Affirmed and Memorandum Opinion filed February 21, 2013.

In The

Fourteenth Court of Appeals 

NO. 14-11-01019-CR

GREGORY LONGORIA, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1295949

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

A jury convicted appellant Gregory Longoria, Jr. of aggravated assault of a 

family member and assessed punishment at 30 years‘ confinement. We affirm.

BACKGROUND

The appellant and the complainant dated for several years. On February 16, 

2011, the complainant spent the night at the appellant‘s apartment. The appellant 
2

hit the complainant with a belt and used a cigarette lighter to inflict burns on the 

complainant‘s breasts and vagina during the night. The complainant went to the 

emergency room at Kingwood Medical Center on the morning of February 17, 

2011 and was treated for her injuries; these included second-degree burns on her 

vagina. At 10:00 p.m., she was transferred to the burn unit at the University of 

Texas Medical Center in Galveston. She was discharged from the burn unit on 

February 18.

The complainant initially told a friend and medical personnel that she was 

afraid of appellant; according to the hospital admission papers, the complainant 

stated that her reason for being there was ―assault‖ by her baby‘s father.1 She told 

Nidia Cantu, a social worker at the Harris County District Attorney‘s office, that 

the appellant had threatened to harm or kill the complainant or her parents if she 

told police about the assault. 

The appellant was arrested on February 17, 2011, and indicted for 

―Aggravated Assault- Family Member‖ for ―unlawfully intentionally and 

knowingly caus[ing] serious2bodily injury to [the complainant], a member of [the 

appellant‘s] family as hereinafter styled the Complainant, by BURNING THE 

COMPLAINANT‘S VAGINA with a deadly weapon, namely, FIRE.‖ On March 

 

1 The appellant and the complainant had a daughter together; she was about 18-months 

old at the time of the assault.

2

The word ―serious‖ was included in the original complaint but was marked out by hand 

on the indictment. Both the State and the appellant made statements in the trial court indicating 

that the appellant was charged under section 22.02(b)(1) of the Texas Penal Code, and the 

judgment recites the crime as ―[A]GGRAVATED ASSAULT – FAMILY MEMBER SB.‖

Given the interlineations on the indictment, our analysis is based on the conclusion that 

the appellant was indicted and tried under section 22.02(a)(2) of the Texas Penal Code, which 

does not require a finding of serious bodily injury.
3

19, the complainant and the appellant began writing letters to each other. Shortly 

thereafter, the complainant began describing the episode as consensual.

Several photographs of the complainant‘s injuries were admitted into 

evidence at trial. State‘s exhibits 1 and 2 show bruises and abrasions on the 

complainant‘s neck, left arm, and left side of her torso. State‘s exhibits 8 and 37 

show bruises and abrasions on the complainant‘s left thigh, and State‘s exhibit 9 

shows bruises on both of the complainant‘s knees. State‘s exhibits 3 and 4 show 

burns and skin discoloration on the complainant‘s breasts and nipples. State‘s 

exhibits 33, 34, 35, and 36 are close-up photographs of the injuries to the 

complainant‘s breasts and left nipple — witnesses described it as ―melted.‖ State‘s 

exhibits 5, 6, 7, 38, 39, 40, 41, and 42 show burn injuries to the complainant‘s 

vagina.

Harris County Sherriff‘s Deputy Aneshia Keller testified that she was called 

to the Kingwood Medical Center for a ―sexual assault scene, family violence.‖ 

Keller observed that the complainant‘s ―private areas had been burned and were 

melted‖ and testified on direct examination that the complainant‘s vagina appeared 

to be severely burned. After interviewing the complainant and observing her 

injuries, Keller determined that ―[s]he had been tortured.‖ 

Keller testified on cross-examination about her initial report, which she 

reviewed with the complainant. Keller testified that the complainant had been 

reluctant to accompany the appellant to his apartment on February 16, 2011, but 

she did so because she was afraid the appellant ―was going to hurt her parents‖ if 

she refused. 
4

Cross-examination continued:

Q. (Defense counsel) And then he took a lighter and hair spray to left 

nipple. 

A. (Keller) Yes.

Q. And began to burn until it melted.

A. Yes.

* * *

Q. And then burned the vaginal area, correct?

A. Yes.

Q. And [the complainant] begged him to stop?

A. Uh-huh.

Q. Is that correct?

A. Yes.

Q. And he hit her in the right jaw, leaving a bruise?

A. Uh-huh.

Q. Correct?

A. Yes.

* * *

Q. And then he, according to — when he beat her, she told you that he 

beat her with a metal belt buckle all over her chest. All over her 

chest, her back, her arms and legs? Remember that?

A. Right here. Got it.

Q. Okay. And then she‘s screaming through all this, right?

A. Yep. That‘s what it says right here.

Q. And the pain was great?

A. The pain was great.

Q. And then after he did all of this is when he put a rag in her mouth, 

correct? 

A. Yes.

Q. And once the rag was in his (sic) mouth, then he burned her inside 

of her vagina again?

A. Okay.

Q. Am I correct?

A. You‘re correct.

Q. And he slapped her face.

A. Yes.

Q. And then he put a belt around her neck.

A. Okay.
5

Q. Is that correct?

A. That‘s correct.

Q. And pulled that belt around her neck so tight that he almost passed 

out — she almost passed out.

A. Yes.

Keller testified that the appellant then put a pillow over the complainant‘s face 

until she passed out; at some point, the appellant told the complainant he ―wanted 

her to feel the pain that he felt‖ when she left him.

The complainant called her friend Leticia Hernandez shortly after the 

assault. Hernandez testified that the complainant was crying as she told Hernandez 

that the appellant had burned her breasts and vagina. The complainant told 

Hernandez that the appellant tied her hands and feet and put a pillow over her face 

before he hit her with a belt and burned her with a lighter and hairspray; she said 

―she couldn‘t breathe and she was asking God for him to let her go.‖ The 

complainant also told Hernandez that it hurt when she went to the bathroom. After 

this conversation, the complainant drove to Hernandez‘s house; Hernandez 

testified that when she arrived, the complainant was walking unusually with her 

legs wide apart and her arms away from her body. The complainant‘s mother also 

testified that the complainant was walking unusually, ―with her legs open.‖

Tami Gustafson is a registered nurse and was working in the emergency 

room at Kingwood Medical Center when the complainant arrived on February 17, 

2011. Gustafson testified that the complainant told her the appellant tied her to a 

bed and stuffed a rag in her mouth before burning her breasts and vagina with a 

lighter and beating her with a belt. Gustafson testified that the complainant‘s 

injuries were consistent with the complainant‘s statements and that, if left 

untreated, burns like the complainant‘s could lead to an infection she ―would be 

concerned about.‖
6

Dr. Uribe-Torres is a physician who specializes in obstetrics and gynecology 

and who was on-call at Kingwood Medical Center when the complainant arrived. 

At trial, she testified:

[The complainant] said that her ex-boyfriend tied her up to a bed from 

12:00 AM to 4:00 AM and he inflicted multiple burns with a cigarette 

lighter and also used hair spray, burned her in her nipple, both nipples 

and genital area and whipped her with a belt on the buckle side of the 

belt.

Dr. Uribe-Torres determined that the complainant‘s injuries were consistent with 

that statement.

The complainant testified at trial that she voluntarily accompanied the 

appellant to his apartment on February 16, 2011 with the intention of engaging in 

sexual intercourse with him. She told the jury that she and the appellant regularly 

engaged in ―rough sex,‖ and that the hitting and burning that occurred while she 

was at the appellant‘s apartment was consensual. The complainant testified that 

she consented to having her feet tied to the bedposts with extension cords and her 

hands tied together with a cloth band. She further testified that the appellant (1) hit 

her three times with a belt and then stopped hitting her after she asked him to do 

so; and (2) applied the open flame from a cigarette lighter to her vagina and then 

removed the flame when the heat became too intense and she asked him to stop. 

The appellant contends on appeal that the burning occurred as part of consensual 

sexual ―fireplay.‖ 

The jury charge contained an instruction on the issue of consent. The 

instruction erroneously placed the burden of proof with respect to consent on the 

appellant.
7

The jury returned a guilty verdict on the offense of aggravated assault and 

sentenced the appellant to 30 years‘ confinement. This appeal followed.

The appellant raises five issues on appeal: (1) The trial court committed 

fundamental error by misplacing the burden of proof on the consent issue; (2) the 

trial court erred in admitting into evidence hearsay testimony from complainant‘s 

friend, Leticia Hernandez; (3) the trial court erred in admitting into evidence 

hearsay testimony from the complainant‘s treating physician, Dr. Brenda UribeTorres; (4) the trial court erred in admitting into evidence hearsay evidence within 

hospital admission records; and (5) insufficient evidence supports findings that fire 

was a deadly weapon as used in this case, and that the complainant did not consent.

ANALYSIS

I. Sufficiency of the Evidence

We must address sufficiency challenges regardless of our disposition of the 

other issues in a case. See Graham v. State, 643 S.W.2d 920, 924 (Tex. Crim. 

App. 1981); Banks v. State, 158 S.W.3d 649, 650 n.1 (Tex. App.—Houston [14th 

Dist.] 2005, pet. ref‘d). This is because a successful challenge to the sufficiency of 

the evidence bars retrial and requires the entry of a judgment of acquittal. 

Graham, 643 S.W.2d at 924; Banks, 158 S.W.3d at 650 n.1. Accordingly, we 

begin by discussing appellant‘s fifth issue.

When reviewing the sufficiency of the evidence, we view all of the evidence 

in the light most favorable to the verdict and determine whether, based on that 

evidence and any reasonable inferences from it, any rational fact finder could have 

found the elements of the offense beyond a reasonable doubt. Gear v. State, 340 

S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 

318-19 (1979)); see also Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 
8

2010). The jury is the exclusive judge of the credibility of witnesses and the 

weight of the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 

2010). Thus, we defer to the jury‘s responsibility to fairly resolve conflicts in the 

evidence, and we draw all reasonable inferences from the evidence in favor of the 

verdict. Id.

To obtain a conviction for aggravated assault, the State must prove beyond a 

reasonable doubt that the accused intentionally, knowingly, or recklessly caused 

bodily injury to another while using or exhibiting a deadly weapon.3 See Tex. 

Penal Code Ann. § 22.01(1)(1) (Vernon 2011) (Assault); Tex. Penal Code Ann. § 

22.02(a)(2) (Vernon 2011) (Aggravated Assault). A deadly weapon is ―anything 

that in manner of its use or intended use is capable of causing death or serious 

bodily injury.‖ Tex. Penal Code Ann. § 1.07(a)(17)(B) (Vernon 2011). Serious 

bodily injury is ―bodily injury that creates a substantial risk of death or that causes 

death, serious permanent disfigurement, or protracted loss or impairment of the 

function of any bodily member or organ.‖ Id. § 1.07(a)(46) (Vernon 2011). 

Fire is capable of causing death or serious bodily injury, so it can be a 

deadly weapon under the statutory definition. Mims v. State, 335 S.W.3d 247, 250 

(Tex. App.—Houston [1st Dist.] 2010, pet. filed). Whether fire is a deadly weapon 

in a particular case depends on the facts. See id.

 

3 When aggravated assault is prosecuted as a first-degree felony offense against a family member, 

the State must prove that the accused actually (1) used a deadly weapon and (2) caused serious bodily 

injury. Tex. Penal Code Ann. § 22.02(b)(1) (Vernon 2011). When aggravated assault is prosecuted as a 

second-degree felony, the State need not prove actual use of the deadly weapon or actual serious bodily 

injury. See Tex. Penal Code Ann. § 22.02(b) (Vernon 2011).
9

The jury charge instructed as follows.

A person commits the offense of assault if the person intentionally or 

knowingly causes bodily injury to another, including the person‘s 

spouse.

A person commits the offense of aggravated assault if the person 

commits assault, as hereinbefore defined, and the person uses or 

exhibits a deadly weapon during the commission of the assault.

* * *

―Deadly weapon‖ means anything that in the manner of its use or 

intended use is capable of or [sic] serious bodily injury.

―Bodily injury‖ means physical pain, illness, or any impairment of 

physical condition.

* * *

Now, if you find from the evidence beyond a reasonable doubt that on 

or about the 17th day of February, 2011, in Harris County, Texas, [the 

appellant] did then and there unlawfully, intentionally or knowingly 

cause bodily injury to [the complainant], a member of [the 

appellant‘s] family, by burning [the complainant‘s] vagina with a 

deadly weapon, namely, fire, then you will find [the appellant] guilty 

of aggravated assault of a family member, as charged in the 

indictment.

* * *

It is a defense to prosecution that [the complainant] effectively 

consented to [the appellant‘s] conduct if the conduct did not threaten 

or inflict serious bodily injury.

―Consent‖ means assent in fact, whether expressed or apparent.

The charge additionally defines ―serious bodily injury‖ as ―a bodily injury that 

creates a substantial risk of death or that causes death, serious permanent 

disfigurement, or protracted loss or impairment of the function of any bodily 

member or organ.‖
10

The appellant identifies his fifth issue on appeal as follows: ―Whether the 

evidence was sufficient to show that fire as used in this case was a deadly weapon 

or that the complainant did not consent.‖ In connection with this issue, the 

appellant argues that ―[t]he complainant‘s injuries did not meet the definition of 

 ̳serious bodily injury‘‖ under section 1.07(a)(46) because the evidence shows that 

these injuries ―healed without scarring and there was no prolonged loss.‖ The 

appellant further argues that, ―while fire can be a deadly weapon, there is nothing 

but speculation that it was under the facts of this case.‖

According to the appellant, fire ―is a deadly weapon if it causes serious 

bodily injury or death. Conversely, it should not be a deadly weapon based on the 

manner of its use or intended use in the absence of a serious bodily injury.‖ He 

concedes that the complainant‘s injuries meet the statutory definition of ―bodily 

injury‖4but argues that those injuries do not rise to the level of ―serious bodily 

injury‖5because

[t]he complainant was not required to undergo surgery. She was 

given pain medication — some of which she did not use — and given 

antibiotics. There is no evidence that the injury, even if untreated, 

would have led to death, substantial risk of death, serious permanent 

disfigurement or protracted loss or impairment of the function of any 

bodily member or organ.

The appellant further contends that ―[t]here is no evidence that fire as used in this 

case was capable of causing serious bodily injury or death.‖ We reject the 

appellant‘s contentions. In the context of a deadly weapon finding, the State is not 

required to establish that the use or intended use caused death or serious bodily 

injury; the State must establish that the use or intended use is capable of causing 

 

4 Tex. Penal Code Ann. § 1.07(a)(8).

5 Tex. Penal Code Ann. § 1.07(a)(46).
11

death or serious bodily injury. Tucker v. State, 274 S.W.3d 688, 691 (Tex. Crim. 

App. 2008). The jury charge instructed the jury in conformity with this precept.

The jury saw at least 19 photographs of the complainant‘s injuries, which 

depict blackened flesh on the complainant‘s vagina. Deputy Keller observed that 

the complainant‘s ―private areas had all been burned and were melted‖ and 

determined that the complainant ―had been tortured.‖ Dr. Uribe-Torres and nurse 

Gustafson both testified regarding the threat of infection. Dr. Uribe-Torres 

described the complainant‘s injuries in detail to the jury.

The complainant‘s pelvic area ―show[ed] signs of burning, swelling, 

redness, charring, blistering, denuding6of the skin.‖ 

The complainant suffered second-degree burns and showed ―obvious 

swelling.‖

One burn on the complainant‘s vagina emitted a ―yellowish 

secretion.‖

The complainant was given morphine intravenously for her pain; 

morphine is used in cases where ―there‘s a severe degree of pain.‖

The high bacterial count in the genital area put the complainant at risk 

of an infection that could spread to other areas of her body.

The complainant‘s burns were too severe to be properly cared for in 

the emergency room, and the complainant was transferred to a 

specialized burn unit.

 

6 Asked for clarification by the State, Dr. Uribe-Torres responded, ―Denuding of the skin. Skin 

peeling off.‖
12

The determination of whether an object alleged to be a deadly weapon is capable 

of causing ―serious bodily injury‖ rests with the jury. See Miller v. State, 312 

S.W.3d 209, 213 (Tex. App.—Houston [14th Dist.] 2010, pet. ref‘d). The 

evidence is sufficient if, based on the evidence itself and any reasonable inferences 

from it, a rational fact finder could have found beyond a reasonable doubt that the 

object as used in the case was capable of creating a substantial risk of death or 

causing death, serious permanent disfigurement, or protracted loss or impairment 

of the function of any bodily member or organ. See Tex. Penal Code Ann. § 

1.07(a)(17), (46); Gear, 340 S.W.3d at 746; see also Brooks, 323 S.W.3d at 895. 

We hold that the photographs and the testimony provided sufficient evidence 

to establish that fire as used in this case was a deadly weapon for purposes of 

section 1.07(a)(17)(B). The evidence also is sufficient to establish that consent is 

not an available defense to the prosecution because the use of fire at issue 

threatened or inflicted serious bodily injury.

We overrule the appellant‘s fifth issue.

II. Charge Error on Consent

In his first issue, the appellant argues that he was egregiously harmed by an 

error in the jury charge and that the jury charge constitutes structural error that is 

not subject to harmless-error analysis. The State concedes that the jury charge 

contained an erroneous charge with respect to consent but insists that the error was 

harmless.

We review claims of charge error under a two-pronged test. Almanza v. 

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh‘g); Rolle v. State, 

367 S.W.3d 746, 757 (Tex. App.—Houston [14th Dist.] 2012, pet. ref‘d). We first 

determine whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. 
13

App. 2005); Rolle, 367 S.W.3d at 757. If error exists, we then evaluate the harm 

caused by that error. Ngo, 175 S.W.3d at 743; Rolle, 367 S.W.3d at 757. The 

degree of harm required for reversal depends on whether the error was preserved in 

the trial court. When error is preserved in the trial court by timely objection, the 

record must show only ―some harm.‖ Rolle, 367 S.W.3d at 757. If the error was 

not objected to, then it must be ―fundamental error‖ and requires reversal only if it 

was so egregious and created such harm that the defendant has not had a fair and 

impartial trial. Id.

The jury instruction at issue reads:

It is a defense to prosecution that the victim effectively consented to 

the defendant‘s conduct if the conduct did not threaten or inflict 

serious bodily injury.

―Consent‖ means assent in fact, whether expressed or apparent.

―Serious bodily injury‖ means a bodily injury that creates a substantial 

risk of death or that causes death, serious permanent disfigurement, or 

protracted loss or impairment of the function of any bodily member or 

organ.

Therefore, if you find from the evidence beyond a reasonable doubt 

that [complainant] effectively consented to the [appellant‘s] conduct, 

to-wit: burning her vagina with fire, and that the conduct did not 

threaten or inflict serious bodily injury, then you will acquit the 

[appellant] and say by your verdict ―Not Guilty.‖

The appellant contends that this portion of the charge is erroneous because it 

improperly placed the burden of proof on him. The appellant takes no issue with 

the remainder of the jury charge, which instructs the jury that a deadly weapon is 

anything ―capable of causing death or serious bodily injury‖ and that:
14

[I]f you find from the evidence beyond a reasonable doubt that on or 

about the 17th day of February, 2011, in Harris County, Texas, [the 

appellant] did then and there unlawfully, intentionally or knowingly 

cause bodily injury to [the complainant], a member of [the 

appellant‘s] family, by burning [the complainant‘s] vagina with a 

deadly weapon, namely, fire, then you will find [the appellant] guilty 

of aggravated assault of a family member, as charged in the 

indictment.

The appellant has not challenged the presumption on appeal that the jury 

understood and followed this part of the trial court‘s jury charge. See Hutch v. 

State, 922 S.W.2d 168, 172 (Tex. Crim. App. 1996).

The appellant did not object to the misstatement of the burden of proof 

below. Therefore, we apply the egregious harm standard. See Rolle, 367 S.W.3d 

at 757. The appellant contends he was egregiously harmed because consent was 

the only contested issue at trial.

We conclude that the appellant was not egregiously harmed because the 

defense of consent was unavailable to him. See Tex. Penal Code Ann. §

22.06(a)(1); Miller, 312 S.W.3d at 213.

Because the jury found the appellant guilty of aggravated assault, it 

necessarily found that, as used by the appellant, fire was ―capable of causing death 

or serious bodily injury.‖ See id.; see also Sarmiento v. State, 93 S.W.3d 566, 570 

(Tex. App.—Houston [14th Dist.] 2002, pet. ref‘d) (―By its verdict, the jury 

necessarily made the factual finding to support the entry of an affirmative finding 

of the use or exhibition of a deadly weapon upon the judgment.‖). As discussed 

above, the evidence is sufficient to support a finding that fire as used in this case 

was capable of causing serious bodily injury. 
15

Consent is not an available defense for a defendant whose conduct threatens 

or inflicts serious bodily injury. See Tex. Penal Code Ann. § 22.06(a)(1); Miller, 

312 S.W.3d at 213. Accordingly, this defense was not available to the appellant. 

Because the appellant was not entitled to an instruction on consent, any error in 

placing the burden of proof in a consent instruction to which the appellant was not 

entitled falls short of establishing egregious harm. See Rolle, 367 S.W.3d at 757 

(Egregious harm is ―such harm that the defendant has not had a fair and impartial 

trial.‖).

Likewise, we must consider the trial record as a whole. Allen v. State, 253 

S.W.3d 260, 267-68 (Tex. Crim. App. 2008); Almanza, 686 S.W.2d at 171. In 

doing so, we note that (1) elsewhere in the charge, the jury was told, ―The 

prosecution has the burden of proving the defendant guilty and it must do so by 

proving each and every element of the offense charged beyond a reasonable doubt 

and if it fails to do so, you must acquit the defendant;‖ (2) the State argued in its 

closing argument that the appellant‘s conduct exceeded the scope of the 

complainant‘s consent and threatened serious bodily injury, which cannot be 

consented to; and (3) the defense argued without objection during its closing that, 

―The State of Texas bears the burden to you to not throw anything at the wall and 

see what sticks but to prove to each and every one of you beyond a reasonable 

doubt that that isn‘t exactly what happened, that [the complainant] didn‘t consent 

to every single thing that went on that night.‖ The record must demonstrate that 

the appellant has suffered actual, not just theoretical, harm from the erroneous jury 

instruction. Allen, 253 S.W.3d at 268; Almanza, 686 S.W.2d at 171. Because the 

reasonable doubt standard was properly stated elsewhere in the charge and in 

defense counsel‘s final argument and because the State argued the appellant‘s 
16

conduct exceeded the scope of any consent, we do not believe that the appellant 

has suffered any actual egregious harm. 

A charge error is structural error immune from harm analysis only when it 

completely misdefines or fails to instruct on the reasonable doubt standard. See 

Olivas v. State, 202 S.W.3d 137, 142-43 (Tex. Crim. App. 2006) (citing Sullivan v. 

Louisiana, 508 U.S. 275, 281-82 (1993)). The charge error at issue here is not 

structural error because the consent instruction was the only portion of the charge 

to misdefine the reasonable doubt standard. See id. at 143. The rest of the charge 

properly defined the standard and placed the burden on the State.

We overrule the appellant‘s first issue.

III. Hearsay

In his second, third, and fourth issues, the appellant argues that the trial court 

erred by admitting inadmissible hearsay into evidence over his objections. The 

State responds with three arguments: (1) The appellant‘s trial objection was too 

vague to preserve any hearsay issue for review; (2) the statements at issue were 

admissible exceptions to the hearsay rule as excited utterances or statements made 

for purposes of medical treatment; and (3) the admission of the statements did not 

harm the appellant. We resolve this issue based upon the third proposition.

Excited utterances and statements made for purposes of medical diagnosis or 

treatment are allowed as exceptions to the general hearsay rule. Tex. R. Evid. 

803(2), (4). Whether an out-of-court statement fits within one of these exceptions 

is a matter within the trial court‘s discretion. See Coffin v. State, 885 S.W.2d 140, 

149 (Tex. Crim. App. 1994); Trevino v. State, 218 S.W.3d 234, 239 (Tex. App.—

Houston [14th Dist.] 2007, no pet.). As a reviewing court, our role is limited to 
17

determining whether the record supports the trial court‘s ruling. Coffin, 885 

S.W.2d at 149; Trevino, 218 S.W.3d at 239.

If we determine that the trial court erred by admitting hearsay testimony, we 

apply the harm analysis for non-constitutional error to determine whether the trial 

court‘s error is reversible. Tex. R. App. P. 44.2(b); Lacaze v. State, 346 S.W.3d 

113, 122 (Tex. App.—Houston [14th Dist.] 2011, pet. ref‘d). Such error does not 

affect a substantial right — and therefore is not reversible error — if, after 

examining the record as a whole, we are reasonably assured that the error did not 

influence the verdict or had but a slight effect. Lacaze, 346 S.W.3d at 122. The 

improper admission of evidence is not reversible error if the same or similar 

evidence is admitted without objection at another point in the trial. Id.; see Brooks 

v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999).

We need not address preservation or admissibility because we conclude that 

the appellant was not harmed by admission of the challenged evidence. 

In his second issue, the appellant contends that the court erred in admitting 

Hernandez‘s testimony that the complainant told her the appellant used a bottle of 

flammable hairspray to augment the lighter‘s flame so that ―it would burn more.‖ 

Based on our analysis above of sufficiency of the evidence, any asserted error in 

admitting this testimony is harmless. The State offered sufficient evidence to 

prove that, as used by the appellant, fire was capable of causing serious bodily 

injury to the complainant. See Tex. Penal Code Ann. § 22.02(b)(1) (Vernon 2011). 

This determination rests on evidence concerning the effect of the fire that was 

applied to the complainant; it does not depend on whether the flame that was 

applied to the complainant emanated solely from the lighter itself or emanated 

from the lighter and was then enhanced using an aerosol accelerant. Because the 
18

State proffered sufficient evidence to establish that, as used in this case, fire was 

capable of causing serious bodily injury, we hold that hearsay testimony regarding 

hairspray was not harmful.

In his third and fourth issue, the appellant contends that the trial court erred 

in admitting testimony from Dr. Uribe-Torres and hospital admission records. 

According to the appellant, the trial court should not have admitted hearsay 

indicating that the appellant committed the assault that resulted in the 

complainant‘s injuries. Dr. Uribe-Torres testified that the complainant told her that

she was at the hospital because ―her ex-boyfriend tied her up to a bed from 12:00 

AM to 4:00 AM and he inflicted multiple burns with a cigarette lighter and also 

used hair spray, burned her in the nipple, both nipples and genital area and 

whipped her with a belt on the buckle side of the belt.‖ In a section titled ―I came 

to the Emergency Department today because:‖ the hospital admission records 

contain a handwritten response by the complainant: ―Assault by my baby‘s father.‖

The appellant argues that the admission of this evidence was erroneous 

because the perpetrator‘s identity was not relevant for purposes of medical 

treatment. According to the appellant: ―It makes no difference whether it was done 

by [the appellant], the complainant‘s sister[,] or green men from Mars.‖ However, 

the appellant does not contend that anyone else actually inflicted these injuries on 

the complainant. In his brief, the appellant contends that ―[c]onsent was the only 

contested issue‖ at trial. Because identity was not an issue at trial, we hold that the 

appellant was not harmed by the admission of hearsay testimony naming him as 

the perpetrator.

Further, defense counsel elicited testimony about both the hairspray and the 

appellant‘s identity as the perpetrator during cross-examination of Keller. 
19

Therefore, the appellant was not harmed by admission of similar testimony at other 

points in the trial. See Lacaze, 346 S.W.3d at 122; Brooks, 990 S.W.2d at 287.

We overrule the appellant‘s second, third, and fourth issues.

CONCLUSION

Having overruled all of the appellant‘s issues on appeal, we affirm the 

judgment of the trial court.

/s/ William J. Boyce

Justice

Panel consists of Justices Boyce and McCally and Senior Justice Mirabal.7

Do Not Publish — Tex. R. App. P. 47.2(b).

 

7

Senior Justice Margaret Garner Mirabal sitting by assignment.