DAPHNE CROSS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued June 25, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00542-CR
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DAPHNE CROSS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F05-72374-PLY
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OPINION
Before Justices Wright, Bridges, and Mazzant
Opinion By Justice Bridges
        A jury convicted Daphne Cross of injury to a child, and the trial court assessed punishment at two years' confinement in a state jail facility, probated for three years. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm.
Background
 
        On April 27, 2005, Rita Stewart, an investigator with Child Protective Services (CPS), responded to an elementary school on an injury-to-child call. Stewart talked with X.C., who had visible marks and bruises on his body. X.C. said appellant had caused the injuries. Stewart took X.C. to CPS, then removed X.C.'s two younger siblings from appellant's home. As a part of her investigation, Stewart talked with X.C., a school nurse, a school counselor, a detective, and appellant. Appellant admitted she caused the marks and bruises on X.C.'s body when she “whipped” him with a switch because he had been bad at school. After Stewart showed appellant photographs taken by an officer of X.C.'s injuries, appellant said she “got carried away.” Stewart found out X.C. had some problems at the school with talking in class and not following directions.
        Detective Daniel Krieter testified he photographed X.C.'s injuries. Krieter saw “lines and bruises” on X.C.'s right thigh; marks across X.C.'s back, buttocks, and spine; marks on his shoulders and right side that appeared to be old injuries; and marks on his collarbone, neck, left eye, and cheek. The photographs were shown to the jury.
        X.C. was eight years old at the time of trial. X.C. testified appellant “whipped him” with a switch on his “bottom and back” because he had been bad at school. When he woke up the next morning and got out of bed, appellant hit him with a pot. Appellant also hit him with a “high heel shoe” that day. When X.C. went to school, he told a girl in his class about the whipping. The girl told the teacher, and the teacher talked to X.C. about the incident. After that day, X.C. went to live with his aunt, and he has not lived with appellant since then. X.C. testified appellant had spanked him many times using a belt, a high heel boot, a switch, and a television cord.
        Detective Michael Kemp testified he talked with X.C., the CPS case worker, a school teacher, and X.C.'s younger brother, who was three years old at the time of the incident. Kemp also talked with appellant. Kemp believed the discipline used by appellant on X.C. was beyond what a reasonable person would do. At the time Kemp interviewed X.C., which was two weeks after the incident, he saw “old scars” on X.C.'s back and other places on his body.
        Appellant admitted she punished X.C. by “whipping” him with two switches, but denied she injured him. X.C. got the marks and bruises on his body because he was “squirming” when she spanked him, but she was not trying to cause any kind of injury to him. Appellant denied she ever hit X.C. with a pot, high heel shoe, or electrical cord. Appellant testified X.C. had ongoing problems at school with not listening to the teacher, and she disciplined X.C. due to two specific incidents: X.C. had taken off his belt at school and tried to hit another student with it; and X.C. broke a pencil in half and threatened to kill another student. Appellant testified she recognized that in the belt incident, X.C. was copying what she had done to him. Appellant testified CPS has been involved with her for several years on cases of physical abuse and neglect, and that three years before this incident, she took a six-week parenting course in Grayson County because she was ordered to do so by CPS.
Applicable Law
 
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). A review of the evidence for legal sufficiency does not involve a re-weighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).
        In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.), cert. denied, 128 S. Ct. 282 (2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Lancon v. State, No. 0182-07, 2008 WL 2081638, at *5 (Tex. Crim. App. May 14, 2008).
        To obtain a conviction for injury to a child, the State was required to prove beyond a reasonable doubt that appellant intentionally, knowingly, or recklessly caused bodily injury to X.C. Finley, a child fourteen years of age or younger. See Tex. Pen. Code Ann. § 22.04(a)(3), (c)(1) (Vernon Supp. 2007). “Bodily injury” means physical pain, illness, or any impairment of physical condition. See id. § 1.07(a)(8).
Discussion
 
        Appellant argues the evidence is legally and factually insufficient because recklessness was not proven and the alleged weapon was never admitted into evidence. Appellant asserts there was no evidence she knew her conduct would cause serious injury and she disregarded that risk. The State responds the evidence is legally and factually sufficient to support appellant's conviction.
        The jury was charged on three culpable mental states: intentionally, knowingly, and recklessly. The jury convicted appellant of recklessly causing injury to a child. A person acts recklessly, with respect to circumstances surrounding his conduct or the result of his conduct, when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. See Tex. Penal Code Ann. § 6.03(c) (Vernon 2003).
        There was evidence presented from which a rational jury could conclude appellant was aware of a risk of harm to another but consciously disregarded that risk. Appellant admitted she caused X.C.'s injuries, stating she whipped him with two switches because he had been bad at school, and she admitted to the case worker that she got “carried away” when disciplining X.C. X.C. told a CPS case worker and a police detective that appellant caused the bruises on his body by hitting him with various objects, including a pot, a high heel shoe, a switch, a belt, and a television cord. Appellant denied hitting X.C. with anything other than a belt and a switch. It was the jury's function to resolve any conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Lancon, 2008 WL 2081638, at *5. The jury was in the best position to evaluate the credibility of the witnesses and the evidence, and we must afford due deference to its determination. See Marshall, 210 S.W.3d at 625. The jury was free to accept or reject any and all of the evidence presented by either side. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
        Viewing the evidence under the proper standards, we conclude it is legally and factually sufficient to support appellant's conviction. See Roberts, 220 S.W.3d at 524; Lane, 151 S.W.3d at 191-92. We resolve appellant's issues against him.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070542F.U05