PAUL MANUEL FERNANDEZ v. THE STATE OF TEXAS--Appeal from 197th District Court of Cameron County

   NUMBER 13-05-208-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

PAUL MANUEL FERNANDEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 197th District Court

of Cameron County, Texas.

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

 Before Chief Justice Valdez and Justices Rodriguez and Garza

   Opinion by Chief Justice Valdez

Appellant, Paul Fernandez, was found guilty of injury to an elderly person and sentenced to two years= imprisonment in the Texas Department of Criminal Justice. On appeal, appellant argues the following: (1) the State failed to show appellant knew the victim was elderly or that he specifically intended to injure him, and (2) the victim=s statement that he was sixty-six years old is factually insufficient to support appellant=s conviction. We affirm.

I. BACKGROUND

Appellant worked on a shrimping boat owned by Steve Kotrulja and Pete Smirch, the victim. During a seventeen-day long job, appellant quit over a disputed payment. Smirch agreed to then give appellant a ride back to Brazoria County. As Smirch sat in his truck, appellant entered the truck from the passenger side and punched Smirch in the eye. Smirch stepped out of the truck and fell to the ground. Appellant proceeded to kick Smirch in the head and body. Appellant was subsequently subdued by the deckhands and captain of Smirch=s shrimp boat. At the time of the attack, Smirch was over sixty-five years old.

II. INJURY TO AN ELDERLY INDIVIDUAL

By his first issue, appellant argues that the State failed to show he knew Smirch was elderly or that it was his specific intent to cause injury to an elderly individual.

A. Applicable Law

A person commits bodily injury to an elderly individual if he causes such act intentionally, knowingly, recklessly, or with criminal negligence. See Tex. Pen. Code Ann. ' 22.04(a)(3) (Vernon Supp. 2005). In this section, an Aelderly individual@ means a person sixty-five years of age or older. Id. ' 22.04(c)(2). An offense under subsection (a)(3) is a third degree felony when the conduct is committed intentionally or knowingly. Id. '22.04(f). An individual adjudged guilty of a third degree felony shall be punished by imprisonment in the institutional division for any term of not more than ten years or less than two years. Id. '12.34(a).

B. Analysis

Appellant contends there is no evidence that he knew that Smirch was elderly or that he intentionally caused Smirch=s injury. However, section 22.04 does not specifically require scienter with respect to the victim=s age, and the State need not prove knowledge or intent. Zubia v. State, 998 S.W.2d 226, 227 (Tex. Crim. App. 1999); Huff v. State, 660 S.W.2d 635, 638 (Tex. App.BCorpus Christi 1983, pet. ref=d). Furthermore, this is a result-orientated offense. Maupin v. State, 930 S.W.2d 267, 268 (Tex. App.BFort Worth 1996, pet. ref=d) (citing Kelly v. State, 748 S.W.2d 236, 239 (Tex. Crim. App. 1988)). It is the intent to cause the result, i.e., the bodily injury, that is the gravamen of the offense. See Samples v. State, 762 S.W.2d 751, 752 (Tex. App.BFort Worth 1988, no pet.); see also Black v. State, 26 S.W.3d 895, 898 (Tex. Crim. App. 2000). Here, appellant intentionally struck Smirch in the face and then kicked him about the head and body. At the time of the attack, Smirch was at least sixty-five years of age. We conclude that appellant=s rights were not violated because he was not required to know that Smirch was elderly, and he intended to cause Smirch=s bodily injury, as evidenced by the multitude of strikes upon him. See Zubia, 998 S.W.2d at 227; see also Samples, 762 S.W.2d at 752.

We overrule appellant=s first issue.

 III. VICTIM=S TESTIMONY

By his second issue, appellant argues that Smirch=s testimony as to his age at the time of the incident, without more, is insufficient to support the factual requirement that Smirch be sixty-five years or older. At trial, Smirch testified that he was sixty-six years of age at the time of the attack. A victim=s testimony as to their age at the time of the alleged incident is sufficient to prove they were indeed a certain age on the date of the offense. See Jason v. State, 589 S.W.2d 447, 449 (Tex. Crim. App. 1979); see also Gonzalez v. State, 647 S.W.2d 369, 373 (Tex. App.BCorpus Christi 1983, pet. ref=d). We conclude Smirch=s testimony is legally sufficient to prove he was sixty-five or older at the time of the offense. See Jason, 589 S.W.2d at 449. We overrule appellant=s second issue.

IV. CONCLUSION

The judgment of the trial court is affirmed.

Rogelio Valdez,

Chief Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 2nd day of March, 2006.