IN THE

TENTH COURT OF APPEALS

No. 10-99-351-CR

     NANCY D. EDWARDS,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the County Court at Law No. 1

Johnson County, Texas

Trial Court # M1999801867

O P I N I O N

      Nancy D. Edwards was convicted of assaulting her former son-in-law. The trial court sentenced her to one year in jail, which it suspended, and placed her on community supervision. She appeals, alleging the evidence was legally and factually insufficient to support her conviction. We affirm.

Issue

      Edwards contends in one issue that the evidence was insufficient to prove she assaulted Charles Layland and insufficient to prove Charles suffered bodily injury.

Law

      A legal-sufficiency review calls upon the reviewing court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Margraves v. State, 34 S.W.3d 912, 917 (Tex. Crim. App. 2000). See also Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979) (emphasis in original); Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995). It does not involve any weighing of favorable and non-favorable evidence. Margraves, 34 S.W.2d at 917 (citing Cardenas v. State, 30 S.W.3d 384 (Tex. Crim. App. 2000)).

      When conducting a review of the factual sufficiency of the evidence we apply the standard of review set out by the Court of Criminal Appeals in Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000). We ask “whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the [fact finder’s] determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.” Id. at 11; see also Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). The fact finder is the judge of the credibility of the witnesses and may "believe all, some, or none of the testimony." Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

      The Texas Penal Code defines bodily injury as physical pain, illness, or any impairment of physical condition. Tex. Penal Code Ann. § 1.07(a)(8) (Vernon 1994). This definition is purposefully broad and encompasses 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 fact, the degree of injury sustained by a victim and the "type of violence" utilized by an accused is of no consequence. Id. Additionally, the State need not prove the ability to commit an assault for a defendant to be convicted of assault. De Leon v. State, 865 S.W.2d 139, 142 (Tex. App.—Corpus Christi 1993, no pet.).

Facts

      Melanie and Charles Layland were separated and engaged in a custody battle of their two children, a boy and a girl. They were to meet at a McDonald’s in Burleson, Johnson County, Texas to exchange the children for visitation. No other person was to be present during the exchange of the children. In July of 1998, Charles and Melanie met at the designated place and time so Melanie could turn the children over to Charles. April, Melanie’s sister, and Craig, Melanie’s son, were next door at Taco Bueno videotaping the exchange. Melanie buckled the children into their car seats in Charles’s car and began conversing with Charles about their pending divorce. While Charles sat in the driver’s seat, Melanie stood in the space of the open driver’s door, preventing Charles from closing the door and backing out of his parking space.

      About 10 minutes after the scheduled exchange was to take place, Charles’s sister, Mary, and his daughter, Shayla, and her friend, Brandee, passed by the McDonald’s on their way to Fort Worth. Mary noticed that Charles was still there. She assumed trouble and had Brandee, who was driving, pull into the parking lot. Brandee got out and reported back to Mary that Melanie and Charles were arguing. Mary got out and walked towards Charles’s car. She observed Melanie trying to take the children out of their car seats and Charles leaning over the front seat into the back trying to prevent the taking. Melanie testified that she only tried to take the children when she smelled alcohol on Charles’s breath and saw Mary coming toward them.

      April then approached quickly to help Melanie try to take the children by beating on Charles. They both shouted obscenities at Charles and beat him. He would not let go of the children. April bit Charles on the back. She testified that her bite was in response to Charles biting his little girl as Melanie was securing possession of her.

      As Charles was beaten, Mary sent Shayla and Brandee into the McDonald’s to call the police. Also during the struggle, Edwards, Melanie’s mother, pulled up and parked her car behind Charles’s car, blocking him in his parking space. She tried to take the boy from his car seat and also beat Charles. Charles had a protective order against Edwards. April, Melanie and Craig all denied that Edwards beat Charles. Melanie testified that Edwards was physically unable to beat Charles because of surgery ten years earlier on her hands. Charles, Mary, Shayla and Brandee testified that Edwards beat Charles.

      When the police arrived, the struggle had subsided and Edwards was seen with the video camera. The little girl was given back to Charles. Charles was allowed to go home with both children. He arrived at the police station later to file a complaint. Melanie, April and Edwards were arrested at the scene.

      Charles testified that the beatings were painful. He had bruises and marks on him. He went to the hospital to be examined. He distinctly remembered that Edwards beat him on his arm and his back.

Application

      After reviewing the facts in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that Edwards assaulted Charles and that Charles sustained bodily injury. In a neutral review of all the facts, we do not believe the State’s proof of guilt is so obviously weak as to undermine confidence in the fact finder’s determination, or the proof of guilt is greatly outweighed by contrary proof. The evidence is both legally and factually sufficient to sustain Edwards’s conviction. Her only issue is overruled.

Conclusion

      Having overruled her only issue, the trial court’s judgment is affirmed.

                                                             TOM GRAY

                                                             Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Affirmed

Opinion delivered and filed July 11, 2001

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