Appeal from the 268th District Court Fort Bend County, Texas
Trial Court Cause No. 14-DCR-068089
consists of Justices Busby, Brown, and Jewell.
Delfino Guzman appeals his conviction for assault family
violence. He asserts error in four issues. First, appellant
contends the trial court erred in refusing to disqualify the
district attorney's office. Second, appellant argues the
trial court erred in not instructing the jury on the
complainant's alleged eligibility to receive benefits
under a federal program aimed at assisting domestic abuse
victims. Third, appellant claims the trial court erred in
granting the State's request for a lesser included
offense instruction after evidence closed. According to
appellant, by waiting until after the evidence closed to
request a lesser included offense instruction, the State
deprived appellant of constitutionally required notice that
the State would pursue a lesser included offense and, thus,
deprived him of the ability to prepare an informed and
effective defense to a lesser included offense. Finally,
appellant contends legally insufficient evidence supports the
jury's verdict that appellant is guilty of committing
assault family violence.
that appellant has not shown that the trial court committed
error in any of three regards he alleges and that legally
sufficient evidence supports the jury's verdict, we
Bend County grand jury indicted appellant for felony assault
family violence. The State alleged that appellant
"intentionally, knowingly, or recklessly cause[d] bodily
injury to [Natalie,  appellant's wife], by impeding [her]
normal breathing or circulation of blood . . . by applying
pressure to [her] throat or neck or by blocking [her] nose or
mouth." Appellant pleaded not guilty.
trial, appellant filed a motion to disqualify the district
attorney's office. Appellant argued that the office has a
financial incentive to prosecute domestic abuse cases because
the office receives grant money under a federal law, the
Violence Against Women Act ("VAWA"). The trial court
denied the motion to disqualify.
also filed a pre-trial motion to instruct the jury that
Natalie had a financial incentive to testify falsely in order
to receive VAWA benefits. The trial court did not expressly
rule on this motion; the judge initially stated during a
pre-trial motions hearing that he was not going to instruct
the jury as requested but then "h[e]ld ruling
until" after a recess during which the appellant's
attorney could further research the applicability of VAWA to
the facts of this case. After the recess, the judge told
appellant's attorney that he could examine witnesses
regarding potential "motivation[s]."
case proceeded to trial. Natalie testified. She said she was
scolding her children on the evening of the events in
question, and appellant "got angry with [her] and told
[her] to stop shouting." Natalie and appellant began
arguing. Appellant grabbed Natalie by her arms, then grabbed
her by the neck; "[h]is hands were surrounding [her]
neck." Natalie said that she had "a little
bit" of difficulty breathing when appellant's hands
were around her neck. She was afraid when appellant had his
hands around her neck. Appellant also hit her hard on the
chest with a closed fist. Natalie could not explain exactly
what happened or how long the assault lasted because
"[e]verything happened so fast." Natalie said that
she grabbed appellant in an attempt to push him away from her
during the altercation, but she could not remember where she
testified that her daughter, Eliza, "came between"
appellant and Natalie, telling appellant to "[l]eave
[Natalie] alone." After appellant released Natalie,
appellant called the police. According to Natalie, appellant
told the police that they needed to come and remove Natalie
from the house.
cross-examination, Natalie admitted that she bruises easily.
Appellant's attorney also asked Natalie to "show the
jury where [appellant's] hands were when they were around
[her] neck." Natalie "demonstrated down by [her]
clavicles on [her] chest, not around [her] neck."
testified that her parents were arguing. She said she saw
appellant hold Natalie against the wall, his hands gripping
her arms. Appellant was very angry. Natalie was struggling to
get appellant's hands off of her. Eliza believed her
mother was in pain because Natalie was "crying . . .
[and] really red in her face." Eliza also believed her
mother was having trouble breathing, because Natalie's
mouth was open and she was trying to cough.
Justin Cloud with the Fort Bend County Sheriff's Office
testified that he responded to an assault family violence
call at the home. Deputy Cloud first spoke to Natalie, who
appeared nervous and "shook up." Deputy Cloud
observed visible injuries on Natalie's body, including
redness on her neck, marks on her collarbone, and scratch
marks on her arms, all of which he photographed while at the
scene. The photos were admitted and published to the jury.
Deputy Cloud testified that Natalie told him "that she
was strangled by her husband" and that appellant
"grabbed" her. Deputy Cloud observed that
appellant's knuckles were red. Based on his observations,
Deputy Cloud believed that "[a]ssault family violence
and strangulation" had occurred, and he arrested
Eduardo Perez assisted Deputy Cloud in responding. Deputy
Perez, who is fluent in English and Spanish, translated for
Deputy Cloud, who speaks English, and appellant and Natalie,
both of whom speak Spanish. Based on what Natalie told Deputy
Perez, he believed "[a]ssault family violence, physical
assault" occurred and that strangulation may have
occurred. Deputy Perez spoke to the daughter, Eliza, who
corroborated her mother's account of what happened.
Deputy Perez also spoke to appellant, who said that he and
Natalie were arguing but that no offense occurred as far as
appellant physically assaulting Natalie; rather, appellant
contended that he was assaulted by Natalie. Deputy Perez
acknowledged that stories often conflict in domestic violence
cases, but that Natalie's account was supported by her
the case was submitted to the jury, the State requested that
the jury be charged on the lesser included offense of assault
family violence (without the elevating element of impeding
breathing or circulation). Appellant objected, which the trial
court overruled. The jury was charged on both the offense as
provided in the indictment and the lesser included offense.
jury found appellant not guilty of the charged offense but
found appellant guilty of the lesser included offense, i.e.,
misdemeanor assault family violence. Upon the parties'
agreement on punishment, the trial court sentenced appellant
to 300 days in county jail, which was probated for 11 months.
issues, appellant challenges his conviction. He argues that:
(1) the trial court erred in denying appellant's motion
to disqualify the district attorney's office; (2) the
trial court erred in not instructing the jury on
Natalie's purported eligibility to receive benefits under
VAWA; (3) the trial court erred in charging the jury on the
lesser included offense over appellant's fair notice
objection; and (4) there is legally insufficient evidence to
support the jury's finding that appellant committed
assault family violence. We address appellant's last
issue first because, if sustained, it would afford him the
greatest relief. See Saldivar v. State, 542 S.W.3d
43, 45 (Tex. App.-Houston [14th Dist.] 2017, no pet.).
Sufficiency of the Evidence
fourth issue, appellant challenges the sufficiency of the
evidence to support the jury's guilty verdict. Appellant
points to Natalie's testimony, specifically that Natalie
did not testify that she suffered pain or became ill because
of appellant's conduct. From this, appellant contends the
evidence is insufficient to prove that appellant
intentionally, knowingly, or recklessly caused Natalie bodily
Standard of review
apply a legal-sufficiency standard of review in determining
whether the evidence is sufficient to support each element of
a criminal offense that the State is required to prove beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 318-19 (1979); Temple v. State, 390 S.W.3d 341,
360 (Tex. Crim. App. 2013). Under this standard, we examine
all the evidence adduced at trial in the light most favorable
to the verdict to determine whether a jury was rationally
justified in finding guilt beyond a reasonable doubt.
Temple, 390 S.W.3d at 360; Criff v. State,
438 S.W.3d 134, 136-37 (Tex. App.-Houston [14th Dist.] 2014,
pet. ref'd). This standard applies to both direct and
circumstantial evidence. Criff, 438 S.W.3d at 137.
Accordingly, we will uphold the jury's verdict unless a
rational factfinder ...