appellant said to Paige something to the effect of the

following: If you did not say anything to them, then they cannot do anything; if you did

say something, then you screwed me.


Discussion


       As is apparent from the record, there are inconsistencies regarding the precise

sequence of events that night and some details regarding the altercation. For instance,

we cannot ascertain with certainty how many times appellant struck Paige, and Paige

denied at trial that appellant struck her at all that night. Though mostly immaterial with

respect to the charges brought against appellant, whether appellant kicked in the front

door to regain entry to the house is likewise uncertain, as is the exact nature of the

threats he made to the family upon regaining entry to the house. Aaron even conceded

that his memory of the events may be somewhat “iffy” due his failure to pay very close

attention to the entire exchange and his poor memory. Viewing the evidence in the

requisite favorable light and examining it for elements of the charged offense, however,

we will conclude that, despite the inconsistencies, the evidence was sufficient, such that

the jury could have rationally found the elements of assault beyond a reasonable doubt.

Appellant was charged with assault, meaning that the State had to prove beyond a


                                               9
reasonable doubt that appellant intentionally, knowingly, or recklessly caused bodily

injury to Paige. See TEX. PENAL CODE ANN. § 22.01(a)(1).


       The     witnesses’   accounts—though       inconsistent   in   some   respects—were

nevertheless consistent in describing an assault by appellant on Paige. Though, at trial,

Paige repeatedly denied that appellant struck her at all, the jury was in the best position

to weigh her credibility on the stand and her subsequent recantation of her initial report

to officers that evening that appellant had, in fact, punched her. The evidence confirms

that she did have an injury to her lip that was consistent with her own initial account of

having been punched with a closed fist. Witness testimony also described appellant as

having punched Paige with a closed fist in her face. Both Erica and Aaron described

appellant striking Paige and Paige’s reactions as indicative of her experiencing pain as

a result of those blows. Paige, who initially reported that appellant had punched her,

later denied even knowing of the injury to her lip until the officers pointed it out to her at

the scene. Paige’s alternate explanation that her habit of picking at her lip caused the

laceration and bleeding inside of her mouth was put before the jury, which obviously

rejected it.


       And such was its province to do. It is well-established that resolution of conflicts

and inconsistencies in the evidence is the province of the jury as trier of fact. See

Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982) (op. on reh’g); see also

TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979). Such conflicts will not call for

reversal so long as there is enough credible testimony to support the conviction.

Bowden, 628 S.W.2d at 784. Because resolution of conflicts or inferences therefrom

lies within the exclusive province of the jury, it may choose to believe all, none, or some

                                             10
of the evidence presented to it. See Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex.

Crim. App. 1995) (en banc). The jury is also the exclusive judge of the credibility of

witnesses. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994) (en banc) (per

curiam). Here, there is sufficient evidence from which the jury could determine that

appellant assaulted Paige. We overrule appellant’s sole point of error.


                                      Conclusion


      Having overruled appellant’s sole point of error, we affirm the trial court’s

judgment of conviction. See TEX. R. APP. P. 43.2(a).




                                         Mackey K. Hancock
                                             Justice


Do not publish.




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