Affirmed and Memorandum Opinion filed December 21, 2018.

In The 

Fourteenth Court of Appeals 

NO. 14-17-00072-CR

RODERICK MCCORMICK, Appellant 

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the 400th District Court 

Fort Bend County, Texas 

Trial Court Cause No. 15-DCR-069371 

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

Appellant Roderick McCormick appeals his conviction for felony assault of a 

family member by impeding breath or circulation.1 Appellant raises three issues on 

appeal: (1) the trial court erred by denying his motion for mistrial based on a 

witness’s introduction of inadmissible evidence of prior bad acts; (2) the trial court 

erred by including an instruction in the jury charge that commented on the weight of 

 

1 Tex. Penal Code Ann. § 22.01(b)(2)(B) (West 2015).
2

the evidence; and (3) the evidence is insufficient to sustain his conviction. We 

overrule appellant’s first issue because the trial court promptly instructed the jury to 

disregard the inadmissible evidence and the record reveals no harm that was not 

cured by the instruction. We overrule appellant’s second issue because the trial court 

properly instructed the jury and did not comment on the weight of the evidence. We 

overrule appellant’s third issue because sufficient evidence exists to support the 

jury’s finding that appellant committed the charged offense. We thus affirm the trial 

court’s judgment. 

BACKGROUND

The jury heard evidence that on February 22, 2015, appellant and his wife, the 

complainant, engaged in a physical altercation. The complainant stated that earlier 

that day, she and her two younger children attended a new church in response to a 

flyer she had received at work. Unbeknownst to the complainant, appellant’s 

mistress attended the church and the complainant saw her in the choir.2

 Upon 

returning home, the complainant was upset because she had seen the mistress but 

did not want to “start anything” with appellant by bringing it up. Instead, the 

complainant went into the garage after arriving home and began banging a bucket 

with a stick to let out her frustration. Appellant was in the front yard at the time, 

playing with the couple’s younger children. 

After a short time in the garage, the complainant went into the house but stood 

at the door with her back to the room. Appellant, who came into the house after 

hearing the sounds in the garage, came up behind her asking her what was wrong. 

 

2 Appellant’s affair with the mistress began sometime in 2014 and, according to appellant, 

ended some time prior to February 22, 2015, but problems regarding the affair lingered. As a 

result of the affair, the complainant became depressed and received prescription medication for 

depression and anxiety. At the time of trial, the complainant no longer took the medication but 

continued to receive counselling. 
3

The complainant told appellant she could not take it anymore and that appellant 

would need to leave. When the complainant refused to turn around appellant 

grabbed the back of her shirt. When she still did not turn around, appellant used his 

arm to grab her by her neck to turn her around. He got the complainant to turn 

around and slammed her on the ground, then remained partially on top of her. The 

complainant testified that at that point, she was very scared because she could not 

breathe. Appellant had placed the bulk of his weight on one side of the complainant 

and every time she tried to raise up appellant applied pressure to her neck with his 

forearm. Once the complainant remained still and asked appellant to stop, appellant 

agreed and released her. As they got up, appellant again grabbed the complainant in 

a “bear hug” from behind. As she slipped away from him, appellant grabbed the top 

of her hair. 

The complainant testified that after appellant released her hair she went and 

sat on the couch. According to the complainant, appellant then went to the kitchen, 

grabbed a large kitchen knife, and came over to the couch with the knife. Appellant 

held the knife to the complainant’s side and her throat in an effort to get the 

complainant to talk to him. During this time, appellant told the complainant that she 

needed to calm down, he was not doing anything, she did not need to worry about 

anything, and that they were going to talk. They both remained calm and appellant 

then put the knife down. After their conversation, appellant returned to the front 

yard where the children were playing, and the family completed the evening without 

further incident. The complainant stated she did not make a police report or call 

anyone for help that night because her kids did not know what had happened, she 

did not want to disrupt the family, and she did not want anyone to know her business. 

The next day, the complainant went to work. On her lunch break, the 

complainant walked to a nearby police station to make a report regarding the 
4

incident. The complainant explained that she did not believe appellant was trying to 

kill her, but she believed he could have done so by accident and she thus wanted to 

let someone know what had happened. She did not want appellant to go to prison, 

and she did not want her children or neighbors to know what happened, but she 

wanted the police to know what took place in case something happened in the future. 

Appellant also testified at trial and provided a different version of the event. 

According to appellant, the complainant was coughing, breathing hard, and looked 

very upset when she came in from the garage. He told the jury that the complainant 

had not been consistently taking her medication for depression, the lack of which 

makes her frantic and irate, and that he was trying to calm her down. The 

complainant came in from the garage and went straight to the couch, where appellant 

spoke with her, asking her to calm down. When the complainant did not calm down, 

and instead asked him to leave the house, appellant stated he went back out in the 

front yard to play with the children until the complainant calmed down. Appellant 

denied choking the complainant, wrestling her or slamming her to the floor, or

putting a large kitchen knife to her neck. 

The State charged appellant by indictment with one count of assault of a 

family member by impeding breath or circulation, and one count of aggravated 

assault with a deadly weapon. The trial court submitted the case to the jury on both 

counts. The jury found appellant guilty of assault of a family member by impeding 

breath or circulation, but not guilty of aggravated assault with a deadly weapon. The 

trial court assessed punishment at four years’ confinement in the Texas Department 

of Criminal Justice Institutional Division, suspended for a term of eight years on 

community supervision. This appeal followed. 
5

ANALYSIS

I. Sufficient evidence supports the jury’s verdict. 

In his third issue, appellant contends the evidence is “factually insufficient to 

sustain conviction.” We construe this as a challenge to the legal sufficiency of the 

evidence. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (legal 

sufficiency standard “is the only standard that a reviewing court should apply in 

determining whether the evidence is sufficient to support each element of a criminal 

offense that the State is required to prove beyond a reasonable doubt.”). We address 

this issue first because it would entitle appellant to the greatest relief. See Lucas v. 

State, 245 S.W.3d 611, 612 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). 

In reviewing the legal sufficiency of the evidence to support a conviction, we 

determine “whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt.” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. 

Crim. App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Price v. 

State, 502 S.W.3d 278, 281 (Tex. App.—Houston [14th Dist.] 2016, no pet.). In our 

review, we consider all of the evidence in the record, whether admissible or 

inadmissible. Price, 502 S.W.3d at 281. 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). 

Under the penal code, a person commits the offense of assault if the person 
6

“intentionally, knowingly, or recklessly causes bodily injury to another, including 

the person’s spouse.” Tex. Penal Code § 22.01(a)(1). The offense is considered a 

third-degree felony if the offense is committed against a family member, as defined 

in sections 71.0021(b), 71.003, or 71.005 of the Family Code, and “the offense is 

committed by intentionally, knowingly, or recklessly impeding the normal breathing 

or circulation of the blood of the person by applying pressure to the person’s throat 

or neck or by blocking the person’s nose or mouth.” Tex. Penal Code § 

22.01(b)(2)(B). The indictment and the jury charge tracked these elements of section 

22.01(b)(2)(B), and appellant does not claim otherwise on appeal. 

Appellant first argues that the evidence is insufficient to establish choking or 

impeding breath. We disagree. The jury heard testimony from the complainant 

describing how appellant put his arm around her neck, slammed her to the ground 

while putting his significantly heavier weight upon her, and tightened his arm each 

time she struggled. She testified that she was very scared because she could not 

breathe when he tightened his arm. The jury viewed pictures of the complainant 

taken the following day at the police station, which depicted redness and scratches 

on her neck. The evidence is legally sufficient to support a finding that appellant 

impeded the normal breathing or circulation of blood of the complainant by applying 

pressure to her throat or neck. See Marshall, 479 S.W.3d at 845 (evidence legally 

sufficient where complainant testified appellant held pillow against her face and she 

was unable to take deep breaths when he did so). 

On appeal, appellant points to his own testimony denying that he choked the 

complainant, the complainant’s failure to take her medication for depression 

consistently, the fact that she did not appear to be scared of appellant, and her delay 

in making a report until the next day. These facts either represent conflicts in the 

evidence or go to the weight and credibility of the evidence and are therefore within 
7

the province of the jury to consider and resolve. See Temple v. State, 390 S.W.3d 

341, 363 (Tex. Crim. App. 2013) (“[T]he evidence is not rendered insufficient 

simply because appellant presented a different version of the events.” (quoting Turro 

v. State, 867 S.W.3d 43, 47 (Tex. Crim. App. 1993)). We will not disturb the jury’s 

decision resolving the conflicts or weighting the evidence. See id; Montgomery, 369 

S.W.3d at 192 (reviewing court must not usurp role of jury in assessing weight and 

credibility of witnesses). 

Appellant also argues that the evidence is legally insufficient to establish the 

bodily injury element of the offense because the complainant recounted feeling pain 

when appellant grabbed her hair but did not mention pain when describing the 

choking. Direct testimony regarding pain is not required, however. In Marshall, the 

Court of Criminal Appeals explained that a finding of impeding the complainant’s 

breathing satisfies the bodily injury requirement per se. Marshall, 479 S.W.3d at 

845 (explaining that the jury “only needed to determine whether the evidence 

supported a finding that he impeded Shawne’s breathing, thereby finding bodily 

injury per se”). Moreover, any physical pain, however minor, will suffice to 

establish bodily injury. Garcia v. State, 367 S.W.3d 683, 688 (Tex. Crim. App. 

2012); Crow v. State, 500 S.W.3d 122, 129 (Tex. App.—Houston [14th Dist.] 2016, 

pet. ref’d). A fact finder may infer that the complainant actually felt or suffered pain 

while being choked because people of common intelligence understand pain and the 

natural causes of it. See Crow, 500 S.W.3d at 129. The jury heard the complainant 

describe how appellant put his arm around her neck, slammed her to the ground, and 

proceeded to tighten his arm around her neck when she struggled, cutting off her 

breathing. The jury could infer from these circumstances that the complainant 

suffered some amount of pain. See id.

Viewing the entirety of the evidence in the light most favorable to the jury’s 
8

verdict, we conclude that a reasonable factfinder could find beyond a reasonable 

doubt that appellant committed the offense of assault of a family member by 

impeding breath or circulation in violation of the penal code. Marshall, 479 S.W.3d 

at 845. We overrule appellant’s third issue. 

II. The trial court did not abuse its discretion in denying the motion for 

mistrial. 

In his first issue, appellant contends the trial court erred in denying his motion 

for mistrial because the complainant injected inadmissible bad acts in her testimony. 

Specifically, appellant contends the trial court should have granted a mistrial after 

the complainant twice referenced physical and mental abuse in her marriage. 

The first time the complainant mentioned abuse came in response to a question 

from the prosecutor regarding what things were going on in the relationship that 

made the complainant feel it was not normal. The complainant responded: “physical 

and mental abuse.” Appellant’s counsel immediately objected to the statement as a 

violation of a motion in limine. The trial court cautioned the prosecutor to “be 

careful to emphasize the specific event.” The second reference came from the 

complainant when discussing her visit to the church on the morning of the incident. 

The complainant testified: 

After service one of the ladies, the prayer ministry ladies seen how bad 

I was hurting because I was in the audience receiving the word and she 

called me to the back and we just had a one on one conversation. I 

didn’t mention the lady at all, the member of that church, I didn’t 

mention her or bring her up or anything. I just told her what was going 

on in my home physically and mentally and we prayed together and I 

took her phone number and she wanted me to keep in contact with her. 

Appellant’s counsel again objected and requested a bench conference. At the 

conference, counsel for the State and appellant agreed that the jury should be 

instructed to disregard the contents of the discussion with the person at the church. 
9

The trial court instructed the jury “to disregard the witness’s response to the last 

question that was asked.” Appellant then moved for a mistrial, which the trial court 

denied. 

A. Appellant’s motion was timely. 

As an initial matter, we address the State’s contention that appellant failed to 

preserve error because he did not obtain a ruling or request an instruction regarding 

the first reference to physical and mental abuse. Citing Griggs v. State, 213 S.W.3d 

923 (Tex. Crim. App. 2007), the State contends appellant’s failure to move for a 

mistrial at the first mention of the abuse makes the motion untimely. We disagree. 

To preserve error from the denial of a motion for mistrial, an appellant must 

make a timely and specific motion as soon as the grounds for it become apparent. 

See Griggs, 213 S.W.3d at 927; Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 

2004) (en banc). A motion for mistrial is untimely if it is made at the end of a 

witness’s testimony and without objection. See, e.g., Griggs, 213 S.W.3d at 927; 

Veras v. State, 410 S.W.3d 354, 357-58 (Tex. App.—Houston [14th Dist.] 2013, no 

pet.). In Griggs, the Court of Criminal Appeals held a motion for mistrial untimely, 

explaining that the appellant could have (1) asked to approach the bench, (2) asked 

the trial judge to excuse the jury, (3) objected to the testimony, (4) asked the trial 

judge to instruct the witnesses not to mention extraneous offenses, (5) requested a 

curative instruction, and (6) moved for a mistrial if he believed no instruction could 

be effective. Id. The court further noted that “[i]f a party delays [his] motion for 

mistrial, and by failing to object allows for the introduction of further objectionable 

testimony or comments and greater accumulation of harm, the party could no more 

rely on the untimely motion for mistrial than on an untimely objection.” Id. (citing 

Young, 137 S.W.3d at 70).

 Unlike the appellants in Griggs and Veras, appellant in this case did object 
10

to the first reference made by the complainant to prior mental and physical abuse 

and did obtain an instruction from the trial court to the witness and counsel to be 

careful to emphasize the specific event. This is consistent with the preferred 

sequential method of preserving error, that is: (1) object when possible; (2) request 

an instruction to disregard if the prejudicial event has occurred; and (3) move for 

mistrial if a party believes an instruction to disregard was not sufficient. See Veras, 

410 S.W.3d at 357. When the complainant again mentioned physical and mental 

abuse shortly thereafter, appellant’s counsel again objected, asked for and obtained 

a limiting instruction, and moved for a mistrial, which the trial court denied. We 

conclude that under the facts of this case, the motion for mistrial was timely. 

B. The instruction to disregard cured any prejudice. 

We review a trial court’s denial of a motion for mistrial for an abuse of 

discretion. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009); Jackson, 

495 S.W.3d at 421. We view the evidence in the light most favorable to the trial 

court’s ruling and will uphold the ruling if it falls within the zone of reasonable 

disagreement. Ocon, 284 S.W.3d at 884. A mistrial is an extreme remedy reserved 

for a narrow class of cases in which the error is highly prejudicial and incurable. Id. 

In determining whether a mistrial is warranted, we consider the prejudicial effect, 

any curative measures taken, and the certainty of conviction absent the prejudicial 

event. Jackson, 495 S.W.3d at 421. 

Testimony that improperly refers to or implies extraneous offenses allegedly

committed by a defendant may generally be cured by a prompt instruction from the 

trial court to disregard the testimony. See Ladd v. State, 3 S.W.3d 547, 571 (Tex. 

Crim. App. 1999); Phillips v. State, 130 S.W.3d 343, 348 (Tex. App.–Houston [14th 

Dist.] 2005) aff'd, 193 S.W.3d 904 (Tex. Crim. App. 2006). An exception to this 

general rule exists if “the improper testimony is clearly calculated to inflame the 
11

minds of the jury and is of such a character to suggest the impossibility of 

withdrawing the impression produced on the minds of the jury.” Jackson, 495 

S.W.3d at 421 (citing Hudson v. State, 179 S.W.3d 731, 738 (Tex. App.—Houston 

[14th Dist.] 2005, no pet.)). 

The exception does not apply in this case. Nothing in the record indicates that 

the complainant’s two references to physical and mental abuse were of such a 

character as to make it impossible to remove the harmful impression from the jurors’

minds. The two references cited by appellant were non-specific, were not solicited 

by the State, and were not repeated throughout the remainder of the trial.3

 The trial 

court promptly instructed the jury to disregard the complainant’s testimony 

regarding the abuse. The references are similar to those typically cured by an 

instruction to disregard. See Ladd, 3 S.W.3d at 571 (reference to appellant’s three or 

four juvenile arrests); Jackson, 495 S.W.3d at 421 (reference to appellant’s prior 

record); Hudson, 179 S.W.3d at 738-39 (mention of several assaults in days leading 

up to incident). We must presume the jury followed the trial court’s instruction to 

disregard, and appellant has not shown that the instruction did not cure the potential 

harm from any impression left by the testimony. See Colburn v. State, 966 S.W.2d 

511, 520 (Tex. Crim. App. 1998); Jackson, 495 S.W.3d at 421. In fact, the jury 

acquitted appellant of the second offense, assault with a deadly weapon, thus 

demonstrating that the references did not inflame the minds of the jury against 

appellant. We overrule appellant’s first issue. 

 

3 Appellant argues that the State did attempt to elicit another reference to extraneous 

offenses later in the trial regarding the reasons the complainant did not immediately report the 

incident to police. The State approached the bench before eliciting any such evidence, however.

Appellant’s counsel then conducted a voir dire of the complainant regarding her reasons outside 

the presence of the jury, and the State did not elicit any evidence of prior bad acts.
12

III. The trial court properly instructed the jury on the definition of act. 

In his second issue, appellant asserts the trial court erred by including in the 

jury charge the definition of “act” found in the Penal Code. According to appellant, 

the definition was unnecessary and resulted in an improper comment on the weight 

of the evidence. 

The charge submitted two offenses to the jury: (1) assault of a family member 

by impeding breath or circulation; and (2) aggravated assault with a deadly weapon. 

The instructions on aggravated assault with a deadly weapon were broken into two 

paragraphs, asking the jury whether appellant committed the offense by (a) causing 

bodily injury by pulling the complainant with his hand while using or exhibiting a 

deadly weapon; or (b) threatening the complainant with imminent bodily injury 

while exhibiting a deadly weapon. Under the instructions in the abstract portion of 

the charge, assault by impeding breath or circulation and aggravated assault with a 

deadly weapon by causing bodily injury required proof of intentional, knowing, or 

reckless conduct. Aggravated assault with a deadly weapon by threatening a person 

with imminent bodily injury required proof of intentional or knowing conduct. The 

charge then included the statutory definitions for intentional, knowing, or reckless 

conduct found in section 6.03 of the Penal Code, each of which includes the word 

“acts.” See Tex. Penal Code § 6.03(a) (“A person acts intentionally, or with intent, 

with respect to the nature of his conduct . . .”); § 6.03(b) (“A person acts knowingly 

or with knowledge, with respect to the nature of his conduct. . .”); § 6.03(c) (“A 

person acts recklessly, or is reckless, with respect to circumstances surrounding his 

conduct. . .”). The charge then stated that an “act” is “a bodily movement, whether 

voluntary or involuntary, and includes speech.” See Tex. Penal Code § 1.07(a)(1). 

All of the definitions tracked the statutory definitions found in the Penal Code. 

On appeal, appellant argues that defining the term act to include speech was 
13

unnecessary and impermissibly singled out specific evidence. The State responds 

that the definition of act was taken from the Penal Code and was necessary to give 

meaning to the term act in the applicable definitions of criminal intent, an element 

of the offenses. We conclude the trial court did not abuse its discretion in providing 

the Penal Code definition of act in the jury charge. 

In reviewing a claim of charge error, we first analyze whether error exists. 

Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error exists, we then 

determine whether reversal is warranted based on the degree of harm. See Olivas v. 

State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). The degree of harm necessary 

to require reversal depends upon whether appellant preserved the error by objecting 

at trial. Id; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on 

reh’g). If, as in this case, the appellant properly objected to the instruction given, 

reversal is required if we find “some harm” to the appellant’s rights. Ngo, 175 

S.W.3d at 743. 

A trial court must provide a written charge to the jury distinctly setting forth 

the law applicable to the case. Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007). 

The law applicable to the case includes statutory definitions that affect the meaning 

of the elements of the offense. Ouellette v. State, 353 S.W.3d 868, 870 (Tex. Crim. 

App. 2011); Lovings v. State, 376 S.W.3d 328, 337 (Tex. App.—Houston [14th 

Dist.] 2012, no pet.). “A trial court has broad discretion in submitting proper 

definitions and explanatory phrases to the jury.” Nejnaoui v.State, 44 S.W.3d 111, 

119 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). 

 The charge submitted by the trial court in this case used definitions taken from 

the Penal Code to describe the conduct required to support a conviction of each 

charged offense. The trial court properly communicated to the jury each statutory 

definition affecting the meaning of the elements of the charged offenses. See 
14

Villarreal v. State, 286 S.W.3d 321, 329 (Tex. Crim. App. 2009) (instructing jury on 

law applicable to case “requires that each statutory definition that affects the 

meaning of an element of the offense must be communicated to the jury”) (internal 

quotations omitted). As such, we disagree with appellant that the definition of “act” 

was unnecessary. 

Of course, even definitions provided by the Penal Code must be tailored to 

the facts of the case. See Burnett v. State, 541 S.W.3d 77, 84 (Tex. Crim. App. 2017) 

(trial court must submit only portions of the statutory definition of “intoxicated” that 

are supported by the evidence). Here, the State charged appellant with aggravated 

assault with a deadly weapon by threatening the complainant with imminent bodily 

injury. Threatening another person can involve bodily movement that includes 

speech. The complainant testified that as he held the knife to her side, appellant said 

“look at me, we going to talk,” and as he held the knife to her neck, appellant told 

her to turn around. Thus, under the facts of the case, speech in combination with use 

of the knife was an act applicable to the charged offense of threatening bodily injury, 

and the challenged instruction properly informed the jury that it could consider 

movement and accompanying speech in determining intent. 

 In support of his argument on appeal, appellant cites a number of cases 

addressing whether a trial court errs by instructing a jury on non-statutory 

presumptions or inferences that it may use in deciding the ultimate facts of the case 

or whether a court may consult non-statutory definitions in conducting a sufficiency 

review. See, e.g., Walters v. State, 247 S.W.3d 204, 213 (Tex. Crim. App. 2007) 

(trial court properly refused instruction on non-statutory term “prior verbal threats” 

that was not grounded in the Penal Code, was already covered by general charge to 

the jury, and focused jury’s attention on specific type of evidence); Brown v. State, 

122 S.W.3d 794, 802 (Tex. Crim. App. 2003) (trial court erred by instructing jury 
15

on non-statutory presumption that “[i]ntent or knowledge may be inferred by acts 

done or words spoken”); Medford v. State, 13 S.W.3d 769, 772 (Tex. Crim. App. 

2000) (determining proper definition to use for word arrest in escape statute); Denton 

v. State, 911 S.W.2d 388, 389 (Tex. Crim. App. 1995) (addressing non-statutory 

definition of operate for purposes of sufficiency review). We find these cases 

inapposite. The definition of “act” used by the trial court was derived from the Penal 

Code and did not involve a presumption or inference. 

The trial court did not abuse its discretion by including the definition of “act” 

from the Penal Code in the jury charge. We overrule appellant’s second issue. 

CONCLUSION

Having overruled appellant’s issues on appeal, we affirm the trial court’s 

judgment. 

 

 /s/ J. Brett Busby

 Justice 

Panel consists of Justices Busby, Brown, and Jewell. 

Do Not Publish — TEX. R. APP. P. 47.2(b).