### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00784- CR

Jam es Ray Leac h, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F LLANO COUNTY , 33RD J UDICIAL DI STRICT NO. CR6675 , TH E H ONO RAB LE J. ALLEN GARRETT, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted appellant J ames Ray L eac h of the offe nse of family -violence assault by strangulation and assessed his punishment, enhanc ed by a prior felony conviction, at confine ment for 20 y ear s in the Texas Depa rtment of Criminal J ustice and a $10,000 fine. See Tex. Penal Code §§ 12.42(a) , 22.01(a) (1), (b)( 2)(B ). I n two points of err or on appea l, appellant complains about err or in the jury char g e. We find no reve rsible err or. Howeve r, throug h our own revie w of the rec ord, we have found non-re versible err or in the written judgme nt of conviction. We will modify the judgme nt
to corre ct the cle rica l error and, as modified, a ffirm the tria l court’s judg ment of convic tion.DISCUSSIO N 1 During the char g e confe renc e at the end of t h e gu i l t-innocenc e phase of trial,
ap p el l an t re quested that the jury be instructed on the lesser- included offe nse of assault. The tri al

court denied the reque st. Appellant then soug ht the inclusion of a self-de fense instruction. The trial court also den i ed that reque st. Appellant made no additional reque sts nor di d he further object to the ju ry ch ar ge. On appea l, he raises two points of err or complaining about err or in the court’s jury char g e.

Stand ard of Review

We revie w alleg ed jury char g e err or in two steps: first, we deter mine whether err or exis ts; if so, we then evalua te whether sufficient h ar m resulted from the error to require reve rsal.
Price v. State , 457 S.W .3d 437, 440 (Tex. Crim. App. 2015); Ngo v. State , 175 S.W .3d 738, 743–44 (Tex. Crim. App. 2005). The deg ree of harm require d for reve rsal d ep en d s on whether the jury char g e error was preserve d in t h e trial court. Almanza v. Stat e , 686 S.W .2d 157, 171 (Tex. Crim. App. 1985) (op. on r eh’g ). I f t he jury char g e er ror ha s been pr operly

prese rved by

an objec tion or
reque st for instruction, reve rsal is require d if the appellant has suffe red “some harm” from the err or. Vega v. State , 394 S.W .3d 514, 519 (Tex. Crim. App. 2013); Alma n z a , 6 86 S.W .2d at 171; see Barrios v. State , 2 8 3 S.W .3d 348, 350 (Tex. Crim. App. 2009) (“I f there was err or and appellant objected to the err or at trial, reve rsal is require d if the err or ‘is calc ulated to injure the rig hts of the

Be cause the parties are familiar with the facts of t he case, it s proce dural hist ory , and the 1 evidenc e adduce d at trial, we limit rec itation of the fac ts in this opinion to those nece ssary to advise the parties of the Court’s decision and the basic rea sons for it. See Tex. R. App. P. 47.1, 47.4. The fac ts recited a

re ta ken fr om the testimony and other evidenc e pre sented a t trial. 2defe ndant,’ which we h ave define d to mean that there is ‘some harm.’”)

. When the error was not

objected to, the err or must be “funda mental” and require s reve rsal only if it wa s “so eg reg ious a nd

cre ated such harm that the defe ndant was deprive d of a fair and impartial trial.” Villarreal v. State , 453 S.W .3d 429, 433 (Tex. Crim. App. 2015); Almanza , 686 S.W .2d at 171.

Om ission of Defi nition of Dating Relationsh ip Appellant first complains that the trial court’s jury char g e was err oneous beca use it did not include the statutory definition of “dating rela tionship” in the abstrac t portion of the char g e.

A trial court is statutorily obliga ted to instruct the jury on the “law applicable to the

case ,” which re quires that the jury be instructed on e ach e lement of the of fense char g ed. See Tex. Code Crim. Proc. art. 36.14; Vasquez v. S tate , 389 S.W .3d 361, 366 (Tex. Crim. App. 2012) (“B eca use the char g e is the instrument by which the jury convicts, [i t] must contain an accura te
statement of the law and must set out all the essential elements of t h e offe nse.”)

. The “law applicable to the case ” includes the statutory definitions tha t a ffe ct the meaning of the eleme nts of the offe nse. Ouellette v. State , 353 S.W .3d 868, 870 (Tex. Crim. App. 2011); Villarreal v. State , 286 S.W .3d 321, 329 (Tex. Crim. App. 2009). Thus, a trial court must communicate to the jury eac h statutory definition rela

ted to the char g ed offe nse. See V i l l a r r ea l , 2 86 S.W .3d at 329; see also Nejnaoui v

. State , 44 S.W .3d 111, 119 (Tex. App.—Houston [14t h Dist.] 2001, pet. ref ’d) (“[T]he trial court must define any legal p h rase that a jury must nece ssarily use in proper ly resolving the issues, and provide the s tatutory definition if available .”). The court’s dut y to instruct the j ury on the “law applicable to the case ” exis ts even when defe nse counsel fail s t o o b j ec t to inclusions or exclusions in the char g e. Taylor v

. State , 332 S.W .3d 483, 486 (Tex. Crim. App. 2011). The tr ial

3court is “ultimately responsible for the acc urac y of the jury char g e and acc ompany ing instructions.”

Id. at 488 (quoting Delgado v. State , 235 S.W .3d 244, 249 (Tex. Crim. App. 2007)).

I n this case , appellant was char g ed with family -violence assault by strangulation. A
person commits as s au lt if he “intentionally , knowing ly , or rec klessly cause s bodily injury to another .” Tex. Penal C ode § 22.01(a) (1). The offense is g ener ally a C lass A m isdemea nor but is eleva ted to a third deg ree felony if (1) the offe nse is committed ag ainst a person with whom the defe ndant has or has had a “dating rela tionship,” and (2) “the offe nse is committed by intentionally , knowing ly , or rec klessly i m p ed i n g the normal brea thing or circ ulation of the blood of the person by apply i n g p ressure to the person’ s throat or neck or by blocking the person’ s nose or mouth.”
S e e id

. § 2 2

. 0 1 ( b ) ( 2 ) ( B ) ; T e x. F a m. Co d e § 7 1

. 0 0 2 1 ( b )

. T h e Pe n a l Co d e d o e s n o t c o n ta in a d e f in it io n of “dating rela tionship.” Rather, section 22.01(b)( 2) of the Penal Code incorporat es by ref ere nce section 71.0021(b) of the Family Code. See Tex. Penal Code § 22.01(b)( 2). That statutory section provides that “dating rela tionship” means “a rela tionship betwee n individuals who have or have had a continuing rela

tionship of a romantic or intimate na ture.” Tex. Fam. Code § 71.0021(b)

. 2
Be cause the term “dating rela tionship” has been statutorily define d in the Family Code and ex tended to the P enal Code in the family -violence -assa ult-by -strang ulation offe n s e, t h e trial court’s failure to include the definition in the jury char g e was err or. The State conce des that it

was err or not to include the statutory definition, and appellant acknow ledg es that he did not object

The statute also descr i b es t h e considerations rele vant to the deter mination of whether a 2 dating rela tionship exis ts: “(1) the leng th of the rela tionship; (2) the nature of the rela tionship; and (3) the fre quency and ty

pe of interac tion between the persons involved in the rela tionship[ ,]” and provi d es that a “ca sual acqua intanceship or ordinary fra ternization in a business or social context does not constitute a ‘da ting r elationship.’” See Tex. Fam. Code § 71.0021(b) , (c)

. 4to its om ission during trial. Acc ording ly , appellant is entitled to reve rsal only if the er ror r esulted in eg reg ious harm. See V illarreal , 453 S.W .3d at 433. Charg e error is eg reg iously harmful if it aff ects the ve ry

basis of the case, deprives the def endant of a valua ble rig ht, or vitally

aff ects a defe nsive theory

. Id. ; Arrington v. State , 451
S.W .3d 834, 840 (Tex. Crim. App. 2015). “E greg ious harm is a ‘hig h and difficult standard’ to meet, and such a deter

mination must be ‘borne out by the trial rec ord.’” Villarreal , 453 S.W .3d at 433 (quoting Ree ves v. State , 420 S.W .3d 812, 816 (Tex. Crim. App. 2013)); see Nava v. State , 415
S.W .3d 289, 298 (Tex. Crim. Ap p . 2 0 1 3) (“[Eg reg ious harm] is a difficult standard to meet and require s a showing that the defe ndants wer e deprive d of a fair and i m p ar t i al trial.”). We will not

reve rse a conviction unless the defe ndant has suffe red “ac tual rathe r than theore tical harm.” Villarreal , 453 S.W .3d at 433; see Cosio v. State , 353 S.W .3d 766, 777 (Tex. Crim. App. 2011) (“A n
eg reg ious harm deter

mination must be based on a finding of actua l rathe r than theore tical harm.” );

see also Tex. Code Crim. Proc. art. 36.19 (whe n require ments of article 36.141 have not been met, “t h e j u d gm ent shall not be reve rsed unless the err or appea ring from the rec ord was calc ulated to injure the rig hts of defe ndant, or unless it appear s from the re cord tha t the defe ndant has not ha d a fair and impartial trial”). I n examining the rec ord to deter mine whether char g e err or has resulted in
eg reg ious harm to a d ef

en d an t , we consider (1) the entirety of the jury char g e, (2) the state of the evidenc e, including the contested issues and weig ht of probative evidenc e, (3) the arg uments of counsel, and (4) any other rele vant information reve aled by the trial rec ord as a whole. Villarreal , 453 S.W .3d at 433; Almanza , 686 S.W .2d at 171.

5I n this case , the jury char g e ref lects that the trial court proper ly instructed the jury in both the abstrac t and the applica t i o n p ar ag raphs that to convict appellant of the assault offe nse char g ed it must find that the assault wa s co m mitted ag ainst a person with whom appellant had a dating rela tionship. The abstrac t portion of the cha rg e re ad as f

ollows:

A person commits the felony offe nse of assault/family violence by impeding if the person commits the offe nse of assault as here inafter define d, ag ainst a member of the family or household of the defe ndant or a person the defe ndant had or had had a dating rela tionship, and the offe nse is comm i t t ed by intentionally , knowing ly or rec klessly impeding the normal brea thing or circ ulation of the blood of the person by apply ing pressure to the person’ s throat or neck or by blocking the person’ s n o s e or mouth.

Simi larly , the app l i ca t i o n p arag raph of the char g e instructed the jury that if it found from the evidenc e bey ond a re asonable doubt that appellant

d i d t h en and there intentionally , knowing ly or rec klessly cause bodily injury t o Melanie Goodwin Deloac h by impeding the normal brea th i ng or circ ulation of the blood of the said Melanie Goodwin Deloach by apply ing pressure to her throat or neck or by blocking her nose or mouth, and the said Melanie Goodwin Deloac h was a person with whom the said [appellant] had or had had a dating rela tio nship, y ou will find the defe ndant g uilty of the felony offe nse of the [si c] ASSAUL T/FAMI L Y VI OL ENCE BY I MPEDI NG, but if y ou do not so believe or if y ou have a rea sonable doubt there of, y ou will acquit the defe nd ant of the felony offe nse of ASSAUL T/ FA M I L Y VI OL ENCE BY I MPEDI NG, and say by y our verdic t “not g uilty ” to that offe nse.
Thus, even though “dating rela tionship” was not define d, the char g e adequate ly d e s c r ib e d the offe nse and included all of the elements. See Rohlfing v. State , 612 S.W .2d 598, 602–03 (Tex. Crim. App. 1981) (fa ilure to define statutory element was harmless err or beca use element was not omitted from char g e and char g e did not authorize conviction without finding all elements of the offe nse); Lovings

6v. State , 376 S.W .3d 328, 337–38 (Tex. App.—Houston [14t h Dist.] 2012, no pet.) (f ai l u re t o include definition of “without consent” in sexual assault prosec ution did not cause eg reg ious harm; jury char g e “included all of the elements of the offe nse and conseque ntly was not fundame ntally defe ctive”)

. A revie w of the entire court’s char g e in this case reve als that, aside from the omission of the statutory definition, the balanc e of the char g e proper ly sets forth the elements of the offe nse and the application para g raph is le g ally corr ect in its application of the law to the fac ts of the case . Over all, the jury

char g e does not support a finding of eg reg ious harm.
Moreove r, while the statutory definition of “dating rela tionshi p ” was not included
in the abstrac t portion of the char g e, the Family Code’s definitio n o f “d at i ng rela tionship” is not signific antly differ ent from its commonly understood definition. When a statutory term is not define d in the jury

char g e, we assume that the jury considere d the commonly understood mea

ning of the term in its delibera tions. Olveda v. State , 6 5 0 S

. W

. 2d 408, 409 (Tex. Crim. App. 1983); Nejnaoui , 44 S.W .3d at 120.

As noted above, the statutory definition of “dating rela tions h i p ” i s “a rela tionship betwee n individuals who have or have had a continuing rela t i o n s h ip of a romantic or intimate

nature .” See Tex. Fam. Code § 71.0021(b). L ike both the State and appellant, we observe that there is no dictionary definition for the p h ra s e “dating rela tionship.” See Olveda , 650 S.W .2d at 409 (re fer ring to dictionary defin i t i o n to deter mine commonly understood meaning ). Howeve r, the dictionary define s “re lationship” as “the w ay in which two or more people talk to, beha ve towar d,

an d deal with eac h other” and as “a romantic or sexual friendship betwee n two peop l e. ”
M e r r ia m- We b s te r O n li n e D ic ti o n a r y , h tt p :/ /w w w . me r r ia m-webster .com/dictionary /relation s h ip ( la s t

7visited Nov. 13, 2015). The dictionary define s the noun “date ” as “(a ) an appointment to meet at a

specifie d t i m e; especially : a social eng ag ement betwee n two persons that often has a romantic char act er , (b ) a person with whom one has a usually romantic date.” Merr iam-Webster Online Dictionary , http:// www.mer riam-we bster.com/dictionar y /d a te ( la s t v is it e d N o v . 1 3 , 2 0 1 5 )

. I t define s the verb “date ” as “to do an activity with someone y ou might have a romantic rela tionship with: to
g o on a date or seve ral da tes with (someone) .” Id.

Appell an t contends that the “the term ‘dating rela tionship’ has a detailed statutory defi n i t i o n t h at is more narr ow than ordinary usag e.” We disag ree . Ba sed on the dictionary definitions of “date ” and “re lationship,” a “dating rela tionship” would be commonly understood to

mean an ong oing assoc i at i o n b etwee n two people with a romantic aspec t or involving intimate behavior

. L ikewise, the statutory definition of “dating rela tionship” descr ibes a con t i n u ing
“roma ntic or intimate” rela tionship. We see no meaning ful distinction betwee n the two definitions. Wit h reg ard to the second fac tor conce rning the “state of the e vidence ,” the victim, Melanie Deloac h, testified t hat s he and appellant were in a “b o y fr iend/g irlfriend” rela tionship for about t wo m o n t hs. During that time they lived toge ther “just being a couple” : they share d a bedroom, slept in the same bed, eng ag ed in sexual intercour se, and share d their daily routine, including household activities such as cooking , clea ning, and laundry

. I n addition to sexual 3 intimacy , Deloac h’s testimony descr ibed a r omantic aspe ct to their re lationship. She testified that appellant expressed his love for her and broug ht her flower s that he had picked. She also indicated

Deloac h testified that s h e an d ap p ellant wer e homeless during that time but lived with 3 frien d s . She clar ified on cross examination that she and appellant lived toge ther in two differ ent place s, first living with one f riend then stay

ing w ith another. 8that some of the volatile nature of their rela tionship was due to his jealousy . Deloac h’s testimony

also established that during the cour se of their rela tionship she and appellant did drug s toge ther.
T he only testimony reg arding the nature of appellant’ s rela tionship with Deloa ch

came from Deloac h. There was no contra dictory evidenc e prese nted. Although appellant attempted 4 to dispute the nature of their rela tionship, sug g esting that the basis of appellant’ s rela tionship with Deloac h was drug use not romance , he did not dispute Deloac h’s desc ription of the ac tiviti es t hey
eng ag ed in nor did he offe r any evidenc e contra dicting that they wer e “boy friend and g irlfriend” and had a sexual rela tionship. Appellant never attempted to cross-e x amine Deloac h reg arding whether they lived toge ther, slept in the same bed, eng ag ed in sexual activities, or had romantic fee lings for 5

eac h other. Appellant arg ues that based on the evidenc e of drug use during their association, the jury could conclude that he was not involved in a “dating rela tionship” with Deloac h. Howeve r, he concede s t h at ev idence was admitted from which the jury could deter mine that the two wer e involved in a “dating rela

tionship.” The fac t that drug usag e was involved in their activities toge ther does not detra ct from the other aspec ts of their intimate rela tionship. We conclude that the state of the evidenc e does not support a finding of eg reg ious harm.

Del o ac h ’s testimony reg arding the nature of her rela tionship with appellant was 4 corr oborate d to some deg ree by the emer g ency room nurse who examined Deloac h afte r the assault. The nurse testified that during the hospital examination Deloac h told her “ tha t she had been assaulted by her boy friend.” I n fac t, at trial appellant essentially conce ded the sexual aspec t of h i s re l ati onship with 5 Deloac h when he sug g ested that Deloac h’s injuries coul d h av e been sustained when the couple eng ag ed in “r oug h sex.” 9Next, we look at the final arg uments prese nted by the State and appellant’ s attorney

.

During the State’s closing arg ument, the prosec utor arg ued that the evidenc e proved al l o f t he elements of the assault offe nse char g ed, including a “dating rela tionship” betwee n appellant an d Deloac h. I n his closing arg ument, defe nse counsel char acte rized the rela tionship betwee n appellant and Deloac h as a mutually exploi tative association of drug addicts. Counsel maintain ed that the rela tionship was not a “dating rela tionship” beca use the two did not g o on traditional social outings usually associate d wi t h dating (i.e., g oing to the movies, g oing to the bowling alley , or g oing to sports events) but wer e mere ly doing drug s and having sex. I n rebuttal, the prosec utor asser ted that the testimony that appellant was Deloac h’s boy friend (fr om Deloac h and the ER nurse) satisfied the require ment of a “dating rela tionship.” Although both p ar t ies mentioned “dating rela tionship,” neither the State nor appellant arg ued the definition of “dating rela tionship” or sug g ested that such

a rela tionship was any

thing other than as define d by the Family Code. Fur ther, their arg uments wer e consistent with both the statutory definition o f “d at i n g rela tionship” as well as the common understanding of the phrase

. The arg uments of counsel do not support a finding of eg reg ious harm.

As to the fourth fac tor, our revie w of the rec ord h as disclosed no other rele vant information that re quires our c onsideration.

I n sum, the combined dictionary meaning s of the terms “date ” and “re lationship” ref lect a commonly understood meaning of the phrase “dating rela tionship” tha t c losely rese mbles the statutory definition of “d at i n g re l at ionship” in section 71.0021(b) of the Family Code. See Nejnaoui , 44 S.W .3d at 120 (holding that that “[t] he statutory definition o f co n d u ct is ‘neither complex nor unusual, and the definition is much like the common meaning of the word’” ) (quoting

10Smith v. State , 959 S.W .2d 1, 25 (Tex. App.—Waco 1997, pet. ref ’d))

. Fur thermore , nothing in the

rec ord indicates the jury ’s verdic t was based on fac ts that wo u l d n o t constitute a “dating rela tionship” under the statutory defi n i t i o n o f section 71.0021(b). The evidenc e at trial was sufficie nt to establish that appellant’ s involvement with Del o ac h

— wh ich included an ong oing sexually intimate rela

tionship—constit uted a “dating rela tionship” as that term is statutorily define d. Also, nothing in the record indicates that the l ack o f a d ef i n i t i on would have confused the jury or

cause d the jury to misapply the law. See P l a t a v. State , 926 S.W .2d 300, 302 (Tex. Crim. App. 1996), overruled on other grounds by Ma l i k v. State , 953 S.W .2d 234 (Tex. Crim. App. 1997) (“[The] failure to g ive an abstrac t instruction is reve rsible only when such an instruction is nece ssary
to cor re ct o r complete understanding of concepts or terms i n the application part of the charg e.”)

. Moreove r, the rec ord clea rly establishes that all parties, including appellant, understood the conce pt of what a “dating rela tionship” was but simply disputed whether t h e ev i d enti ary fac ts suffice d to demonstrate tha t ty

pe of r elationship.
On this rec ord, in view of the jury char g e submitt ed and the uncontrove rted evidenc e
reg arding appellant’ s rela tionship with Deloac h, we conclude that althoug h the trial court err ed by omitti ng the statutory definition of “dating rela tionship” from the jury char g e, s u ch er ro r d i d

not deny appellant a fair and impartial trial. Appellant did not suffe r eg reg ious harm. Acc ording ly ,

we ove rrule a

ppellant’s first point of er ror.

Lesser- Includ ed Of

fense In struct ion
I n his second point of err or, appellant arg ues that the trial court err ed in deny ing his
reque sted jury

instruction on the lesser- included off ense of assault.

11At trial, appellant requ es t ed that the jury be instructed on “assa ult,” without ref ere ncing which particular ty pe of assault. Fr om the contex t of hi s arg ument during the cha rg e 6
confe renc e, it a

ppear s he was arg uing for an instruction on assault causing bodily injury

. See Tex. Penal Code § 22.01(a )( 1 ). Appellant arg ued that he was entitled to the instruction on the lesser offe nse beca

use “the evidenc e shows that the parties involved in this wer e basica lly two drug abuser s who didn’t rea lly have the requisite rela tionship” and beca use the fac t that Deloac h was an admitted drug user meant it was “just as likely [she] could have been passing out beca use of drug abuse” and not beca use appe llant impeded her brea thing or

circ ulation. 7
Deter mining whether a defe ndant is entitled to a lesser- included-of fense instruction require s a two-par

t analy sis. Goad v. State , 354 S.W .3d 443, 446 (Tex. Crim. App. 2011); Hall

v. State , 225 S.W .3d 524, 528 (Tex. Crim. App. 2007); see State v. Meru , 414 S.W .3d 159, 162 (Tex. Crim. App. 2013). We first consider w hether the offe nse conta ined in the re quested instruction is a lesser-i n cl u d ed o ff

ense of t he charg ed offense. Rice v. State , 333 S.W .3d 140, 144 (Tex. Crim. App. 2011); Hall , 225 S.W .3d at 535. I f so, we must decide whether the admitted evidenc e supports the instruction. Goad , 354 S.W .3d at 446; Rice , 333 S.W .3d at 144.

The assault statute sets out three separ ate and distinct assaultive crimes: bodil y -i n j u ry 6 assault, assault by threat , an d o ff ensi ve-c ontact assault. See Tex. Penal Code § 22.01(a) (1)–( 3); Landrian v. State , 268 S.W .3d 532, 536, 540 (Tex. Crim. App. 2008). On appea l, a

ppellant makes no arg ument conce rning the strang ulation element, so we do 7 not addre ss it here. 12Neither party disputes that assault causing bodily injury is a lesser- included offe nse

of family -violence assault by strang ulation as char g ed in the indictment here

. See Tex. Code Crim. 8
Proc. art. 37.09(1); see also Tex. Penal Code § 22.01. Thus, we proce ed to the second prong . Under this prong , we must d et er m i n e i f there is some evidenc e in the rec ord that would permit a jury to rationally find that, if appellant is g uilt y , h e is g uilty only of the lesser- included offe nse. Meru , 414 S.W .3d at 163; Rice , 333 S.W .3d at 145. The ev i d en ce must establish the lesser- included offe nse as “ a valid, ra tional alterna tive to the char g ed off ense.” Rice , 333 S.W .3d at 145 (quoting Hall , 225 S.W .3d at 536); Segundo v. State , 270 S.W .3d 79, 91 (Tex. Cri m . Ap p . 2 0 0 8 ). We consider all of the evidenc e admitted at trial, not just the evidenc e prese nted by the defe ndant. Goad , 354 S.W .3d at 446; Rousseau v. State , 855 S.W .2d 666, 672 (Tex. Crim. App. 1 9 9 3 ). “Any thing

more t h an a scintilla of evidenc e is sufficie nt to entitle a defe ndant to a lesser char g e.” W ortham

v. State , 412 S.W .3d 552, 558 (Tex. Crim. Ap p . 2 0 1 3 ); Sweed v. State , 351 S.W .3d 63, 68 (Tex. Crim. App. 2011). We may not consider the cre dibilit y of the evidenc e or whether it conflicts with other evidence or i s controve rted. Goad , 354 S.W .3d at 446–47. Howeve r, “it is not enoug h that

Section 22.01 of the Texas Penal Code descr ibes family -violence assault by strang ulation 8 as assault causing bodily injury (an assault under section 22.01(a) (1)) with two add i t i o n al require ments: ( 1) that it be committed a g ainst “a person whose rela tionship to or association with the defe ndant is descr ibed by Section 71.0021(b) (def ining “dating rela tionship”), 71.003 (def ining “fa mily ” members) , or 71.005 (def ining “household” members) , Family Code,” and (2) that it be committed “by intentionally , knowing ly , or rec klessly impeding the normal brea thing or circ ulation of the blood of the person by apply ing pressure t o the person’ s throat or neck or by blocking the person’ s nose or mouth,” (i.e., by strangulation). See Tex. Penal Code § 22.01(a) , (b)( 2)(B ). Thus, the misdemeanor assault at issue here is established by proof of the same or less t han all the fact s re quired to establish the commission of the family -violence assault by strang ulation char g ed. See Tex. Code Crim. Proc. ar t

. 37.09(1); see also State v. Meru , 414 S.W .3d 159, 162 (Tex. Crim. App. 2013). 13the jury may disbelieve cruc ial evidenc e perta ining to the g rea ter offe nse, but rathe r, there must be

some evidenc e direc tly g erma ne to the lesser- incl u d ed o ffense for the finder of fac t to consider befor e an instruction on a l esser -included offe nse is war rante d.” Sweed , 351 S.W .3d at 68 (q uoting Skinner v. State , 956 S.W .2d 532, 543 (Tex. Crim. App. 1997)); see W illiams v. S t a t e , 294 S.W .3d 674, 681 (Tex. App.—Houston [1st Dist.] 2009, pet. ref ’d) (“The re must be aff

irmative evidenc e in the rec ord raising the lesser offe nse befor e an instruction is war rante d.”). “Mee ting this threshold require s more than mere specula tion—it require s aff irmative evidenc e that both raises the lesser- included offe nse and rebuts or neg ates an element of the g rea ter offe nse.” Cavazos v. State , 382 S.W .3d 377, 385 (Tex. Crim. App. 2012); see W ortham , 412 S.W .3d at 558 (“[S] uch evidenc e

can n o t be mere specula tion—it must consist of aff irmative evidenc e that both raises the lesser- included off

ense a nd rebuts or ne g ates a

n element of

the g rea ter off ense.” ).
To war rant a lesser- included-of

fense instruction on assault here , there must be some aff irmative evidence in the record demonstrating that appellant wa s n o t in a “dating relationship” with Deloac h. Appellant direc ts us to none. On appea l, appellant arg ues that he was entitled to the instruction on assault because the evidenc e s h o we d “a rela tionship based primarily on migr ations betwee n place s where the two could use dr ug s” so a jury could have “validly and rationally found the drug house pere g rinations of appellant and the complainant wer e a casua l rela tionship cente red

on drug use, rathe r than dating .” We disag ree that the evidenc e of drug use neg at es the “dating rela tionship” element of the g rea ter off ense. Appellant is corr ect that the rec ord contains evidenc e showing that one of the primary activities appellant an d De l oach participa ted in was doing drug s toge ther. Whil e an association

14based s o l el y on drug use may , perha ps, demonstrate a “ca sual rela tionship” rathe r than a “dating rela tionship,” that is not what the evidenc e in this case showed. Rather, the evidenc e demonstrated that in addition to using drug s toge ther, appellant and Deloac h wer e “boy friend and g irlfriend” and lived toge ther as a couple, sharing their daily routines, sleeping in the s am e b ed , an d eng ag ing in

s exual activities. The evidenc e of their drug use does not contra dict the evidenc e o f t h e o t h er activities the two eng ag ed in, which demonstrated that they wer e involved in a romantic and sexually intimate rela tionship, i.e., a “dating rela tionship.” Appellant’s arg ument is essentially that the jury could have simply disbelieved the evid en ce demonstrating appellant’ s sexually intimate and romantic rela tionship with Deloac h. T h i s specula tion does not suffice as evidenc e to support the lesser- included offe nse instruction. See Sweed , 351 S.W .3d at 68 (“[I ]t is not enoug h that the jury
may disbelieve cruc ial evidenc e perta ining to the g rea ter offe nse, but rathe r, there must be some evidenc e direc tly g erma

ne to the lesser- included offe nse for the finder of fac t to consider befor e an instruction on a lesser- included offe nse is w arr anted.” ). No evidenc e in the rec ord—including the

ev i d en ce o f drug use—neg ates or rebuts the evidenc e of the intimate sexual nature of appellant’ s rela tionship wit h Deloac h.

The evidenc e appellant relies on—the repe ated drug use during their rela tionship and the lack of traditional social outings—doe s not neg ate appellant’ s “da ti n g r e la ti o n s h ip” with Deloac h and thus does not establish the lesser- included offe nse as a valid, rational alterna tive. See Rice , 333 S.W .3 d at 145. Given the uncontrove rted evidenc e demonstrating the intimate and sexual nature of appellant’ s rela tionship with Deloac h, we conclude that no rational jury could find that appellant

was g uilty only of the lesser offe nse of assault. Acc ording ly , the trial court’s denial of the reque sted

15instruction in the jury char g e does not constitute err or. Be cause we find no err or in the jury char g e,

we n ee d not conduct a harm analy sis. See Celis v. State , 416 S.W .3d 419, 423 (Tex. C ri m . Ap p . 2013); Sakil v. State , 287 S.W .3d 23, 26 (Tex. Crim. App. 2009). We ove rrule appellant’ s second point of err or.

Cleric al Error in Judgme nt

On review of the record we obs erve that the writt en judgment of c onviction in this

case contains a cler ical err or. The judgme nt of conviction states that the “St at u t e fo r Of fense” is “22.01(a )(2) (B ) Penal Code.” The a pplicable statutory

provisions for the offe nse as alleg ed in the indictment here , howeve r, are section 22.01(a) (1), (b)( 2)(B ) of the Penal Code. This Court has authority to modify incorre ct judgme nts when the nece ssary i nformation is available to do so. See Tex. R. App. P. 43.2(b); Bigley v. State , 865 S.W

. 2 d 2 6 , 27–28 (Tex. Crim. App. 1993).
Acc ording ly , we modify t h e j u d gm ent to ref lect that the “Statute for Offe nse” is “22.01(a )(1) , (b)( 2)(B ) Penal Code.”

CONCLUSION

We conclude that appellant did not suffe r eg reg ious harm due to the omission of the statutory definition of “dating rela tionship” in the jury char g e. We further conclude that the trial

court did not err in deny i n g ap p ellant’s reque sted jury char g e instruction on the lesser- included offe nse of assault. Acc ording ly , we modify the judgme nt of conviction as noted above and aff irm the judg ment as modified.

16__________________________________________ Melissa Goodwin, Jus tice
Be fore J ustices Pury ear , Goodwin, and F ield Modified and, a s Modified, Aff irmed Filed: De cembe r 9, 2015 Do Not Publish

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