Bobby Joe Cisneros v. The State of Texas--Appeal from 399th Judicial District Court of Bexar County

MEMORANDUM OPINION

 
No. 04-06-00852-CR
Bobby Joe CISNEROS,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CR-7496
Honorable Juanita A. Vasquez-Gardner, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

 

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

 

Delivered and Filed: September 12, 2007

 

AFFIRMED

Bobby Joe Cisneros was convicted by the court of aggravated assault with a deadly weapon as a repeater and was sentenced to six years imprisonment. We affirm the trial court's judgment.

 

Analysis

In his sole issue on appeal, Cisneros asserts the evidence is factually insufficient to support his conviction for aggravated assault with a deadly weapon. Specifically, he argues the evidence is too weak to support the court's finding that he stabbed the victim, and that, in light of the contrary evidence, the court's finding is against the great weight and preponderance of the evidence. In reviewing the factual sufficiency of the evidence, we consider all the evidence in a neutral light and set aside the conviction only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). There are two ways in which the evidence may be factually insufficient, when the evidence in support of the conviction, although legally sufficient, is "so weak" that the conviction is "clearly wrong and manifestly unjust," or when, considering the conflicting evidence, the conviction is against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414-15. Our evaluation of the evidence should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In a bench trial, the trial judge is the fact finder. Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995).

To obtain a conviction, the State was required to prove that Cisneros intentionally or knowingly committed assault, and used or exhibited a deadly weapon during the assault, in this case a knife. See Tex. Penal Code Ann. 22.02(a)(2) (Vernon Supp. 2006); see also Lane v. State, 151 S.W.3d 188, 189 n.2 (Tex. Crim. App. 2004). A person commits assault if he intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Penal Code Ann. 22.01(a)(1) (Vernon Supp. 2006).

 

At trial, the complainant, Luis Garcia, testified that on the evening of July 19, 2005, he had laid down to sleep on the sidewalk around the corner from the SAMM shelter. He was awakened by two thumps against his body; he saw Cisneros above him and heard him say, "I got you now;" then he felt another two thumps on his side followed by a sharp pain. Garcia stood up, lifted his shirt and saw that he was bleeding. He yelled out to his friends around the corner, "Look what this guy just did to me." Looking for something to defend himself, Garcia made a sling out of his shirt and put a rock inside. Garcia confronted Cisneros, swung the rock and hit Cisneros in the head; Cisneros grabbed the sling away from Garcia, and cut Garcia on his arm; Garcia stepped back. Garcia could see the shine of a knife blade in Cisneros's hand because he was under a streetlight; he thought it was a lock blade knife. A bystander, Tyrone, offered Garcia a knife to use but he declined. Garcia waited, and Cisneros eventually walked off with a second man toward some railroad tracks and a bridge. The police arrived almost immediately, and Garcia told them he had been stabbed by the guy crossing the tracks. Garcia identified Cisneros from the two men detained by the officers. Garcia stated that he owed Cisneros two dollars from a previous transaction. Garcia admitted that he had a criminal history, was homeless, and had consumed crack, marihuana and a beer about three hours earlier. Garcia identified Cisneros as the person who stabbed him again at trial, and photos of Garcia's stab wounds were admitted into evidence.

Elvira Minjarez testified that she saw Garcia walk around the corner to go lie down, and then noticed someone pass behind her walking in the same direction as Garcia; within a few seconds, she heard Garcia shout that he had been stabbed; when the person passed by her again she saw an item in his hand; no one else passed by her during that time frame. It was after Garcia was stabbed that he and Cisneros scuffled in the street. At the scene, Minjarez described the suspect as chunky and bald with tattoos all over his body, and positively identified Cisneros as the person she saw go around the corner after Garcia; she did not make an in-court identification. The responding officer testified that, at the scene, Garcia and Minjarez, as well as another witness, Esther Villarreal, identified Cisneros as the person who stabbed Garcia. The officer also stated that a knife was found in the area where Cisneros was detained, and there was blood on the sidewalk where Garcia said he was lying. He stated that a knife was a deadly weapon. He further testified that he recognized Garcia's injury as a stab wound, and considered it a serious bodily injury.

Cisneros testified and provided a contrary version of events. Cisneros stated that he and Garcia had argued earlier in the day about the two dollars Garcia owed him; when he saw Garcia later that night, he again asked for the two dollars; Garcia got angry and hit Cisneros in the head with a rock inside of a sock; they wrestled and Cisneros took the rock away, but then Garcia hit Cisneros in the back of the head with a beer bottle; Cisneros slapped it away and then went to sit down under the bridge because he felt dizzy. Cisneros denied having a knife or stabbing Garcia. Cisneros admitted having tattoos all over his body, and three prior robbery convictions.

In challenging the factual sufficiency of the evidence, Cisneros points to his contrary testimony as more credible than Garcia's, and cites inconsistencies between the trial testimony and the written statements given by Garcia and Minjarez. (1) It is well settled, however, that it is the fact finder's role to resolve conflicts and inconsistencies in the evidence and to determine the weight to be given a witness's testimony. Johnson, 23 S.W.3d at 8 ("unless the available record clearly reveals a different result is appropriate, an appellate court must defer to the jury's determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor..."). In addition, the fact finder may draw reasonable inferences from the evidence. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). Here, in addition to the witness's testimony, there was physical evidence that was consistent with Garcia's version of events, rather than Cisneros's version - there was blood on the sidewalk where Garcia said he was lying; he had stab wounds; and a knife was found near where Cisneros was arrested. Based on the evidence as a whole, the trial court as the fact finder chose to believe the testimony of Garcia that Cisneros stabbed him before the second confrontation occurred. We cannot say, based on the record before us, that the evidence is factually insufficient to support Cisneros's conviction for aggravated assault with a deadly weapon. His sole issue on appeal is overruled, and the trial court's judgment is affirmed.

 

Phylis J. Speedlin, Justice

DO NOT PUBLISH

1. A portion of Garcia's written statement described how he cut Cisneros's neck with a bottle after he had been stabbed, but at trial Garcia denied ever using a bottle during the fight. Minjarez's statement did not specifically say that she saw the person walk around the corner just a few seconds before Garcia was stabbed, and at trial she denied arguing with Cisneros as described in her statement.