Mavis Yvonne Love v. The State of Texas--Appeal from Criminal District Court No. 5 of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Mavis Yvonne Love

Appellant

Vs. No. 11-02-00172-CR -- Appeal from Dallas County

State of Texas

Appellee

Mavis Yvonne Love waived her right to a jury trial and pleaded not guilty to the charge that she assaulted a public servant. After a bench trial, the trial court convicted appellant and assessed her punishment at confinement for 4 years and a $500 fine. The trial court then suspended the imposition of the sentence and placed appellant on community supervision for 2 years. We affirm.

Appellant presents two issues for review. In the first issue, appellant contends that the evidence is factually insufficient to show that she knowingly and intentionally caused bodily injury. In the second issue, appellant contends that the evidence is legally insufficient to show that she knowingly and intentionally caused bodily injury. In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and 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 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000).

The record shows that only one witness testified for the State: Officer Paul Brashear. Officer Brashear of the Dallas Police Department was the complainant in this case. He testified that he was dispatched to appellant=s house in response to a call concerning a stabbing. When Officer Brashear arrived, Officer Kevin Janse was trying to gather information and attempting to get into the house. Officer Brashear testified that they gained entry into the house and separated appellant from David Refeld, the alleged victim of the stabbing. Officer Brashear testified that appellant was enraged and that she went into the kitchen where several knives were visible. Officer Brashear testified that he detained appellant and took her outside the house but that she pulled away and got up in a fighting stance. When he tried Ato gain control@ of her, appellant bit him on the left forearm. The bite was painful and left a scar. Officer Brashear testified that, although he placed his forearm somewhat near appellant=s mouth while he was attempting to subdue her, he Asaw her reach down and make a conscious effort@ to bite his arm. Officer Brashear also testified that, during the ride to the jail, appellant told him that she had AIDS and that he was going to die of AIDS. According to Officer Brashear, appellant was enraged, uncooperative, and combative during the entire incident.

Several witnesses testified for appellant. Wayne Rodney Battle, a DART driver, testified that he witnessed Officer Brashear Asnatch@ appellant from the back door of her house and slam her to the ground. Battle stated that the officer took her down Alike a wrestling move.@ The officer grabbed appellant with one hand around her neck and the other one behind her back and pulled her off the porch in such a manner that appellant did not even touch any of the three steps from the back door to the ground. Appellant=s face hit the ground first. Battle did not see appellant make any aggressive moves toward the officers and did not see her try to bite anyone.

Another neighbor, Alton Harper, Jr., a retired naval officer, testified that he also witnessed the incident. Harper testified that the officer yanked appellant=s screen door open, forcefully pulled her out by the arm, and threw her to the ground face first. When the officer took appellant to the ground, he had his forearm over her mouth. According to Harper, appellant made no aggressive movements. Harper testified that the officers who participated in appellant=s arrest are a disgrace to the uniform.

Appellant=s sister, Nancy Love, was also present during the incident. She testified regarding prior harassment of appellant by Officer Janse. She also testified that, on the day of the incident in this case, appellant had argued and scuffled with Refeld but that there had been no stabbing or knives involved. Nancy Love broke up the argument, and Refeld left. Sometime thereafter, police arrived at appellant=s house. Appellant was inside and would not let the officers in. The officers, who were actively trying to gain entry into the house, said that they just wanted to talk to appellant. Nancy Love told them that, if they would stop jerking on the screen, she would get appellant to open the door. When appellant opened the wooden door, Officer Brashear violently jerked her out of the doorway and then threw her down to the ground using some kind of Achoke hold,@apparently trying to put one of his hands around her neck. Nancy Love testified that she saw Officer Brashear throw his arm up when he was taking appellant to the ground and that appellant=s head did not move forward to bite Officer Brashear. According to Nancy Love, appellant made no aggressive movements.

Appellant also testified at trial. Appellant testified regarding what she felt was prior harassment by Officer Janse. Four days before the alleged biting, Officer Janse had given appellant citations stemming from the location in which appellant had parked her car. Appellant and Nancy Love testified that they heard Officer Janse tell another officer, AShe=s going to jail.@

Appellant testified that, on the day of the alleged biting, she had packed Refeld=s belongings and asked him to leave because he had stolen money from her purse and was using drugs. An altercation ensued and Refeld pushed appellant. Nancy Love intervened, and Refeld left. Appellant testified that there were no knives involved and that she did not stab anybody. When the police subsequently arrived, she thought that they were just harassing her again. She did not know anything about a stabbing. Officer Janse kept pushing on the door, so she finally told him that she would open the door if the officers would step back. When she opened the door, Officer Brashear Asnatched@ her out of the doorway, swung her around, and Ahurdled@ her to the ground. According to appellant, while Officer Brashear was taking her to the ground, he hit her in the mouth with his arm, knocking one of her teeth out and cracking others. Appellant=s dental injuries were treated by a dental student at Baylor College of Dentistry. The dental student testified and confirmed that one of appellant=s teeth had been knocked out, that others were chipped, and that these injuries were caused by some type of trauma.

Appellant also called Officer Janse to testify. Officer Janse=s testimony controverted that of Officer Brashear regarding Refeld=s status. Officer Janse testified that Refeld was not in the house. He also testified that, when Refeld was contacted, he had no visible wounds.

Although several witnesses contradicted Officer Brashear=s version of the events that occurred at appellant=s residence, we cannot hold that the evidence is either legally or factually insufficient. Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Thus, the evidence is legally sufficient. The second issue is overruled.

With respect to a factual sufficiency challenge, we are mindful of the following:

Although a reviewing court has, in a factual sufficiency review, some authority to disregard evidence that supports the verdict, it must be appropriately deferential so as to avoid substituting its own judgment for that of the fact finder. The reviewing court should not substantially intrude upon the [fact finder=s] role as the sole judge of the weight and credibility of witness testimony.

Vasquez v. State, supra at 236. The trial court was the trier of fact in this case, and we will not substitute our judgment for that of the trial court. After reviewing all of the evidence in a neutral light, we hold that the evidence supporting guilt was neither so weak nor so greatly outweighed by the overwhelming weight of contrary evidence as to render appellant=s conviction clearly wrong and manifestly unjust. The first issue is overruled.

The judgment of the trial court is affirmed.

PER CURIAM

May 15, 2003

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.