Oscar Perkins v. State
12-15-00001-CR
| Tex. App. | Sep 4, 2015Background
- Defendant Oscar Perkins was convicted of assault–family violence by choking his wife after a jury trial in Smith County (trial cause no. 114-1209-14).
- Victim Mrs. Perkins testified appellant struck her, put her in a chokehold from behind, squeezed her neck, and she "fell on her knees because she could not breathe."
- Police observed redness, swelling, bruising, and an earring indentation on the victim's neck; ER CT showed neck straightening consistent with muscle spasm from trauma.
- Appellant moved for an instructed verdict and requested a jury instruction on misdemeanor assault (closed-fist striking), both denied at trial.
- On appeal the State defended sufficiency of choking evidence and the trial court’s refusal to give a lesser-included offense instruction.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Perkins) | Held |
|---|---|---|---|
| 1. Legal sufficiency of evidence that Perkins impeded breathing/circulation by choking | Victim’s testimony alone, corroborated by injuries and CT findings, is legally sufficient for choking offense | Victim’s credibility undermined by inconsistent statements; evidence of choking insufficient | The evidence was sufficient; instructed verdict correctly denied |
| 2. Jury resolution of credibility conflicts | Jury is sole judge of witness credibility and may believe victim’s choking testimony despite contradictions | Appellant urged jury could disbelieve choking testimony and accept only beating evidence | Jury’s verdict credited victim; appellate review defers to jury credibility findings |
| 3. Whether misdemeanor assault is a lesser-included offense of choking | Misdemeanor assault (closed-fist injury) is not a cognate lesser of choking because choking requires impediment of breathing/circulation | Defense sought lesser instruction, arguing evidence could show beating without choking | Trial court properly refused the lesser-included instruction (no affirmative evidence directly germane to lesser offense) |
| 4. Whether evidence raised a rational alternative (Hall/Cavazos test) | No affirmative evidence rebutted or negated the choking element; speculative alternatives insufficient | Defense argued medical testimony left room for non-choking causes of complaints | No: mere speculation does not meet the threshold; refusal to instruct was proper |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (constitutional standard for legal sufficiency review)
- Aguilar v. State, 468 S.W.2d 75 (eyewitness testimony alone can suffice for conviction)
- Price v. State, 457 S.W.3d 437 (elements of assault–family violence by choking)
- Cavazos v. State, 382 S.W.3d 377 (requirement of affirmative evidence germane to lesser-included offense)
- Hall v. State, 225 S.W.3d 524 (two-part analysis for lesser-included offense instructions)
- Bignall v. State, 887 S.W.2d 21 (lesser-included instruction requires evidence directly germane to lesser offense)
- Lofton v. State, 45 S.W.3d 649 (defendant testimony denying commission does not establish lesser offense)
- Hooper v. State, 214 S.W.3d 9 (deference to jury on reasonable inferences and credibility)
- Dewberry v. State, 4 S.W.3d 735 (appellate courts must not reweigh evidence)
- Goodman v. State, 66 S.W.3d 283 (direct evidence of a fact is legally sufficient)
- Cain v. State, 958 S.W.2d 404 (weight given to contradictory testimony is for jury)
- Wortham v. State, 412 S.W.3d 552 (discussion of lesser-included instruction standards)
- Williams v. State, 692 S.W.2d 671 (jury as sole judge of witness credibility)
- Laster v. State, 275 S.W.3d 512 (Jackson sufficiency standard applied to circumstantial and direct evidence)
- Madden v. State, 799 S.W.2d 683 (motion for instructed verdict challenges sufficiency)