Bruce Vincent Felder v. State

      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-13-00707-CR



                                 Bruce Vincent Felder, Appellant

                                                   v.

                                   The State of Texas, Appellee


       FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
        NO. CR-12-740, THE HONORABLE WILLIAM R. HENRY, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Bruce Vincent Felder was convicted by a jury of family-violence assault.1

See Tex. Penal Code § 22.01(a)(1). The trial court assessed appellant’s punishment at confinement

in the county jail for one year but suspended imposition of the sentence and placed appellant on

community supervision for two years. See id. § 12.21; Tex. Code Crim. Proc. art. 42.12, § 3. In two

issues on appeal, appellant challenges the sufficiency of the evidence to support his conviction and




       1
          Appellant was charged in two indictments with the felony offenses of burglary of a
habitation with intent to commit assault and family-violence assault by strangulation. See Tex.
Penal Code §§ 30.02(a)(1), 22.01(a)(1), (b)(2)(B). However, the jury found appellant guilty of
the lesser-included misdemeanor offenses of criminal trespass of a habitation and
family-violence assault. Id. §§ 30.05(a)(2), (d)(3)(A)(i), 22.01(a)(1). In a separate appeal, this Court
affirmed appellant’s criminal-trespass conviction. See Felder v. State, No. 03-13-00706-CR,

, at *1 (Tex. App.—Austin Oct. 8, 2014, no pet.) (mem. op., not designated
for publication).
asserts that the trial court erred by entering an affirmative family-violence finding in its written

judgment of conviction. We affirm the conviction.


                                         BACKGROUND2

                The jury heard evidence that appellant and his family were attending a “toddler party”

at a friend’s apartment. The party progressed into the evening and night hours. At some point after

midnight, appellant and his 18-year-old daughter, Shanise Felder, argued, and appellant slapped her

twice. Later, when Shanise was in a neighboring apartment, appellant entered the apartment and a

physical altercation ensued. Testimony from Alyssa Rogers, a resident of the apartment, and

Lee Harris, a police officer, established that during the altercation appellant held Shanise in a

chokehold with his forearm against her neck.


                                           DISCUSSION

                                    Sufficiency of the Evidence

                Appellant was charged by indictment with the strangulation assault of his daughter.

Specifically,   the   indictment      alleged   that   appellant   committed     “Assault    (Family

Violence/Strangulation)” in that he


       did then and there intentionally, knowingly or recklessly cause bodily injury to
       Shanise Felder by intentionally, knowingly or recklessly, impeding the normal


       2
         The parties are familiar with the facts of the case, its procedural history, and the evidence
adduced at trial. Accordingly, we provide only a general overview of the facts of the case here. We
provide additional facts as necessary to advise the parties of the Court’s decision and the basic
reasons for it. See Tex. R. App. P. 47.1, 47.4. The facts recited are taken from the testimony and
other evidence presented at trial.

                                                   2
       breathing or circulation of the blood of Shanise Felder by applying pressure to the
       throat, neck, or mouth of Shanise Felder with [appellant’s] arm,

       And the said Shanise Felder was then and there a member of [appellant’s] family or
       household or was in a dating relationship with [appellant][.]


The jury convicted appellant of the lesser offense of “Assault (Family Violence/Bodily Injury).” In

his first point of error, appellant asserts that the evidence is insufficient to support this conviction

because the evidence fails to demonstrate that he caused bodily injury to Shanise.

               Due process requires that the State prove, beyond a reasonable doubt, every element

of the crime charged. Jackson v. Virginia, 

 (1979); Rabb v. State, 

 (Tex. Crim. App. 2014). When reviewing the sufficiency of the evidence to support a

conviction, we consider all of the evidence in the light most favorable to the verdict to determine

whether, based on the evidence and reasonable inferences therefrom, any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. Jackson, 

; Anderson v. State, 

 (Tex. Crim. App. 2013); see Brooks v. State,

 (Tex. Crim. App. 2010). The standard of review on appeal is the same for both

direct and circumstantial-evidence cases. Kuciemba v. State, 

 (Tex. Crim. App.

2010). We review all the evidence in the light most favorable to the verdict and assume that the trier

of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in

a manner that supports the verdict. Jackson, 

; see Laster v. State, 

 (Tex. Crim. App. 2009).

               In reviewing the sufficiency of the evidence, we compare the elements of the offense

as defined by the hypothetically correct jury charge to the evidence adduced at trial. Thomas v. State,

                                                   3


 (Tex. Crim. App. 2014); Moulton v. State, 

 (Tex. Crim. App.

2013). A hypothetically correct jury charge is one that “accurately sets out the law, is authorized by

the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict

the State’s theories of liability, and adequately describes the particular offense for which the

defendant was tried.” Thomas, 

 (quoting Malik v. State, 

 (Tex.

Crim. App. 1997)). Here, to find appellant guilty of family-violence assault, the jury must have

determined beyond a reasonable doubt that appellant intentionally, knowingly, or recklessly caused

bodily injury to Shanise, who was a member of appellant’s family. See Tex. Penal Code

§ 22.01(a)(1); Tex. Fam. Code § 71.003.

               The Texas Penal Code broadly defines “bodily injury” as “physical pain, illness, or

any impairment of physical condition.” See Tex. Penal Code § 1.07(a)(8). Any physical pain,

however minor, will suffice to establish bodily injury. Garcia v. State, 

 (Tex.

Crim. App. 2012); see Laster, 

. Further, testimony that a victim experienced pain

is not required to prove bodily injury; “the jury is permitted to draw reasonable inferences from the

evidence, including an inference that the victim suffered pain as a result of her injuries.”

Arzaga v. State, 

 (Tex. App.—El Paso 2002, no pet.); see Hollar v. State,

No. 03-13-00445-CR, 

, at *2 (Tex. App.—Austin Aug. 14, 2014, no pet.) (mem.

op., not designated for publication). A fact finder may infer that a victim actually felt or suffered

physical pain, because people of common intelligence understand pain and some of the natural

causes of it. Garcia, 

; Randolph v. State, 

 (Tex.

App.—Dallas 2004, no pet.); see also Wawrykow v. State, 

 (Tex.



                                                  4
App.—Beaumont 1993, no pet.) (explaining that “juries are free to use their common sense and

apply common knowledge, observation, and experience gained in the ordinary affairs of life when

giving effect to the inferences that may reasonably be drawn from the evidence”).

               “Physical pain” is not the only aspect of bodily injury; the statutory definition of

bodily injury also includes “impairment of physical condition.” Aguilar v. State, 

 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d); see Tex. Penal Code § 1.07(a)(8). While the

Penal Code does not define “physical impairment,” Texas courts have interpreted “impairment” to

include the diminished function of a bodily organ. Garcia, 

; see, e.g., Camarillo

v. State, 

 (Tex. App.—Austin 2002, no pet.) (impairment when injury to victim’s

nose rendered breathing difficult); Adams v. State, 

 (Tex. App.—Dallas 1998,

no pet.) (impairment when defendant’s conduct interfered with victim’s ability to stand and walk).

               In this case, Shanise did not testify at trial. However, Alyssa Rogers, a resident of

the neighboring apartment, described appellant’s physical altercation with his daughter in her

apartment. Rogers testified that appellant came into her apartment uninvited, ignored her repeated

commands to leave, “stormed right past [her],” and pushed Shanise as she sat in a chair at the dining

table. The chair hit the wall, and Shanise fell to the floor. Appellant then grabbed Shanise and

picked her up off the floor. Rogers testified that she turned away to try to find a phone to call 911

but was unsuccessful. When she turned back, appellant “had [Shanise] by the neck like this, choking

her.” She demonstrated the hold that appellant had on his daughter as she described it. Rogers

further testified, “[Shanise] couldn’t breathe, she couldn’t speak. She had begged for help right

before then and then she was just quiet, that’s how I knew something was wrong. Because I was



                                                 5
looking for the phone on the ground and then all of a sudden it was . . . just her choking. And she—I

thought he was gonna make her pass out or worse.” Due to the severity of the situation, Rogers

attempted to physically intervene.

               The end of the altercation was witnessed by Lee Harris, a patrol officer with the

San Marcos Police Department who responded to the Rogerses’ apartment in answer to a 911 call

concerning a family disturbance. Officer Harris testified that when he arrived, he observed three

people involved in a physical altercation at the top of the apartment’s stairs. Shanise was directly

in front of appellant, and he had her in a headlock “strangulating her.” Rogers was on top of

appellant trying to break appellant’s hold on Shanise. During his testimony, the officer demonstrated

appellant’s hold on his daughter with the prosecutor, noting the size differential between appellant

and his daughter. In addition, Officer Harris testified that Shanise’s eyes “were huge,” and he

indicated that she could not breathe or talk as she struggled to get appellant’s arm off her neck. The

officer said that when the altercation ceased after his verbal commands, Shanise “kind of, leaned

down, like that, put her hands on her knees and leaned over,” and then he demonstrated her position.

He observed that afterwards, Shanise was “terrified,” “upset,” and “crying.” On cross-examination,

Officer Harris confirmed that the altercation he observed was “an intense struggle,” “a violent

struggle,” and that Shanise was “visibly upset, crying, shaking, the whole nine yards.”

               Thus, both Rogers and Officer Harris provided detailed testimony regarding

appellant’s conduct toward his daughter during the physical altercation. Both witnesses testified that

appellant held Shanise in a headlock with his forearm across her neck, “strangulating” or “choking”

her; that Shanise was struggling to break appellant’s hold on her; that Shanise was unable to speak



                                                  6
or adequately breathe when appellant had her in the headlock; and that Shanise was visibly upset and

crying. Viewing the above evidence and all reasonable inferences therefrom in the light most

favorable to the verdict, we conclude that the evidence is sufficient to prove that appellant caused

Shanise either physical pain or impairment of her physical condition when he held her in a

chokehold. The jury was able to see and hear both Rogers and Officer Harris during their testimony

and observe their demonstrations of what appellant did to Shanise. The jury was thus in a better

position than this Court to infer whether Shanise suffered physical pain or physical impairment while

appellant held her in a headlock with his forearm across her neck. There is enough evidence in the

record to conclude that the jury’s inference of physical pain or impairment was reasonable. The

combined and cumulative force of the above evidence is sufficient for the jury, informed by common

sense and knowledge of what causes physical pain and impairment, to reasonably infer that appellant

caused Shanise “bodily injury.”

               Appellant’s argument that the evidence fails to demonstrate that he caused bodily

injury to his daughter is contingent on eliminating from consideration all the evidence concerning

appellant’s headlock on his daughter. Appellant maintains that the jury’s not guilty verdict on the

charged offense of felony family-violence assault by strangulation demonstrates that the jury

concluded that appellant did not assault Shanise by strangulation. Thus, according to appellant, the

misdemeanor family-violence assault conviction cannot be supported by evidence of the

strangulation assault. However, inconsistent verdicts, even when based on the same evidence, do

not require reversal on the ground of legal insufficiency. Dunn v. United States, 

,

393–94 (1932); Thomas v. State, 

 (Tex. App.—Houston [14th Dist.] 2011, pet.



                                                 7
ref’d); Jackson v. State, 

 (Tex. App.—Dallas 1999, no pet.); see Williams v. State,

No. 03-11-00598-CR, 

, at *6 (Tex. App.—Austin Dec. 31, 2013, pet. ref’d), cert.

denied, 

 (2014) (mem. op., not designated for publication); Moore v. State,

No. 04-12-00490-CR, 

, at *1 (Tex. App.—San Antonio June 19, 2013, pet. ref’d)

(mem. op., not designated for publication). Inconsistent verdicts may simply result from a jury’s

desire to be lenient or to grant its own form of executive clemency. See Dunn, 

;

Thomas, 

; Jackson, 

. Even when an inconsistent verdict might

have been the result of compromise or mistake, the verdict should not be upset by appellate

speculation or inquiry into such matters. United States v. Powell, 

, 64–67 (1984)

(reaffirming Dunn rule); Jackson, 

; see Dunn, 

. Consequently, when

an appellant asserts a conflict between a jury’s verdicts on the same facts, we are limited solely to

determining whether there is sufficient evidence to support the charge on which a conviction is

returned. Williams, 

, at *6; Moore, 

, at *1; see Dunn, 284 U.S.

at 393–94; see also West v. State, No. 03-01-00309-CR, 

, at *2 (Tex.

App.—Austin June 13, 2002, pet. ref’d) (not designated for publication) (“Where the findings of the

jury are inconsistent, the court shall look only to whether the evidence is sufficient to sustain the

verdict.”). We examine the sufficiency of the evidence to support the verdict rather than speculate

on how the jury arrived at its verdict. Williams, 

, at *6; Jackson, 3 S.W.3d at

61–62; see Dunn, 

. What the fact-finder did with the remainder of the charge is

immaterial. Williams, 

, at *6; Moore, 

, at *1; Jackson,

.



                                                 8
                As discussed above, the evidence at trial showed that appellant held his daughter in

a headlock, choking her and rendering her unable to speak or sufficiently breathe. This evidence is

sufficient to support appellant’s conviction for causing bodily injury to his daughter. It is irrelevant

that the jury acquitted him of the greater felony offense. Accordingly, we hold that the evidence is

sufficient to support appellant’s conviction for family-violence assault. We overrule appellant’s

first issue.3


                             Affirmative Finding of Family Violence

                In his second point of error, appellant contends that the trial court erred in entering

an affirmative finding of family violence in the written judgment of conviction.

                Under article 42.013 of the Texas Code of Criminal Procedure, the trial court is

charged with making an affirmative finding of family violence whenever the facts of the

case support one. See Tex. Code Crim. Proc. art. 42.013; Goodwin v. State, 

 (Tex. App.—Fort Worth 2002, no pet.); see also Snowden v. State, No. 05-09-00652-CR,

, at *1 (Tex. App.—Dallas Feb. 6, 2012, no pet.) (not designated for publication).

The statute provides:


        In the trial of an offense under Title 5, Penal Code [Offenses Against the Person], if
        the court determines that the offense involved family violence, as defined by Section
        71.004, Family Code, the court shall make an affirmative finding of that fact and
        enter the affirmative finding in the judgment of the case.


        3
         Because we conclude that the evidence relating to appellant choking his daughter while
holding her in a headlock is sufficient to support his conviction for family-violence assault, we do
not address appellant’s alternative argument that the evidence relating to appellant slapping his
daughter is insufficient to support the conviction. See Tex. R. App. P. 47.1, 47.4.

                                                   9
Tex. Code Crim. Proc. art. 42.013. Included in the Family Code’s definition of “family violence”

is an act by a member of a family against another member of the family “that is intended to result

in physical harm, bodily injury, [or] assault . . . or that is a threat that reasonably places the member

in fear of imminent physical harm, bodily injury, [or] assault.” See Tex. Fam. Code § 71.004(1).

Biological children are “family” for the purposes of section 71.004. See id. § 71.003 (defining

“family” to include individuals “related by consanguinity”); Tex. Gov’t Code § 573.022(a)(1)

(providing that “[t]wo individuals are related to each other by consanguinity if one is a descendant

of the other”).

                  In the instant case, appellant was convicted of assault, an offense under Title 5 of the

Penal Code, for causing bodily injury to Shanise. See Tex. Penal Code § 22.01(a)(1). The

undisputed evidence at trial demonstrated that Shanise is appellant’s biological daughter. Thus,

appellant’s assault of Shanise constitutes family violence. See, e.g., Butler v. State, 

 (Tex. Crim. App. 2006) (“For the purposes of the Texas Family Code, therefore, appellant and

the complainant are ‘family,’ and appellant’s assault of the complainant constitutes family

violence.”). Consequently, the entry of the affirmative finding of family violence in the written

judgment of this case was not error. See 

 In fact, on this record, we conclude that the trial court

was statutorily obligated to enter an affirmative finding of family violence in its judgment of

conviction for this offense. See id.; Tex. Code Crim. Proc. art. 42.013; see also Suiters v. State,

No. 07-13-00352-CR, 

, at *1 (Tex. App.—Amarillo Sept. 10, 2014, pet. filed)

(mem. op., not designated for publication) (“If the State charges an accused with a crime within the

scope of § 71.004 and the evidence supports a verdict that the crime was committed, the finding must

                                                    10
be entered by the trial court by statute.”); Johnson v. State, 

 (Tex.

App.—Houston [1st Dist.] 2013, no pet.) (because appellant stipulated that he committed aggravated

assault against individual with whom he was in dating relationship, “appellant was undisputedly

convicted of an offense involving family violence, thereby requiring the trial court to enter an

affirmative finding of family violence in its judgment”).

                Appellant does not dispute his familial relationship with Shanise. Rather, he argues

that because there was no evidence of assault (as argued in his first point of error), there was no

evidence of family violence. Having rejected his claim of insufficient evidence regarding his

conviction for assault, we disagree. The State presented evidence that appellant held Shanise, his

biological daughter, in a headlock choking her and rendering her unable to breathe or speak. Such

evidence sufficiently supports the trial court’s finding of family violence. See Agbogwe v. State,

 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (“If the victim of the specific

offense [under Title 5 of the Penal Code] is a member of the defendant’s family or household, then

the affirmative finding is justified.”).

                Appellant also contends that the affirmative finding of family violence is

insupportable because the statute requires a determination by the judge that the defendant’s acts were

family violence, and “[t]he record is devoid of any ‘determination’ by the trial court that the offense

involved family violence as that phrase is defined in the law.” We find appellant’s argument to be

without merit. First, appellant cites to no authority that such a determination by the trial court must

be formally made on the record. Second, the record here does in fact reflect that the trial court made

such a determination. The jury found appellant guilty of “Assault (Family Violence/Bodily Injury)”



                                                  11
and the court accepted the verdict and stated it was “render[ing] judgment” thereon. Further, the

record shows that at the sentencing hearing, the trial judge imposed the “Domestic Violence

Program” (attendance and completion thereof) as a condition of appellant’s community supervision.

The trial judge’s imposition of this condition after accepting the jury’s verdict, combined with his

recognition that Shanise was appellant’s daughter during discussions about whether to limit

appellant’s contact with her, reflect a determination by the trial court that a family relationship

existed between appellant and Shanise and that the assault appellant committed against her

constituted family violence. See Black’s Law Dictionary 1705–06 (9th ed. 2009) (noting that

“domestic violence” is synonymous with “family violence”). Therefore, contrary to appellant’s

assertion, the record does reflect the trial court’s determination that the offense appellant committed

involved family violence. Based on that determination, the trial court was obligated to enter an

affirmative finding of family violence in its written judgment. See Thomas v. State, 

 (Tex. App.—Dallas 2004, pet. ref’d) (“[T]he trial court had no discretion in entering a family

violence finding once it determined the offense involved family violence.”).

               Appellant also challenges the family-violence finding because the family-violence

issue was not independently submitted to the jury. However, the trial court, not the jury, determines

whether an affirmative family-violence finding should be made. See Butler, 189 S .W.3d at 302–03;

Rodriguez v. State, No. 01-05-00589-CR, 

, at *3–6 (Tex. App.—Houston [1st

Dist.] July 20, 2006, no pet.) (mem. op., not designated for publication). The plain language of

article 42.013 assigns the responsibility for making the family-violence determination solely to the

trial court. Butler, 

; see Tex. Code Crim. Proc. art. 42.013. Further, the statute



                                                  12
requires the trial court to make a family-violence finding if it determines that the offense involved

“family violence” as defined in the Family Code. The statute does not make this determination

contingent on the jury’s verdict. This obligation exists based on the court’s own determination

regardless of any finding, or lack thereof, by the jury.

                Finally, in his brief, appellant suggests that his right to due process was violated

because he did not receive notice that a family-violence determination would be made. First, we

note that the statute itself does not require notice. See Tex. Code Crim. Proc. art. 42.013; see also

Suiters, 

, at *1 (“Simply put, no prior notice of the intent to secure a family

violence finding must be given.”); Williams v. State, No. 05-10-00696-CR, 

, at

*4 (Tex. App.—Dallas Aug. 10, 2011, pet. ref’d) (not designated for publication) (“Nothing in

[article] 42.013 itself requires that the State give notice that it intends to seek a finding. To the

contrary, a trial court is statutorily obligated to make the finding if the court determines the offense

involved family violence.”); Hernandez v. State, 

 (Tex. App.—Amarillo 2008,

no pet.) (noting absence of authority requiring such notice). Second, we do not believe that under

the circumstances of this case, appellant was entitled to notice.4 See Thomas, 

(“We question, however, whether a defendant is entitled to any notice of the State’s intent to seek


       4
         Appellant asserts the implication of due process principles based on his contention that the
family-violence determination “carries adverse consequences.” However, a finding of family
violence impacts a defendant’s sentence only if the defendant has previously committed a
family-violence assault. See Tex. Penal Code § 22.01(b)(2)(A) (upon proof of prior assault
involving family violence, subsequent assault involving family violence is increased from class A
misdemeanor to third-degree felony). The finding does not increase punishment in the instant case
as there was no prior family-violence conviction alleged or proven. See Williams v. State,
No. 05-10-00696-CR, 

, at *4 (Tex. App.—Dallas Aug. 10, 2011, pet. ref’d) (not
designated for publication).

                                                  13
a first-offense family violence finding that could not have any impact on punishment.”). Here, the

trial court’s affirmative finding of family violence did not serve to alter or change the character of

appellant’s conviction. Nor did it impact appellant’s sentence.

               Moreover, even if notice was required, appellant received sufficient notice in this

case. In the indictment, following the paragraph alleging the commission of the assault, the State

alleged in a separate paragraph that Shanise Felder was “then and there a member of [appellant’s]

family.” As noted previously, for the purposes of the Family Code, appellant and Shanise were

“family.” See Tex. Fam. Code § 71.003. And under the Code of Criminal Procedure, the trial court

had no discretion in entering a family-violence finding once it determined the offense involved

family violence. See Tex. Code Crim. Proc. art. 42.013; see also Suiters, 

, at *1

(“[T]he certainty of the statutory requirement [of article 42.013] is presumed to be known by each

citizen given the legal truism that all are presumed to know the law.”). Accordingly, appellant had

all the notice necessary to prepare for the court to enter a family-violence finding. Charging the

crime provided notice in and of itself. See Suiters, 

, at *1; Thomas, 150 S.W.3d

at 888–89; cf. Narron v. State, 

 (Tex. Crim. App. 1992) (holding defendant had

sufficient notice of State’s intent to seek deadly weapon finding where indictment alleged defendant

possessed firearm, which is deadly weapon per se).

               Furthermore, appellant suffered no harm from any purported lack of notice. Texas

law defines family violence to include an assault against an individual who is a member of the

defendant’s family. See Tex. Fam. Code §§ 71.003, .004. The familial relationship between

appellant and Shanise was not disputed, only the commission of the assault. Because appellant could



                                                 14
not avoid the legal reality of his familial relationship with Shanise, even a more formal notice that

the State would seek (or the trial court would enter) a family-violence finding would not have

changed the outcome of appellant’s case upon conviction for assaulting his daughter. Any error was

harmless. See Tex. R. App. P. 44.2(a) (court must reverse unless it determines beyond a reasonable

doubt that constitutional error did not contribute to conviction or punishment), (b) (court must

disregard non-constitutional error that does not affect appellant’s substantial rights).

                 For the foregoing reasons, we conclude that the trial court did not err in entering an

affirmative finding of family violence in its written judgment. We overrule appellant’s second issue.


                                           CONCLUSION

                 Having overruled appellant’s two issues, we affirm the trial court’s judgment

of conviction.



                                                __________________________________________
                                                J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Affirmed

Filed: December 19, 2014

Do Not Publish




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