Cregory Wheeler v. The State of Texas--Appeal from 114th District Court of Smith County

NO. 12-07-00080-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CREGORY WHEELER, APPEAL FROM THE 114TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Cregory Wheeler appeals his conviction for aggravated assault. After a bench trial, the trial court sentenced him to life in prison. In his sole issue, he asserts the evidence is factually insufficient to support the conviction. We affirm.

Background

Lakisha Miller testified that on the morning of December 29, 2004, she and Appellant, her husband at the time, bought and smoked crack cocaine. Appellant instructed her to drive out of town, down a dirt road, and into a wooded area. Once stopped, he told her to take off her clothes. He took the shoe strings out of the boots she had been wearing and used them to tie her wrists to the steering wheel. He became angry with her, accusing her of stealing cocaine from him. While she remained tied to the steering wheel, he smoked more crack cocaine. He hit her in the face with his fist and kicked her until the car door opened. Lakisha fell out, although her hands were still tied to the steering wheel. Appellant got in the driver s seat and drove the car backwards and forwards, dragging her by the side of the car. He did this until the shoe strings broke and Lakisha fell to the ground.

Then Appellant got out of the car, found a stick, hit her with it, and threatened to insert it in her vagina. He also punched her with his fist, kicked her, and pulled her hair out. He hit her all over, inflicting injuries to her back, leg, foot, face, hands, and arm. Appellant told Lakisha he was going to kill her. Lakisha testified that the injuries hurt and she thought she was going to die. She was scared, pleaded with him to stop, and told him to just kill her because she was tired of being tortured. Lakisha explained that he just stopped and told her to put her clothes back on. She drove them back to Tyler and returned some videotapes to a store, then drove to the mall. Lakisha waited in the car while Appellant went into the mall.

Lakisha s good friend, Tekeisha Bledsoe, testified, explaining that she passed by Appellant on her way out of the mall. In the parking lot, she happened to see Lakisha sitting in a car. Tekeisha described her friend as ashamed, scared, and hiding her face. Lakisha s hair was sticking up, she stunk, she was dirty, and she was not wearing any shoes. Tekeisha saw that Lakisha s eye was red or purple and there were scratches on her hand. Lakisha was reluctant to get out of the car. With Tekeisha was Lakisha s aunt, Julia Jordan, and a cousin. They were eventually able to convince Lakisha to go with them. Lakisha was crying and said her hand, feet, and head hurt. They went to a Dollar Store and bought her some clothes, then took her to Tekeisha s house. Tekeisha helped Lakisha get into the bathtub for a bath and Tekeisha observed scratches, bruises, and cuts on her back, arms, legs, foot, face, and eye. One hand was swollen. Tekeisha gave her some pain medication, but it was not adequate so she took her to the emergency room the following morning.

Julia Jordan explained that the family had been looking for Lakisha and they knew she needed help. She described Lakisha as scared, disturbed, and all beat up. Lakisha told them that Appellant had beat her up. Her hand was swollen, she was dirty, looked terrible, and her hair was matted.

Dr. John Andrews testified that, according to the ultrasound taken at the hospital on December 30, Lakisha was pregnant. He explained that there was a small hemorrhage and small separation of the placenta from the uterus which could result from an assault.

Deputy Dale Hukill with the Smith County Sheriff s department talked to Lakisha at the hospital. She was frightened, shaken up, scared, and had visible injuries. One eye was bruised and swollen and her left hand was very swollen.

Pam Dunklin, previously a detective with the Smith County Sheriff s department, also saw Lakisha at the hospital that day. Officer Dunklin observed numerous bruises on both arms and legs, ligature marks on her wrists, and noted that one eye was swollen and red. Lakisha was very upset, unsteady on her feet, extremely tired, and frightened. Lakisha told her she had been assaulted by her husband. Another officer photographed the injuries in Officer Dunklin s presence. Officer Dunklin testified that a motor vehicle, foot, hand, wooden stick, club, and blunt objects were all capable of causing death and serious bodily injury. She stated that the injuries she saw were consistent with what Lakisha told her.

Dr. Virgil Gonzalez reviewed Lakisha s medical records and the photographs taken while she was at the hospital. He explained that the injury to her eye was made by a soft object, consistent with being hit with a fist or kicked. Her face was discolored and her left eye was bloodshot from the force. She had other bruising that could have been caused by a kick or by being hit with a fist. He said a sharp object inflicted the wound on her swollen foot. He noted that whatever was used as a ligature to tie up her wrists was one quarter of an inch wide. He explained that some of the injuries were old enough to be scars, some were two to four days old, some were five to seven days old, and some were one to three days old. Dr. Gonzalez also explained that her left wrist was fractured. However, that injury did not occur on December 29. The wrist had been fractured for quite a while. He testified that the injuries would cause Lakisha pain and would qualify as serious bodily injuries, especially the blow to the left eye. He also stated that the objects used to make the injuries were capable of causing death or serious bodily injury.

Sufficiency of the Evidence

In his sole issue, Appellant asserts the evidence is factually insufficient to support the conviction. He argues that Lakisha s allegations are not supported by the evidence. Specifically, he contends her injuries were not consistent with being kicked and ejected from a vehicle or being dragged by a vehicle. He also urges us to consider Lakisha s criminal history.

Applicable Law

We review the factual sufficiency of the evidence to determine whether, considering all the evidence in a neutral light, the evidence supporting the conviction is too weak to withstand scrutiny or the great weight and preponderance of the evidence contradicts the verdict to the extent that the verdict is clearly wrong and manifestly unjust. See Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). In doing so, we must first assume that the evidence is legally sufficient under the Jackson v. Virginia1 standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). The fact finder is the judge of the weight and credibility of a witness s testimony. Wesbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000). The fact finder may choose to believe all, some, or none of a witness s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

As charged, the State was required to prove that Appellant intentionally, knowingly, or recklessly caused serious bodily injury or bodily injury to Lakisha Wheeler, or intentionally or knowingly threatened her with imminent bodily injury, by dragging her with a motor vehicle and kicking her with his foot and striking her with his hand, a wooden stick, a club, and a blunt object. It was also alleged that he used or exhibited a deadly weapon, a motor vehicle, hand, foot, wooden stick, club, and blunt object during the commission of the assault. It was further charged that Appellant intentionally or knowingly threatened Lakisha Wheeler with imminent bodily injury by threatening to insert a wooden stick, club, and blunt instrument in her vagina, and that he exhibited a deadly weapon, a wooden stick, club, and blunt instrument, during the commission of the assault. See Tex. Penal Code Ann. 22.02(a) (Vernon Supp. 2007).

Analysis

The record is replete with evidence of the injuries Lakisha suffered. They were described by Lakisha, four other witnesses who saw her, and a doctor who reviewed her medical records and photographs. Additionally, the trial court observed the photographs. Lakisha explained how she received the injuries. The doctor testified that certain injuries were consistent with being hit with a fist and kicked with a foot. There is no doubt the presence of quarter inch wide ligature marks on her wrists supports Lakisha s testimony that Appellant tied her hands to the steering wheel with her shoe laces. The trial court could believe Lakisha s testimony that she was ejected from the car and dragged next to it even in the absence of evidence of more specific injuries. Further, under the indictment, the trial court could find Appellant guilty of aggravated assault in the absence of a determination that Lakisha was actually dragged by the car. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) (Indictment may allege differing methods of committing the offense in the conjunctive). Consideration of Lakisha s criminal history is a matter for the trial court, which was charged with determining her credibility. See Wesbrook, 29 S.W.3d at 112. The judgment is not contradicted by the great weight and preponderance of the evidence. Nor are we convinced that the judgment is clearly wrong or represents a manifest injustice. The State presented factually sufficient evidence to prove Appellant is guilty of committing aggravated assault. We overrule Appellant s sole issue.

Disposition

Because the evidence is sufficient to support the conviction, we affirm the trial court s judgment.

SAM GRIFFITH

Justice

Opinion delivered January 31, 2008.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1 Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).