Reversed and Remanded and Plurality and Dissenting Opinions filed March 

26, 2020.

In The

Fourteenth Court of Appeals

NO. 14-18-00302-CR

DUKE EDWARD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 212th District Court

Galveston County, Texas

Trial Court Cause No. 17-CR-1965

PLURALITY OPINION

A jury convicted appellant Duke Edward of felony assault of a family 

member as defined by section 71.0021(b) of the Texas Family Code. See Tex. 

Penal Code § 22.01(a)(1). The jury assessed appellant’s punishment at sixty years 

in prison. See id. § 12.42(d) (establishing enhanced punishment of life in prison or 

a sentence between 25 and 99 years in prison if a “defendant has previously been 

finally convicted of two felony offenses . . . .”). In a single issue, appellant argues 
2

that the trial court erred when it denied his motion for directed verdict because the 

State failed to prove he was in a “dating relationship” with the complainant. We 

agree with appellant that the State failed to present legally-sufficient evidence that

he was in a dating relationship with the complainant. We do not reverse and 

render a judgment of acquittal however, because the jury, through its verdict, 

necessarily found every constituent element of the lesser-included offense of 

assault. We therefore reverse the trial court’s judgment, remand the case to the 

trial court with instructions to reform the judgment to reflect a conviction for the 

offense of assault, and to hold a punishment hearing attendant to this postreformation conviction.

BACKGROUND

The complainant called 9-1-1 to report a disturbance at her apartment. 

Officer Richard Hernandez with the La Marque Police Department was dispatched 

to the complainant’s residence. When he arrived on the scene Hernandez found 

the complainant in a state of hysteria. The complainant appeared to have injuries 

on her face, and blood was present on both her shirt and face. The complainant 

indicated to Officer Hernandez that appellant was responsible for her injuries, 

providing the name “Duke Edward” when Officer Hernandez asked what was 

happening. Moments later, Officer Hernandez found appellant sitting on a bed in 

the back bedroom of the apartment. Officer Hernandez took appellant into custody

and placed him in the back of his patrol car while the second responding officer 

remained with the complainant. The La Marque Fire Department ambulance 

arrived while Hernandez was still at his patrol car with appellant.

Officer Hernandez initially testified that the complainant told him that “her 

boyfriend beat her up” when he first made contact with her. During crossexamination, Officer Hernandez admitted that the complainant did not identify 
3

appellant as her “boyfriend” on the portion of the body camera video1showing his 

initial contact with the complainant, or during the 9-1-1 recording. A short time 

later, the following exchange occurred between appellant’s attorney and Officer 

Hernandez:

Q. And, again, I am asking a very, very specific question. So

please answer the specific question. On the video that we just 

watched - - on that particular video, at no point in time did [the 

complainant] ever state to you that [appellant] was her 

boyfriend; is that correct?

A. I believe that is incorrect.

Q. On that specific video that we just saw - - I’m not talking about 

- - I’m talking about specifically what we just watched. Did 

[the complainant] ever say on that particular video we just 

watched that [appellant] was her boyfriend?

A. I believe that’s correct.

Q. Okay. So you’re telling us from the portion we just saw, we 

heard her state, “That’s my boyfriend, [appellant]”?

A. I believe that’s incorrect.

Q. You believe that’s incorrect she said that?

A. I believe it’s incorrect. She didn’t identify him as her 

boyfriend.

Officer Hernandez’s body-camera video that was entered into evidence 

during appellant’s trial ended while the complainant, the responding police 

officers, and the responding EMS personnel were still inside the complainant’s 

apartment.

2

 Other evidence in the record, in addition to what appears on the body1 The trial evidence includes the arresting officer’s body camera video showing his 

arrival at the scene. It recorded the entire initial encounter with the complainant and then the 

appellant, the securing of the scene, the detention of appellant in the back of the police vehicle,

and the officer’s subsequent encounter with the arriving EMS personnel.

2 The body-camera video shows that, in addition to Officer Hernandez, a second police 

officer and two EMS paramedics were on the scene.
4

camera video, indicates that the on-site investigation had not been completed when 

the body-camera video ended. This evidence includes Officer Hernandez’s 

testimony that he encouraged the complainant to go with EMS personnel to the 

hospital, and that he gave the complainant a family violence form. Officer 

Hernandez also testified that the complainant signed the family violence form. The 

form was not admitted into evidence however.

Officer Hernandez was also asked during cross-examination if he later 

returned to the scene to speak with potential eyewitnesses or with the 

complainant’s neighbors. Officer Hernandez admitted that he had not. Officer 

Hernandez was also not aware of any other officers from the La Marque Police

Department going to the apartment complex to interview neighbors or witnesses. 

Officer Hernandez also admitted that he did not review the lease for the 

complainant’s apartment or speak with the complex management to investigate 

whether they had any information about appellant’s connection with the apartment 

lease.

On re-direct, the prosecutor clarified with Officer Hernandez that the bodycamera video shown during his direct testimony was only an excerpt. The 

prosecutor then asked Officer Hernandez about his interaction with the EMS 

paramedics who arrived on the scene in an effort to clarify the relationship between 

the complainant and appellant. The following exchange then occurred:

Q. So, again, did you advise EMS of the situation when they 

arrived?

A. Yes, I did.

Q. What did you advise them?

A. I made contact with the medics. I told them the victim was 

upstairs with another officer. She needed to be checked out. 

She was pretty beaten up.
5

Q. Did you describe the relationship between the two?

A. I am really not sure of that, if I told them whether or not - - if I 

told them that he was her boyfriend or not.

Finally, the prosecutor asked Officer Hernandez:

Q. Why did you make the decision at that point to arrest 

[appellant]?

A. I made the decision based on the injuries that were observed on 

[the complainant] and her statement.3

Amanda Black, an emergency medical technician from the La Marque Fire 

Department, was also dispatched to the scene. Once on the scene, Black observed 

the complainant with multiple lacerations on her face, as well as multiple 

contusions on her forehead. According to Black, the complainant told her that “her 

boyfriend beat her up.” Later, during cross-examination, Black had the following 

exchange with appellant’s attorney:

Q. And you, yourself, have no firsthand knowledge of the 

relationship - - at least you didn’t at the time of Duke Edward 

or [the complainant] at the time?

A. Firsthand? Her telling me?

Q. Yes, ma’am.

A. No, she didn’t tell me.

Q. So any information regarding the relationship between [the 

complainant] and Duke Edward, you received from someone

else, correct?

A. Correct.

Earlier in that same cross-examination, the following exchange occurred:

Q. When you arrived at the scene, as far as the information you 

first learned, was that information provided to you by Officer 

3 Since the detention of appellant is shown on the body camera video footage, the only 

statement in evidence was shown on the same body camera video.
6

Hernandez?

A. Yes.

Q. So the information regarding the relationship between 

[complainant] and [appellant], that information was provided to 

you by the officer?

A. Yes.

Q. As far as them being boyfriend and girlfriend?

A. Yes.

Q. And you wouldn’t have placed that in the report without that 

information?

A. Most likely.

Q. Okay.

The State sought to admit the complainant’s medical records related to the 

incident. The medical records initially reflected a dating relationship between 

appellant and the complainant, but appellant lodged a hearsay objection to their 

admission. The following exchange then occurred at the bench:

THE COURT: We don’t know who said that. She said she didn’t 

say it and her partner wrote it. The partner is not 

here. It’s still objectionable with hearsay. I am 

sustaining his objection to hearsay. Despite the 

fact it’s a business record, you can still object to 

hearsay records in there. She can’t testify to --

PROSECUTOR: Yes, ma’am.

THE COURT: She can’t testify she ever told her. So the 

complaining witness never communicated to her 

that was her boyfriend as stated in that record, 

right?

PROSECUTOR: Yes, ma’am.

THE COURT: Okay. So go ahead.

PROSECUTOR: If I may: It is hearsay within hearsay, I agree; but I 

have two levels of hearsay. I have a business 

records affidavit, which covers the entirety of it 
7

and comes in for the purpose of medical diagnosis.

THE COURT: The relationship is not for purpose of medical 

diagnosis.

PROSECUTOR: I would say if she said that to the treating person, it 

would come in as that.

THE COURT: We don’t have the treating person here. It’s 

hearsay. You know what? I have made my ruling. 

You can take me up on appeal, whatever you want 

to do. I am sustaining about the hearsay. She 

can’t testify she was told that. I don’t know if you 

want to wait to bring another witness in. We can 

certainly wait before you want to proffer that into 

evidence.

Rather than wait for another witness, the State redacted all references to the 

relationship between appellant and the complainant, and the redacted documents 

were admitted into evidence.

Notwithstanding the very prominent cross-examination of the witnesses as to 

the basis of their knowledge of the dating relationship, and the inadmissibility of 

the medical record evidence as it relates to establishing the dating relationship, the 

State never called any other witnesses.

At the conclusion of the State’s case, appellant moved for a directed verdict. 

Appellant argued that the State did not meet its burden to prove that a “dating 

relationship” existed between appellant and the complainant. The trial court 

denied appellant’s motion. Appellant subsequently stipulated that he had 

previously been convicted of family violence assault. The jury found appellant 

guilty of felony assault against a family member. During the punishment phase of 

appellant’s trial, the State offered evidence showing that appellant had been 

previously convicted of two felony offenses. Appellant pled true to both 

enhancement paragraphs in his indictment. The jury subsequently assessed 

appellant’s punishment at sixty years in prison. This appeal followed.
8

ANALYSIS

I. Standard of review

A challenge to the denial of a motion for a directed verdict is a challenge to 

the legal sufficiency of the evidence. Gabriel v. State, 290 S.W.3d 426, 435 (Tex. 

App.—Houston [14th Dist.] 2009, no pet.). In reviewing the sufficiency of the

evidence to support a conviction, we must consider all of the evidence in the light

most favorable to the verdict and determine whether any rational trier of fact could 

have found the essential elements of the offense beyond a reasonable doubt. 

Jackson v. Virginia, 443 U.S. 307, 319 (1973); Johnson v. State, 364 S.W.3d 292, 

293–94 (Tex. Crim. App. 2012). In our review, we consider all of the evidence in 

the record, whether admissible or inadmissible. Price v. State, 502 S.W.3d 278, 

281 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (citing Winfrey v. State, 393 

S.W.3d 763, 767 (Tex. Crim. App. 2013)). We measure the sufficiency of the 

evidence supporting a conviction by comparing the evidence presented during the

trial to the elements of the offense as defined in a hypothetically-correct jury 

charge. Hernandez v. State, 556 S.W.3d 308, 312 (Tex. Crim. App. 2017). The 

jury is the sole judge of the credibility of witnesses and the weight afforded their 

testimony. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). 

The jury may choose to believe or disbelieve all or a portion of a witness’s 

testimony, and we presume that the jury resolved any conflicts in the evidence in 

favor of the prevailing party. See Marshall v. State, 479 S.W.3d 840, 845 (Tex.

Crim. App. 2016) (“We defer to the jury’s finding when the record provides a 

conflict in the evidence.”); Jackson v. State, 495 S.W.3d 398, 405 (Tex. App.—

Houston [14th Dist.] 2016, pet. ref’d).

Circumstantial evidence is as probative as direct evidence in establishing the 

guilt of an actor, and circumstantial evidence alone can be sufficient to establish 
9

guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Evidence is 

sufficient if the inferences necessary to establish guilt are reasonable based upon 

the cumulative force of all the evidence when considered in the light most 

favorable to the verdict. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 

2012). Further, the jury’s verdict will be upheld unless “a rational factfinder must 

have had a reasonable doubt as to any essential element.” Laster v. State, 275 

S.W.3d 512, 518 (Tex. Crim. App. 2009).

II. The record contains legally insufficient evidence that appellant and the 

complainant were in a dating relationship.

A person commits assault if he “intentionally, knowingly, or recklessly 

causes bodily injury to another.” Tex. Penal Code § 22.01(a)(1). The offense is 

generally a Class A misdemeanor, but is heightened to a third-degree felony if the 

offense is committed against a person with whom the defendant has a “dating 

relationship.” See id. § 22.01(b)(2); Tex. Fam. Code § 71.0021(b). The Texas 

Family Code defines “dating relationship” as a “relationship between individuals 

who have or had a continuing relationship of a romantic or intimate nature.” Tex.

Fam. Code § 71.0021(b). A casual acquaintanceship or ordinary fraternization in a 

business or social context does not however, constitute a “dating relationship.” Id.

§ 71.0021(c). The Family Code provides that “the existence of such a relationship 

shall be determined based on consideration of: (1) the length of the relationship; 

(2) the nature of the relationship; and (3) the frequency and type of interaction 

between the persons involved in the relationship.” See id. § 71.0021(b). The 

difference between a conviction for misdemeanor assault and a conviction for 

third-degree felony assault of a family member turns on whether there is sufficient 

evidence of a “dating relationship” between appellant and the complainant. Tex.

Penal Code § 22.01(b)(2).
10

Appellant argues that the evidence presented by the State was not sufficient 

for a rational factfinder to conclude beyond a reasonable doubt that appellant was 

in a “dating relationship” with the complainant because the State failed to present 

any evidence of the three factors mentioned in section 71.0021(b) of the Family 

Code. We agree with appellant.

On appeal, the State points to what it labels circumstantial evidence that 

appellant was in a “dating relationship” with the complainant. This evidence 

incudes Officer Hernandez’s testimony that he found appellant in the bedroom of 

the complainant’s apartment, a location that the State argues creates an inference of 

intimacy between the complainant and appellant. Next, the State points to the fact 

that complainant and appellant were alone with each other in the complainant’s 

apartment when Officer Hernandez arrived on the scene. The State asserts that this 

reinforces a determination that they were in a “dating relationship.” We conclude 

that, based on this evidence, a factfinder could do no more than speculate on the 

existence of a dating relationship which is insufficient to support a conviction. See 

Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013) (stating that, under 

legal sufficiency standard, “evidence may be legally insufficient when the record

contains either no evidence of an essential element, merely a modicum of evidence 

of one element, or if it conclusively establishes a reasonable doubt.”); Hooper v. 

State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007) (defining speculation as “mere

theorizing or guessing about the possible meaning of facts and evidence presented”

and stating that it is insufficient to support a criminal conviction); Prestiano v. 

State, 581 S.W.3d 935, 942 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d) 

(stating that a factfinder is not permitted to draw conclusions based on speculation 

because doing so is not sufficiently based on facts or evidence to support a finding 

beyond a reasonable doubt).
11

The State next suggests that the testimony of Officer Hernandez and 

Amanda Black, one of the paramedics dispatched to the scene, provides direct 

evidence of the complainant and appellant’s relationship status. Officer Hernandez

did initially testify that the complainant told him that her boyfriend beat her up and

she identified appellant as the person who assaulted her. Black testified the 

complainant told her that “her boyfriend beat her up.”4 The jury, however, is not 

permitted to disregard Officer Hernandez’s later testimony, given after viewing the 

body-camera video that had been admitted into evidence, admitting that the 

complainant did not identify appellant as her boyfriend, or Black’s admission

during cross-examination that the complainant did not tell her that appellant was 

her boyfriend. Additionally, the body-camera video is in the appellate record and a 

review of the video establishes that the complainant never identified appellant as 

her boyfriend during the video. Thus, we conclude that Officer Hernandez’s and 

Black’s testimony cannot support a determination that appellant and the 

complainant were in a dating relationship. See Britain v. State, 392 S.W.3d 244, 

249 (Tex. App.—San Antonio 2012, aff’d Britain, 412 S.W.3d at 523)) (“Although 

the jury is permitted to draw appropriate conclusions and inferences from the

evidence, it was not rational for the jury to conclude the requisite knowledge based 

on the record before us.”). We therefore sustain in part appellant’s issue on appeal.

Concluding legally insufficient evidence supports appellant’s conviction for 

dating-relationship assault does not end our inquiry however. In this situation the 

Court of Criminal Appeals has directed this court to answer two questions: “(1) in 

the course of convicting the appellant of the greater offense, must the jury have 

4 Appellant lodged hearsay objections to both Hernandez’s and Black’s testimony. The 

trial court overruled both objections and appellant has not challenged those decisions in this 

appeal.
12

necessarily found every element necessary to convict the appellant for the lesserincluded offense; and (2) conducting an evidentiary sufficiency analysis as though 

the appellant had been convicted of the lesser-included offense at trial, is there 

sufficient evidence to support a conviction for that offense?” Thornton v. State, 

425 S.W.3d 289, 300 (Tex. Crim. App. 2014). If the answer to both questions is 

yes, then we are required “to avoid the unjust result of an outright acquittal by 

reforming the judgment to reflect a conviction for the lesser-included offense.” Id.

In this case, appellant has challenged the sufficiency of the evidence only for 

the aggravating element of the charged offense, the existence of a dating 

relationship with the complainant. See Tex. Penal Code § 22.01(b)(2) (elevating 

assault offense from a Class A misdemeanor to a third-degree felony if the 

defendant commits the offense against a person with whom the defendant has a 

“dating relationship”). He has not challenged the sufficiency of the evidence 

supporting any of the other elements of the dating-relationship assault offense, 

which are the same as for misdemeanor assault. See Tex. Penal Code § 22.01(a)(1)

(A person commits assault if he “intentionally, knowingly, or recklessly causes 

bodily injury to another”). Having examined the record evidence summarized 

above, we conclude that the evidence is legally sufficient to support a conviction

for misdemeanor assault. See Tyler v. State, 563 S.W.3d 493, 498–99 (Tex. 

App.—Fort Worth 2018, no pet.) (concluding evidence legally sufficient to support 

misdemeanor assault conviction). We must therefore, reform the judgment to 

reflect a conviction for the lesser-included offense of misdemeanor assault. 

Thornton, 425 S.W.3d at 300.

CONCLUSION

Having determined that the evidence is legally insufficient to support 

appellant’s conviction for dating-relationship assault, and that the evidence is 
13

legally sufficient to support a conviction for the lesser-included offense of 

misdemeanor assault, we reverse the trial court’s judgment, remand the case to the 

trial court with instructions to reform the judgment to reflect a conviction for the 

offense of assault, and to hold a punishment hearing attendant to this postreformation conviction.

/s/ Jerry Zimmerer

Justice

Panel consists of Justices Christopher, Bourliot, and Zimmerer (Christopher, J.

dissenting, Bourliot, J. concurring without opinion).

Publish — TEX. R. APP. P. 47.2(b).