Donald G. Hock v. State ( 2009 )

Affirmed and Memorandum Opinion filed September 22, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00135-CR

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DONALD G. HOCK, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 3 and Probate Court

Brazoria County, Texas

Trial Court Cause No. 159253

M E M O R A N D U M   O P I N I O N

Donald G. Hock was convicted of assault and sentenced to confinement in the Brazoria County jail for 365 days and assessed a $4,000 fine.  Hock challenges his conviction and sentence on multiple grounds.  We affirm.

I

Donald Gerne Hock and Keitha Bland, the mother of the complainant, had been in a tumultuous relationship for several years that required police intervention on numerous occasions.  Hock pleaded Aguilty@ in November 2003 to a complaint of assault causing bodily injury to Bland arising from a December 2002 incident.  Hock also was arrested for an assault causing bodily injury to Bland in July 2003.  A protective order was issued following these events.  Hock violated that protective order and was convicted of the July 2003 offense in 2007.  Despite the protective order and Hock=s assaults, Bland secretly continued her relationship with him until the night at issue.

Sometime between 8:30 p.m. and 9:00 p.m. on Friday, June 9, 2007, Bland picked up Hock and drove him to her house in Sweeny.  Later that night, Bland left the house and picked up her son, C.K., and brought him home from a friend=s house.  Bland took C.K. to his room where she put him to bed.  Bland then returned to her bedroom.  Sometime later that night, C.K. heard Hock in his mother=s room.  Neither C.K. nor his sister, the complainant, approved of their mother=s relationship with Hock.  After realizing Hock was in his mother=s room, C.K. left the house and walked to a convenience store a few blocks away.  C.K.=s sister, the complainant, worked at the store, and he went there to tell her that Hock was at the house.  Upon receiving this information, the complainant instructed C.K. to return home and wait for her to arrive.

Shortly after midnight, the complainant arrived at the house to confront her mother and Hock.  The complainant entered her mother=s bedroom and discovered her mother and Hock lying in bed together.  The complainant demanded an explanation from her mother for continuing to associate with Hock.  An argument between the two ensued, and Bland pushed the complainant out of the room into the hallway.

According to both the complainant and Bland, Hock suddenly appeared and forced the complainant into C.K.=s nearby bedroom. Hock then pushed the complainant onto the bed and struck her in the face and the back of her head with a closed fist.  The complainant suffered numerous injuries as a result, including a bloody lip.

It was disputed at trial where C.K. was located during the struggle.  However, C.K. exited the house at some point with a cellular phone.  He shouted to those inside that he was calling 9-1-1, at which point Hock fled the premises.  Officer Harold Douglas of the Sweeny Police Department arrived shortly thereafter but was unable to locate Hock. Officer Douglas and the complainant went to the police station where she later filed charges against Hock.

Hock was tried by a jury in Brazoria County Court at Law No. 3 on two separate counts of assault: one for pulling the complainant=s hair, and another for striking her.  The jury convicted Hock on the second count and acquitted him on the first. Punishment was assessed at 365 days= confinement in the Brazoria County jail and a fine of $4,000.  This timely appeal followed.

II

Hock challenges his conviction and sentence contending that: (1) the evidence presented during trial is factually and legally insufficient to support his conviction; (2) the trial court submitted an improper jury charge; (3) the trial judge=s conduct unfairly prejudiced him in the eyes of the jurors; and (4) his sentence was disproportionately harsh.  We will address each in turn.

A

In Hock=s first point of error, he claims that the evidence used to convict him at trial is legally and factually insufficient.  Specifically, Hock points to: (1) the lack of physical evidence connecting him to the offense; (2) Bland=s failure to give a statement to police on the night of the offense; (3) the credibility and alleged bias of the State=s witnesses; and (4) the murky quality of photographs of the victim provided at trial.

1

When reviewing a question of legal sufficiency, we consider all evidence in the light most favorable to the verdict and then determine whether any rational trier of fact, based on that evidence and any reasonable inferences therefrom, could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318B19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Wooten v. State, 267 S.W.3d 289, 294 (Tex. App.CHouston [14th Dist.] 2008, pet. ref=d).  Further, we must keep in mind that the jury is the sole judge of the credibility of the witnesses and is free to believe or disbelieve any part of a witness=s testimony.  Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998).  We will disturb the verdict only if this court can conclude that the jury=s verdict is irrational.  See King v. State, 29 S.W.3d 556, 562B63 (Tex. Crim. App. 2000); Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d); see also Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) (reviewing court should not become a Athirteenth juror@).

A person commits the offense of assault if he Aintentionally, knowingly, or recklessly causes bodily injury to another . . . .@  Tex. Penal Code Ann. ' 22.01(a)(1) (Vernon 2003 & Supp. 2008).  A>Bodily injury= means physical pain, illness, or any impairment of physical condition.@  Tex. Penal Code Ann. ' 1.07(a)(8) (Vernon 2003 & Supp. 2008).  This broad definition encompasses Aeven relatively minor physical contacts so long as they constitute more than mere offensive touching.@  Henry v. State, 800 S.W.2d 612, 614 (Tex. App.CHouston [14th Dist.] 1990, no pet.) (quoting Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989)).

At trial, the State presented testimony from several witnesses including Bland, the complainant, and C.K. Bland testified that on the night of the incident, she was awakened by the complainant who was yelling at her for letting Hock back into her house.  Bland stated that she got up and tried to push the complainant out of her bedroom, and the argument continued in the hallway.  According to Bland, Hock then moved past her and grabbed the complainant by the shoulders.  Bland testified that Hock and the complainant ended up in C.K.=s bedroom, with Hock straddling the complainant as she lay on the bed.  Bland saw Hock strike the complainant in the face several times.  After Hock left the house, Bland observed that the right side of the complainant=s mouth was bleeding.

Similarly, the complainant testified that during the hallway argument with her mother, Hock suddenly appeared and pushed her into C.K.=s room.  The complainant stated that Hock  punched her in the face once, cutting her lip. She testified that Hock struck her several more times on the back of her head.

C.K., who was eleven years old at the time of the incident, testified that Hock grabbed the complainant by the arm, threw her onto his bed, and hit her with his fist about five times while straddling her with her arms pinned under his knees.  C.K. observed that, after Hock had punched the complainant, her lip was bleeding and her eyes were swollen. 

This testimony satisfies the essential elements of the charged offense.  See Tex. Penal Code Ann. ' 22.01(a)(1); see also Letson v. State, 805 S.W.2d 801 (Tex. App.CHouston [14th Dist.] 1990, no writ) (victim=s testimony was legally sufficient evidence to support assault convictions).  When viewing the testimony of the complainant and her family in the light most favorable to the verdict, a rational trier of fact could have found Hock guilty of assault.  See Tex. Penal Code Ann. ' 22.01(a)(1); Hooper, 214 S.W.3d at 13; Wooten, 267 S.W.3d at 294.  We find the evidence legally sufficient to uphold Hock=s conviction.

2

When reviewing a factual-sufficiency challenge, we view all the evidence neutrally.  Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); Newby v. State, 252 S.W.3d 431, 435 (Tex. App.CHouston [14th Dist.] 2008, pet ref=d).  A jury=s verdict may be set aside only if this court finds: (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Newby, 252 S.W.3d at 435.  This court is first directed to the evidence that the appellant contends undermines the jury=s verdict.  Newby, 252 S.W.3d at 435; see also Roberts v. State, 221 S.W.3d 659, 665 (Tex. Crim. App. 2007).  Although we may disagree with the jury=s conclusion, we must avoid substituting our judgment for that of the jury.  Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); Newby, 252 S.W.3d at 435.

Hock contends that the evidence is factually insufficient to support his conviction for three reasons: (1) there was no physical evidence offered at trial; (2) the key testimony of witness Bland was not credible because she failed to give a written statement to police on the night of the incident; and (3) the photographs of the complainant=s injuries were unreliable.

The State introduced into evidence eighteen photos of Bland=s house and the surrounding area at trial.  The State also introduced court documents including prior complaints and court orders demonstrating Hock=s history of violent behavior, as well as his violation of prior restraining orders.  There was no physical evidence tying Hock to the alleged assault.  Nevertheless, despite Hock=s argument to the contrary, eyewitness testimony alone can be sufficient to support a conviction.  Johnson v. State, 176 S.W.3d 74, 78 (Tex. App.CHouston [1st Dist.] 2004, pet. ref=d) (citing Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982)).  There is no specific legal requirement of physical evidence linking a defendant to an offense.  See Lancon v. State, 253 S.W.3d 699, 706B07 (Tex. Crim. App. 2008) (lack of physical evidence alone was not dispositive in factual-sufficiency review when witness testimony was available for the jury=s consideration). Such evidence would represent only a portion of the evidence considered by the jury, and we must consider all the evidence presented.  Watson, 204 S.W.3d at 415; Newby, 252 S.W.3d at 435. 

Next, Hock contends that Bland=s trial testimony against him was not credible because she failed to give a statement to police on the night of the incident.  This fact was presented to the jury when Hock cross-examined Bland.  The jury was free to believe either the prosecution=s version of the events of that night, including the testimony of the victim and her family, or Hock=s.  This court should refrain from intruding on the jury=s verdict when it centers on the credibility of witnesses.  See Jones v.  State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996) (stating that the jury is the sole judge of the credibility of the witnesses and the weight given to their testimony).

Finally, Hock asserts that the photographs of the complainant=s injuries admitted at trial were Ainsufficient and unreliable evidence.@  Some of the photographs featured a computer date stamp on the back that, according to Hock, reads, AWalgreens 4/4/07.@  Hock contends that this date makes the photographs unreliable because the incident in question occurred on June 10, 2007.  The complainant testified that her fiancé took the photos on June 10, 2007, after the assault had occurred.  The State demonstrated that at least one of the photographs was stamped A2007/06/14.@ 

Hock also argues that the photographs are insufficient because they are too dark to clearly illustrate what they purport to showCthe complainant=s injuries resulting from Hock=s assault.  Hock=s defense counsel, not the State, offered the photographs for admission into evidence at trial. When defense counsel was laying the foundation to admit the photos, the complainant stated that the photos do not Afairly and accurately depict [her] alleged injuries@ because the photos are too dark.  Roberta Strickland, Bland=s sister, also testified that the photos were too dark to show the complainant=s injuries clearly.  Strickland also testified to seeing the complainant with a Abusted lip@ on Sunday, June 9, shortly after the incident.

Hock presented alibi evidence at trial in the form of testimony from his mother, Vivian Floy Smith.  Smith testified that Hock had lived with her since 2006, and that he had not dated Bland since 2003.  Smith further testified that Hock returned home around 9:30 p.m. on June 9, 2007, and was still at home when she went to bed around 12:15 a.m.  Smith stated that she got up around 2:00 a.m. and saw Hock lying in his bed.  Finally, Smith testified that Hock could not have been wearing a specific ring on June 9, because it was being repaired at that time.  Bland had testified that Hock was wearing the ring on the night of the incident.

Hock took the stand in his defense and likewise testified that he had gone home around 9:30 p.m. on June 9, and went to bed around midnight.  Hock denied having any contact with Bland since 2003, denied ever setting foot in Bland=s house depicted in the photographs introduced at trial, and denied wearing the ring as described by Bland on the night of the incident.  Hock generally denied all facts related to the assault and asserted that he was not at Bland=s home that night.  Hock did admit to hitting Bland on a prior occasion, as well as to pleading Aguilty@ to choking her.  Further, the State demonstrated inconsistencies with Hock=s prior testimony regarding when he and Bland had dated, and whether he had ever hit her.

A jury verdict is not manifestly unjust nor against the great weight and preponderance of the evidence if the jury resolves conflicting views of evidence in favor of the State.  See Cain v.  State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997).  Appellate courts should afford almost complete deference to a jury=s decision when that decision is based upon an evaluation of credibility.  Lancon, 253 S.W.3d at 705.  The jury is in the best position to judge the credibility of a witness because it is present to hear the testimony, as opposed to an appellate court who relies on the cold record.  Id.  Considering the evidence in a neutral light, the jury=s verdict was not clearly wrong and manifestly unjust; nor was the verdict against the great weight and preponderance of the evidence.  The jury here was entitled to believe the complainant, Bland, and Strickland.  Therefore, the evidence presented at trial is factually sufficient to support Hock=s conviction.  See Watson, 204 S.W.3d at 414B15; Drichas, 175 S.W.3d at 799B800; Newby, 252 S.W.3d at 435.

Having found the evidence both legally and factually sufficient to sustain Hock=s conviction, we overrule Hock=s first point of error.

B

In his second issue, Hock contends that the jury charge was improper because it denied him his constitutional right to a unanimous verdict.  Hock claims the charge allowed the jury to convict him without a unanimous verdict because the charge submitted two separate offenses in the disjunctive. The State responds that the jury charge appropriately asked the jury to consider alternate methods of carrying out the same offense. 

When reviewing a jury charge, this court must first determine whether error actually exists.  Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Isenhower v. State, 261 S.W.3d 168, 174B75 (Tex. App.CHouston [14th Dist.] 2008, no pet.).  If this court finds error in the charge, the next step is to determine whether harm exists because of that error.  Ngo, 175 S.W.3d at 743; Isenhower, 261 S.W.3d at 175B76.  The scope of review includes the entire jury charge, as well as the state of the evidence, including the contested issues and the weight of the probative evidence, the final arguments of the parties, and any other relevant information revealed by the record of the trial as a whole.  Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008); Barnes v. State, 855 S.W.2d 173, 175 (Tex. App.CHouston [14th Dist.] 1993, pet. ref=d).

Under the Texas Constitution and Code of Criminal Procedure, a jury in Texas must reach a unanimous verdict; however, that does not mean the jury must unanimously find that the defendant committed that crime in one specific way.  Landrian v.  State, 268 S.W.3d 532, 535 (Tex. Crim. App. 2008); see also Schad v. Arizona, 501 U.S. 624, 632 (1991) (the Due Process Clause allows a state to Adefine different courses of conduct, or states of mind, as merely alternative means of committing a single offense, thereby permitting a defendant=s conviction without jury agreement as to which course or state actually occurred@); Drew v. State, 76 S.W.3d 436, 457 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d).  If the statute forming the basis of the jury charge lends itself to a disjunctive interpretation, then the jury need not decide unanimously how the defendant committed the crime.  See Schad, 501 U.S. at 632B33.

The Court of Criminal Appeals has divided offenses under the Penal Code into two categories: (1) Aconduct-oriented@ offenses, and (2) Aresult-oriented@ offenses.  Huffman v. State, 267 S.W.3d 902, 905B06 (Tex. Crim. App. 2008).  AIf the focus of the offense is the resultCthat is, the offense is a >result of conduct= crimeCthen different types of results are considered to be separate offenses but different types of conduct are not. On the other hand, if the focus of the offense is the conductCthat is, the offense is a >nature of conduct= crimeCthen different types of conduct are considered to be separate offenses.@  Id. at 907.

With result-oriented offenses, a jury charge may allege Aalternative theories of committing the same offense;@ however, a jury charge may not disjunctively present conduct-oriented offenses.  Kitchens v. State, 823 S.W.2d 256, 257 (Tex. Crim. App. 1991); see also Huffman, 267 S.W.3d at 905B06.  In Landrian v. State, the court further concluded that assault under subsection (a)(1) is a Aresult-oriented@ offense, thus permitting a jury charge alleging alternative means of committing an assault. 268 S.W.3d at 536; see Huffman, 267 S.W.3d at 907. 

The relevant portions of the jury charge in this case are as follows:

. . . [I]f you believe from the evidence beyond a reasonable doubt that the Defendant, Donald G. Hock, did, on or about the 10^th day of June, 2007 . . . knowingly or intentionally or recklessly cause bodily injury to another, namely [the complainant], to wit: by pulling [the complainant] by her hair, then you will find the Defendant guilty as charged and say so by your verdict; but if you do not so believe or if you have a reasonable doubt thereof, you will acquit the Defendant and say by your verdict Anot guilty.@

. . . [I]f you believe from the evidence beyond a reasonable doubt that the Defendant, Donald G. Hock, did, on or about the 10^th day of June, 2007 . . . knowingly or intentionally or recklessly cause bodily injury to another, namely [the complainant], to wit: punching said [complainant] about her head with the Defendant=s hand, then you will find the Defendant guilty as charged and so by your verdict; but if you do not so believe or if you have a reasonable doubt thereof, you will acquit the Defendant and say by your verdict Anot guilty.@

Hock points to several cases to bolster his contention that in the jury charge the State alleged two separate offenses under the Penal Code; however, the cases Hock relies upon deal exclusively with statutes involving the sexual assault of a child, which is classified as a Aconduct-oriented@ offense.  Huffman, 267 S.W.3d at 905B06; see also Patterson v. State, 152 S.W.3d 88, 89B93 (Tex. Crim. App. 2004); Francis v. State, 36 S.W.3d 121, 122B25 (Tex. Crim. App. 2000); Vernon v. State, 841 S.W.2d 407, 410B12 (Tex. Crim. App. 1992).

Because assault is a Aresult-oriented@ offense, the disjunctive submission was not error.  Landrain, 268 S.W.3d at 536; see also Jefferson v. State, 189 S.W.3d 305, 312 (Tex. Crim. App. 2006) (jury charge in murder case was appropriately disjunctive because murder is a result-oriented offense); Kitchens, 823 S.W.2d at 258 (same); Drew, 76 S.W.3d at 457 (same).

Having found no error with the jury charge in this case, we need not conduct a harm analysis.  Hock=s second issue is overruled.

C

In Hock=s third point of error, he argues that comments by the judge showed a bias that deprived him of a fair trial and unfairly influenced the jury.  The State responds that Hock failed to object that any of the trial court=s comments amounted to judicial bias or prejudice and he cannot demonstrate fundamental error. 

Generally, the failure to raise a contemporaneous objection results in failure to preserve error for appellate review.  See Tex. R. App. P. 33.1(a); Brewer v. State, 572 S.W.2d 719, 721 (Tex. Crim. App. 1978) (when no objection is made, remarks and conduct of the court may not be challenged on appeal unless they are fundamentally erroneous). In Brumit v. State, the Court of Criminal Appeals declined to decide whether a party must object below to judicial bias or impartiality to preserve error.  See 206 S.W.3d 639, 644B45 (Tex. Crim. App. 2006).  Because the Court of Criminal Appeals has not spoken definitively on this issue, we will assume for purposes of appeal that Hock is contending that the trial court=s comments and rulings amounted to fundamental error and therefore he was not required to object to preserve error.  See Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000) (plurality) (comments of trial judge, which tainted the defendant=s presumption of innocence, were fundamental error of constitutional dimension and required no objection).

Due process requires a neutral and detached hearing body or officer.  Brumit, 206 S.W.3d at 645.  Absent a clear showing of bias, a trial court=s actions will be presumed to have been correct.  Id.  Judicial remarks during the course of a trial that are critical or disapproving of or even hostile to counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.  Dockstader v. State, 233 S.W.3d 98, 108 Tex. App.CHouston [14th Dist.] 2007, pet. ref=d).  Here, the trial judge interjected certain instructions and warnings to regulate the decorum of the proceeding, to promote the proper questioning of witnesses, and to exercise appropriate control over the presentation of the evidence.  None of the trial judge=s statements reveal any indication of favoritism to either side, nor is there any indication in the record that the trial judge=s conduct, even assuming it was improper, rendered the proceeding fundamentally unfair to Hock or unfairly influenced the jury.  See Brumit at 645.  Hock=s third point of error is overruled.

D

In Hock=s fourth point of error, he contends that his sentence of 365 days= confinement and a fine of $4,000 is excessively harsh and disproportionate to the offense for which he was convicted.  Hock further claims that the disproportionate nature of his sentence violates the prohibition against cruel and unusual punishment contained in the United States Constitution.  See U.S. Const. amend. VIII.

The Eighth Amendment to the United States Constitution requires that a criminal sentence be proportionate to the crime for which a defendant has been convicted.  Solem v. Helm, 463 U.S. 277, 290 (1983).  To preserve for appellate review a complaint that a sentence is grossly disproportionate and so constitutes cruel and unusual punishment, a defendant must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling requested.  Tex. R. App. P. 33.1(a).; Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995); Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990).  There is no indication in the record that Hock=s counsel objected to the sentence during the sentencing phase of the trial nor did counsel file a motion for new trial.  Absent an objection or motion for new trial regarding the sentence imposed, Hock failed to preserve error for appeal.  See Tex. R. App. P. 33.1(a)(1); Curry, 910 S.W.2d at 497; Briggs, 789 S.W.2d at 924.  Therefore, these complaints are waived.

Hock=s fourth point of error is overruled.

* * *

For the foregoing reasons, we affirm the trial court=s judgment.

_

/s/        Jeffrey V.  Brown

Justice

Panel consists of Justices Frost, Brown, and Boyce.

Do Not Publish C Tex. R.  App.  P.  47.2(b).