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Fang v. State

Court of Appeals of Texas, Fourteenth District

March 29, 2018

BIN FANG, Appellant
v.
THE STATE OF TEXAS, Appellee

          On Appeal from the County Criminal Court at Law No. 7 Harris County, Texas Trial Court Cause No. 2095033

          Panel consists of Chief Justice Frost and Justices Busby and Wise.

          OPINION

          Ken Wise Justice

         The jury convicted appellant of assaulting a family member. He challenges his conviction in two issues, contending that (1) the trial court erred by admitting out-of-court statements from the complainant in violation of the Confrontation Clause in the Sixth Amendment to the United States Constitution; and (2) the evidence is insufficient to support the conviction. We affirm.

          I. Sufficiency of the Evidence

         We address appellant's second issue first because it would afford him greater relief than his first issue. See Bradley's Elec., Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex. 1999); Sifuentes v. State, 494 S.W.3d 806, 809 n.1 (Tex. App.-Houston [14th Dist.] 2016, no pet.). In his second issue, appellant contends the evidence is legally insufficient to support the conviction because the State failed to prove that appellant (1) intentionally or knowingly struck the complainant with his hand; (2) caused any bodily injury to the complainant; or (3) had a dating relationship with the complainant.

         A. Standard of Review

         In a sufficiency review, "we consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, any rational juror could have found the essential elements of the crime beyond a reasonable doubt." Balderas v. State, 517 S.W.3d 756, 765-66 (Tex. Crim. App. 2016). "The jury is the sole judge of the credibility and weight to be attached to witness testimony." Id. at 766. "When the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict, and we defer to that determination." Id. We consider all the evidence in the record, whether it was admissible or not. See Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013).

         "We measure whether the evidence presented at trial was sufficient to support a conviction by comparing it to 'the elements of the offense as defined by the hypothetically correct jury charge for the case.'" Hernandez v. State, No. PD-1049-16, 2017 WL 4675371, at *2 (Tex. Crim. App. Oct. 18, 2017) (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). "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.'" Id. (quoting Malik, 953 S.W.2d at 240).

         "A 'variance' occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial." Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). A variance that is immaterial is disregarded in the hypothetically correct jury charge, but allegations giving rise to a material variance must be included. Hernandez, 2017 WL 4675371, at *2. Generally, allegations included in the charging instrument that are not essential to constitute the offense give rise to immaterial variances. See Gollihar, 46 S.W.3d at 249-50.

         B. Factual and Procedural Background

         The State's evidence included a recording of a 911 phone call and the testimony of two officers who responded to the call. In the 911 call, a person who identified herself as "Lee-Lee" said that her husband "beat" her with his "fist."[1] She gave her address and said her husband was Asian. She mentioned having a baby.

         The officers testified that they were dispatched to the address given during the 911 call. Appellant, an Asian man, opened the door. He said that the police were not needed, or that no one called the police. An officer asked if anyone named "Lee-Lee" was there, and appellant said "yes." Appellant said, "[T]hat's my wife Lee-Lee." Appellant did not ask why the police were there. He opened the door wider, and the officers could see the complainant. The officer asked to speak with the complainant, and she approached slowly. She seemed upset, sad, in fear, and shaken up. She held a baby in her arms.

         The officers saw blood in the corners of the complainant's mouth and nostril. One officer described the blood as "wet" and "very fresh" as if "it had just occurred or it just had happened recently"; the other officer described it as "freshly dried." The officers saw two scratches on the complainant's forehead and a bruise on her bicep about the size of a thumbprint. It seemed to the officers like the complainant had just finished crying because her cheeks and eyes were puffy and red.

         The complainant told the officers that everything was fine, she did not need police, her husband did not do anything to her, and she had caused her own injuries. An officer testified that he did not believe her. The complainant did not say how she injured herself. An officer asked appellant if he knew how the ...


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