Douglas Lee Foster v. The State of Texas--Appeal from 361st District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-92-198-CR

DOUGLAS LEE FOSTER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 361st District Court

Brazos County, Texas

Trial Court # 20,924-361

O P I N I O N

Douglas Lee Foster was convicted by a jury of the offense of aggravated assault and assessed twenty years in prison and a $1,000 fine. The jury also found that he used a deadly weapon. In a single point of error, he asserts that the evidence is insufficient to support the conviction.

STANDARD OF REVIEW

Evidence will sustain a conviction if, viewing it in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991).

Under the Jackson standard, we do not position ourselves as a thirteenth juror in assessing the evidence; rather, we position ourselves as a final, due-process safeguard ensuring only the rationality of the factfinder. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We have only the discretion to determine if any rational trier of fact, considering the evidence admitted at trial, could have found the essential elements of the offense beyond a reasonable doubt. See Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991). We do not make our own myopic determination of guilt from reading the cold record. See Moreno, 755 S.W.2d at 867. We do not disregard, realign, or weigh evidence. See id. The trier of fact is the sole judge of the weight and credibility of the witnesses and may believe or disbelieve all or any part of any witness' testimony. Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). We do not resolve any conflict in fact or evaluate the credibility of the witnesses. See Juarez v. State, 796 S.W.2d 523, 524 (Tex. App. San Antonio 1990, pet. ref'd). The law is well-settled that contradictory testimony does not render the evidence insufficient. Mercado v. State, 695 S.W.2d 25, 29 (Tex. App. Corpus Christi, 1985), aff'd, 718 S.W.2d 291 (1986).

THE EVIDENCE

The evidence is contradictory throughout the record. One point of contention on appeal is the contradictory testimony about whether Foster struck Johnson with an iron and a board or whether Johnson fell and hit her head on the objects. Furthermore, inconsistent testimony exists in the record about whether Foster struck multiple blows to Johnson's head or, as the post-incident examining physician observed, Johnson suffered only one cut to her head and a bruise on her forearm. In Johnson's recorded statement to Officer Jerry Fickey a couple of days after the accident, Johnson complained of multiple injuries to areas other than her head. The attending physician observed only one head wound and a single bruise on her forearm. The doctor said Johnson's wounds could have been consistent either with being struck by a sharp object or falling on a sharp object. Johnson admitted that she told Foster's attorney that she was not struck by the iron, but said that once she became fully aware of the consequences of perjury she told the truth at trial. She had signed a "non-prosecution affidavit," in which she indicated her desire not to pursue the case.

Viewing the evidence in the light most favorable to the verdict, we find that Johnson's original story to the police officer after the incident and her testimony at trial, although impeached, are consistent. Johnson's later contradictory testimony does not destroy the probative value of her earlier testimony. See Mercado, 695 S.W.2d at 29. The doctor examining Johnson following the incident said the cut on Johnson's head could reasonably have resulted from being struck with the iron. Foster testified that he and Johnson had an argument, during which he slapped her and pushed her. Thus, we hold that a rational trier of fact could have believed the version of the events that Johnson gave during her direct examination and have found Foster guilty beyond a reasonable doubt. See Matson, 819 S.W.2d at 843.

CONCLUSION

We overrule Foster's point and affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed April 7, 1993

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