IN THE

TENTH COURT OF APPEALS

No. 10-06-00045-CR

Barry David Williams,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2005-1113-C

Appellant Barry David Williams was convicted of assault against his wife, Jenetta.  Because of a previous conviction for assault against a family member, he received a probated ten-year prison sentence and a $10,000 fine.  Williams appeals this conviction. 

Background

      On the evening of March 23, 2005, Officer Daniel Rodriguez responded to a call from Jenetta, at a convenience store.  When he arrived, she was holding her head as if she had been hurt and appeared to have been crying.  After discussing the incident with her and receiving her written statement, he called for additional officers to meet with Williams to verify Jenetta’s story.  Subsequently, a warrant was issued for Williams’s arrest for Family Violence Assault.

      At trial, the court sustained defense counsel’s hearsay objections to Rodriguez’s testimony concerning Jenetta’s statements to him at the convenience store.  Further, because Jenetta recanted her written statement, it was admitted only for impeachment purposes.  In two issues, Williams challenges the legal and factual sufficiency of the evidence to establish that he intentionally, knowingly, or recklessly committed the act alleged.

Standard of Review

      When reviewing a challenge to the legal sufficiency of the evidence to establish the elements of a penal offense, we must determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).  The standard is the same for both direct and circumstantial evidence cases.  Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).  We do not resolve any conflict of fact or assign credibility to the witnesses, as this was the function of the trier of fact.  See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992).  Instead, our duty is to determine if the findings of the trier of fact are rational by viewing all of the evidence admitted at trial in the light most favorable to the verdict.  Adelman, 828 S.W.2d at 422.  In so doing, any inconsistencies in the evidence are resolved in favor of the verdict.  Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

Legal Sufficiency Analysis

      Williams was indicted for “intentionally, knowingly, or recklessly caus[ing] bodily injury to Jenetta Williams, a member of [his] family or household….”  See Tex. Pen. Code Ann. § 22.01(a)(1) (Vernon Supp. 2006).

Jenetta testified that she and her husband had been arguing the night of the incident.  After arguing for over an hour, she went to her mother’s house and stayed there for several hours.  She returned home but remained in her car because she was still angry.  Williams approached and reached inside the car and yelled for her to unlock the door.  Jenetta “threw [her] car into reverse.”  As the car sped to the end of the driveway, Williams “was able to hang on for dear life.”  Jenetta stopped the car, put it in drive, then spun the car around and saw a body lying in the yard.  She drove through the front yard and then to the convenience store.  She testified that her hair was brittle and she assumed Williams grabbed her hair during the incident because her braids had come out.  She further testified that she created the story about him intentionally hurting her because she was afraid of going to jail.

Rodriguez testified that Jenetta appeared to have been injured when he met with her at the convenience store.  He observed that her head was red and she was emotional.  After discussing the incident with her, Rodriguez and two other officers went to her home to question Williams.  He was not at the residence when the officers arrived; however, Rodriguez noted that the evidence found at the home was consistent with Jenetta’s story.  He testified that he saw tire tracks in the yard “indicating that [she] drove through her front yard in an attempt to get away” and he found Jenetta’s braids near the tire tracks.

      The State relies on Chambers for the proposition that the jury is entitled to resolve conflicts in the evidence and it may choose to disbelieve a witness’s recantation.  Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).  Although the State is correct that recantation does not destroy a statement’s probative value, once a witness recants, the court can consider a prior statement only if it is before the court.  See id. at 460.  In the present case, Jenetta’s prior statement was objected to on hearsay grounds and was not admitted into evidence.  The only evidence admitted concerning the incident was Jenetta’s testimony.  Although there was evidence that she was injured, there is no evidence establishing that Williams intentionally, knowingly, or recklessly committed the act.  Even considering all the evidence in the light most favorable to the verdict, we hold that no rational factfinder could have found that Williams committed the offense of assault beyond a reasonable doubt.  See Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2781; Santellan v. State, 939 S.W.2d 155, 160 (Tex. Crim. App. 1997).  Accordingly, we sustain Williams’s first issue.

Conclusion

      Having sustained Williams’s first issue, we reverse the trial court’s judgment and render a judgment of acquittal.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissenting)

Reversed and rendered

Opinion delivered and filed January 24, 2007

Do not publish

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