JAMES EDWARD TYRONE, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as MODIFIED and Opinion Filed December 22, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-01226-CR
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JAMES EDWARD TYRONE, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the County Criminal Court No. 11
Dallas County, Texas
Trial Court Cause No. MA09-24900-N
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OPINION
Before Justices Richter, Lang, and Myers
Opinion By Justice Richter
        A jury convicted James Edward Tyrone of assault involving family violence. Pursuant to an agreement between the State and appellant during the punishment phase, the trial court assessed punishment at 270 days' confinement in the county jail and made an affirmative family violence finding. In a single issue, appellant contends the evidence is factually insufficient to support the conviction. We modify and affirm the trial court's judgment.
Evidence Presented
 
        Lisa Wallace and appellant lived together on one side of a side-by-side duplex in Garland. Wallace testified that on June 17, 2009, appellant assaulted her at their home. That evening before the assault, Wallace and appellant went to a nearby convenience store. On their way home, they got into an argument. Once inside the house, appellant slapped Wallace across the left side of her face when she bent down to pick up a basket of laundry. Wallace said appellant “busted the inside” of her bottom lip when he hit her. Wallace threw her cell phone and car keys at appellant and tried to move away from him. When she reached for the house telephone, appellant “punched” her in the ear with his fist. Wallace testified she felt pain and almost lost consciousness. When she began screaming, appellant turned the television's volume up “real loud,” took off his belt, and began hitting her with the belt. Wallace grabbed an open can of beer and threw it at appellant. When appellant went into the kitchen to get a towel, Wallace ran out the front door, got into her vehicle, and drove to a nearby store to call the police. Wallace testified she was able to start her vehicle without the key because the ignition switch was broken. After she called 911, police officers and paramedics arrived at the store within four minutes. She told the officers what had occurred, then she followed them back to the house. When the officers knocked on the door, no one answered, and the house was dark. Because Wallace did not have a key to the house, the officers left.
        Wallace testified that after the officers left, she drove around the block once, then went back to her house to get her keys, cell phone, and basket of clothes. When she parked in the driveway, she saw the neighbor who lived in the other side of the duplex standing in the front yard. She asked him if she could use his cell phone, and he handed it to her. Wallace went to the front door, and appellant let her inside. As appellant began talking to Wallace, she walked out into the backyard. Wallace was talking to her sister on the borrowed cell phone, telling her to stay on the line. At some point while in the backyard, appellant said, “[I] will kill you and hide your body.” Wallace said appellant also choked her, but he did not leave any bruises on her neck. Appellant then told Wallace to go inside and get him a beer. Wallace went inside the house, picked up her keys and cell phone from the floor, and ran out the side door. She got into her vehicle and drove away. The next day, appellant called her cell phone over thirty-five times and repeatedly asked her to drop the charges against him. Appellant also repeatedly called Wallace while she was at work. A co-worker threatened to file harassment charges against him if he continued calling Wallace.
        During cross-examination, Wallace testified that when the officers arrived at the store, she told them appellant had choked her and hit her. Wallace said appellant choked her twice that evening. The first time occurred after he hit her in the ear with his fist. The second time occurred in the backyard when she went back to the house after the officers had left. Wallace denied making up the allegations because she was mad at appellant for seeing someone else.
        Regina Hickman, Wallace's half-sister, testified that on June 18, 2009, Wallace called and asked her to come to a friend's house where she was staying. When Hickman arrived, Wallace had a towel against her left eye. Wallace said she and appellant “got into it last night.” Wallace's eye was red and causing her pain. Hickman took Wallace to a hospital emergency room. Hickman testified she was in the examining room with Wallace when a doctor said Wallace had a scratch on the cornea. While at the hospital, appellant repeatedly called Wallace's cell phone.
        Garland police officer Gary Sweet testified he conducted a telephone interview with Wallace. After asking Wallace “lots of questions” about what had occurred on June 17, 2009, Sweet set an appointment for Wallace to give a written affidavit. Wallace came to his office on June 30, 2009 and gave a sworn statement. Sweet testified Wallace remembered a few “extra things” about what had happened that were not written in the police report. Sweet said it is normal for victims to recall more about an event a short time later when they are not under the immediate stress of the event. Sweet testified that Wallace did not tell him she went back to the house after the officers had left and was again assaulted. Appellant did not present any evidence during the guilt-innocence phase of the trial.
Applicable Law
 
        In a single issue, appellant challenges the factual sufficiency of the evidence. The Texas Court of Criminal Appeals has overruled Clewis v. State, holding that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). Therefore, we will address appellant's sole issue under the Jackson v. Virginia standard.
        In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a 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); Brooks, 323 S.W.3d at 895. We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326 (“a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution”).
        The State was required to prove beyond a reasonable doubt that appellant intentionally, knowingly, or recklessly caused bodily injury to Lisa Wallace, and that appellant had a dating relationship with Wallace and was a member of her family and household. See Tex. Penal Code Ann. § 22.01(a)(1) (West Supp. 2010); Tex. Fam. Code Ann. § 71.004(1) (West 2008).
Discussion
 
        Appellant contends the evidence is insufficient to prove he committed the offense in the manner alleged in the information. Appellant asserts there is no evidence he (1) forced Wallace to the floor, (2) struck her head with his hand, or (3) choked her. Appellant further argues that Wallace's testimony was confusing, at best, with respect to the choking allegations. The State responds that the evidence is sufficient to support the conviction.
        The information alleged appellant assaulted Wallace by (1) striking her head with his hand, (2) forcing her to and against the floor with his hand, and (3) choking her with his hand. The manner and means of the bodily injury alleged is not an essential element of the offense. See Tex. Penal Code Ann. § 22.01(a); see, e.g., Thomas v. State, 303 S.W.3d 331, 333 (Tex. App.- El Paso 2009, no pet.). The jury was instructed they could convict appellant if they found he committed the assault by any one of the listed methods. Different modes of commission of an offense may be presented in a jury instruction in the disjunctive when the charging instrument, in a single count, alleged the different means in the conjunctive. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991); see also Pizzo v. State, 235 S.W.3d 711, 715 (Tex. Crim. App. 2007).
        The jury heard testimony from Wallace that appellant hit her in the ear with his fist, slapped her in the face, and choked her on two separate occasions on the night of the assault. Wallace said she sustained a “busted lip,” and sought medical treatment the next day for an injury to her eye. Although Wallace's testimony during cross-examination sometimes contradicted her testimony during direct examination, it was the jury's function to resolve any conflicts in the evidence, and the jury was free to accept or reject any and all of the evidence presented by either side. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
        Viewing the evidence under the proper standard, we conclude a rational trier of fact could find beyond a reasonable doubt that appellant assaulted Wallace causing bodily injury. Thus, the evidence is sufficient to support the verdict. See Brooks, 323 S.W.3d at 895. We resolve appellant's sole issue against him.
Modify Judgment
 
        In a cross-point, the State contends the trial court's written judgment should be modified to reflect that appellant was convicted by a jury on his plea of not guilty. The judgment states appellant waived his right to a jury trial and entered a plea of not guilty before the court. The record, however, shows appellant pleaded not guilty before a jury, and the jury found appellant guilty “as charged in the information.” Thus, the judgment is incorrect. We sustain the State's cross-point. We modify the trial court's judgment to show appellant did not waive his right to a jury trial and he was convicted by a jury. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd).
        We also note the trial court's judgment omitted the offense for which appellant was convicted. Thus, we modify the judgment to show appellant was convicted for the offense of “assault, Family Violence.” See id.
        As modified, we affirm the trial court's judgment.
 
 
 
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
091226F.U05