David Eugene Schaefer v. The State of Texas--Appeal from County Court at Law No 2 of Henderson County

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OPINION HEADING PER CUR

NO. 12-07-00030-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DAVID EUGENE SCHAEFER, APPEAL FROM THE

APPELLANT

V. COUNTY COURT AT LAW NO. 2

THE STATE OF TEXAS,

APPELLEE HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION

David Eugene Schaefer appeals his conviction for misdemeanor assault. In a single issue, Appellant contends that the evidence is factually insufficient to support his conviction. We affirm.

Background

Appellant was charged by information with assault causing bodily injury, family violence, a Class A misdemeanor.1

 

At trial, Doris Jean Ivey, Appellant s wife at the time of the offense, testified that on September 4, 2005, she and Appellant began the day together at home. He declined to go to church with her that morning. Before she left for church, Ivey asked Appellant not to be at the house when she returned. After church, Ivey called home and asked Appellant to bring her the house key because she did not want him to come back. However, Appellant returned to the house at approximately 8:45 p.m. that night. Ivey stated that Appellant was intoxicated. She testified that he trashed the house, including throwing her computer across the room and turning all of the furniture upside down. Then, Appellant pushed her and threw her across the room causing her to hit the back wall in the bedroom and knock over a table. Ivey also stated that he choked her around the neck causing her to have trouble breathing, hit her in the back of the head, and kicked and stomped her legs.

Kenneth Bee, a police officer with the Tool Police Department, testified that Ivey arrived at the police department at approximately 11:15 p.m. on September 4, 2005. According to Bee, she stated that Appellant had assaulted her and gave a written report. Pictures detailing Ivey s bodily injuries and damage to her house were admitted into evidence. Ivey testified that these bodily injuries occurred as the result of the alleged assault.

Kim Temple, a school teacher and Ivey s friend, testified that Ivey called her following the alleged assault and asked Temple to take her to the Tool Police Department. Temple observed bruises on Ivey s arm and leg. She testified that she had seen Ivey the week before the alleged assault and stated that she did not notice those bruises at that time. Temple also stated that she took Ivey home that night and observed the disarray and destruction at her home.

Appellant s mother, Shirley Bird, testified that she and Ivey spoke on the telephone the night of September 3. Ivey told Bird that she and Appellant got into it and that Appellant hit her. Tracy Crow, the girlfriend of one of Appellant s friend s, Scott Bryant, testified that Appellant spent the night at their house in Kemp on September 3. Further, she stated that Appellant was with them throughout the day of September 4 until leaving right before it got dark. Bird testified that Appellant arrived at her apartment in Mabank at approximately 7:45 p.m. the night of September 4. According to Bird, he was at her house the rest of that night.

Mark Chatterly, who attends church with Ivey and Appellant, testified that during a Sunday morning service at church, he saw a mark on Ivey s arm. He stated that Ivey told him that she and Appellant were having problems and that he had assaulted her. However, he could not recall the exact date Ivey reported that she had been assaulted. Chatterly also testified that his mother-in-law was best friends with Bird, Appellant s mother. Approximately two weeks after the alleged assault, he observed Ivey and Appellant at church, sitting together in a pew, and then praying and crying at the alter. Tracy Gerbauer, who attends church with Ivey, testified that she saw bruises or grab marks on Ivey s arms at church. She stated that she later saw Ivey and Appellant at church together praying at the altar. Thomas Schaefer, Appellant s brother, testified that Appellant had been taught by their father never to touch a woman and that he had never seen Appellant violent towards any woman. Jeanie Sutton, Appellant s sister, testified that her father taught her brothers not to hit women and she had never known Appellant to abuse a woman.

Robert Walker, the Chief of Police for the City of Eustace, testified that he and Ivey went to school together and that he had known her for approximately twenty-five years. He said that he had known Appellant for approximately twenty years. Walker testified that he set [Appellant] up with Ivey. He stated that less than a year before the alleged assault, he showed Ivey some take down defensive moves. He said that she was pretty bruised up from his demonstration. Bird testified that Ivey bruise[d] very easy and that she had seen Ivey bruised lots of times. She described one incident where Bird s ex-husband was goofing around playing in the pool with Ivey. According to Bird, Ivey s arm was a mess the next day. Schaefer also testified Ivey bruised easily. He stated that his father squeezed Ivey s arm a little bit, resulting in bruises.

Sutton testified regarding an incident she observed of Ivey s infidelity during the marriage. Brenda Lee, a former friend of Ivey s, testified that she also witnessed Ivey commit marital infidelity. Sutton also testified that Appellant wanted a divorce but that Ivey filed for divorce first. She stated that Ivey told her she wanted a divorce because Appellant could not provide for her sexually or financially. Before the trial, Ivey told Sutton she wanted to drop the assault charge against Appellant because it was false. Later, Ivey told Sutton that she could not drop the charge because the State picked it up.

The jury found Appellant guilty of assault as alleged in the complaint and information and assessed his punishment at 180 days of confinement in the Henderson County Jail and a $2,000 fine.2 Appellant timely filed this appeal.

Factual Sufficiency

In his sole issue, Appellant contends that the evidence is factually insufficient to support his conviction.

Standard of Review

In conducting a factual sufficiency review of the evidence, we must first assume that the evidence is legally sufficient. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). When beginning a factual sufficiency review, we view all of the evidence in a neutral light. Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999). We then consider all of the evidence weighed by the jury that tends to prove the existence of the fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan, 939 S.W.2d at 164. A verdict will be set aside only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust. Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002). A clearly wrong and manifestly unjust verdict occurs where the jury s finding shocks the conscience or clearly demonstrates bias. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).

The fact that we might harbor a subjective level of reasonable doubt is not enough to overturn a conviction that is founded on legally sufficient evidence. See Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Although we are authorized to disagree with the jury s determination, even if probative evidence exists that supports the verdict, see Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996), our evaluation should not substantially intrude upon the jury s role as the sole judge of the weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the jury s verdict on such matters is generally regarded as conclusive. Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App. El Paso 1996, pet. ref d). A jury is in the best position to evaluate the credibility of witnesses, and we are required to afford due deference to the jury s determination. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). We cannot declare that a conflict in the evidence renders the evidence factually insufficient because we disagree with the jury s resolution of the conflict. See Watson, 204 S.W.3d at 417.

A successful factual sufficiency challenge will result in a reversal of the conviction and remand of the case for a new trial. See id. at 414. An opinion addressing factual sufficiency must also include a discussion of the most important and relevant evidence that supports the Appellant s complaint on appeal. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). At trial, the State had to prove that Appellant intentionally, knowingly, or recklessly caused bodily injury to Ivey. See Tex. Penal Code Ann. 22.01(a)(1) (Vernon 2007) (setting forth the elements of assault).

Discussion

At trial, Crow and Bird contradicted Ivey s testimony regarding Appellant s presence at her home on September 4. Chatterly and Gerbauer contradicted the timing of her bruises and Walker, Bird, and Schaefer contradicted how she might have received the bruises. The testimony of Sutton and Lee also raised questions regarding Ivey s credibility. However, the jury determined which witnesses were credible and which were not, and the weight to be given their testimony and the pictures admitted into evidence. See Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). Thus, the jury was free to resolve the evidentiary inconsistencies in the State s favor, which is its prerogative as fact finder.

Under these facts, the record does not clearly reveal that a different result was appropriate, and therefore we must defer to the jury s determination concerning what weight to give contradictory testimonial evidence. See Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000). We determine that the evidence is not so weak that the verdict is clearly wrong and manifestly unjust, and that there is no basis in the record for a conclusion that the great weight and preponderance of the evidence contradicts the jury s verdict. See Watson, 204 S.W.3d at 417; Ortiz, 93 S.W.3d at 87. Therefore, we conclude that the evidence was factually sufficient for the jury to find Appellant guilty of assault as charged in the information. Accordingly, Appellant s sole issue is overruled.

Disposition

Having overruled Appellant s sole issue, we affirm the judgment of the trial court.

JAMES T. WORTHEN

Chief Justice

Opinion delivered March 31, 2008.

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

(DO NOT PUBLISH)

 

1 See Tex. Penal Code Ann. 22.01(a)(1), (b) (Vernon Supp. 2007).

2 An individual adjudged guilty of a Class A misdemeanor shall be punished by a fine not to exceed $4,000, confinement in jail for a term not to exceed one year, or both. Tex. Penal Code Ann. 12.21 (Vernon 2003).

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