STEVEN RENARD JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued September 24, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-01606-CR
No. 05-06-01607-CR
No. 05-06-01608-CR
 
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STEVEN RENARD JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F06-00421-UP, F06-18616-HP, F06-18617-HP
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OPINION
Before Justices Morris, Francis, and Mazzant
Opinion By Justice Mazzant
        Steven Renard Johnson waived a jury and pleaded not guilty to assault-family violence with one prior conviction of assault-family violence, violation of a protective order, and aggravated sexual assault. In each case, the trial court found appellant guilty, found two enhancement paragraphs true, and assessed punishment at forty-five years' imprisonment. The trial court also made affirmative family violence findings in the assault and aggravated sexual assault cases. In three issues, appellant contends the evidence is factually insufficient to support the convictions. We affirm the trial court's judgments.
Background
 
        Appellant's wife J.J. is the complainant in all three cases. J.J. testified appellant assaulted her on June 5, 2005, was arrested for violating a protective order on November 19, 2005, and sexually assaulted her on January 15, 2006. J.J. testified that in the first incident, appellant assaulted her after demanding she give him her car keys. She usually hid the keys from appellant because appellant tended to “rent” her car to drug dealers in lieu of drugs. Appellant pushed J.J. around their upstairs bedroom during the argument. She ran to the bathroom and locked the door; appellant kicked in the door and pulled her out into the hall. After J.J. said her keys were downstairs, appellant pushed J.J. towards the stairs. When J.J. resisted by sitting down on the third step, appellant jumped over her, grabbed her ankles, and pulled her down the stairs. Appellant grabbed J.J. around the neck when she tried to hold onto the bannister.
        Once downstairs, appellant called his girlfriend. J.J. testified she knew appellant had a girlfriend, but their argument that day was not about the girlfriend. J.J. testified that while appellant was using the telephone, J.J. grabbed a second telephone and went into the bathroom downstairs. Appellant pushed the bathroom door open, grabbed the phone, and threw it into the kitchen. Then appellant took J.J. back to their bedroom, where he asked J.J. for sex. She refused and asked him to leave. After appellant left the house, she secured the doors and called the police. J.J. testified she sustained bruising and swelling to her face, arms, and ankles and marks around her neck after appellant assaulted her.
        J.J. testified that in the second incident, appellant was arrested for violating a July 2005 protective order. After the order was issued, appellant began calling her, stating he wanted to come home. J.J. told appellant he could not come home. About ten days after the order was issued, appellant asked if he could come home to bathe and change clothes. J.J. allowed appellant to come home, but told him he could either “go to jail or go to rehab for his drug addiction.” Appellant went to a faith-based rehabilitation facility in Houston for a few months. J.J. testified she allowed appellant to come back into the house only because the facility convinced her appellant had been rehabilitated and was “on fire for God.” When appellant returned from Houston, he found a job and everything went well between them until appellant had an “altercation” with J.J.'s son on November 19, 2005 and the police were called.
        J.J. testified that in the last incident, appellant sexually assaulted her after restraining her on the bed. Appellant became angry after J.J. refused to use her car to take him to look for his cousin's vehicle after appellant “loaned” the cousin's vehicle to someone who did not return it. Appellant hit J.J. in the face, cutting her lip. When J.J. kicked appellant, appellant said, “I see now I'm going to have to do you like I did Vanessa,” referring to his first wife. Appellant wrestled J.J. onto the bed face-down, tied her ankles together, bent her right arm behind her back, and straddled her while tying her arms behind her back. J.J. testified appellant held her face against the mattress and told her not to hold her breath because “it wasn't going to prolong him killing [her].” Appellant placed the end of a scarf in J.J.'s mouth, then tied the remainder around her neck and behind her back, attaching it to her restrained arms.
        Appellant pulled down J.J.'s pants, poured a lubricant on her rectum, and inserted a finger into her anus. J.J. testified appellant put his finger in her anus twice. J.J. managed to get the scarf out of her mouth and said, “I will give you the keys, I will give you the keys, just please don't kill me.” At that point, appellant removed the restraint from J.J.'s ankles and sat her up on the bed. Appellant untied her left arm, but kept the restraint around her right arm, looping it around his arm “like a leash.” Appellant pushed J.J. into the bedroom closet and beat her with a shoe that had a nail protruding from its heel. Appellant eventually led J.J. downstairs, got her car keys, then tied her down in the front passenger seat of her car. Appellant drove around the area looking for his cousin's vehicle. When they returned home without finding the vehicle, appellant filled the bathtub, took off J.J.'s clothing, and put her in the tub. After J.J. complained that the water was cold, appellant put her in the bed, gave her an aspirin, and went downstairs. J.J. testified she heard appellant drive off in her car at about 11:00 p.m. She awoke the next morning at six o'clock and found appellant asleep on the couch. J.J. did not call the police until after appellant had gone upstairs to their bed and fallen asleep. J.J. testified she did not call the police after appellant had left the house because she was “overwhelmed by everything that happened . . . too exhausted, too tired and couldn't think straight.” After she was certain appellant was asleep, she called the police. Police officers arrested appellant and took photographs of J.J.'s injuries.
        Cedar Hill police officer Brittany Bruce responded to J.J.'s residence on June 5, 2005. Bruce testified J.J. told her she argued with her husband about a set of car keys, he pulled her down the stairs, then choked her when she tried to stop him. Bruce testified the upstairs bathroom door was broken from its hinges and a mirror was shattered. Bruce testified she observed “discoloration” around J.J.'s ankles and neck that had not yet turned into bruises. J.J. complained of pain in her lower back and buttocks, but was too embarrassed to show Bruce the injury.
        Officer Adrien Saldine responded to J.J.'s residence on January 15, 2006. Saldine testified appellant was in an upstairs bedroom when she arrived at the residence. Saldine observed swelling on J.J.'s face and red marks on J.J.s arms and shoulder. While Saldine went upstairs and took appellant into custody, other officers collected evidence, including items J.J. said had been used to restrain her. Saldine testified that when she walked appellant down the stairs and towards the front door, appellant pulled away from her and lunged at J.J., saying, “I'm going to get you.” A woman's dress shoe, a scarf, and two pieces of cloth taken from J.J.'s residence were admitted without objection.
        Appellant denied he assaulted or sexually assaulted J.J. Appellant testified that on June 5, 2005, J.J.'s car blocked appellant's car and he wanted to leave. He argues with J.J., she pushed him, and he pushed back. Appellant testified the upstairs bathroom door and mirror were previously “torn up” by J.J.'s son, but appellant did kick in the downstairs bathroom door because he was trying to leave and J.J. had hidden his keys. Appellant testified he grabbed J.J. but never struck her with his hand, choked her around the neck, or dragged her down the stairs. Appellant testified he knew nothing about a protective order until November 19, 2005 when he called the police about J.J.'s son, but the officers arrested appellant for violating a protective order. Appellant denied he was using drugs at the time, but testified he was drinking alcohol.
        Appellant testified that on January 14, 2006, he argued with J.J. because she wanted to have sex and he did not. Appellant had shaved and showered, then got into bed. When J.J. indicated she wanted to have sex and appellant said no, she got upset. They “started wrestling and all,” then fell asleep, awaking at about 5:00 p.m. They argued again when J.J. did not want to take appellant to check on his cousin's house. They “tussled.” Appellant left the house at 10:30 p.m. after J.J. fell asleep and did not return until 1:30 a.m. on January 15, 2006. Appellant testified he slept on the couch, then went upstairs and got into bed. He slept until about 12:30 p.m., when a police officer came into the bedroom and arrested him. Appellant testified he did not restrain J.J. while in the bedroom, force her into the car, tie her down, or drive around with her tied to the seat. Appellant testified he did not strike J.J. with his hand, beat her with a shoe, or insert his finger in her anus. Appellant admitted he had a prior conviction for assault-family violence involving his first wife Vanessa, and prior convictions for injury to a child and attempted aggravated kidnapping.
Applicable Law
 
        In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007), petition for cert. filed, (U.S. July 17, 2007) (No. 07- 5500); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), petition for cert. filed, (U.S. Mar. 13, 2007) (No. 06- 11318). Unless the record clearly reveals a different result is appropriate, we must defer to the fact- finder's determination concerning what weight to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).
        To obtain a conviction for assault-family violence, the State was required to prove beyond a reasonable doubt that appellant intentionally, knowingly, or recklessly caused bodily injury to J.J., appellant's spouse, and had been previously convicted of assault-family violence. See Tex. Pen. Code Ann. § 22.01(a), (b)(2) (Vernon Supp. 2006). To obtain a conviction for violation of a protective order, the State was required to prove beyond a reasonable doubt that appellant knowingly or intentionally committed family violence, in violation of an order issued on July 12, 2005 under authority of section 6.504 and chapter 85 of the family code and article 17.292 of the code of criminal procedure. See Tex. Pen. Code Ann. § 25.07(a), (d), (g). To obtain a conviction for aggravated sexual assault, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused the penetration of J.J.'s anus without her consent. See Tex. Pen. Code Ann. § 22.021(a)(1)(A)(i).
Discussion
 
        Appellant argues the evidence is factually insufficient because J.J.'s testimony was unreliable and not credible. Appellant asserts that because he was having an affair with another woman and their fights were about the other woman, J.J. falsely accused him of assaulting her and sexually assaulting her. Appellant contends that other than J.J.'s false testimony, there is no evidence he committed any of the offenses. The State responds that the evidence is factually sufficient to support appellant's conviction in each case.
        J.J. testified appellant assaulted her on two occasions. On June 5, 2005, she and appellant argued over her car keys. J.J. testified appellant grabbed her, hit her, choked her, and dragged her down the stairs. J.J. testified she had swelling and bruises on her arms, face, ankles, and neck. Officer Bruce testified that when she responded to the scene, she saw marks on J.J.'s ankles and neck that were not yet bruises. J.J. testified appellant knew about the protective order that was issued on July 12, 2005, and he was arrested for violating that order in November 2005 when the police were called to their house. Regarding the aggravated sexual assault, J.J. testified she and appellant argued about her using her car to help him look for his cousin's vehicle. During the argument, appellant hit her in the face, beat her with a shoe, tied her ankles and arms together, then put his finger in her anus twice while she was tied face-down on the bed. Officer Saldine testified that when she responded to the scene the next morning, she saw swelling on J.J.'s face and red marks on her arms and shoulder.
        Appellant denied committing any of the offenses, but admitted he and J.J. argued and they “tussled.” Appellant testified their arguments were about him leaving the house, not wanting to have sex with J.J., and appellant's girlfriend. Appellant admitted he pushed J.J., but only because she was hitting him. Appellant denied striking J.J. with his hand, beating her with a shoe, tying her up, or inserting his finger in her anus.
        The fact that there may be conflicting, plausible explanations for appellant's behavior is not dispositive in light of the circumstantial evidence presented at trial. See Huntley v. State, 4 S.W.3d 813, 815 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd). As the fact finder in this case, it was the trial judge's role to reconcile any conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). The fact-finder may choose to believe or disbelieve all or any part of any witness's testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex. App.-Dallas 1993, no pet.). We may not substitute our own determination for that of the fact-finder. Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex. Crim. App. 2002); Johnson, 23 S.W.3d at 8.
        Viewing the evidence under the proper standards, we conclude it is factually sufficient to support appellant's convictions for assault-family violence, violation of a protective order, and aggravated sexual assault. See Roberts, 220 S.W.3d at 524; Johnson, 23 S.W.3d at 8.
        We affirm the trial court's judgment in each case.
 
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
061606F.U05