Wawrykow v. State

These appeals come to us from a single trial involving two defendants, appellant and his daughter, with each defendant being charged with two separate offenses. In the instant appeals, appellant was convicted by a jury for the misdemeanor offenses of Assault “A”, and Resisting Arrest “A”. The jury assessed punishment at thirty (30) days’ confinement in the Montgomery County Jail and a fine of $3000 for the Assault offense, and a fine of $3000 for the Resisting Arrest offense. Appellant consolidates his appeals in a single brief raising the following three points of error:

Point of Error One: There is insufficient evidence to sustain George Wawrykow’s conviction for the offense of assault.

Point of Error Two: The trial court erred in allowing the admission of medical records which constituted improper character evidence concerning George Wawrykow.

Point of Error Three: The prosecutor committed fundamental error by injecting his personal belief concerning the guilt of the appellants (sic) into the proceeding during final argument.

Although appellant’s initial point of error is worded as a general complaint of insufficient evidence, his brief reflects a very specific and singular argument regarding the piece of evidence that is lacking. The record reflects that the charging instrument alleged that appellant “intentionally, knowingly and recklessly cause[d] bodily injury to another, namely, OFFICER JAMES CHILCUTT, by pushing OFFICER JAMES CHILCUTT on or about his chest with his hands.” Appellant argues that under this particular allegation, the State was required to prove “bodily injury” to Officer Chilcutt. The argument continues that at trial the State faded to elicit any testimony that the alleged push to the chest of Officer Chilcutt caused him “physical pain, illness, or any impairment of physical condition,” or that he was hurt in any way by said push to the chest. We have carefully examined the statement of facts and we agree with appellant that direct evidence of “pain” to Chilcutt, or direct evidence that Chilcutt was “hurt” by appellant’s push to his chest, is lacking.

We note at the outset that convictions must be affirmed if the evidence, viewed in the light most favorable to the verdict, with all reasonable inferences and credibility choices made in support of it, is such that any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979). Indeed, juries are free to use their common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence. United States v. Heath, 970 F.2d 1397, 1402 (5th Cir.1992), cert. denied sub nom, Cheng v. U.S., — U.S. —, 113 S.Ct. 1643, 123 L.Ed.2d 265 (1993). As factfinder, the jury is the exclusive judge of the credibility of witnesses and the weight to be afforded their testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.1991); Tex. Code CRIM.PROC.Ann. art. 38.04 (Vernon 1979). Texas law further provides that a jury may believe a witness even though the witness’s testimony has been contradicted; and that a jury may accept any part of a witness’s testimony and reject the rest. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986), cert. denied, 488 U.S. 872, 109 S.Ct. 190, 102 L.Ed.2d 159 (1988).

Furthermore, lest we commit the same erroneous analysis as was pointed out to us in Criner v. State, 860 S.W.2d 84 (Tex.Crim.App.1993), by “disregarding] the circumstantial evidence in the record”, and by “overlooking] the circumstantial evidence which could lead a rational trier of fact to believe beyond a reasonable doubt” that Officer Chilcutt was injured by appellant’s alleged actions, we will look to the totality of the circumstances surrounding the incident in order to determine if the jury could have found the element of injury proven beyond a reasonable doubt. Id., op. at 86-87.

In researching the case law on this precise issue, we note the fact that several opinions rely on the following language taken from Ramirez v. State, 518 S.W.2d 546 (Tex.Crim.App.1975):

The terms “physical pain,” “illness,” and “impairment of physical condition” are terms of common usage, and when construed “according to the fair import of their terms,” in the context used in Section 1.07(a)(7), supra, are not “so vague that men of common intelligence must necessarily guess at its meaning and differ as to their application.” [citations omitted] A person of ordinary intelligence, who would be law-abiding, can determine with reasonable precision what conduct it is his duty to avoid.

Id. at 547-548. We note in passing that the sole issue for consideration in Ramirez was not the sufficiency of the evidence but whether the term “bodily injury” was so “vague, uncertain and indefinite” so as to be violative of both the U.S. and Texas Constitutions. Id. at 547. Nevertheless, subsequent cases addressing the issue of sufficiency of the State’s proof of the “bodily injury” element have relied heavily on the above Ramirez language. One such case involving the same issue as is now before us is Goodin v. State, 750 S.W.2d 857 (Tex.App.—Corpus Christi 1988, pet. ref d). In Goodin, the complainant took the stand to recount his ordeal but did not testify specifically that he felt “pain” or that the bruises resulting from the encounter with the defendant “hurt.” The Corpus Christi Court of Appeals quoted Ramirez in arriving at a conclusion that people of common intelligence do understand pain and some of the natural causes of pain, and that a jury made up of such people could find that the complainant did in fact suffer “pain” under a fair interpretation of that term as used in Section 1.07(a)(7). Id. at 859. Furthermore, it has been held that the Penal Code’s definition of “bodily injury” is purposefully broad and seems to encompass even relatively minor physical contacts so long as they constitute more than mere offensive touching. Lane v. State, 763 S.W.2d 785, 786 (Tex.Crim.App.1989).

In the instant case, the record before us reflects that both officers testified that appellant was very belligerent and uncooperative as the officers attempted to give him a ticket for parking his vehicle in a fire lane. The following direct examination testimony of Officer Chilcutt describes what took place:

Q. (the State) Okay. What happened then?

A. (Officer Chilcutt) He came out of the van and came by me. And I believe it was right (sic) arm just pushed me aside and came in between me and the van and started toward the sidewalk.

Q. What did you do?

A. Well, I came around back I think through this way and got in front of him. I said “Mr. Wawrykow you need to go back and sign the ticket. Let’s get this taken care of.” And he said “I am going to call my attorney.” And at this point we were face-to-face again and he pushed my chest.

Q. Okay. Now just to clarify that represents what point in this again?

A. This represents the point where the second time he pushed me. The first time he brushed me aside. The second time he gave me a pretty good push.

Q. You say he gave you a pretty good push. I am going to ask — I am going to ask my boss here to go up there and if you could demonstrate to the jury how hard the Defendant pushed you.

A. The second time?

Q. The second time. If you could just demonstrate that for the jury. And trust me. I would enjoy it — I would want you to do it as hard as he did.

A. You have to keep in mind he was going forward, his forward momentum, and I was backing up. So, just a enough (sic) that got me out of the way.

Q. What was going through your mind at that time?

A. This is a traffic, (sic) This is a parking ticket. What is going on, you know? And he kept repeating “I am going to call my lawyer.” And I am thinking he has got a phone in the van. I said he is going to go into Kroger’s where all of the people are shopping. I can’t let this guy get in Kroger’s. And after he pushed me the second time as we were backing up I was telling him “Sir, you are under arrest now” because, I mean, you know, that is once he has assaulted a police officer I have got to place him under arrest. I don’t think there is a town in the United States you could push a police officer around and not be arrested.

Tex.R.App.P. 50(d) places the burden on appellant, or party seeking review, to see that a sufficient record is presented to show error requiring reversal. In examining the testimony of Officer Chilcutt above, we note that there was apparently a demonstration before the jury as to how hard Officer Chilcutt was pushed in the chest by appellant. There is no attempt by appellant to describe the force involved in the demonstration before the jury. We are of the opinion that case law requires us to view this unexplained demonstration before the jury as supporting the jury’s verdict. See, Rogers v. State, 756 S.W.2d 332, 336 (Tex.App.—Houston [14th Dist.] 1988, pet. refd); Gaona v. State, 733 S.W.2d 611, 613-614, n. 1 (Tex.App.—Corpus Christi 1987, pet. ref’d). Furthermore, based on the entirety of the direct and circumstantial evidence before the jury in the light most favorable to the verdict and in the light of the case authority cited above, we find that any rational factfinder could have inferred Officer Chilcutt sustained “bodily injury,” as alleged in the indictment and in the jury’s instructions, beyond a reasonable doubt. Point of error one is overruled.

With regard to appellant’s second point of error complaining of the improper admission of character evidence, appellant is simply wrong in arguing the “evidence was not offered [by the State] to rebut any allegation of calm and gentile (sic) behavior” on appellant’s part. The record clearly reflects the following elicited from appellant by his trial counsel during appellant’s initial direct examination:

Q. (counsel for appellant) Now up to that point where you started to walk off, had you been yelling and cursing at the police?

A. (appellant) No, sir. I don’t do that.

Q. Well, what do you mean you don’t do that?

A. Well, I don’t curse. And I certainly wouldn’t yell at somebody. That is not my nature. Anybody that knows me knows that.

The case of Pyles v. State, 755 S.W.2d 98 (Tex.Crim.App.), cert. denied, 488 U.S. 986, 109 S.Ct. 543, 102 L.Ed.2d 573 (1988), is dispositive of this issue. Like appellant in the instant case, the direct examination testimony of the defendant in Pyles created the impression that he was a non-violent person. The Court in Pyles decided the issue as follows:

A defendant who takes the stand as a witness may be impeached as any other witness. The defendant’s character as a witness was in issue the minute he took the stand. 1 Ray, Texas Practice: Law of Evidence, Secs. 643, 649, pp. 571-574 (3d ed. 1980). The defendant may be impeached by prior inconsistent statements. Ray, supra, Sec. 642 (Pocket Supp.1986); Vernon’s Ann.Rules Crim.Ev.Rule 612(a).

Id. at 115. In the instant case, the intent of the State in attempting to introduce State’s Exhibit 7 is clear from the following exchange:

THE COURT: As I understand it now you are offering this [State’s Exhibit 7] to rebut his testimony that he is a calm man.

MR. VALDEZ (the State): That’s right.

As such, the Pyles case controls the law on this issue. Point of error two is overruled.

Appellant’s third point of error complains of the following portion of the State’s final argument to the jury during the guilt/innocence phase of the trial:

This is the law of the case. These are the charges. These are the Defendants. Now Mr. Leger says don’t decide merely on the testimony of the officers. We are going to believe the officers. We are going to believe them because they are officers. They are wearing badges and all.

We note at the outset that appellant made no objection to this argument at trial. Tex.R.App.P. 52(a) normally requires a party to timely and specifically object in order to preserve a complaint for appellate review. With regard to jury arguments, an exception to this contemporaneous objection requirement exists when the prosecutor’s argument is so prejudicial that an instruction to disregard the argument could not cure the harm. Harris v. State, 827 S.W.2d 949, 963 (Tex.Crim.App.), cert. denied, — U.S. —, 113 S.Ct. 381, 121 L.Ed.2d 292 (1992). In the instant case, we find the portion of the State’s argument at issue is merely an attempt to restate the previous argument by appellant’s trial counsel as it appears in the record as follows:

And I want to ask one other thing to you — of you. If you get back in the jury room and during your deliberations somebody says “We have got to believe these people because they are police officers. We have to support the police officers. We have got to believe them because they are police officers” or “They have a badge or uniform,” I want the other of you jurors to turn to that juror and say “Why didn’t you raise your hand? Why didn’t you respond? Why didn’t you speak up before?” Because it may be that we have wasted all of our time here and this case has to be tried again.

Taken in the context of appellant’s final argument as set out above, the State’s remarks fall within the four areas of permissible jury argument as a response to argument from opposing counsel. Id. Appellant’s third point of error is overruled, and the judgments and sentences in both cases are affirmed.

AFFIRMED.

BROOKSHIRE, J., concurs.

. See our companion opinion in Wawrykow v. State, 866 S.W.2d 96 (Tex.App.—Beaumont, 1993, n.p.h.).

. We note that point of error one makes no reference to any lack of sufficient evidence to sustain his Resisting Arrest conviction. We therefore limit our discussion to the facts and circumstances involving the Assault charge.

. See, Tex.Penal Code Ann. § 1.07(a)(7) (Vernon 1974).