Brandon Dale Abell v. The State of Texas--Appeal from County Crim Ct No 5 of Tarrant County

IN THE

TENTH COURT OF APPEALS

No. 10-06-00318-CR

Brandon Dale Abell,

Appellant

v.

The State of Texas,

Appellee

From the County Criminal Court No. 5

Tarrant County, Texas

Trial Court No. 0991697

MEMORANDUM Opinion

A jury found Appellant Brandon Abell guilty of assault/bodily injury to a family member, his wife Nancy, and the trial court sentenced him to 100 days in jail. In one issue he appeals, asserting that the evidence is factually insufficient. We will affirm.

Standard of Review

In a factual sufficiency review, we ask whether a neutral review of all the evidence, though legally sufficient, demonstrates either that the proof of guilt is so weak or that conflicting evidence is so strong as to render the factfinder s verdict clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d. 404, 414-15 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). The court reviews the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compares it with the evidence that tends to disprove that fact. Johnson, 23 S.W.3d at 7 (quoting Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)). The appellate court does not indulge in inferences or confine its view to evidence favoring one side of the case. Rather, it looks at all the evidence on both sides and then makes a predominantly intuitive judgment. . . . Id. (quoting William Powers and Jack Ratliff, Another Look at No Evidence and Insufficient Evidence, 69 Texas L. Rev. 515, 519 (1991)). The nature of a factual sufficiency review authorizes an appellate court, although to a very limited degree, to act as the so-called thirteenth juror to review the factfinder s weighing of the evidence and disagree with the factfinder s determination. Watson, 204 S.W.3d at 416-17.

As the reviewing court, we should not substantially intrude upon the jury s role as the sole judge of the weight and credibility of witness testimony. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).

The degree of deference a reviewing court provides must be proportionate with the facts it can accurately glean from the trial record. A factual sufficiency analysis can consider only those few matters bearing on credibility that can be fully determined from a cold appellate record. Such an approach occasionally permits some credibility assessment but usually requires deference to the jury s conclusion based on matters beyond the scope of the appellate court s legitimate concern. See George E. Dix & Robert O. Dawson, 42 Texas Practice Criminal Practice and Procedure 36.69 (Supp. 1999). Unless the available record clearly reveals a different result is appropriate, an appellate court must defer to the jury s determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered.

Johnson, 23 S.W.3d at 8.

Evidence

The information in this case alleged that Brandon did, intentionally and knowingly cause bodily injury to Nancy Abell, a member of defendant s family or household, by hitting her with a hand or hands, or by striking her with a picture frame, or by squeezing her neck with a hand or hands.

After Nancy s afternoon and evening of heavy drinking, she and Brandon argued when he came home and asked her friends to leave. She testified that she started the altercation by taking picture frames off the wall and throwing them at him. Her injuries were caused when Brandon deflected a picture frame and it bounced back and hit her. Their ten-year-old son testified similarly, saying that his mom and dad argued and she threw pictures at him, with him defending himself.

A neighbor testified that Nancy came to his house with three of her four children, asking for help and to call 9-1-1, which he did. Nancy was crying and nervous, and two of the children were in tears. The neighbor saw marks on Nancy s upper arm and close to her neck that looked line the impressions of four fingers. The neighbor s mother was there and she also said that Nancy was very upset and crying, but she did not see any bruising on Nancy. Nancy said that her husband had hit and choked her and broken her telephone.

Sean Romer, a Watauga police officer at the time, arrived at the scene. He described Nancy as anxious, and she said she had been in an argument with her husband, who had hit and assaulted her. When asked where she was hurt, Nancy pointed to her head and arms, and Romer saw red marks on her arm that looked like they were starting to bruise. He could not see any head injury because of Nancy s hair. Vanessa Hansard, a Watauga public safety officer, described Nancy as upset and crying. She told Hansard that Brandon tossed her around the house, choked her, and broke a picture frame over her head, which caused her pain. Hansard saw red marks around Nancy s neck and bruising on her upper right arm. Hansard also talked to the ten-year-old son, who said that his parents were fighting and he saw his father choke his mother and hit her with a picture frame.

That night Nancy gave a handwritten statement to the officers, and it was admitted without a limiting instruction. It states in pertinent part:

It started out drinking with a friend. . . . I left for a couple of hours and I came back. He called me a . . . and started choking me in front of the kids! I tried to go to bed in [my son s] room [and] that s when [he] took the picture frame and hit my head. I may [have] a bump on my head. I walked to the neighbor s house because I was [too] drunk to drive to my mom s to call 911. My children witnessed everything. He broke my cell phone so I couldn t use it. He choked my neck, grab[bed] my harms, hit my head with a picture frame. He said he would kill me at home or at work. He told me to watch my step.

At trial Nancy acknowledged that the statement provided a different version of the facts but said that she wrote the statement because she was angry and upset and wanted to get Brandon in trouble. In effect, Nancy recanted her written statement.

Discussion

The jury was called on to determine which of Nancy s and her son s versions to believe: the version in Nancy s written statement and testified to by the officers and the neighbors, or the version they testified to at trial. By finding Brandon guilty, the jury chose to believe the version of events related by the witnesses on the night of the offense rather than the version at trial.

On the record in this case, we must defer to the jury s determination concerning what weight to give the contradictory testimonial evidence. See, e.g., In re A.B., 133 S.W.3d 869, 873-74 (Tex. App. Dallas 2004, no pet.); Scugoza v. State, 949 S.W.2d 360, 362-63 (Tex. App. San Antonio 1997, no pet.); see also Johnson, 23 S.W.3d at 7-8. Considering all of the evidence in a neutral light, we find that the jury was justified in finding Brandon guilty. Watson, 204 S.W.3d at 415.

We overrule Abell s sole issue and affirm the trial court s judgment.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed April 23, 2008

Do not publish

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