*1 Also, tape thereof. No audio judgment made. I concur in the and sentence of George Wawrykow. description pushes verbal and the shoves, think, I was some evidence and
therefore, opinion our Ninth Court’s is not solely
based on the demonstration. correctly
Our Ninth Court recites that con evidence,
victions are if affirmed light
viewed most favorable to the (buttressed verdict undergirded by all WAWRYKOW, Appellant, Tania L. credibility reasonable inferences and choices verdict) having been made in any is such that rational trier of fact could Texas, Appellee. The STATE have found the essential elements of the of CR, Nos. 09-92-148 09-92-149 CR. proved beyond fense a reasonable doubt. actual, Virginia, Jackson v. The supra. im Texas, Court of portant majority as set out in the Beaumont. think, opinion, certainly by reasonable and 24, 1993. inferences, Nov. logical demonstrates pain. Physical pain been has declared a usage according
term of common term, import vague
fair of this is not so that intelligence necessarily
men of common must
guess meaning at its and differ as to its
application. See Ramirez v. (Tex.Crim.App.1975). See and
compare Goodin v. ref’d). (Tex.App. Corpus pet. Christi
People jurors intelligence common can pain
and do and some of the understand origins physical pain.
natural causes or
Id.
The record shows more than mere touch- touching. and more than offensive
appellant pushed the officer’s chest. There appellant pushed
was a time that the second push pretty
and the second time the was a juror
good push. opine that a rational pain physical pain have determined
could Virginia, supra.
resulted. Jackson v.
Thus, opinion our Ninth Court’s is not Thus,
solely upon based the demonstration. upon totality
the Court’s is based evidence be- direct and circumstantial
fore the as well as the demonstration. then, properly analyzed,
The record when
supports the verdict. I concur that ra-
tional finder fact could have found injury bodily
Officer Chilcutt sustained
alleged. *2 Houston, Cunningham, appel-
David for lant. Bass, Jr., County Atty.,
Frank H. Michael Valdez, Conroe, County Atty., M. Asst. for state. WALKER, C.J.,
Before BURGESS, BROOKSHIRE and JJ. OPINION WALKER, Chief Justice. appeals
The instant
come to us from a
single
involving appellant
trial
fa-
her
ther,
defendants;
George Wawrykow,
M.
being charged
separate
each
with two
of-
appeals, appellant
fenses.1 In the instant
by jury
convicted
for the misdemeanor
“A”,
Hindering Apprehension
offenses of
jury
punishment
Assault “A”. The
assessed
Hindering Appre-
at a fine of
for the
$3000
pro-
hension
fine
offense with
said
$1500
(2)
period
years.
bated for a
of two
As for
offense,
appel-
the Assault
assessed
(60)
sixty
days
Montgomery
lant
Coun-
and,
ty
additionally,
Jail
a fine of $3000.
Appellant’s jail time and
of the fine
$1500
(2)
again probated
period
for a
were
two
years. Consolidating
appeals
single
her
in a
brief,
appellant raises the
three
points of error:
Point of Error One: There is insufficient
Wawrykow’s
evidence to sustain Tania
con-
for Class A
the State
viction
Assault as
companion
n.p.h.).
1. See our
(Tex.App. Beaumont,
failed to presented her brief as point the Penal Code. of error is section 22.01 of follows: Error Two: There is insufficient Point of Wawrykow’s con- to sustain Tania 38.05(a)(2) of the Texas Under Section *3 Hindering Apprehension.
viction for Code, person a commits offense Penal prosecutor Error Three: The Point of by hindering apprehension providing or of injecting by error committed fundamental provision any of means of aiding in the concerning guilt of personal his belief effecting escape. arrest or From avoiding (sic) proceeding into the appellants record, reading it is clear that a argument. during final to the aid of Tania went when father, Wawrykow was not under her Dr. appellant’s first and second will discuss Although he had been informed of encompass arrest. together error points of arrest, yet the officers had not effected general appellate standard for re- the same arrest_ clear that she be- It is viewing complaints. insufficient evidence (sic) being unduly father was lieved that points two of Although appellant’s first his to and she came to assistance assaulted evi- complain generally of insufficient error injuries. Upon seeing her further prevent dence, very specific and brief reflects her struck, Wawrykow was being Ms. father arguments regarding pieces what of singular a form of duress which acting under lacking. The record reflects evidence are come to his assistance. caused her to charged appellant separate informations seeing acting under the duress such and Hindering Apprehension, with Assault beaten, be held crim- she cannot her father by “intentionally, knowingly and respectively, hindering inally for the offense liable another, injury recklessly causing] bodily to apprehension. FAUSTER, strik- by L. namely, OFFICER on or about L. FAUSTER OFFICER argument, ap her appreciate As we fist,” intent to head her and “with with lacking evidence is saying that the pellant is another, namely: hinder arrest Wawrykow was in George that prove so as to WAWRYKOW, provide GEORGE M. appellant “went to arrest when fact under GEORGE M. providing said and aid in argument Appellant’s her father.” the aid of avoiding arrest means of with WAWRYKOW of “necessi defense to raise the appears also choking OFFICER by physically to-wit: insanity defense.4 at an ty,” well as hint arms.” FAUSTER with her issues, reflects the record of these As to both charge, appel- the Assault regard to With before raise them by appellant to attempt no required to argues that the State was lant by or a prior to trial court either the trial injury” such, Officer Fauster “bodily prove jury. As to the requested instruction Officer alleged blows to stemming from the preserved for are not issues these latter two argu- appellant’s fist. The 52(a). Thus, head Tex.R.App.P. Fauster’s appellate review. trial, that, failed at the State ment continues appellant’s us under before the sole issue alleged strik- that the to elicit an or not is whether point of error second by appel- area ing of Fauster’s head being Officer effected or was had been arrest illness, “physical pain, appellant lant caused Fauster in time Wawrykow at the George condition,”2 or any impairment of tervened. any way by said hurt in that Fauster was convictions that mandates Following law to her head area. blow or blows evidence, viewed facts, if the be affirmed of the statement careful examination verdict, all with light most favorable direct agree that must with we credibility choices inferences reasonable to Officer Faus- “pain” or “hurt” it, any ration- such that made in lacking. ter is (Vernon See, § & (Vernon 1.07(a)(7) 8.01 See, § Ann. TexPenal Code 4. TexPenal Code Ann. 2. 1974). Supp.1993). Vernon (Vernon 1974). See, § 9.22 3. TexPenal Code Ann. of fact “according
al trier
could have
essential
import
found the
strued
the fair
proven
terms,”
beyond
elements
crime
a rea
their
the context used in Section
doubt.
Virginia,
1.07(a)(7),
sonable
Jackson v.
supra, are not
vague
“so
307, 319,
2781, 2789,
U.S.
99 S.Ct.
61 L.Ed.2d
intelligence
men of common
must neces-
Indeed, juries
are free to
sarily guess
meaning
at its
and differ as
use their common
apply
sense and
common
A
application.” [citations omitted]
knowledge, observation,
experience
ordinary intelligence,
person of
who would
gained
ordinary
life
affairs of
when
law-abiding, can determine
with reason-
giving
may
effect to the
rea
inferences that
duty
precision
able
what conduct it is his
sonably be drawn from the
United
evidence.
to avoid.
(5th
Heath,
States
970 F.2d
*4
passing
note in
id. at 547-548. We
that the
Cir.1992),
nom, Cheng
cert. denied sub
v.
sole issue for consideration in Ramirez was
—U.S.,
—,
1643,
U.S.
113 S.Ct.
123
sufficiency of the
not the
evidence but wheth
(1993).
factfinder,
jury
265
the
L.Ed.2d
“bodily injury”
er
“vague,
the term
was so
judge
credibility
is the exclusive
of the
so
uncertain and indefinite”
as to be violative
weight
witnesses and the
to be afforded
and
both the U.S.
Texas Constitutions.
testimony.
State,
Chambers v.
805 S.W.2d
Nevertheless, subsequent
Id. at 547.
cases
459,
(Tex.Crim.App.1991);
461
Tex.Code
addressing
sufficiency
issue of
the
(Vernon 1979).
Crim.PROcAnn. art. 38.04
“bodily
the
proof
injury”
State’s
element
provides
jury may
further
Texas law
that a
heavily on
have relied
the above Ramirez
a
though
believe witness even
witness’s
the
State,
language. One such case is Goodin v.
testimony
contradicted;
has been
and that a
(Tex.App. Corpus
750
857
Christi
S.W.2d
may accept any
jury
part of a witness’s testi
’d). Goodin,
1988,pet.
In
complainant
ref
the
reject
State,
mony
Sharp
rest.
v.
took the
to recount
stand
his ordeal but did
611,
(Tex.Crim.App.1986),
707
614
S.W.2d
testify specifically
“pain”
not
that he felt
denied,
190,
cert.
488 U.S.
109
102
S.Ct.
resulting
that the
from the
bruises
encounter
L.Ed.2d
Corpus
with the
“hurt.” The
defendant
Furthermore,
lest we commit the same
in
quoted
Christi Court of
Ramirez
analysis
pointed
erroneous
as was
out to us
arriving
conclusion
people
at the
of com
State,
(Tex.Crim.
in
Criner
screaming fucking “Get off bitch.” Okay. Q. happened And what then? upon Based of Officer Faus- him pushed A. After he the second time? coupled ter as set out above and with other Q. Yes. eyewitness testimony contained the record pushed A. After he him the second time describing violently being abu- And Chilcutt said ‘You under arrest.” virtually sive to the officers and not con- going still towards the store. And *5 herself, trol of we find that rational get in him and Chilcutt went to front of the factfinder could have inferred that blows again. him And told he under arrest was appellant’s to from fists Officer Fauster’s George Wawrykow picked that at time head area “hurt” the officer or caused her he up by his arms like this and Chilcutt “physical beyond a reasonable doubt. pain” into the slammed him wall. Point of error one is overruled. examination Officer Fauster’s direct Okay. Q. happened? And what What testimony resolving appellant’s us in also aids happened? error, complaint point under her second Wawrykow that Tania A. When he did viz: my she put around neck and had her arms (the State) Okay. you Q. were Where was, know, me you trying hang to on to standing? jerk choking me. back. It was me Fauster) (Officer into the of the door And Chilcutt A. In front when he slammed that, like hit the wall. speaking Mr. Waw- wall Chili’s head Suburban with I my asp and rykow still inside And at time I drew who was seated the that com- Wawrykow in the George truck. struck once side of peroneal which is on the mon nerve Q. got Okay. at that time after he out So right leg. his you said pushed the truck and he Officer Chilcutt, happened? what asp you pulled an Q. that you Now said gets real complicated
A. Then it after Tania Wawrykow. hit Was George pushed that. He Officer Chilcutt. And you? on still get to Officer Chilcutt ran in front of him know, walking, you to- because he started yes, At she was. A. that time wards And I reached out to the door. you hold- top on Q. physically Was she grab his arm and that is when Tania you? on to back, around, put jumped my on her arms It felt hanging my She off neck. A. was my to neck put tried her arms around choking I couldn’t like she me. in front of first time. So Chilcutt is still while. breathe for a little pushed him. I turned And around you after that? Q. Okay. did do What put your Tania and told her “Don’t back just back him stroke George A. After I struck hands me.” Then on It chest, hitting anybody. I wasn’t again asp. in the with pushed right Chilcutt more you. It is they move teach told him is a that pushed him And Chilcutt back. away. get make them to scare them and ‘You arrest.” are under said, know, you And I “Get back.” But I prosecutor’s argument ment exists when the hit anybody. didn’t prejudicial is so that an instruction to disre
gard argument could not cure harm. (Tex.Crim.App.), Harris 827 S.W.2d Q. stay you? Did on Tania — denied, U.S. —, t. A, cer No, she didn’t. off She back then. S.Ct. In the L.Ed.2d Q. Okay. you What did do then? case, portion we instant find Well, hitting peroneal A. him his argument merely State’s at issue is an at nerve had no effect on him at all. So I argument by to tempt previous restate the just threw the stick down and Chilcutt had appellant’s appears trial counsel it grabbed just grabbed him. And I him record, viz: back, from the jumped too. And Tania And I one thing want ask other my again just right back and we all fell get you you. you If back —of lobby into there. during your room and deliberations some- certainly apparent It is from Officer Faus- body got says “We have to believe these ter’s George Wawrykow was people they police because are officers. told more than once that was under arrest police We have to officers. proximity and that was in close at got have them believe because Indeed, the time. the testimony indicates police “They badge officers” or have a jumped that appellant on Officer Fauster’s uniform,” you jurors want the other of times, back three different applying the juror and say “Why to turn to that didn’t occasion, choke hold on the officer on one you your Why you raise hand? didn’t attempted Officer Fauster to gain physical "Why you respond? speak up didn’t be- of George Wawrykow control in order to *6 may it fore?” Because be that we have place Appellant handcuffs on him. clearly our wasted all of time here and this case hindered Officer attempts Fauster’s to effect again. has to be tried the Again, arrest. upon based of all the appellant’s in of Taken the context final direct and circumstantial evidence before the above, argument out re- as set the State’s jury, light taken in the most favorable to permissi- marks fall within the four areas of verdict, any we find that rational trier jury argument response argument ble as a to of fact could have found each essential ele- Appellant’s from opposing counsel. Id. Apprehen- ment of the offense of Hindering overruled, point error the third of is and sion proven beyond a reasonable doubt. judgments in and sentences both cases are Point of error is two overruled. affirmed. Appellant’s point third of error com AFFIRMED. plains the portion of of the State’s argument
final the to at the of close the Justice, guilVinnoeence BURGESS, phase concurring. of the trial: This the of is law the case. are These wholeheartedly of join I in the affirmance charges. are These the Defendants. Now hindering apprehension charge and reluc Leger says merely Mr. don’t decide on the tantly concur in the affirmance of the assault testimony of the going officers. We to are charge. quarrel no real with our have going believe the officers. are to We be- my reasoning applaud Chief Justice’s and they They lieve them because are officers. faithfully following cautiously for brother and wearing badges are all. and reviewing in of court recent dictates our (Tex.Crim. State, note at the v. 860 84 outset that Criner S.W.2d objection argument made no to at be App.1992). this trial. not so cautious. would Tex.R.App.P. 52(a) dissenting normally requires party Judge pointed a out in Clinton his timely object to specifically appellant’s and order of motion for in to to denial preserve rehearing a complaint appellate petition for on for discretion review. State’s review, regard jury arguments, With of criminal exception ary page an at court objection require- playing lip to this to its contemporaneous appeals simply is service 102 confronting
opinions in
v.
834
357 Texas
law court
and
Arcila
S.W.2d
law
a
law;
(Tex.Crim.App.1992)
High
correcting
and
v.
785
Meraz
errors
Court was
upon
writing
passing
upon
not
or
a
(Tex.Crim.App.1990).
S.W.2d 146
Either the
fact
insufficiency of
appeals
question
courts of
are the final
fact
or an
factual evi-
arbiters of
not;
question.
questions
or
dence
It should
obvious that
are
Arcila and Meraz
considering
are,
appeals
a
when
court of
and
say they
position.
Criner erodes that
analyzing
insufficiency
an
of the factual evi-
conclusivity
Either the “factual
clause”
our
issue,
of appeals
dence
that the courts
must
something
state
or
constitution means
it does
apply
and
Criner,
the correct rules of substantive law
majority opinion
not. Under the
must avoid errors of law.
appeals agrees
when the court
criminal
appeals,
with the court of
the clause means
harmonious,
appeals, parallel,
In civil
a
and
says;
what
it
when the court of criminal
correctly
judicious-
functional doctrine is
court,
appeals disagrees with the
lower
Supreme Court
Texas.
ly applied by the
meaning.
clause loses its
Co.,
v. Ford Motor
compare
See
Pool
(Tex.1986).
ap-
Courts
715
629
S.W.2d
undisputed
Since it is
state failed
reanalyze or to
peals
simply not free to
produce any
physical
direct evidence that the
jury’s
reweigh
set aside
the evidence and
i.e.,
bodily injury,
produced
contact caused
appellate
verdict
the intermediate
unless
illness,
any
pain,
physical
any impairment
constitutionally
correctly
while
court
acts
condition,
physical
majority’s analysis
and com-
exercising
jurisdiction. See
its fact
any
correctly
on
there is
focuses
whether
456
Corp.,
pare Dyson
Olin
bodily injury.
circumstantial
Estate,
(Tex.1985).
King’s
See
In re
also
testify
did
she suffered
While the officer
not
(1951), Robert
W.
Tex.
pain,
testify
she
about
blows
Calvert,
“No Evidence”
“Insufficient
fist.
appellant’s
her head with
While
Error, 38 Tex.L.Rev.
Evidence” Points of
certainly a
between a
there is
difference
Garwood,
Question
(1960);
The
St.
John
speculation,1 the
reasonable inference and
30 Tex.
Appeal,
Evidence
of Insufficient
in-
facts of this
the reasonable
case
decision
landmark
L.Rev.
ference that blows to the head with a closed
firmly
King’s
established
In re
Estate
physical pain.2
fist will cause some amount of
*7
properly
might
Supreme Court
the Texas
Therefore, I concur in the result.
finality
notwithstanding
jurisdiction,
take
intermediate courts
judgments of the
BROOKSHIRE, Justice,
in
for the
concurring.
appeals
questions,
order
of
on fact
if a cor-
Supreme Court to determine
Texas
concurring opinion
sepa
This
is written
by the inter-
applied
been
rect standard had
rately
augment my
opinion in
concurring
appellate courts.
mediate
State,
George Wawrykow v.
866
87
S.W.2d
Indeed,
of
landmark cases
later
a number
1993,
and filed
(Tex.App. Beaumont,
n.p.h.)
Porter,
82, 264
153 Tex.
Puryear
v.
such
date,
24,
this
Nov.
1993.
Alviar, 395
(1954);
v.
Garza
689
S.W.2d
(Tex.1965);
v. So
and Harmon
Again,
concurring
of
821
the other
writer
(Tex.1981)
Co.,
Pipeline
not be “so cau- hio
states that
would
variety
in
of
ruling
important
cases
in
the “recent dictates of our
tious”
the Texas Su
in which
reviewing
in
860 different situations
court
Criner v.
courts of
properly reviewed
(Tex.Crim.App.1992)”.
preme
Court has
S.W.2d 84
Court
insufficiency is
on factual
Appeals
properly
appeals
char-
decisions
of Criminal
has been
appellate
law,
intermediate
of Texas
be-
sues because the
acterized as the caretaker
incorrect
test
ing
employed
had
an
court of last resort within the State
courts
crucial,
Criner,
Thus,
factual in
in
even
system
court
in criminal matters.
In
standard.
matters,
has
Supreme
Court
sufficiency
applying
of
Appeals
the Court
Criminal
was
case,
"push”
speculation
opposed
that a
dissenting opinion
companion
1. See
2.
(Tex.App.—
pain.
v.
Inescapably, in the Court of Texas, Appellee. The STATE of Appeals exercising Criminal preroga its was proper principles tive as caretaker CR. No. 09-92-171 law to be used courts appeals passing upon crucial issues offactual insuf Texas, Court of ficiency. Beaumont. Indeed, high the task of dual courts 24, completed. has 1993. fully not been In Nov. In re Estate, King’s Chief Justice Calvert set out several appropriate procedures and correct
analyses of the evidence and favored an ex-
planation why finding unjust. a certain
Justice opined “[mjaybe Garwood some
day we will develop more rules to aid trial appeals
courts and courts dealing of civil
with this question.” troublesome
Therefore, readily concur with Chief Jus
tice Walker’s decision that sufficient evidence jury’s
exists to sustain the verdict. It
important listening to note that after to all of juries employ are free to
common sense and to use common knowl
edge, observation, usual experi and reliable
ence obtained in the affairs of life when reasonable,
considering logical, ineluctable may reasonably
inferences that drawn
from the testimony. evidence and United Heath, (5th
States v. 970 F.2d
Cir.1992), nom, Cheng cert. denied sub —U.S., -, U.S. S.Ct. (1993). Thus,
L.Ed.2d 265 circumstantial ev
idence in disregarded. a ease is to be not balance, submit,
Uniformity are de-
sirable in justice system. the criminal
decision holdings and of the Court of Crimi- only
nal salutary Criner are not beneficial, they necessary to have
uniformity equal justice, equally
fairly in the 254 administered counties of
Texas as well as in the fourteen courts of
appeals deciding writing criminal cases and Otherwise,
on the law of crimes. different standards, tests, varying and erroneous might
constructions of rules of law well be
applied in the sister fourteen courts.