Rosado, Daniel Anthony v. The State of Texas--Appeal from 339th District Court of Harris County

Affirmed and Memorandum Opinion filed March 27, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00502-CR

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DANIEL ANTHONY ROSADO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris  County, Texas

Trial Court Cause No. 901260

M E M O R A N D U M O P I N I O N

Daniel Anthony Rosado appeals his conviction for aggravated assault on the ground that the evidence is insufficient to support his conviction. We affirm.

Sufficiency of the Evidence

In a single issue, appellant contends the evidence is insufficient to support his conviction. Appellant does not specify whether he is challenging the evidence on legal or factual sufficiency grounds. In his prayer for relief, however, appellant requests reversal and acquittal. Because acquittal is only appropriate when a legal sufficiency challenge is sustained, we will review the evidence under a legal sufficiency standard. See Collier v. State, 999 S.W.2d 779, 786 (Tex. Crim. App. 1999).

Standard of Review

When reviewing legal sufficiency, we view the evidence in the light most favorable to the verdict, asking 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, 318-19 (1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). In reviewing the legal sufficiency of the evidence supporting a conviction relative to a claim of self-defense, we do not look to whether the State presented evidence that refuted the self-defense theory, but only whether after viewing all the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt and could have found against the self-defense theory beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991).

Legal Sufficiency Review

An aggravated assault occurs when one intentionally, knowingly, or recklessly causes serious bodily injury to another. Tex. Pen. Code Ann. '' 22.01(a)(1), 22.02(a)(1). A person is generally justified in using deadly force against another in self-defense if, among other things, he reasonably believes the force is immediately necessary to protect himself against the other=s use or attempted use of unlawful force, and if a reasonable person in the actor=s situation would not have retreated. Tex. Pen. Code Ann. '' 9.31(a), 9.32(a).

In this case, an altercation occurred between appellant and Martin Godinez at the apartment complex where they both lived. On March 13, 2001, Martin Godinez rode his bicycle to Rene Ochoa=s apartment to ask Ochoa for a ride to get a haircut. As Ochoa and Godinez were walking toward the car, they saw appellant and his brother, Ramiro Rosado. Ramiro asked Godinez and Ochoa, AWhat are you looking at?@ Ochoa responded, AI can look at anything I want to.@ Rene then pulled out a knife and Ochoa and Godinez ran away. Ramiro then chased Ochoa and appellant chased Godinez. As he was chasing Godinez, appellant was carrying the handle to a car jack. When appellant reached Godinez, Godinez was walking his bicycle and had dropped the chain he used to lock the bicycle. According to Godinez, appellant picked up the chain and refused to give it to Godinez. When Godinez asked for the chain, appellant hit him in the head with the jack handle. That is the last event Godinez remembered.

Appellant testified that when he approached Godinez, Godinez was swinging the bicycle chain in a threatening manner. Because he was afraid for his own life and for that of his brother, appellant hit Godinez with the jack handle.

During the State=s rebuttal, Bernadine Flores testified that she saw one man straddling a bicycle, then saw another man run from the other side of the apartment complex carrying a long metal object. Flores testified that the man carrying the metal object swung it and hit the first man in the head. She testified that the man on the bicycle was not holding anything in his hands.

Godinez suffered severe head trauma from the blow with the jack handle. He arrived at the hospital in a coma and required immediate surgery to save his life. Because a rational trier of fact could conclude from this evidence that appellant caused serious bodily injury by assaulting Godinez and was not acting in self-defense, the evidence is legally sufficient to support his conviction. Appellant=s sole issue is overruled.

The judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed March 27, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Edelman.

Do Not Publish CTex. R. App. P. 47.2(b).