MEMORANDUM OPINION

No. 04-16-00701-CR

Matthew JOINER, Appellant v. The STATE of Texas, Appellee

From the 186th Judicial District Court, Bexar County, Texas Trial Court No. 2014CR10594 Honorable Jefferson Moore, Judge Presiding

Opinion by: Patricia O. Alvarez, Justice

Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Irene Rios, Justice

Delivered and Filed: August 15, 2018

AFFIRMED

On September 21, 2016, a Bexar County jury returned guilty verdicts for aggravated assault with a deadly weapon and aggravated assault causing serious bodily injury against Appellant

Matthew Joiner. The trial court subsequently assessed punishment at eighteen years’ confinement in the Institutional Division of the Texas Department of Criminal Justice and a $1,500.00 fine on

each charge. Joiner raises several issues on appeal: (1) the evidence is insufficient to support the jury’s verdicts; (2) the trial court erred in admitting the photographs of M.V.’s 1 face because the 04-16-00701-CR strangled. The officer relayed that it took a couple of hours before M.V. told her everything that had transpired.

M.V. testified she started dating Joiner in 2014; and within a few weeks, he moved into her home in San Antonio. M.V.’s teenage daughter and her younger daughter, who requires 24/7 nursing care, also lived at the house. M.V. testified the first time Joiner showed anger towards her was the beginning of June. On another occasion, they were at a family event when Joiner drank too much and M.V.’s family asked her to take Joiner away from the children. M.V. and Joiner went to Joiner’s apartment and Joiner became violent and started hitting her on the cheek with his palm. The next morning, Joiner was very apologetic and M.V. genuinely believed he was sorry.

M.V. convinced herself that it was simply a case of too much alcohol.

M.V. testified that on August 4, 2014, she, Joiner, and her youngest daughter were the only ones at her residence. Her teenage daughter was at summer camp with their church. M.V. had just finished feeding her daughter, taken a shower, and climbed into bed when Joiner “turn[ed]

around and just smacked me.” M.V. testified that Joiner continued to hit her, knock her down, and when she tried to get up, he would start again. When the alarm on the equipment in M.V.’s daughter’s room went off, M.V. pleaded with Joiner to let her check on her daughter. Joiner followed M.V. into her daughter’s room; as she was walking back into the living room, she saw her cell phone and they reached for it at the same time. “And he reached to grab for my cell phone and he pushed me back and I hit my hand on the bar.” Joiner hit M.V.’s hand on the bar with so much force it dislocated two of her fingers, immediately turning them to face the wrong direction.

M.V. testified that Joiner kept kicking her telling her to get up. Joiner took her to the kitchen and tried to make a splint out of straws because it was so obvious that her fingers were out of place from hitting her hand on the bar.

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M.V. testified that as soon as Joiner finished taping her fingers, he saw something that irritated him. Joiner threw M.V. on the ground, grabbed a serrated knife and stuck it down her throat. Joiner told her that “he ought to hit the end of the—the serrated knife and kill me right

there.” M.V.’s lip was bleeding and her tooth was chipped during the attack. About 3:30 a.m., M.V. remembers laying down in bed and Joiner choking her and telling her that he was going to kill her. M.V. further testified that Joiner strategically placed knives and scissors throughout her house. At “every entrance to my house there was, you know, some type of weapon in case you needed it.”

M.V. testified that she did not return to work for a week because Joiner told her that no one could see her like that. She had “[a] big swollen, bloody face. [Her] eyes were pretty much swollen shut. They were all black and purple. [One] whole side of my face was bruised all the way down.”

M.V. authenticated pictures taken by police officers, but testified the pictures were taken a week after the assault. M.V. further testified that she did not tell Officer Flaig the truth because she was scared of Joiner.

Dr. Nancy Otto, a hand surgeon, testified that M.V. suffered a break of the knuckle on her

ring finger that required a plate and screws to raise the joint surface back to the correct level. The little finger was broken in multiple places and shortened. Dr. Otto testified that she pulled the finger out to lengthen it and was able to put some pins through the skin to hold it back out in place.

After two surgeries, M.V. gained a significant amount of motion back, but it is not normal. Dr.

Otto opined that M.V. suffered “serious injuries to the two bones on both fingers, the fourth and first fingers, and serious enough to require surgery because they were crooked. And they are now

straight but they’re still stiff.” Dr. Otto further testified M.V.’s injuries will affect her strength and ability to hold things with her fingers for the rest of her life.

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We turn first to Joiner’s contention the evidence is legally insufficient to support the jury’s verdict.

SUFFICIENCY OF THE EVIDENCE

A. Standard of Review

In reviewing the sufficiency of the evidence, “we view all of the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011); accord Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011).

“This standard recognizes the trier of fact’s role as the sole judge of the weight and credibility of the evidence. . . .” Adames, 353 S.W.3d at 860; accord Gear, 340 S.W.3d at 746. The reviewing court must also give deference to the jury’s ability “to draw reasonable inferences from basic facts

to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.” Id. (citing Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim.

App. 1993)).

We may not substitute our judgment for that of the jury by reevaluating the weight and credibility of the evidence. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). We defer

to the jury’s responsibility to fairly resolve any conflicts in the evidence, weigh the evidence, and draw reasonable inferences. See Hooper, 214 S.W.3d at 13. The jury alone decides whether to believe eyewitness testimony, and it resolves any conflicts in the evidence. See Hooper, 214

S.W.3d at 13; Young v. State, 358 S.W.3d 790, 801 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). In conducting a sufficiency review, “[w]e do not engage in a second evaluation of the 04-16-00701-CR weight and credibility of the evidence, but only ensure that the jury reached a rational decision.”

Young, 358 S.W.3d at 801.

B. Arguments of the Parties

Joiner contends M.V.’s testimony that he forced a bread knife down her throat and held it there for several minutes and caused only a cut lip and a chipped tooth “is so preposterous as to be

unbelievable,” and no reasonable jury could have found the evidence that Joiner assaulted M.V. with a deadly weapon, credible beyond a reasonable doubt.

The State counters that Joiner forced M.V. to hold her mouth open while he inserted the knife and then threatened to kill her with the knife, a deadly weapon. The State also points to the evidence that Joiner broke M.V.’s fingers during the assault. M.V. and Dr. Nancy Otto testified

M.V. lost full use of her fingers and hand. The evidence is therefore sufficient to support the jury’s verdict that Joiner committed aggravated assault causing serious bodily injury.

C. Aggravated Assault

Texas Penal Code section 22.02(a) provides that a person commits aggravated assault if the person commits assault and:

(1) causes serious bodily injury to another, including the person’s spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault.

TEX. PENAL CODE ANN. § 22.02(a) (West 2011). A “deadly weapon” is defined in relevant part as

“anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Id. § 1.07(a)(17)(B) (West Supp. 2018); see Cates v. State, 102 S.W.3d 735, 738 (Tex.

Crim. App. 2003) (requiring evidence that (1) the deadly weapon meets the statutory definition;

(2) the defendant used or exhibited the deadly weapon while committing the crime for which he

was convicted; and (3) other people were actually endangered); McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000) (observing that the placement of the word “capable” in [section 04-16-00701-CR

1.07(a)(17)(B) ] enables the statute to cover conduct that threatens deadly force, even if the actor has no intention of actually using deadly force”). A knife can be a deadly weapon if the evidence shows that its use or intended use renders it capable of causing death or serious bodily injury. See

McCain, 22 S.W.3d at 503.

“Serious bodily injury” is defined as “bodily injury that creates a substantial risk of death

or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” TEX. PENAL CODE ANN. § 1.07(a)(46). The distinction between “bodily injury” and “serious bodily injury” must be made on a case-by-case basis.

Hernandez v. State, 946 S.W.2d 108, 111 (Tex. App.—El Paso 1997, no pet.). Medical testimony is sufficient proof upon which a jury can rely to find a victim’s injuries constitute serious bodily injury. See TEX. PENAL CODE ANN. § 1.07(a)(46).

D. Analysis 04-16-00701-CR

M.V. testified Joiner held a knife to her throat, chipped her tooth, and threatened to kill her with it on several occasions. Officer Flaig also noted the unusual number of knives and scissors located on counters throughout the residence. A conviction may be based on the testimony of a single eyewitness, and the jury was free to believe that M.V. was in the best position to observe

Joiner’s threats. See Price v. State, 502 S.W.3d 278, 281 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (citing Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971)); accord Castilla v. State, 374 S.W.3d 537, 539 (Tex. App.—San Antonio 2012, pet. ref’d). Considering all of the evidence presented in the light most favorable to the jury’s verdict, we conclude a jury could

reasonably find sufficient evidence, beyond a reasonable doubt, that Joiner intentionally or knowingly, threatened M.V. that he would cut or kill her while brandishing a knife. Adames, 353

S.W.3d at 860; accord Gear, 340 S.W.3d at 746. We further conclude a jury could reasonably

conclude that Joiner brandished the knife, and that the manner in which Joiner used the knife, or intended to use the knife, rendered it capable of causing serious bodily injury or death. Johnson, 509 S.W.3d at 323.

04-16-00701-CR crooked. And they are now straight but they’re still stiff.” There was also testimony from both

Dr. Otto and M.V. that several years after the incident, M.V. still could not make a fist and still suffered from weakness in her hand—injuries she will maintain for the rest of her life. See

Sizemore v. State, 387 S.W.3d 824, 828 (Tex. App.—Amarillo 2012, no pet.) (reiterating person

sustaining injury is qualified to express opinion about the seriousness of that injury); Nunez v. State, 117 S.W.3d 309, 327–30 (Tex. App.—Corpus Christi 2003) (concluding damage to finger preventing victim from closing her hand and causing pain through entire arm was serious bodily harm as this injury interfered with her housework and continued to affect her for six months after assault); Taylor v. State, 71 S.W.3d 792 (Tex. App.—–Texarkana 2002, pet. ref’d) (concluding broken foot requiring surgery and causing limited mobility for several months sufficient evidence of a protracted impairment, i.e. serious bodily injury).

Here, the jury was free to apply common sense, knowledge, and experience gained in the ordinary affairs of life in drawing reasonable inferences from the evidence presented to it. See

Eustis v. State, 191 S.W.3d 879, 884 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d). Based

on the entire record, and viewing all of the evidence in the light most favorable to the jury’s verdict, we conclude a jury could reasonably conclude the injuries, as inflicted, would cause serious

permanent disfigurement or protracted loss or impairment of the function of M.V.’s hand. Adames, 353 S.W.3d at 860; accord Gear, 340 S.W.3d at 746. The evidence was therefore sufficient for a jury to rationally conclude that M.V. suffered serious bodily injury and we overrule Joiner’s appellate issues regarding sufficiency of the evidence.

We turn to Joiner’s contention the trial court erroneously admitted the photographs of M.V.

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ADMISSION OF EVIDENCE

A. Standard of Review

An appellate court reviews a trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009);

Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). “As long as the trial court’s ruling was within the ‘zone of reasonable disagreement,’ there is no abuse of discretion, and the trial court’s ruling will be upheld.” Prible, 175 S.W.3d at 731 (quoting Santellan v. State, 939 S.W.2d

155, 169 (Tex. Crim. App. 1997)); accord Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App.

2011) (concluding that discretion is not abused if the decision falls within the zone of reasonable disagreement). “[I]f the trial court’s evidentiary ruling is correct on any theory of law applicable

to that ruling, it will not be disturbed” regardless of the reason for the trial court’s ruling. Devoe, 354 S.W.3d at 469; accord Brito Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).

B. Texas Rule of Evidence 403

Under Rule 403, even relevant “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, . . . or needless presentation of cumulative evidence.” TEX. R. EVID. 403. Rule 403 requires that a photograph possess some probative value and that its inflammatory nature does not substantially outweigh that probative value. Williams, 301 S.W.3d at 690. Once a Rule 403 objection is made, the trial court must weigh the probative value of the evidence to determine if it is substantially outweighed by its potential for unfair prejudice. Santellan, 939 S.W.2d at 169.

A Rule 403 balancing test includes the following factors:

(1) the inherent probative force of the proffered item of evidence along with (2) the proponent’s need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative - 10 -

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force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). Importantly, the rules of evidence favor the admission of relevant evidence and carry a presumption that relevant evidence is more probative than prejudicial. See Williams, 301 S.W.3d at 690 (reiterating photograph’s

probative value must not be outweighed by its inflammatory nature); see also Rayford v. State, 125 S.W.3d 521, 529 (Tex. Crim. App. 2003); Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim.

App. 2002).

C. Photographs of M.V.