Reversed and Remanded and Plurality and Dissenting Opinion s 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 Co urt Cause N o. 17

- CR

- 1965

PLURAL ITY OPINION
A jury convicted appellant Duke Edward of felony assault of a family member as defined by s ection 71.002 1 (b) of the Texas Family Code. See Tex.
Penal Code § 22.01(a)(1 ). The jury assessed appel lant ’ s punishm ent a t six ty years in p rison. See id. § 12.42(d) ( esta blishing e n hanced punishment of life in prison o r

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 a rgues2

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. W e agree with appellant that t he State failed to present l egally

- suffici ent evidence that
he wa s in a dat ing relationship with the complainant

. We do not reverse and render a judgment of acquittal however, be cause the jury, through its verdict, necessarily found every constituent ele ment of the lesser

- in cluded o ffense of

assa ult. We therefore reve r se the trial court ’ s judgment , remand the case to the
trial court with inst r uctions to re form the judgment to reflect a con viction for the
offense of a ssault , and to hold a punishment hearing at tendant to this p ost

ref ormation convi ction.
B ACKGROUND

The c omplainant 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 fo u nd the complainant in a state of hysteria. The complainant appeared to ha ve injuries
on her face, and blood was present on both her shirt and face. The complainant indicated to Officer Hernandez that appellant was resp onsible for he r injuries, providing t he name “Duke Edward” when Officer Hernandez asked what was happ ening. Moment s late r , Officer Hern andez found appellant sitting on a bed in
the back bedroom of the apartment . Officer Hernand ez took appell ant into custody and pl aced him in the back of h is patrol car while the second responding officer remained with the complainant

. The La Marque Fire Department ambulance
arrived while Hernandez was still at his pat rol car with a ppellant.

Officer Herna ndez initially testified that t he complainant told hi m that “her boyfriend beat her up” wh en he first made cont act with her. During cross

examination, Officer Hernandez admitted that the complainant did not id entify3

appella nt as her “boyfriend” o n the portion of the body camer a video 1 showing his
i nitial co nta ct with the complainant , o r during the 9

- 1

- 1 re cor ding. A short time later, the following exchange occurred between appellant ’ s attorney and Officer
Hernan dez:
Q. And , again, I a m asking a very, very specific question. S o please answe r the specific qu estion. On the video that we j ust
wa tched

- - on that particular video, at no point in time did [the complainant] ever state to you that [appe llant] was her boyfriend ; is that co r

r ect? A. I believe that is incor rect. Q. On that specific video that we jus t saw

- - I ’m not talking about

- - I ’m talking about specifically what we just watched. Did [the complainant] ever say on that particular vide o we just watch ed that [appellant] wa s her boyfriend? A

. I believe th at ’s correct. Q. Okay. So you ’re telling u s from the portion we just saw, we he ard her state, “That ’s my boyfriend, [appellant] ” ? A. I believe that ’s incorrect

. Q. You believe that ’s inc orrect she said that? A. I believe it ’ s in correct. She didn ’t iden ti fy him as her boyfriend. Officer He r n andez ’ s body

- camera video that was entered into evi dence during appellant ’ s tria l ended while t he complain ant, the responding police
office rs , and the res ponding EMS personnel w er e still inside the complainant ’ s apartment

. 2 Other evi dence in the record , in addi tion to what appear s on the body

1 The t rial evi den ce in cl udes the arresting officer’s body cam era video showing his arrival at the scene. It recorded the entire initial encounte r with the compla ina nt and then the appellant, the securing of the scene, the detention of appellant in t he back of the poli ce veh ic le , and the officer ’ s subsequent encounter with the arriving EM S personnel

.

2 The body

- camera video shows that , in addition to Officer Herna nde z , a second police officer and two EMS paramedics were on the scene.4

camera video , indi cates that the on

- si te investigation had not been completed when the body

- camera v ideo ended. Th is evidence includes O f fi cer Herna n dez ’ s testimony that he enco uraged the compla inant to go with EMS personn el to the hospital , and that h e gave the complainan t a family violence form

. Off i c er He rnandez also testified that the complainant s igned the famil y violence form

. The
form w as not admitted into evi dence however

. Officer Hernandez was also asked during c ross

- examination i f he later
returned to the scene to speak with potential eyewitnesses or with th e

co mpla inant ’ s neigh bors . Off icer Hernandez admitted that he had not. Off i c er Hernandez was al so not aware of any other officers from the La Marque P olice
D epartment going to the apartment comple x to interview neighbors or witnesses.
Officer H ernandez also a dmitte d th at he did n o t review th e lease for the complainant ’ s apartment o r speak with the comple x management to inve sti g ate whether they had any inform ation abou t appellant ’ s connection with the apartment lease.

On re

- direct, the prosecutor clarified with Offi cer Her n andez that the body

cam era video shown du ring his direct testimony was only an excerpt

. The

prosec utor then asked Officer Hernandez about his interaction with the EMS paramedics who arrived on the scene in an effort to clarify the relat ionship between
the complainant and appellant

. The following ex change then occurred:
Q. So , again, did you advise EMS of the situation when they arrived? A. Yes, I did. Q. What did you advi se them? A. I made contact with the medics. I told them the vic t im was upstairs with another officer. Sh e needed to be checked out. She wa s pretty beaten up.5

Q. Did you describe the relationship between the two ? A. I am r eally not sure of that , if I told them whether o r not

- - if I told them that he was her boyfrien d or not. Finally, the prosecutor asked Officer Hernandez:
Q. Why did you make the decision at that point to ar res t [appellant]? A. I made the dec ision based o n the inju ries that were observed on [the complainan t] and her statement. 3
Aman da Black, an emergency m edica l technician from the La Marque Fire Department, was also dispatched to the sce ne

. Once on the scene, Black observed the comp lainant with multiple l acerations on her face , as well as multip le
contusions on her forehead. According to Bla ck, t he complainant told her t hat “ her boyfriend beat her up. ” Later , duri ng cross

- examination, Black had the following

e xchange with appellant’ s attorney : Q. And yo u, yourself, have no firsth and knowledge of the relations hi p

- - at least you didn’t a t the time of Duk e Edward or [the complainant] at the time? A

. Firsthand? Her telling me? Q

. Yes, ma’am. A

. No, she didn’t te ll me. Q. So any inform ation rega rding the r ela tionship between [the complainant] and Duke Edw ard, yo u received from someon e 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 f irst lear ned, was tha t information provided to you by Offi cer

3 S i n c e t h e d e t e n t i o n o f a p p e l l a n t i s s h o w n o n t h e b o d y c a m e r a v i d e o f o o t a g e , t he only statement in evidence was shown on the same body cam era video.6 Hernandez? A. Yes. Q. So the information regarding th e relationship between [complainant] and [appellant ] , that information was provided to you by the officer? A. Yes. Q. As far as them being boyfriend a nd girlfrien d? A. Yes. Q. And you wouldn ’ t have p la ced that in the report without that information? A. Most like ly. Q. Okay. The State sought to admit the comp lainant ’ s medical records related to the
in cident

. Th e medical records initially reflected a dat ing relationship between appellant and th e c o mplainant , but appellant lo dged a hearsay objection to their
admi ssion. T he following exchange then occurred at the bench :
THE COURT: We don ’ t kn ow who said that. She said she didn ’ t

say it and her partner wro te i t. The par tner is not here. It ’ s sti ll objectionable with hearsay. I am sustaining his objection to hearsay. Despite the fact it ’ s a business record, you can still object to hearsay record s in there. She can ’ t testify to

-- PR OSECUTOR : Yes, ma ’ am. THE COURT: She can ’ t testify she ever to ld 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: I t is hearsay within hea rsay, I agree; bu t I

have two levels of hearsay. I have a business records affidavit, which covers the entirety of it7 and comes in for the purpose of medical diagnosis. THE COURT: The relationship is not for purpose of medical

diagno sis. PROSECUTOR : I woul d say if she said that to the treatin g 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 r uling. You can take me up on appeal, whatever you want to do. I am sustaining abou t 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

e vidence. Rather than wait for another witness, the State reda cted all refer ence s to the relationship between appella nt and the complainan t , and t he redacted documents
were admitted into evidence.

Not withstanding the very prominent cross

- examination o f the witnesses as to the basis of their knowledge o f the dating relationship, an d th e in admissibility of
the medical reco rd evidence as it relate s to establishing th e dating relationship , the
State never called an y other wit ness es

. At the conclusion o f the State’s case, appellan t moved for a directed verdict. Appellant argu ed that th e St ate did n ot meet it s burden to p rove that a “ dating relationship ” existed b etween appella nt and the comp l ainant. The trial court denied appellant ’s motion. Appellant subsequen tly stipulated that he had previously been conv icted of famil y violenc e ass ault. The jury found appellant guilt y of felony as sault against a family memb er. During the punishment pha se of appell ant ’ s tria l, the State offer ed evidence showing that appellant had been

pre viously convic ted of t w o felon y o ffenses. A ppellant ple d tru e to bo t h
enhancement paragraphs in h i s indic tmen t

. The jury subsequen tly asse ssed appella nt ’ s punishment at sixty yea rs in prison. This appeal followed.8 A N ALYSIS

I. Stan dard of r eview

A ch allenge to th e den ial of a motio n for a directed verdict is a cha lleng e to the legal s ufficiency of the evidence. Gabriel v. State , 290 S.W.3d 426, 435 (Tex. App.

— Houston [14t h Dist.] 2009, no pet.). In reviewing the suff iciency of the
evidence to suppor t a convictio n, we must consider all of the evidence in the light

most favorable to t h e verdict a nd determine whether any rational trier of fact cou ld
have found the essential elements of the offense beyond a reasonable dou bt.
Jackson v . Virgini a , 443 U.S . 307, 319 (1 973) ; Johnson v. State , 364 S.W

. 3d 292,
293

– 94 (Tex. Crim . App. 2012)

. In our revie w , we consider all of the evidence in the record, w he ther admissible o r inadmis sib le. Pri ce v. State , 502 S.W.3d 278,
281 (Te x. App.

— Housto n [14th D ist.] 2016 , no pet.) (c iting Winfrey v. State , 393
S.W

. 3d 763, 767 (Tex. Cr im. A pp. 2013) )

. We measure the sufficiency of the evidence supporting a convictio n by comparing the evidence presented during the

t rial to t he elements of t he offense as defined i n a hyp oth etically

- corr ect j ury char g e. Hernandez v. State , 556 S.W.3d 308 , 312 (Tex. Crim. App. 2017). The jury is the sole judge of the credibility of wit nesses and the weight afforded t heir

test imony. Montgomery v. State , 369 S .W.3d 188, 192 (Tex. Cr im. App. 2 012)

. The ju ry ma y choose to believ e or disbelieve all or a port ion o f a witness’s testimony, and we presume that the jury resolved any conflicts i n the evidence in favor of the p revailing party. See Marshall v. State , 47 9 S.W.3d 840, 845 (Tex. Crim. App . 2016) (“We defer to the jury’s fin ding when the record provides a

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

— Ho uston [14th Dist.] 2016, pet. re f’d).

Cir cumstanti al evidence is as probat i ve as direct e vidence i n est a blis hing the guil t of an actor, and circ umstantial evidence alone can be s ufficient to establish9

guilt. Hooper v. State , 214 S.W.3 d 9, 1 3 (Tex. Crim. A pp. 2007). Evidence is
sufficie nt if the inferenc es necessary to establis h guilt are rea sonable b ased u pon the cumulativ e for ce of all the evid ence when considered in the l ight 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 mu st have h ad a reaso nable do u bt a s to any essential element.” Laster v. State , 275
S .W.3d 512, 518 (Tex. Crim. App. 2009).

II. The reco rd contains legally insufficient evidence that appellant and the compla in ant were in a dating relationship. A person comm its as sau lt if he “ intentional ly , kno wingly, or recklessly

c auses bodily injury to a nothe r. ” Tex. P enal Code § 22.01(a)(1). The offense is generally a Class A misdem eanor , but is heightened to a third

- degree felony if the
offense is commi tt ed against a p erson wit h whom the defendant ha s a “ dating relationship .” See id. § 22.01(b)(2); T ex. F am. Code § 71.002 1 (b). The Texas Family Code defines “ dating relationship” as a “relationship between individuals
who have or had a continuin g relatio ns hip of a roman tic o r in timate nat ure.” Tex.
F am. C ode § 71.002 1 (b). A c a sual acquaintanceship or ordi nary frater nization in a
business or social context does not however, constitu te a “ dating relationship. ” Id. § 71.002 1 (c). The Family Code provides th at “ the ex iste nce of su ch a relat ionship
sha ll be d etermined based on con s ideration of : (1) the le ngth of the rela tionship; (2) the nature of the relationship; and (3) the frequency and type of interaction between the persons involved in the rel ationship

. ” See id. § 71 .002 1 (b). The
diff erence betw ee n a c onviction for misdemea n or assault and a convict ion f or third

- de gree felony assault of a family member turns on whether there is su fficient evidence of a “dating relationship” between appellant a nd the co m p lainant. Tex.
Penal Co de § 22.01 (b)(2 ).10

App el lant argues that the evidence pr e sented by the State was not sufficient
f or a rational factfinder to conclude beyond a reasonable doubt that appellant was
in a “ dating relationship ” with the complainant b ecause th e State fai led to pr esent
any evidence of t he th ree factors mentioned in se c tion 71.002 1 (b) of the F amily
Code. We agree with appellant.
On appeal , the State points to w hat it labels circumstantial evidence that appellant was in a “ dating relat ionship ” with the comp l ain ant. T his evidence
incud es Officer Hernandez’s testimony that he found appel lan t in the bedroom of the compl ainant’s apartment , a location that the State argues creates an inference of intimacy between the complainant and appella nt

. Next , the State po ints to th e fact
that c ompla inant and appellant were alone with ea ch other in th e c omplainant’ s apartme nt w hen Officer Hernandez arrived on the scene

. The St ate asserts that this
reinforces a determination that they were in a “ datin g relation s hip

. ” We co nclude
tha t , based on t his e vidence , a factf inder could do no more than spe culat e o n the
existence of a dating relationship which is in sufficient to support a conviction

. See
Britain v. State , 412 S.W.3d 518, 520 (Tex. Crim. App. 20 13) ( stating t hat, unde r legal sufficiency sta nda rd , “ evidence ma y be legall y insufficient when th e rec ord

cont ains either no evi dence of an essential element, merely a modicum of e vidence of one element, or if it c onclusively establishes a reasonable doub t. ” ) ; Hooper v

. S tate , 214 S.W.3d 9, 16

– 17 (Te x. Cr im. App. 2007) ( d efi ning speculation as “ mere
t heori zin g or guessing about the possible meaning of facts and evidence presented ”

a nd stating that it is insufficient to s upport a criminal conviction ); Prest iano v.
State , 581 S.W

. 3d 935, 942 (Tex. App.

— Houst on [1st Dist.] 2019, pe t. ref ’ d ) (stat in g that a f

actfi nde r is not permit ted to draw conclus ions based on speculation because doing s o is not sufficient ly based on facts or evidence t o support a finding beyon d a reasonable doubt )

.11

Th e State next suggests that the testimony of Officer Hernandez and
A mand a Black , o ne of the paramedics dispatched to the scene , provides direct
evidence of t he complainant and appellant’s relationship status. Off icer Hernandez
did init ially test ify that the complaina nt t old hi m tha t her boyfriend beat her u p and
she identified appel lan t as t he person who assaulted her

. Black testified the complai nant told her that “her boyf rien d beat her up.” 4 The jury , however, i s not
p erm itted to disregard Officer He rna ndez ’ s later testimon y , given a fter viewing the
b o dy

- came ra video that ha d bee n a dmitted into evidence, admitting that the

co mplainant did not iden tify appellant as her boyfr iend , or Black ’ s admission during cross

- examinatio n that the complainan t did not t ell h er th at appellant was
her bo yfriend. Additionally, the body

- camera video is in the appellate record and a review of the video est ablishes that the complainant ne ver identified app ellant as her boyfriend durin g th e vide o

. T hus, we con clude that Offic er He rnandez ’ s and
Blac k ’ s testimony can not support a det er mination that appel lan t and the compla inant were in a dating relationship. See Britain v. State , 3 92 S.W.3d 244 , 249 (Tex. App.

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

t he jury is permitted to draw appropriate conclusions and inferences fro m the
evid enc e, it was not rational for the j ury to conclude the requisite knowledge based
on the record before us. ” ). We therefore sustain in part a ppel la n t ’ s issu e on appeal

. Conclud ing lega lly insu fficient evidence suppo rt s appella nt ’ s co nviction for dating

- rela tio nship as sault do e s not en d our inquiry however

. In this situation the Court of Criminal Appeals has direct ed t his court to a nswer two quest ion s: “ (1) in
the course of conv icting t he appellant o f the greater offense, must the jur y have

4 Appellant lodged hearsay o bjection s to bot h Hernandez’s a nd B lack’ s testimony. The t rial court overruled both objection s and appellant has not ch al le nged th ose decision s in this app eal.12

necessarily found ev ery element necessary to con vict the appellant for the lesse r

included offense; and (2) con ducting an ev ide n tiary sufficien cy anal ys is as thoug h the appellant ha d been con v i cted of the lesser

- included offense at trial, is there

s ufficient evidence to su ppo rt a co nviction for that offense? ” Thornton v. Sta te , 425 S.W

. 3d 289, 300 ( Tex. Crim. App. 2014). If the answer to both question s is yes, the n we are required “ to avoid t he unjus t result of an outright acquit tal by reforming th e judgment t o ref le ct a con viction for the lesser

- included offense. ” Id.

In this case , appellant has challeng ed the sufficiency of th e eviden ce only for
the aggravating ele ment of the charged offen se, the existence of a dating relationship with the compl ainant

. See Tex. P enal Cod e § 22.01( b )( 2 ) (elevating
assault offense from a C lass A misdemeanor to a third

- degree felony if the
defend ant commits the offense against a p erson with whom the defendant has a

“ dating relationship ” ). He has not challen ged the sufficiency of the evid enc e supporting any of the other elements of the datin g

- relationship assau lt offense , which are the same as for m isde meano r assa ult

. See Tex. P en al Code § 22.01( a )( 1 ) ( A pers on commi ts as sault if he “ intentional ly, knowingly, or re cklessly c auses bod ily i nju ry to another ” ). Having examined t he record eviden ce summarized above, we conclude that the evidence is leg ally sufficient to supp ort a convic tion
for misdemeanor assault

. See Ty ler v. State , 563 S.W.3d 493, 498

– 99 (Tex. App.

— F ort Worth 2018, no pet.) (c oncluding e videnc e legally sufficient to support
mi sdemeano r assault conviction ) . We mu st therefore , reform the judgment to
reflect a convicti on fo r the lesser

- included of fense of misdemeanor assault

. Thornton , 425 S.W

. 3d at 3 00

. C ONCLUSION

Havi ng determined that the evidence is legally insufficien t to support appellant ’ s conviction for dating

- relationshi p assault, and that the evidence i s13

leg ally sufficient to suppo rt a con viction for th e lesser

- included offense of
misdem eano r assau lt, we r ever s e t he trial court ’ s judgment , remand the case to the

t rial court with inst r uctions to re form the judgment to ref lect a con viction for t he
offense of a ssault , and to hold a pun ishment hearing at tendant to this p ost

reformation convi c tion.

/s/ Jerry Zimmerer Jus tice

Panel consists of Justi ces Chris topher, Bourliot, and Zimmerer ( Christ opher , J.
disse nting, Bourliot , J. concurring without o pinion)

. Pu blish

— T EX

. R. A PP

. P. 47.2( b)

.