Appeal from the 230th District Court Harris County, Texas
Trial Court Cause No. 1484835
consists of Chief Justice Frost and Justices Boyce and
Andrew Gonzalez, Jr. appeals his conviction for assault on a
family member as a second offender. In three issues,
appellant argues the trial court erred in: (1) overruling his
objection to the admissibility of the charging instrument for
a prior assault against the same complainant; (2) failing to
give a limiting instruction when admitting the charging
instrument of the prior assault; and (3) overruling
appellant's objection to the State's allegedly
improper jury argument.
jury indicted appellant for the offense of assault against a
family member as a second offender. The State alleged that
appellant assaulted his girlfriend, Patty,  with whom
appellant had a dating relationship and shared an apartment.
The indictment further alleged that appellant was previously
convicted of assault against a family member. Appellant
pleaded "not guilty" to the charged offense, and
the case proceeded to trial.
Terriquez and her boyfriend, Stephen Gutierrez, visited
appellant and Patty at the latter couple's apartment on
the night of the alleged assault. At some point during the
evening, appellant began yelling at Patty. Patty packed a bag
and started to leave the apartment. According to Jennifer,
appellant grabbed Patty's bag, threw it aside, and hit
Patty in the back of her head as she exited the apartment.
Patty ran down the stairs to the ground level, and appellant
chased her. Jennifer and Stephen followed. When Jennifer
caught up, she saw appellant kicking Patty and pulling her
hair as she lay on the ground. Jennifer called 911.
sister, Ericka, lived next-door. Ericka was at home when she
heard a man and a woman screaming outside. Ericka opened the
front door and saw appellant kicking Patty, who was
"crouched down" on the ground. Ericka also called
911, and then went outside to help Patty. Ericka helped Patty
walk to Ericka's porch, and Ericka locked the gate in
front of her house to prevent appellant from entering the
arrived and treated Patty. The paramedics' report
documented that Patty was five months' pregnant; that
Patty told the paramedics she fought with her boyfriend, who
pushed her to the ground; and that Patty said she
"needed HPD [Houston Police Department] to file a
report, " but that otherwise she was "fine"
and had "no belly pain . . . [and] no bleeding."
Patty refused transportation to the hospital for further
observation or treatment.
officers David Carrucini-Ruiz and Jesus Gutierrez (no
apparent relation to Ericka or Stephen) responded to the 911
call. Upon arriving, Officer Carrucini-Ruiz spoke with Patty,
who told him that she was pregnant and appellant had grabbed
her by the hair, pushed her to the ground, kicked her in the
stomach, and attempted to choke her. Officer Carrucini-Ruiz
testified that he did not see any visible injuries on Patty.
appellant fled the scene when Ericka came to assist Patty, he
returned about twenty minutes later while police were
investigating. Jennifer and Ericka identified appellant to
the officers as the person who assaulted Patty. According to
Officer Carrucini-Ruiz, appellant also matched the
description from the 911 call. Officer Carrucini-Ruiz
approached appellant and asked if he assaulted Patty.
Appellant said no. At that point, appellant "started
getting loud, " and the police officers decided to
detain him in a patrol car. Resisting the officers'
efforts, appellant attempted to kick the officers, at which
time the officers placed appellant in leg restraints. As
Patty watched, she told the officers that she was going to
record them on her cell phone. Then, contradicting her prior
statements to the officers, and contradicting the statements
of Jennifer and Ericka, Patty insisted appellant did not
assault her and she "made everything up." According
to Officer Carrucini-Ruiz, once the officers placed appellant
in the patrol car, Patty said to appellant, "I love you,
Baby. I'm going to drop the charges." Patty did not
testify at trial to either confirm or refute the
State desired to elevate the charged offense to a felony,
which required proof of one prior family-violence assault
conviction. The charged offense allegedly occurred on
October 12, 2015. A latent fingerprint examiner with the
Harris County Sheriff's Office matched appellant's
fingerprints to fingerprints on a 2014 judgment in Cause
Number 1450952, in the 232nd District Court of Harris County,
which documented appellant's conviction for assault of a
family member. The court also admitted the charging
instrument (the "complaint") related to the prior
conviction. Appellant objected to admission of the complaint
based on Texas Rule of Evidence 404(b) because the complaint
specifically named Patty as the complainant.
jury found appellant guilty of the charged offense. The trial
court then arraigned appellant on two enhancements, to which
appellant pleaded "not true." The jury found the
first enhancement paragraph (regarding an attempted burglary
conviction) not true, and found the second enhancement
paragraph (regarding a robbery conviction) true. The jury
assessed appellant's punishment at eleven years'
now appeals his conviction.
first issue, appellant argues that the trial court erred in
overruling his objection to the admissibility of the
complaint resulting in his 2014 conviction for assault of a
family member. Appellant contends the complaint's
admission into evidence violated Rule 404(b) because the
complaint identified Patty as the complainant in 2014, when
Patty was also the complainant as to the charged offense.
According to appellant, admission of the 2014 complaint
erroneously permitted the jury to find him guilty of
assaulting Patty on October 12, 2015, based on his conviction
for assaulting Patty in 2014. We disagree.
Standard of review and governing law
of a person's crime, wrong, or other act is not
admissible to prove that person's character in order to
show that the person acted in conformity with that character
when allegedly committing the charged offense. See
Tex. R. Evid. 404(b)(1); see also Powell v. State,
63 S.W.3d 435, 438 (Tex. Crim. App. 2001); Montgomery v.
State, 810 S.W.2d 372, 386-88 (Tex. Crim. App. 1990)
(op. on reh'g). Evidence of other offenses, however, may
be admissible when the evidence is relevant to a fact of
consequence in the case. See Tex. R. Evid.
404(b)(2); Montgomery, 810 S.W.2d at 387-88. For
instance, evidence of other crimes or wrongs may be
admissible if it tends to establish some elemental fact, such
as identity, intent, or knowledge; tends to establish some
evidentiary fact, such as motive, opportunity, plan, or
preparation, leading inferentially to an elemental fact; or
rebuts a defensive theory by showing, e.g., absence of
mistake or lack of accident. Montgomery, 810 S.W.2d
at 387-88; see also Tex. R. Evid. 404(b)(2). If the
trial court determines the offered evidence has independent
relevance apart from or beyond character conformity, the
trial court may admit the evidence and instruct the jury the
evidence is limited to the specific purpose the proponent
advocated. See Prince v. State, 192 S.W.3d 49, 54
(Tex. App.-Houston [14th Dist.] 2006, pet. ref'd) (citing
Montgomery, 810 S.W.2d at 387-88).
trial courts are best-suited to decide these substantive
admissibility questions, an appellate court reviews
admissibility rulings under an abuse of discretion standard.
Powell, 63 S.W.3d at 438. This standard requires
that we affirm admissibility rulings when they are within the
zone of reasonable disagreement. Id.
The parties' arguments
the guilt-innocence phase of trial, the State offered the
complaint and judgment associated with appellant's prior
conviction for assault of a family member. Appellant did not
object to admission of the judgment, but objected to the
complaint because it named Patty as the complainant.
Appellant argued that admitting the complaint was unnecessary
because only the judgment of conviction was needed to enhance
the charge to a felony. The prior complaint, appellant
contended, served no purpose other than to show "that if
he did it once before, he probably did it again." The
trial court overruled appellant's objection.
trial court did not explain the basis for its ruling, but the
State urged two grounds for the complaint's
admissibility. First, the State argued it was relevant under
Code of Criminal Procedure article 38.371, which allows,
among other things, testimony or evidence concerning the
nature of the relationship between the actor and the alleged
victim in certain offenses involving family or dating
violence. See Tex. Code Crim. Proc. art. 38.371(b).
According to the State, the complaint was relevant to explain
material, non-character-conformity fact issues, such as why
Patty recanted her initial allegation, why the jury should
credit Patty's initial allegation, and why Patty was
absent from trial.
the State argued that the complaint was relevant to prove
that appellant and Patty were in a dating relationship, which
is one way of establishing one of the elements of the charged
38.371 provides, for certain family-violence offenses,
including the one ...