Mario Luis Murrieta v. The State of Texas--Appeal from 4th District Court of Rusk County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00241-CR

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MARIO LUIS MURRIETA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 4th Judicial District Court

Rusk County, Texas

Trial Court No. CR05-238

Before Morriss, C.J., Carter, and Cornelius,* J.J.

Memorandum Opinion by Chief Justice Morriss

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*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment

MEMORANDUM OPINION

When Rusk County Deputy Michael Smith attempted to arrest Mario Luis Murrieta at Murrieta's home, Murrieta resisted, and a struggle ensued during which Murrieta twice forcefully pushed Smith away. As a result, Murrieta was charged with assault // of a public servant. From his conviction and sentence of ninety-nine years' imprisonment, // Murrieta appeals, contending only that the evidence is legally and factually insufficient to support the necessary finding that Murrieta caused Smith physical pain by pushing Smith.

The particular challenge in this case is that the State failed to elicit any direct testimony that Smith experienced any pain as a result of being pushed by Murrieta. So, we turn to the record to determine whether there is legally and factually sufficient // circumstantial evidence in the record to support the implicit finding that Murrieta caused Smith physical pain by pushing him, thus supporting Murrieta's conviction. We conclude there is sufficient evidence, and we affirm the trial court's judgment.

A person commits the offense of "assault" if the person "intentionally, knowingly, or recklessly causes bodily injury to another . . . ." Tex. Pen. Code Ann. 22.01(a)(1) (Vernon Supp. 2005). If the action causes "physical pain," "bodily injury" has occurred under the statute. Tex. Pen. Code Ann. 1.07(a)(8) (Vernon Supp. 2005). This "purposefully broad" definition of "bodily injury" includes physical pain from "even relatively minor physical contacts so long as they constitute more than mere offensive touching." Wawrykow v. State, 866 S.W.2d 87, 89 (Tex. App. Beaumont 1993, pet. ref'd) (citing Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989)).

The indictment in this case alleged that, on June 29, 2005, Murrieta "intentionally, knowingly, and recklessly cause[d] bodily injury to [Deputy] Smith by pushing and shoving . . . Smith with his hands . . . ."

Smith testified during the guilt/innocence phase of trial that he had been asked to serve a warrant on Murrieta June 29, 2005. Smith entered Murrieta's home and was directed to a back bedroom by another occupant of the house. Smith eventually found Murrieta standing inside a closet. Smith "reached in and grabbed [Murietta] by the arm and told him he was under arrest."

Murrieta did not surrender peacefully, but instead struggled with Smith. Initially fighting Smith, Murrieta tried to twist and push away from Smith. Eventually, Murrieta was able to turn away from Smith and, using the nearby wall for leverage, push Smith away, thereby breaking free. Smith and a prosecutor demonstrated this push for the jury. The demonstration was partially narrated: "(demonstrating); he turned around and just went." Murrieta "[p]ushed [me] right there." In describing this push, Smith testified the push was "hard enough to move" him and "knocked me all the way back." Smith did not affirmatively say he had felt pain from this push.

According to his continued testimony, after Murrieta's initial escape from Smith's grasp, Smith eventually caught up with Murrieta while they were still inside the house, grabbed Murrieta, and attempted to regain control over him. Nevertheless, Murrieta was again able to break free by pushing Smith away, as with the first push. This second push was hard enough to have moved Smith physically. But again, Smith did not testify that he felt pain from this second push. Smith did testify that, after the second push, he resorted to using his pepper spray to attempt to subdue Murrieta. Other officers were eventually able to locate and arrest Murrieta after a short search in a nearby field. Murrieta testified at the guilt/innocence stage of the trial and denied ever pushing Smith.

By its verdict, the jury apparently believed Smith's version of events (that Murrieta had pushed Smith) and disbelieved Murrieta's version (that he had not pushed Smith). The question on appeal is whether, without any direct testimony concerning pain, there is legally and factually sufficient evidence that Smith suffered any "physical pain" from either of Murrieta's pushes.

A jury may infer that a victim actually felt or suffered physical pain because people of common intelligence understand pain and some of the natural causes of it. Randolph v. State, 152 S.W.3d 764, 774 (Tex. App. Dallas 2004, no pet.). When considering whether evidence is sufficient to establish that a victim suffered pain, juries may use common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life, using inferences that may reasonably be drawn from evidence. Wawrykow, 866 S.W.2d at 88 89 (rational fact-finder could have inferred pushes to chest caused "physical pain") (citing United States v. Heath, 970 F.2d 1397, 1402 (5th Cir. 1992)); see also Goodin v. State, 750 S.W.2d 857, 859 (Tex. App. Corpus Christi 1988, pet. ref'd) (people of common intelligence understand what naturally causes physical pain).

In Wawrykow, // the State asked the victim and the district attorney to provide the jury with an in-court demonstration of how the defendant had pushed the victim in the chest. The State did not, however, elicit any oral testimony that the victim had experienced pain from that push. Wawrykow, 866 S.W.2d at 88. The court of appeals nevertheless affirmed the conviction because the court said the jury was free to infer from the unnarrated, in-court demonstration that the victim suffered pain from the pushes. Id. at 90. We agree with our sister court that the jury may so conclude, based on the similar evidence of pushes and similar in-court demonstrations, even without direct testimony of resulting pain.

While it is always preferable for the complainant to affirmatively state he or she experienced pain, illness, or an impairment of physical condition during the alleged assault, such testimony is not required to sustain a conviction. See, e.g., Lane, 763 S.W.2d at 786 87 (jury may infer bodily injury from bruise caused by twisting wallet from victim's hand); Wead v. State, 94 S.W.3d 131, 134 35 (Tex. App. Corpus Christi 2002), rev'd on other grounds, 129 S.W.3d 126 (Tex. Crim. App. 2004) (jury could infer from photographs showing swollen eye that victim experienced pain); Goodin, 750 S.W.2d at 859 (jury may infer bruising and strained muscles were painful); Arzaga v. State, 86 S.W.3d 767, 778 (Tex. App. El Paso 2002, no pet.) (no testimony the assault victim suffered pain from being struck; jury permitted to draw reasonable inference that victim hurt from being hit in face by husband). // We are also mindful that the standards of review for legal and factual sufficiency require us to examine all the evidence, including circumstantial and demonstrative evidence, to determine whether there is evidence on which a jury could rationally conclude the State had proven its case. See Jackson, 443 U.S. at 319; Johnson, 23 S.W.3d at 7; Threadgill, 146 S.W.3d at 664; Criner v. State, 860 S.W.2d 84, 86 87 (Tex. Crim. App. 1992) (holding circumstantial evidence in record could lead rational jury to believe defendant assaulted victim).

Given Smith's testimony concerning the context of the struggle between Smith and Murrieta, Smith's in-court demonstration of the first push he received from Murrieta, and the testimony that the push knocked Smith "all the way back," we cannot say there is no evidence to support the jury's verdict. Nor can we say the evidence supporting the jury's conclusion that Smith suffered some degree of pain as a result of being pushed is greatly outweighed by any contrary evidence or is so weak that the conviction is clearly wrong or manifestly unjust. We may not reweigh the evidence and substitute our interpretation for the jury's interpretation of that evidence. Santellan v. State, 939 S.W.2d 155, 164 65 (Tex. Crim. App. 1997). Accordingly, we overrule Murrieta's challenges to the legal and factual sufficiency of the evidence to support his conviction.

We affirm the trial court's judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: April 10, 2006

Date Decided: June 14, 2006

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