DONNELL JOHNSON v. THE STATE OF TEXAS

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Court of Appeals of Texas, Houston (1st Dist.).

DONNELL JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee

NO. 01-15-00924-CR

Decided: March 23, 2017

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

MEMORANDUM OPINION

A jury found appellant, Donnell Johnson, guilty of the offense of causing injury to an elderly individual.1 After finding true the allegations in two enhancement paragraphs that appellant had twice been previously convicted of felony offenses, the trial court assessed his punishment at confinement for life. In his sole issue, appellant contends that the evidence is legally insufficient to support his conviction.

We affirm.

Background

Anthony Dulane Howard testified that for the past twenty years, he has worked at a car wash owned by the complainant, Hubbie Kerl. The complainant built his car wash, which is located in the Acres Homes area of Houston, in 1968, and he regularly allowed homeless and unemployed people in the neighborhood to come and earn “honest money” washing cars in order to stay off the streets. Howard described being at the car wash as “like being at home.” Although criminal activity sometimes took place at the car wash, it was endemic in the area. And Howard noted that the complainant was very strict about there being “[n]o drugs [at] his car wash.”

Howard further testified that on October 30, 2014, he saw appellant at the car wash, spoke to him, and then “went about his business.” He later saw another man washing appellant's car in an end wash stall and appellant paying the man with narcotics. When the complainant angrily confronted appellant, Howard heard their exchange. Appellant insisted that he was “doing nothing but getting [his] car washed.” The complainant responded, “[O]h you know what I'm talking about but I know how to [keep] people like you from coming here. ․ I don't want your business. You don't have to come here.” Appellant then asked, “Well how you going to do that?” The complainant replied that he was going to “call them people on [him]” and “went walking off” through the wash stall and toward the office. Before he got to the office, however, appellant “hollered” out, “I'll beat your old ass.” Appellant then ran or “c[a]me behind” the complainant, asking, “What did you say?” Howard, having lost sight of the complainant, ran to the wash stall and saw the complainant on the ground, his head hit the pavement, and appellant run to his car. Howard ran to the complainant, while another car-wash worker, Barbara Ann Jones, called for emergency assistance.

Jones testified that she arrived at the car wash early in the morning on October 30, 2014. While she and appellant, whom she identified by his street name, “Twin,” talked out in front, “Roscoe” cleaned appellant's car, which was maroon in color. Jones noted that she knew appellant well and had seen his car before. While they were laughing and “talking about old times and stuff,” the complainant walked by and said, “[Jones], I know you're not doing what I think you're doing.” Jones replied, “Yes, sir, I'm drinking.” Appellant then said to Jones, “Man, one of these days that old man I'm a knock the shit out of him.” Jones responded, “You'll be wrong if you do that. ․ That's a senior citizen.” Appellant then said, “As a matter of fact I'm going to do it now.” And a few seconds later, appellant “ran behind [the complainant] and hit him behind his head.” Jones stated that although she had turned her head momentarily and did not actually see appellant hit the complainant, she “heard the lick.” She explained: “Me standing up there you can tell that he hit him from behind his head with his fist you understand and next thing you know I heard pow and then boom like that. So I know he didn't slap him so it had to be with his fist.” After Jones told appellant that “he was crazy for doing that,” appellant “got in his car and drove off real fast.” She then saw the complainant, who “didn't fall on his own,” “face down on the ground” and people turning him over to try to help him. Jones ran to a pay phone to call for emergency assistance. She then returned to the car wash, where she spoke with law enforcement officers and identified appellant as the man who had hit the complainant. Jones later learned that the complainant had died.

Emzie Williams testified that when he, at approximately 7:15 a.m. on October 30, 2014, went to the car wash to help the complainant maintain the equipment, a number of homeless people, who regularly came by to wash cars, were present. He noted that although each day at least 100 customers came to have their cars washed, not everyone who frequented the car wash was a “true customer.” Rather, the high traffic level was due, in part, to people, like Howard and Jones, who came to the car wash to buy and sell narcotics. And Williams noted that the complainant had previously requested law enforcement assistance to have Howard and Jones removed from the property at least twenty times.

Williams further testified that shortly before 9:00 a.m., appellant, who is known by the street name, “Twin,” drove a maroon, four-door sedan into the car wash and parked in a “no parking” zone. When Howard approached him, appellant declined a car wash, but told Howard to “[j]ust do [his] tires.” Because appellant was not there to have his car washed, the complainant told him to leave. Appellant then became angry and refused to leave, and the complainant threatened to call for emergency assistance. Williams noted that he did not see what happened after that because he left to retrieve some tools. About fifteen minutes later, however, he returned to the car wash because he heard that something had happened.

Houston Fire Department Captain C. Gordon testified that on October 30, 2014, he was dispatched to the car wash to investigate “a fall.” Upon his arrival, he examined the complainant, who was on the ground, in a “conscious but altered” state, and who was not able to communicate clearly. Jones and two male bystanders told Gordon, who did not see anything near the complainant that might have caused him to fall, that “a Black male” had hit the complainant “with a closed fist,” and he “fell to the ground and hit his head.”

Haley Atwood, a nurse at Memorial Hermann Hospital, testified that she assisted with the complainant's medical treatment. The complainant, who was 86 years old, had lacerations on his spleen and abdomen, rib fractures, a pneumothorax, and hemorrhaging in his brain. He was placed in the shock trauma unit and required a tracheotomy, ventilator, feeding tube, and abdominal surgery. And he later developed pneumonia.

Dr. Alex John, an assistant medical examiner at the Harris County Institute of Forensic Sciences, testified that he performed an autopsy on the complainant, who had died on November 26, 2014. The autopsy revealed that the complainant had hemorrhaging in his brain; eight broken ribs on his left side; trauma to his spleen, liver, and bowel; and contusions to both forearms. The complainant's injuries were consistent with having been punched in the back of the head or side of the face and having fallen forward. John opined that the cause of the complainant's death was complications following multiple blunt force injuries, and he ruled the death a homicide.

Houston Police Department Detective R. Klementich testified that he was assigned to investigate the complainant's death. During his investigation, he spoke with Jones and Howard separately, and each immediately identified appellant from a photographic array as the perpetrator of the assault on the complainant.

Standard of Review

We review the legal sufficiency of the evidence by considering all of the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 2788–89 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role is that of a due process safeguard, ensuring only the rationality of the trier of fact's finding of the essential elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference to the responsibility of the fact finder to fairly resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from the facts. Williams, 235 S.W.3d at 750. The jury, as the judge of the facts and credibility of the witnesses, could choose to believe or not to believe the witnesses, or any portion of their testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Jenkins v. State, 870 S.W.2d 626, 628 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd). Our duty requires us “to ensure that the evidence presented actually supports a conclusion that the defendant committed” the criminal offense of which he is accused. Williams, 235 S.W.3d at 750.

Sufficiency of the Evidence

In his sole issue, appellant argues that the evidence is legally insufficient to support his conviction for causing injury to an elderly person because “no witness ever saw [him] strike or hit the complainant,” the evidence is “circumstantial in nature,” and an “equally plausible alternative” is that the complainant simply fell down on his own.

A person commits the offense of causing injury to an elderly individual if he intentionally, knowingly, recklessly, or with criminal negligence causes an elderly individual:

(1) serious bodily injury;

(2) serious mental deficiency, impairment, or injury; or

(3) bodily injury.

TEX. PENAL CODE ANN. § 22.04(a) (Vernon Supp. 2016). “Elderly individual” means a person 65 years of age or older. Id. § 22.04(c)(2). “ ‘Serious bodily injury’ means 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.” Id. § 1.07(a)(46) (Vernon Supp. 2016). An offense under this section is punishable as a first-degree felony. Id. § 22.04(e).

Appellant stood accused by indictment of intentionally and knowingly causing serious bodily injury to the complainant, an individual who was at least 65 years of age, by striking him with his hand.

Howard testified that he saw a man washing appellant's car in an end wash stall and appellant pay the man with narcotics. When the complainant angrily confronted appellant, he insisted that he was “doing nothing but getting [his] car washed.” The complainant responded, “[O]h you know what I'm talking about but I know how to [keep] people like you from coming here. ․ I don't want your business. You don't have to come here.” Appellant then asked, “Well how you going to do that?” The complainant replied that he was going to “call them people on [him]” and “went walking off” through the wash stall and toward the office. Before he got to the office, however, appellant “hollered” out, “I'll beat your old ass.” Appellant then ran or “c[a]me behind” the complainant, asking, “What did you say?” Howard, having lost sight of the complainant, ran to the wash stall and saw the complainant on the ground, his head hit the pavement, and appellant run to his car.

Williams also testified that he heard the complainant tell appellant to leave, appellant refuse to leave, and the complainant threaten to call for emergency assistance.

Jones testified that she knew appellant well and had seen his car before. While she was talking with appellant, the complainant walked by and asked what she was “doing.” Appellant said, “Man, one of these days that old man I'm a knock the shit out of him. ․ As a matter of fact I'm going to do it now.” And a “few seconds” later, appellant “ran behind [the complainant] and hit him behind his head.” See id. § 22.04(a) (person commits offense if intentionally causes elderly individual serious bodily injury). Jones stated that although she did not see the hit, she “heard the lick.” She explained: “Me standing up there you can tell that he hit him from behind his head with his fist you understand and next thing you know I heard pow and then boom like that. So I know he didn't slap him so it had to be with his fist.” Jones noted that the complainant “didn't fall on his own.” She saw the complainant lying “face down on the ground.” And after she told appellant that “he was crazy for doing that,” he “got in his car and drove off real fast.”

Captain Gordon testified that when he arrived on the scene, the complainant was on the ground in a “conscious but altered” state, had a head injury, and “wasn't able to communicate clearly.” Jones and two other bystanders told Gordon that the complainant “fell to the ground and hit his head” after he was “assaulted by a Black male and hit with a closed fist.” And Detective Klementich testified that Howard and Jones, from a photographic array, immediately identified appellant as the man who had hit the complainant.

Nurse Atwood testified that the complainant, who was 86 years old, had lacerations on his spleen and abdomen, rib fractures, a pneumothorax, and hemorrhaging in his brain. He was placed in the shock trauma unit and required a tracheotomy, ventilator, feeding tube, and abdominal surgery. Dr. John testified that the complainant died on November 26, 2014. He had hemorrhaging in his brain; eight broken ribs on his left side; trauma to his spleen, liver, and bowel; and contusions to both forearms. And the complainant's injuries were consistent with having been punched in the back of the head or side of the face and having fallen forward. John opined that the cause of the complainant's death was complications following multiple blunt force injuries. See id. § 1.07(a)(46) (serious bodily injury).

To the extent that appellant argues that the evidence is insufficient because it is “circumstantial in nature,” a court, in reviewing the sufficiency of the evidence, must consider both direct and circumstantial evidence, as well as any reasonable inferences that may be drawn from the evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Circumstantial evidence is just as probative as direct evidence in establishing the guilt of an actor, and a conviction may be supported by circumstantial evidence standing alone. See Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010). “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.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In Smith v. State, a witness testified that although she did not actually see the defendant shoot the complainant, she saw the car in which the defendant was riding drive up beside the complainant's car, saw the defendant get out of the car with something in his hand, heard a shot fired, and the complainant lying in the car. 475 S.W.2d 238, 238–39 (Tex. Crim. App. 1971). The court held that this evidence, although circumstantial, was legally sufficient to support the defendant's conviction for murder. Id. at 239.

Here, Howard and Jones both testified that they knew appellant, recognized his car, and had talked with him at the car wash before he hit the complainant. See Criff v. State, 438 S.W.3d 134, 138 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd) (considering identification testimony complainant familiar with defendant as acquaintance and past customer). Seconds before the attack, Howard and Jones heard appellant threaten to “knock the shit out of” or “beat” the complainant. And appellant told Jones, “I'm going to do it now.” Howard and Jones then saw appellant run at the complainant from behind, and Jones heard a hit, as described in detail above. A defendant's culpability may be inferred from his acts, words, and conduct. See Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). Immediately after, Howard saw the complainant fall to the ground, and Howard and Jones both saw appellant run to his car. See Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994) (“Evidence of flight or escape is admissible as a circumstance from which an inference of guilt may be drawn.”).

Moreover, Detective Klementich testified that Jones and Howard each, from a photographic array, positively identified appellant as the man who had assaulted the complainant. A positive identification of a defendant as the perpetrator is sufficient to support a conviction. See Davis v. State, 177 S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (“It is well established that a conviction may be based on the testimony of a single eyewitness.”); see also Gorden v. State, No. 01-16-00088-CR, 2016 WL 6803354, at *5 (Tex. App.—Houston [1st Dist.] Nov. 17, 2016, no pet.) (mem. op., not designated for publication); see, e.g., Criff, 438 S.W.3d at 138 (evidence sufficient to support conviction for causing injury to elderly individual where testimony positively identified defendant as attacker); Elizardo v. State, No. 05-03-00145-CR, 2004 WL 639635, at *3 (Tex. App.—Dallas Apr. 1, 2004, no pet.) (not designated for publication) (injury to elderly individual).

Although Jones testified that she, at the time the complainant was attacked, had turned her head to look at someone who had called to her from across the street, appellant, at the moment she looked away, was already “[c]lose enough to hit” the complainant. And she described in detail the sound of the hit. Again, it is within the province of the jury, as the exclusive judge of the facts and credibility of the witnesses, to “fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Ex parte Flores, 387 S.W.3d 626, 640 (Tex. Crim. App. 2012); Williams, 235 S.W.3d at 750; see, e.g., Baker v. State, No. 14-08-00047-CR, 2009 WL 838257, at *2–3 (Tex. App.—Houston [14th Dist.] Mar. 31, 2009, pet. dism'd) (mem. op., not designated for publication) (inconsistency of testimony concerned witness's credibility, with jury as sole judge of facts); Fajardo v. State, No. 01-95-00329-CR, 1999 WL 718538, at *2 (Tex. App.—Houston [1st Dist.] Sept. 16, 1999, no pet.) (not designated for publication) (sufficient evidence supported conviction for causing injury to elderly person notwithstanding fact witness “did not actually see blow being struck”).

Appellant further asserts that “[g]iven the complainant's age and health problems,” an “equally plausible alternative” theory is that his injuries were simply caused by a fall. “For the evidence to be sufficient, the State need not disprove all reasonable alternative hypotheses that are inconsistent with the defendant's guilt.” Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). Rather, we consider only whether the inferences necessary to establish guilt are reasonable based upon the cumulative force of all the evidence when considered in the light most favorable to the verdict. See id.

Viewing the evidence in the light most favorable to the jury's verdict, we conclude that a rational trier of fact could have found that appellant intentionally caused serious bodily injury to the complainant, an individual over the age of 65. See TEX. PENAL CODE ANN. §§ 1.07(a)(46), 22.04(a), (c)(2); see also Jackson, 443 U.S. at 318–19, 99 S. Ct. at 2788–89; Williams, 235 S.W.3d at 750. Accordingly, we hold that the evidence is legally sufficient to support appellant's conviction for causing injury to an elderly person.

We overrule appellant's sole issue.

Conclusion

We affirm the judgment of the trial court.

FOOTNOTES

1.   See TEX. PENAL CODE ANN. § 22.04(a) (Vernon Supp. 2016).

Terry Jennings Justice