Appeal from the County Criminal Court at Law No. 7 Harris
County, Texas Trial Court Case No. 2006621
consists of Justices Keyes, Bland, and Huddle.
V. KEYES JUSTICE.
convicted appellant, Derek Thomas Baldit, of the Class A
misdemeanor offense of assault on a family
member. Pursuant to an agreement between appellant
and the State, the trial court assessed appellant's
punishment at 180 days' confinement in the Harris County
Jail. In two issues, appellant contends that (1) the State
failed to present sufficient evidence that he intentionally
or knowingly caused bodily injury to the complainant and (2)
the trial court erred in failing to make a competency finding
concerning a child witness.
January 2015, Laurita Elvir, the complainant, and appellant
had been dating for approximately two years, and they were
engaged. Elvir and her daughter, D.G., who was five years old
at the time, lived with appellant in a house in Katy, Texas.
January 27, 2015, Elvir and appellant began arguing while he
was getting dressed in an upstairs bedroom. Appellant walked
downstairs and into the kitchen, where he opened the
refrigerator, and Elvir followed him, "still expressing
how [she] felt." Elvir testified that she "said
something that set [appellant] off, " and he slammed the
refrigerator door shut and gave her an angry look. Appellant
rushed towards her and pushed her "really hard"
against the door to a coat closet and held her there with his
hand on her neck. Elvir's back hit the door, and she
stated that she was scared because appellant had been violent
with her before and she did not know what he was going to do
told appellant that she was going to call the police, and she
went into the living room, where D.G. was sitting on the
couch watching television, to retrieve her cell phone. Elvir
started to unlock her phone, but appellant followed her and
tried to grab the phone from her. Both appellant and Elvir
were holding onto her phone, and Elvir stated that she held
on tightly because appellant was trying to take the phone
away from her. She testified, "I got pushed off to the
ground on the floor and I'm being dragged from the living
room, you know, hitting different things throughout the
little hallway we have there into the kitchen and still
holding onto [the phone]." She continued to hold onto
her phone because she was scared, she wanted to call the
police, and she did not have a landline.
testified that appellant tried to take her phone away while
she was holding onto it, and she was "being dragged on
the floor just hitting different things, " including
closet doors, the island in the kitchen, the couch, the
television stand, a table in the living room, and the walls.
Elvir had carpet burns on her face, elbow, and back as a
result of being dragged around the house. Elvir was yelling
and screaming while this was happening, and she repeatedly
yelled at appellant to stop and give her the phone. D.G. was
also screaming and crying during this time.
appellant took Elvir's phone away from her. He started to
leave the house with her phone, so Elvir grabbed onto his
leg. Appellant did not kick her or throw her off, but he was
able to get free, and he left the house. Appellant walked
outside to the garage, locked the door to the garage so Elvir
could not follow him in there, placed her phone in the
garage, and then drove away. A neighbor overheard Elvir
crying in her driveway, asked if she was alright, and called
911. Elvir later recovered her phone from the garage.
addition to the carpet burns that she received, Elvir's
injuries also included a broken toenail, which broke and bled
when she bumped into various objects in the house. Elvir had
bruising around her eye and on her back, her elbow, her
hands, and her forearm. She stated that she had intense pain
in her right forearm because she was gripping her phone very
tightly with her right hand. She was not sure if her arm was
broken, and she had difficulty writing immediately after this
incident. Elvir testified that she bumped into several
different objects in the house, and she was not sure which
one caused each specific injury.
who was six years old and in kindergarten at the time of
trial, also testified. D.G. testified that she knows the
difference between the truth and a lie, and she was able to
demonstrate this when the prosecutor asked her if he had a
funny shoe on his head. She stated that would be a lie
"[b]ecause there is no shoe on [his] head." When
asked what was on the prosecutor's head, she replied,
"your hair, " and she agreed that that would be the
truth. She also agreed that it is important to tell the
truth, and she promised "just to tell the truth while
[she is] in the courtroom today."
testified that one year before, she lived "in Katy at
the apartment" with her mother "and somebody
else." She remembered a time when her mother "and
the other person" got into a fight. She testified that
while she was on the couch watching cartoons, Elvir and
appellant started loudly "fighting and saying
stuff" upstairs. When they came downstairs, appellant
pushed Elvir hard into the closet door. Elvir said that she
was going to call the police and ran for her phone, but
appellant also got to the phone and they started struggling.
D.G. stated that Elvir held tightly onto the phone and that
Elvir also held onto appellant's leg while he
"dragged her around the whole carpet on the floor."
She testified that appellant went outside once he got ahold
of Elvir's phone and that he put the phone in the garage.
She stated that Elvir screamed and cried a lot, and she
thought that appellant hurt Elvir. She also stated that Elvir
"had bruising all over her and her toe was kind of
cross-examination, D.G. agreed that Elvir talked to her about
testifying the week of trial and the week prior to trial. She
also agreed with defense counsel's statement that Elvir
"talked to [her] about what [she] was going to
redirect examination, the prosecutor asked D.G. if Elvir told
her to tell the truth, and D.G. responded "yes."
She also agreed that Elvir told her that it was okay if she
did not remember something, and she once again agreed that it
is always important to tell the truth.
P. Gonzales, with the Harris County Constable's Office,
responded to the 911 call. Deputy Gonzales testified that
when he arrived at the house, Elvir was crying, her voice was
trembling, "and she had signs of being recently in an
abusive situation." Elvir had blood on the side of her
face, she had difficulty moving her arm, and one of her
toenails had flipped backwards into an upright position.
Deputy Gonzales contacted appellant and asked him to return
to the scene, which he did. Appellant agreed that he got into
an argument with Elvir, but he told Deputy Gonzales that
Elvir hit him, and when he tried to walk out of the house,
Elvir grabbed onto his leg, which was probably how she hurt
herself. Deputy Gonzales did not see any injuries on
appellant. He considered Elvir's account of events to be
credible and not appellant's account.
father, Roy Baldit, testified on his behalf. Roy testified
that he saw appellant after he was released from jail the day
after the incident with Elvir. He stated that appellant had
what looked like scratch marks or fingernail marks on his
neck, his back, and his arms. Roy took pictures of these
scratches, and the trial court admitted them into evidence.
Roy stated that appellant's booking photograph, which had
also been admitted into evidence, showed marks on
appellant's neck consistent with the ones that he saw,
and the marks in that photograph looked "fresher"
than the marks when he saw appellant.
jury found appellant guilty of assault of a family member.
Pursuant to an agreement between appellant and the State, the
trial court assessed appellant's punishment at 180
days' confinement in the Harris County Jail. This appeal
first issue, appellant contends that the State failed to
present sufficient evidence that he intentionally or
knowingly caused bodily injury to Elvir. He argues that, at
best, the evidence supports a finding that he recklessly
caused bodily injury to Elvir, but this finding was not
authorized by the information or the jury charge.