Gabriel Jackson v. The State of Texas--Appeal from County Court at Law No 1 of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-06-00250-CR

Gabriel Jackson,

Appellant

v.

The State of Texas,

Appellee

From the County Court at Law No. 1

McLennan County, Texas

Trial Court No. 20053379CR1

MEMORANDUM Opinion

Jackson appeals his misdemeanor conviction for assault. See Tex. Penal Code Ann. 22.01(a)(1), (b) (Vernon Supp. 2006). We affirm.

In Jackson s one issue, he contends that the evidence was factually insufficient. Jackson argues primarily from the trial testimony of the alleged victim, V. A., which recanted her prior statements to the investigating officer.

There is only one question to be answered in a factual sufficiency review: Considering all of the evidence in a neutral light, was a factfinder rationally justified in finding guilt beyond a reasonable doubt? Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006) (quoting Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004), overruled in part on other grounds, Watson at 415-17); accord Prible v. State, 175 S.W.3d 724, 730-31 (Tex. Crim. App.) cert. denied, 546 U.S. 962 (2005). We set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Prible at 731; accord Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (defense); see also Watson at 414-15. A clearly wrong and unjust verdict occurs where the jury s finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Prible at 731 (quoting Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997)). A decision is not manifestly unjust merely because the factfinder resolved conflicting views of the evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997). [A]n appellate court must first be able to say, with some objective basis in the record, that the great weight and preponderance of the . . . evidence contradicts the factfinder s verdict before it is justified in reversing for factual insufficiency of the evidence. Watson at 417 (emphasis in orig.).

[T]he jury is the exclusive judge of the facts in a jury trial, Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 1981), as is the court in a bench trial, see Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995). [A] factfinder may disbelieve some or all of a witness s testimony, even when that testimony is uncontradicted. Hernandez v. State, 161 S.W.3d 491, 501 (Tex. Crim. App. 2005) (citing State v. Ross, 32 S.W.3d 853, 857 (Tex. Crim. App. 2000)); accord Masterson v. State, 155 S.W.3d 167, 171 (Tex. Crim. App. 2005), cert. denied, 546 U.S. 1169 (2006). The reviewing court must exercise appropriate deference in order to avoid substituting its judgment for that of the factfinder, particularly in matters of credibility. Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); accord Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). The reviewing court should not substantially intrude upon the factfinder s role as the sole judge of the weight and credibility of witness testimony. Ortiz v. State, 93 S.W.3d 79, 88 (Tex. Crim. App. 2002); accord Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).

The factfinder observe[s] the witness s demeanor and [i]s entitled not only to reconcile any . . . conflicts in the evidence, but even to disbelieve a recantation. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); see Jagneaux v. State, No. 10-05-00350-CR, 2006 Tex. App. LEXIS 7871, at *5 n.1 (Tex. App. Waco Aug. 30, 2006, pet. dism d) (not designated for publication) (mem. op.); Sudds v. State, 140 S.W.3d 813, 818 (Tex. App. Houston [14th Dist.] 2004, no pet.) (majority op.). A factfinder is entitled to believe the version of the events which a witness related to police officers rather than the witness s version at trial. Sharp v. State, No. 07-04-0300-CR, 2006 Tex. App. LEXIS 3216, at *18 (Tex. App. Amarillo Apr. 20, 2006, no pet.) (not designated for publication) (mem. op.); accord Hunt v. State, No. 01-04-00526-CR, 2005 Tex. App. LEXIS 1674, at *10 (Tex. App. Houston [1st Dist.] Mar. 3, 2005, no pet.) (not designated for publication) (mem. op.); Jackson v. State, No. 05-03-01820-CR, 2004 Tex. App. LEXIS 10670, at *6 (Tex. App. Dallas Nov. 30, 2004, no pet.) (not designated for publication); Coleman v. State, No. 14-98-01459-CR, 2001 Tex. App. LEXIS 2877, at *4 (Tex. App. Houston [14th Dist.] May 3, 2001, no pet.) (not designated for publication); Yurtman v. State, No. 04-94-00206-CR, 1996 Tex. App. LEXIS 776, at *6 (Tex. App. San Antonio Feb. 28, 1996, pet. ref d) (not designated for publication)Ho. Evidence may be factually sufficient in spite of a witness s recantation of prior complaining statements. E.g., Klein v. State, 191 S.W.3d 766, 776-78 (Tex. App. Fort Worth 2006, pet. granted on other grounds); Bufkin v. State, 179 S.W.3d 166, 170 (Tex. App. Houston [14th Dist.] 2005), aff d, 207 S.W.3d 779 (Tex. Crim. App. 2006).

The State points primarily to the testimony of the investigating police officer, Sgt. Ralph Nix, who testified as follows. V. A. flagged Nix down while he was responding to a 9-1-1 call to V. A. s apartment complex. V. A. was excited. (State Br. at 3 (quoting 2 R.R. at 7).) V. A. told Nix that Jackson had thrown beer on her, thrown a beer can in her face, struck her in the face with his hand, pushed her down onto the ground, and choked her with his hands around her neck. V. A. showed Nix injuries to her arm and lip, which V. A. said Jackson had caused. V. A. s clothing was wet and smelled of beer. Through Nix, the State also introduced photographs of injuries to V. A. s forearm and lip. The State also introduced V. A. s written statement to Nix, which corroborated Nix s testimony.

Jackson argues that V. A. s statement to Nix was hearsay evidence. However, hearsay admitted without objection shall not be denied probative value merely because it is hearsay. Tex. R. Evid. 802. Thus, once the trier of fact has weighed the probative value of unobjected-to hearsay evidence in its factfinding process, an appellate court cannot deny that evidence probative value or ignore it in its review of the sufficiency of the evidence. Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005); accord Fernandez v. State, 805 S.W.2d 451, 453-56 (Tex. Crim. App. 1991); Chambers v. State, 711 S.W.2d 240, 245-47 (Tex. Crim. App. 1986) (per curiam). Jackson also points primarily to the following evidence. At trial, when called by the State, V. A. recanted her statement to Nix. V. A. generally testified that she had not made the statements to Nix that Nix testified she had, but that, if she had made those statements to Nix, she had done so only because she was angry at Jackson. V. A. testified that Jackson pushed her down only while trying to push her away from him, and hit her only in self-defense. V. A. testified that the injuries to her arms were caused by Jackson s holding her arms to prevent her from hitting him, and that she did not know how she received the injury to her lip, since she denied that Jackson hit her in the face. Jackson also called two other witnesses, who testified that Jackson held V. A. s arms or wrists when she attempted to strike Jackson, and one of whom testified that Jackson did not hit V. A. Jackson also points to the absence of visible injuries to V. A s throat, and the absence of testimony of other eyewitnesses.

As Jackson concedes, the evidence could support either version of events. [V.] A[.] had a mark on her mouth, and a scrape on her arm. Appellant suggests those injuries could have been inflicted by appellant assaulting [V.] A[.], or attempting to protect himself from her assault. (Br. at 8.)

According appropriate deference to the trial court s credibility determinations, and considering all of the evidence in a neutral light, we hold that the trial court was rationally justified in finding Jackson guilty beyond a reasonable doubt. The evidence was factually sufficient. We overrule Jackson s issue.

Having overruled Jackson s sole issue, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Justice Vance concurs in the judgment)

Affirmed

Opinion delivered and filed July 25, 2007

Do not publish

[CR25]