Appeal from the County Criminal Court at Law No. 7 Harris
County, Texas Trial Court Cause No. 2095033
consists of Chief Justice Frost and Justices Busby and Wise.
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.
I. Sufficiency of the
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.
Standard of Review
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).
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).
'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
Factual and Procedural Background
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." She gave her address and said her
husband was Asian. She mentioned having a baby.
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.
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.
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 ...