NO. PD-0372-15 IN THE 

## COURT OF CRIMINAL APPEALS

OF TEXAS AUSTIN, TEXAS 

# LUIS SANCHEZ PETITIONER, V. 

# STATE OF TEXAS RESPONDENT 

## PETITION FOR DISCRETIONARY REVIEW ON PETITION FOR DISCRETIONARY REVIEW from the ELEVENTH COURT OF APPEALS , EASTLAND, TEXAS

CASE NO. 11-12-00279-CR On appeal from the 161 ST Judicial District of Ector County, Texas

Cause Number B-37,135 Honorable John W. Smith, Presiding M. Michele Greene State Bar No.00789966 2833 Wildwood Ave. Odessa, Texas 79761 Tel: (432) 238-1255 Email: mmg@michelegreenelaw.com Attorney for Petitioner

PETITIONER REQUESTS ORAL ARGUMENT PD-0372-15 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 4/20/2015 12:00:00 AM Accepted 4/21/2015 2:26:37 PM

ABEL ACOSTA CLERKNO. P D-0372-15 IN THE 

## COURT O F CRIMINAL APPEA LS

OF TEXAS AUSTIN, TEXAS 

# LUIS SANCHEZ PETITIONE R, V. 

# STATE OF TEXAS RESPONDENT 

## PETI TION FOR DISC RETI ONARY REVI

EW ON PE TITIO

N FOR D ISCRET IONAR Y REV IEW f

rom t he ELEVENTH COURT OF APPEALS , EASTLAND, TEXAS

CASE NO. 11-12-00279-CR On appea l from

the 161 ST Judicial District of Ector County, Te xas Cause Nu

mber B-37,135 Honorable

John W. Smit

h, Presi ding TO THE HONORABLE JUSTICES OF TH E COURT OF CRIMINAL APPEALS OF

TEXAS: NOW COMES Luis Sanc hez, Pe titioner in this cause, b y and th

rough his cou

rtappointed appellate

counsel, M. Miche le Gree ne, and, pursuant to the provisio ns of T EX . R. A PP . P. 67 et seq. , moves this Co urt to gra nt this petition for discretionary review, and in suppor

t will show

as follow s:1 The Reporter’s Record reflects that a “Mr. Conner” was asking questions and making

objectio ns on beha

lf of the S tate dur

ing the b ench tri al; howev er, this in dividual is

not other wise specifically ide

ntified in any volume of the Repor ter’s Record. (RR 4:79-83,91). ii 

### IDENTI TY OF PARTI ES AND COUNSEL The following

is a com plete list of all par

ties, as well as the nam es, addr esses, and em ails (if k

nown), o f all couns el. Defendant/Appellant/Pe titioner: Luis Sanchez Complainant/Appellee/R espondent: State of Texas Petiti oner’s C ounsel: at Trial: William R. Bowden, Jr. 221 W. 4 th Street Odessa, Texas 797 61 Petitioner’s Counsel on Appe al: M. Miche le Gree ne 2833 Wildwood Ave. Odessa, Texas 797 61 mm g@mic helegree nelaw. com Respondent’s Counsel at Trial: 1 Dusty Gallivan Deputy District Attorney 300 N. G rant Ave ., Rm . 305 Odessa, Texas 797 61 Respondent’s Counsel on Appe al: Michael Bloch Assistant District Attorney 300 N. G rant Ave . Rm . 305 Odessa, Texas 797 61 MICHAEL. BLOCH

@ectorcou ntytx. gov .iii

Trial Court: The Honor able John W . Sm ith, 161 ST District Court, Ector County, T exas Appellate Court: Justices Jim R . Wri ght, Mike Wilson, and John M

. Baile y, Court of A

ppeals, E leventh D istrict of Texas.2 Volume 2 o f the Reporter’s R ecord r eflects that the a rraig nment hea

ring in t his cause was held on September 6, 2012; however, this date reflec ts a typogr aphical error, as the arraignment hearing w as actually he ld on April 5, 2010. (SCR 1:15). iv 

### RECORD REFERENCES The Clerk’ s Record c ontains only one volum e; theref

ore, re ference s in this petition to the Cle rk’s R e cord are by volume and page number, indicated as “ CR 1:__.” The Clerk’s Record contains the pleadings, orders, and correspondence filed with (or sen t to) the tr ial court an d clerk tha t are pertin ent to thi s appeal. This appeal also includes two Supplemental Clerk’s Rec ord s. Each Supplemental Clerk’ s Record c ontains only on e volum e. Ref

erences to the Su pplemental Clerk’s Record dated Decem ber 11, 2012, in this petition are b y

vo lu me and

page number, indicated as “SCR 1:__.” Ref erences to the Supplemental Clerk ’s Record da

ted August 19, 2013, i n this petition ar e also by volume and page number, indicat ed as “2SCR 1:__ .” The Reporter ’s Rec ord contain s six volum es; t herefor e, ref erences to the Repor ter’s Record in

this petition ar

e by vol ume a nd page number, indicated as “ RR __:__.” The Reporter’s Record includes the transcripts of the arraignm en t he aring held on April 5, 2010, 2 and th e pret rial h earin g hel d on J une 8 , 2011 . The Rep orter ’s Record also includes transcripts of the bench trial held on Sep tembe r 6, 2012, and the post-judgm

ent heari ng held on Oc tober 2, 2 012.v

References to the Eleventh Court of Appeals’ m ajority opinion issued March 5, 2015 are by page number, indicated as “AO, __.” References to Chief J

ustice Jim

R. Wr ight’s D issenting an d Concurri ng Opinion also issued

on March 5, 201 5 are by page number, in dicated as “DAO, __.”



### PARTY REFERENCES Petit ioner Luis Sanc hez shall b e refer red to as “

Petitione r.” Re spondent t h e State of Texas shall be referred to as “ Respondent.” The Ele venth Court of Appeals shall be re ferred to as “the Ap pellate Co urt.”vi 

### TABLE OF CONTENTS PAGE IDENTITY OF PARTI ES AND COUN SEL

.................................. ii RECORD REFERENCES

................................................ iv PARTY REFERENCES

.................................................. v INDEX OF AUTHORITIES

.............................................. vii STATE MENT REGAR DING OR AL ARGUMENT

.......................... viii STATEM ENT OF TH E CASE

........................................... viii STATEMENT OF PROCE DURAL HISTORY

............................... ix GROUND S FOR REVIEW

............................................. . . xi ARGUM ENT

.......................................................... 1 CONCLUSION AND PRA YER FOR RELIEF

................................ 8 CERTI FICAT E OF COMPLI ANCE

......................................... 9 CERTI FICAT E OF SERVI CE

............................................ 10 AP PEN DIX

........................................................... 11 A - Majority

Opinion: Sanchez v. State , No. 11 -02-00279- CR, 2015 T EX . A PP . L EXIS 2113 (Tex. App.–E astland, delivere d March 5, 2015) B- Diss enting and C oncu rring O pinion : S anchez v. State , No. 11 -02-00279-C R, 2015 T EX . A PP . L EXI S 2113 (Tex. App.–E astland, delivere d March 5, 2015)vii 

### INDEX OF AUTHORITI ES CASES Cada v. St

ate , 334 S.W .3d 766 (T ex. Crim . App. 2011)

...................... 2 Hill v. State , No. 01 -10-00926-C R; 2012 T EX . A PP . L EXIS 2225 (Tex. App.–Houston [1 st Dist.], March 22, 2 012, no pe t.) (mem . op.) (

not designat ed for publ ication)

......................... 5 Sanchez v. State , No. 11 -02-00279-C R, 2015 T EX . A PP . L EXIS 2113 (Tex. App.–E astland, delivere d March 5, 2015)

.................. ix-x White v. State, No. 05-0 9-00112-CR ; 2010 T EX . A PP . L EXIS 5985 (Tex. App. Dallas, July

29, 2010, pet. ref’d) (m

em. op.) (not designa

ted for pub lication)

.................................. 5 RULES T EX . R. A PP . P. 39

.................................. .............. viii STATUTES T EX . F AM . C ODE A NN . § 71.0021(b) (L EXIS 2015)

.................... ix,1-2 T EX . FAM . C ODE A NN . §§ 71.0021(b)(1-3) (L EXIS 2015)

.................. 2-3 T EX . F AM . C ODE A NN . § 71.003 (L EXIS 2015)

.......................... 1,3 T EX . F AM . C ODE A NN . § 71.005 (L EXIS 2015)

............................ 1 T EX . G OV ’ T C ODE A NN . § 573.024(a)(1) (L EXIS 2015)

..................... 3 T EX . P EN . C ODE §§ 22.01(a )(1) (L EXIS 2015)

........................... ix,1 T EX . P EN . C ODE A NN . § 22.01(b)(2) (L EXIS 2015)

....................... 1-2 T EX . P EN . C ODE A NN . § 22.01(b)(2)(B) (L EXIS 2015)

.................... ix,1viii



### STATEMENT RE GARDI NG ORAL ARGU MENT Petitioner has raised an impor

tant questi on of first

impr ession in this Court and believes that oral argum ent would he lp clarif y the i ssue prese nted in this P etition for Discret iona r y Review. Theref

ore, Pe titioner r espectfu lly re quests oral argum ent pursuant to T EX . R. A PP . P. 39.



### STATEM ENT OF T HE CA SE Petition er was charged with assault family violence solely under T EX . P EN . C ODE A NN . §§ 22.01( a)(1), (b)(2)( B) and T EX . F AM . C ODE § 71.0021(b ). The State failed to alternatively charge Petitioner under T EX . F AM . C ODE §§ 71.003 or 71.005. The evidence at trial conclusively established Petitioner was married to the victim at the timethe allege d a ssault occurred. Accordingly, there w as a fatal variance betw een the indic tment and the proof at trial. The m ajority of the Appellate Court therefore erred in affirming Petitioner’ s third-degree fe lon y conviction f or assault fami ly viol ence u nder T EX . P EN . C ODE A NN . § 22.01( b)(2) and T EX . F AM . C ODE § 71.0021(b).ix



### STATEMENT OF PROCEDUR AL HI STORY On or about Ma

rch 22, 201 0, Petiti oner was indicted on one count of assault fami ly violence, a third deg

ree fel ony pur suant to T EX . P EN . C ODE A NN . §§ 22.01(a)(1), (b)(2)(B) (L EXIS 2015) and T EX . F AM . C ODE A NN . § 71.0021(b) (L EXIS 2015). (CR 1 :5). On Septem

ber 6, 2012 , the Hon orable John W. Sm ith of the 16 1 st Judicial District Cou rt o f Ect or Co unt y, Texas held a b ench trial in this ca use. (RR 4:1) . At the conclusion

of the benc h trial, the trial court found Petitioner guilty of the indicted charge, and on Sept embe r 18, 2012, the t rial cour t entered a Judgem ent of Convi ction by Court–Waiver of Jury T

rial sentencing Petitioner to six years in the Institutional Division of the Te xas Depa

rtme nt of Crim

inal J ustice pur suant to T EX . P EN . C ODE A NN . § 12.14 (L EXIS 2015). (CR 1: 57-58; RR 4:138; 5 :10). On September 25, 20 12, P etitio ner timely filed his Notice of Appeal. (CR 1:59). Petitioner presented one issue in his appellate brief asserting the State failed to prove all the statutory eleme nts required under T EX . P EN . C ODE §§ 22. 01(a)(1), (b)(2) a nd T EX . F AM . C ODE § 71.002 1(b). On March 5, 2015, a m

ajor i ty of th e Appe llate Court affirmed Petit ione r’s conviction

under T EX . P EN . C ODE §§ 22.01(a )(1), ( b)(2)(B ) and T EX . F A M . C ODE § 71.0021(b). (AO, 10). Sanchez v. State , No. 11 -02-00279-C R, 2015 T EX . A PP . L EXISx

2113 (Tex. App.–Eastland, delivered March 5, 2015). T he Honora ble Justice s Mike Wilson and John M. Bailey

participa ted in the m

ajority decision of the Appellat e Court, with Justic e John

M. Baile y autho ring the m ajority opinion of the cour t. (

Id .). O n that sam e day, Chief Just ice Jim R. Wr ight authore d a dissenti

ng and concurri ng opinion. ( DAO, 1-8). I n his dissenti ng opin ion, Chief Just ice Wr ight concluded that while the State failed to prove all the sta tut ory elements required under T EX . P EN . C ODE § 22.01(b) (2)(B) and T EX . F AM . C ODE § 71.0021(b) , the State did meet its burden of proof under T EX . P EN . C ODE § 22.01(a)(1). ( Id .). Thus, Chief Justice Wright

held Petit

ioner wa s entitled t o a new pun ishme nt hearing based on his convicti on for simple as sault. (DAO, 7-8). Petitione r did not fil e a Motion f or Rehea ring with t

he Appell ate Court

. This Petition fo r Discret ionary Review i s due to be f

iled on May

6, 2015; therefor e, it is ti mely

filed.xi 

### GROUNDS PRESENTED FOR REVI EW Ground N o. 1: A resolution

is necessa

ry of the disagr eeme nt amo ngst the j ustices of the Appellat e Court as to whethe r a defe ndant can be convicted of assaulting

his spouse based solely

on their past dating relationship under T EX . P EN . C ODE A NN . §§ 22 .01 (b)(2) a nd T EX . F AM . C ODE § 71.0021(b). Ground N o. 2: An important question of state law is presented that has not been, but should be, sett led by t

his Court a s to whethe r a defe ndant can be convicted of assault

ing his spouse based solely on their pa st dating relations hip under T EX . P EN . C ODE A NN . §§ 22.01( b)(2) and T EX . F AM . C ODE § 71.0021(b).3 As Ground No. 1 and G

round No. 2 involve t

he same f acts, sta tutory authority , and ca se law, they will be addr

essed together. 1



### ARGUMENT Grounds for Review Restated : Ground No. 1: A resolution is necessa ry of the disagree ment

among st the justices of the A ppellate C ourt as to w hether a d efendant can be convict ed of assa

ulting h is spouse base d solely on their past dating relationship under T EX . P EN . C ODE A NN . §§ 22.01(b) (2) and T EX . F AM . C ODE § 71.0021(b). Ground No. 2: An impor tant question of state law is presented that has not been, but should be, settled by this Court as to whether a defendant can be con

victed of a ssaulting his spouse based solely on their pa st dating re lationshi p under T EX . P EN . C ODE A NN . §§ 22.01( b)(2) and T EX . F AM . C ODE § 71.0021(b). 3 A Class A m

is de mean or assault

is elevate d to a third degree f elony i f the assault 1) is comm

itted against a person who falls within one of t he classes of individuals defined in

T EX . F AM . C ODE § 71.0021(b) (dating re lati onship ), T EX . F AM . C ODE § 71.003, ( fami ly) a nd T EX . F AM . C ODE § 71.005 (ho useho ld); and ( 2) is

comm itted by str ang ula tion or su ffocation . T EX . P EN . C ODE A NN . §§ 22.01(b)(2), 22.01(b) (2) (B) (L EXIS 2015); T EX . F AM . C ODE A NN . §§ 71.002 1(b), 71. 003, and 71.005 (L EXIS 2015). In the case at bar, the State charged P etit ioner wi th a third- degree f elony o f

assau lt fam ily viol ence pursu ant to T EX . P EN . C ODE §§ 22.01(a )(1), 22 .01(b)( 2)2

( L EXIS 2015), and

T EX . F AM . C ODE § 71.0021(b) (L EXIS 2015). (C R 1:5). I n the indictm ent, the State fa

iled to incl

ude any of the sta tutory alternat ive elem ents found under T EX . P EN . C ODE § 22.01(b )(2). B e cause the State pled only one specific elem ent under T EX . P EN . C ODE § 22.01(b)(2), the suffic ienc y of the evid ence in the case at b ar is m easured by the elem ent that was actually

pled—tha t is, T EX . F AM . C ODE § 71.0021(b) ---and no t by any of the othe r statutor

y alte rnative e leme nts included in T EX . P E N . C ODE § 22.01(b)(2). See Cada v. State , 33 4 S. W.3d 76 6, 774 (T ex. Crim . App. 2011) (sufficiency

of evidence mea sured by

statutory elem ents actually

pled in indic tment and not by a ny om itted statu tory a lternativ e elem ents). A s a result, the maj ority of the Appellat e Court correct

ly foun d the State

limit ed its case

against Pe titioner to proving that Petitione r com

mitte d an a ssault aga inst a person with whom he “ has or had” a “dating relationship.” (AO, 6). T EX . F AM . C ODE § 71.0021 defines a “dating relationship” as a “r elationship between individuals w

ho have or

have had a

continuing r elationship of a rom antic or intima te nature.” T EX . F AM . C ODE A NN . § 71.0021(b) (L EXIS 2015). The existence of a dating

relations hip is deter

mined based on the

following

three fa ctors: (1) the length of

the rela tionship; (2) the nature

of the re lationship; a

nd3

(3) the frequenc y and ty pe of i nteracti on betwee n the perso ns involved in the relat ionship. T EX . FAM . C ODE A NN . §§ 71.0021(b)(1-3) (L EXIS 2015). The statutory defi nition of “dating relationship” does not include a spousal relat ionship. Rather, a spousal r elationship is included under the d efinition o f “famil y” found in T EX . F AM . C ODE § 71.003. Under T EX . F AM . C ODE § 71.003, a fami ly includes “ individuals r

elated by consanguini ty or a ffinit

y, as determined under Sections 573.022 and 57 3.024 Gov ernment C

ode . . .” T EX . F AM . C ODE A NN . § 71.003 (L EXIS 2015). Two individuals are related to each other by “ affinity” if they

are “m arried to each other.” T EX . G OV ’ T C ODE A NN . § 573.024(a)(1) (L EXIS 2015). The evidence introduced

at trial establishe d that Peti tioner and Rachel Price, (“Price”), entered i

nto a com mon la w ma rriage i n August of

2006 and that they were legally divorced in early 2010. (RR 4:4 7,50-51, 67,115-16, 123,DX# 1). The State charged Petitioner

with assaulting Price on or about December 18, 2009. (CR 1:5). As such, the evidence introduced at trial conclusively established Price and Petitioner

were m arried on the day the State alleged th e assault o ccurred

. The maj ority

of the Appellate Court recognized that Petitioner and Price were indeed married at

the time the alleged

assault occurred and that Petitioner and Price

were not sim

ply invol ved in a “ dating rel ationship” o n Decem ber 18, 200 9. (AO ,6-4

7). As such, the m ajority of the App ellate C ourt corr ectly conc eded that under the facts of this case, Petitioner and Price did not “hav e a conti nuing relationship of a romantic or int imate nature” on the day the alle ged assau lt occurred . (AO,7). The majority

of the Appellate Court then focused on the language “have had

a continuing r elationship of a rom antic or in

timat e natu

re” as found in T EX . F AM . C ODE § 71.0021 (b). ( Id .). T he ma jority justice s reasone d that beca use Petitione r and Price had a continuing relationship of a romantic or intimate nature befo re they entered into their comm

on law m arriage

in August

of 2006, then Petitioner and Price

necessar ily had been involved in a past “dat ing relati onship.” (

AO, 8) . Based on this rationale, the m ajority

of the App ellate Court erroneously concluded Petitioner could be found guilty

of the thir

d degree f elony o f assault f

amily violence p ursuant to T EX . P EN . C ODE § 22.01(b) (2) and T EX . F AM . C ODE § 71.0021 (b). ( Id .). As a result of t this wron gful conclusion, the majority justices affirmed Pe titioner’s third-degree felony conviction and upheld his six year prison sentence. (AO, 10). The maj ority of the App ellate C ourt cit ed no ca se law dir ectly on point to support its decisio n in this case. S uch om ission is not s urprising be cause there is n o Texas case in w

hich an appe llate court has h eld that a def endant ca n be convict ed of assaulting

his spouse---or for that matter his former spouse---under T EX . P EN . C ODE § 22.01(b) (2) and T EX . F AM . C ODE § 71.0021 (b).5

As there is n o Texas c ase law directly on poi nt to suppo rt their r uling in this

cas e, the ma

jority justice s refer enced the following two unpublis hed me mora ndum opinions from sister

appellate courts in an attempt to justify their flawed

rationale and

erroneous decision in

this case: 1) White

v. State, No. 05-09-00112-CR; 2010 T EX . A PP . L EXIS 5985 (Tex. App. Da

llas, July 29, 2010, p et. ref

’d) (m em. op.) (not designated

for public ation); an d 2) Hill

v. State , No. 01 -10-00926-C R; 2012 T EX . A PP . L EXIS 2225 (Tex. App.–Houston [1 st Dis t.] , Ma rch 22 , 20 12 , no pet .) ( mem. op.) (not designated for publication). A cursory reading of White and Hill reveals that neither of thes e two cases involved defendant s who wer e ma rried to t he victim s at the tim

e th e assault s

occurre d, or f

or t hat ma tter, defen dants who w ere act ually m arried t o the assau lt vi cti ms at any

point in time. White, 2010 T EX . A PP . L EXIS 5985 at *1-3; Hill , 2012 T EX . A PP . L EXIS 2225 at *1-4. More importantly, neither White nor Hill held that a defendant could be convicted of a third-degree felony for assaulting his spouse based

on their past

dating relationship under T EX . P EN . C ODE § 22.01(b) (2) and T EX . F AM . C ODE § 71.0021(b). Therefore, these two cases should not be deem ed precedential authorit y in the case at b ar. To reach their ruling in this case, the majority justices had

to disrega

rd the for ty (4 0) months which pas sed betwe en the tim e Petition er’s da

ting relat io nship with Pric e6

ended and

the tim e the alle ged assault occurre d. Additi onally , the majority justices had to set aside

entirely the interveni ng circum stance of Petitione r’s thr ee and

onehalf (31⁄2) year lon g common law marriage to Price. In hi s d is sen ti ng and con cur rin g o pi ni on , Ch ief Ju st ice Ji m R . Wri g ht addressed these two flaws in the m ajority

justice s’ rationale

in upho ldin g Peti tion er’s third-degree felony conviction under T EX . P EN . C ODE § 22.01(b) (2) and T EX . F AM . C ODE § 71.0021(b). Justice W right car efully

and thoughtf

ully dis cussed the use of the term s “dat

ing relati onship” and “

marr iage” in T EX . F AM . C ODE § 71. 0021 and correct ly det ermi ned th e Te xas Leg is lat ure ’s i nt ent was for th ese ter ms to be m utually exclusiv e. (DAO, 3). Upon reviewi ng T EX . P EN . C ODE § 22

. 01(b)(2), T EX . F AM . C ODE § 71.0021(b), T EX . F AM . C ODE § 71.003, a nd T EX . F AM . C ODE § 71.005, J ustice W righ t further reached the conclu sion that a “ dating re lationship” and “marriage” are addressed separate ly

within the se statutor

y provi sions. (DAO , 6-7). After an in-depth analy sis, Chief Justice W

right corr ectly held that a s a result of the interveni ng circum stance of Petitioner and Price ’s th

ree and one-half year (31⁄2) m

arriage, Petitioner’s third-degree felony conviction could not be affirmed based on their previous da

ting relat ionship under T EX . P EN . C ODE § 22.01(b) (2) and T EX . F AM . C ODE § 71.0021(b) (DAO, 7).7

In the case at bar, the State could have plead several available

and applic able statut ory alt ernative elem ents. H owever, the State chose to ch arge Pet

itioner w ith only a singl e narrow element: a d ating rela tionshi p. As the evidence introduced at trial conclusively contradicted this elem ent, ther e was a f atal vari ance betw een the indictment an d the proo f in this ca se. In an at tempt to s ide -st ep t his fata l va rian ce, t he majo rit y of th e Appella te Court: (1) erroneous ly ignored the Texas Legislature’s cl ear inten t t o dist ingu ish between marriage a nd a dating relationship under T EX . P EN . C ODE § 22.01(b) (2) and T EX . F AM . C ODE § 71.0021(b), (2) impro perly

discounted the inherit differences between a spousal relations hip and a da

ting relat ionship; and (3) wrongfull

y overlooked the fact that Petitioner and Price had been married for approxim

ately three and one-half (31⁄2) years between the timethe y en ded their d ating rela tionship and t

he tim e the assault oc curred. Only as a resu lt of this in correct rati onale were the maj ority justices able to affirm Petit ione r’s third-deg

ree fel ony conv iction whi ch was cl early not supporte d by the evidence introduced

at trial. If the reasoning of the maj ority justice s in the this c ase is cor rect, a defendant who has bee n mar

ried for thirty

(30) y ears can

be convicted of

a third-de gree fel ony for assaulting his spouse under T EX . P EN . C ODE § 22.01(b)( 2) and T EX . F AM . C ODE § 71.0021(b) based sim

ply on their past dating relationship which occurred thirty -one8

(31) year s ago. L ikewise, if the m ajority of the App ellate C ourt is righ t, there is no need for the Texas Legislature to have included the term “ marri age” in T EX . F AM . C ODE § 71.0021(b ), as a s pousal rel ation ship is non-distinguishable and becomes secondary to a “dati ng relatio nship” u nder this statuto ry provision

. Acco rdi ngl y, this Court should grant this Petition f

or Discr etionary

Review t o (1) to resolve th e disagre emen t amon gst the ju stices of t

he Eleve nth Court of

Appeals; (2) answer

a question o f first im

pression; a

nd (3) establish much needed precedential authority upo n wh ich bot h th e Sta te an d marr ied defe nda nts may rel y in the future when cha rges are brought purs uant to T EX . P EN . C ODE § 22.01(b) (2) and T EX . F AM . C ODE § 71.0021 (b).



### CONCLUSION AND PRAYER F OR RELIEF WHEREFORE, PREM

ISE S CONSIDERED , Petitioner Luis Sanchez respectf ully prays tha t th is C our t gr ant his Peti tio n fo r Dis cret ion ary Re view and, after full brie fing on the m

erits, t he Court is sue an opinio n 1) rever sing the Ap pellate C our t’s maj ority ruling aff irmi ng Petition er’s th ird-degr ee felony conviction f

or assault fam ily viol ence, 2) affirm ing Petitio ner’s c onviction fo r sim ple assault, and 3) rem anding this c ase for a new tria l solely

as to punishm

ent. Petitione r also prays that this C ourt grant him suc h other and further r elief to which he m

ay be entitled.9 Respectf ully sub mitte d,

M. MICHELE GREE NE Attorney at Law 2833 Wildwood Ave. Odessa, Texas 797 61 Tel: (43 2) 238-1255 Ema il: mm

g@mic helegree nelaw. com By: /s/ M. Mic hele Gre ene M. Miche le Gree ne State Ba r No.0078 9966 Appellate Counsel for Petit ioner Luis Sanchez



### CERTI FI CATE OF C OMPLIAN CE In accorda

nce with R

ule s 9.4( e) and (i) of the T EXAS R ULES OF A PPELLATE P ROCEDURE , the und ersi gne d at tor ney o f r ecord ce rtifies t hat the Pe tition for Discretionary

Review contains 14-point typef ace for the body of th e brief, 12-point typeface for

footnotes i n the brief

, and cont ains 1,854 words, excluding th ose words identifie d as not bein g counted in R ule 9.4(i )(1) and

was prepared on Word Perfect Version 9. /s/ M. Mic hele Gre ene M. Miche le Gree ne10 

### CERTI FI CATE OF S ERVI CE I certify that a cop y of the Petition for Discretionary Review w as served electron ically

on this the 19 h day

of April , 2015, to the follow ing party and that the electronic transmission was reported as com plete: Michael Bloch Ector County District Attorney ’s Office Ector C ounty C ourthouse 300 N. G rant Ave . Rm . 305 Odessa, Texas 797 61 MICHA EL.B LOCH@ ectorcoun tytx. gov. Attorney for Respondent

/s/ M. Mic hele Gre ene M. Miche le Gree ne11 

### APPE ND IX

### APPENDIX AOpinion filed March 5 , 2015



### In The 

# Eleventh Court of Appeals

__________ 

### No. 11 - 12 - 00 2 7 9 - CR

__________ 

### LUIS SANCHEZ , Appellant V . THE STATE OF TEXAS , Appellee On Appeal from the 161st District Court Ector County, Texas Trial Court Cause No. B - 37,135

O P I N I O N The trial court found Luis Sanchez guilty of assault

- family violence for assaulting a person with whom he “has or has had” a dating relationship, a third

degree felony

. It assessed Sanchez’s punishment at confinement for a term of six years and a $7,500 fine

. See T EX . P ENAL C ODE A NN . § 22.01 (a)(1) , (b)(2)(B) (West Supp. 2014 ) . In a single issue on appeal, Appellant challenges th e sufficiency of the evidence to support a finding that he “has or has had” a dating2 relationship with the victim at the time of the alleged assault , and he also challenges the sufficiency of the evidence to support a finding that he committed an assault

. We affirm. Appellant and the victim in this case, Rachael Price, lived together in the same household from some time in 2006 until December 18, 2009, the date of the assault. At some point d uring that time, Appellant and Rachael became married by virtue of the common law, and they also had a child together

. Rachael testified that , on the afternoon of December 18 , she was watching television in her b edroom. The couple’s two

- year - old daughter was in a crib next to the bed. Appellant came into the bedroom, “threw” Rachael on th e bed , and began “beating” her. Rachael did not know why Appellant was upset, but after he hit her in the head and on her sid e for a few minutes, he stop ped hitting her. Rachael took their child into the bathroom and put her into a small tub to give her a bath. A short t ime later, Appellant returned. When he returned, Appellant pushed Rachael down to the floor and “started ki cking [her] and hitting [her].” Appellant picked her up and held her by the throat with one hand while he held a knife to her throat with the other. Appellant told her that he would stop “if [she] t old him the truth and confessed” to the many affairs in which he thought that Rachael was involved. Appellant eventually relea sed Rachael and left the room. After the second assault of the day , Rachael finished bathing the chil d and returned to her bedroom. An hour later, Appellant came back into the bedroom and dragged Rachael by her hair to an empty bedroom. Appellan t wanted Rachael to call her co worker because Appellant believed that Rachael had been having an affai r with the co worker’s cousin. Appella nt wanted Rachael to ask her co worker for the cousin’s phone number. Rachael testified that Appellant wrapped a telephone cord around her neck and forc ed her to make the phone call. The cord was tight and restricted her breathing. She was short of breath and could hardly3 speak during the ph one call ; her co work er asked her what was wrong

. After Rac hael ended the call with the co worker, Appellant released the phone cord, shoved h er into a wall, and then left. These December 18 assaults were not the only times that Appellant had assaulted Rac hael. Rachael also described the almost daily abuse that she had suffered at Appellant’s hands in the weeks leading up to the December 18 assaults. When Appellant finally stopped assaulting her, Rachael “tried to call in” to her employer, but t he manager at the Walgreens store where she worked told her that she would probably be fired if she did not come to work that night ; therefore, Rachael took the bus and went to work

. Rachael’s father, Michael Weldon Price, picked her up after work

. Because Rachael did not want to go home , she stayed at her father’s house that night. The next morning, Appellant was “pounding on the door , ” and Michael called 911

. Appellant left before the police arrived. The following day, while Appellant was in jail , he tried to phone Rachael

. Michael answered the phone and refused to let Appellant talk to Rachael

. During that phone call, Appellant told Michael, “I know. I am sorry. I did those things. I did all of those terrible things, but I still love Rachael and I want us to be a family.” Rachael first reported the assault to police on December 20

. At that time, one Odessa pol ice officer took her statement , and another took pictures of her injuries. Detective Angie Reyes interview ed Rachael

. Rach a el told Det ective Reyes about the assault and about the almost daily abuse that she had suffered before the December 18 assaults

. Det ectiv e Reyes obtained Rachael’s medical records

. The records showed that , in addition to the treatment for the December 18 injuries, Rachael was treated at an emergency room in Odessa on December 8 for an assault that she said had occurred on December 3. As a re s ult of the December 3 assault , Rachael suffered significant swelling and bruising to her left4 hip and thigh, both eyes, and o n e of her hand s; she was pr escribed pain medicine. Rachael had claimed that she suffered those injuries when she was attacked on the way to a bus stop. During her interview with Det ective Reyes, Rachael admitted that she had lied and that Appellant cause d those injuries as well. Det ective Reyes phoned Appellant. When she identified herself as a d etective with the Odessa Police Department, the call was disconnected. Appellant later phoned Det ective Reyes and agreed to come to the police station for an interview ; he ne ither appeared nor phoned , n or did he reschedule the interview

. Because she believed that the evidence was co nsistent with Rachael’s story, Det ective Reyes obtained a w arrant for Appellant’s arrest. In March 2010, the grand jury returned an indictment against Appellant for the third

- degree felony assault upon Rachael, a person with whom he “has or has had” a dating relationship. Appellant pleaded not guilty to the charge in the indictment and proceede d to trial on the theory that he did not assault Rachael and that he did not cause her injuries. T he trial court disagreed and found Appellant guilty of third

- degree felony assault as charged in the indictment. We first consider Appellant ’s argument that the State failed to offer any evidence to prove the elements necessary to increase the assault offense from a Class A misdemeanor to a third

- degree felony as alleged in the indictment

. To increase the assault in this case to a third

- degree felony, the St ate specifically alleged that Appellant impeded normal breathing or circulation of “Rach [a] el Price, a person with whom [Appellant] has or has had a dating relationship, as described by Section 71.0021(b), Family [ C ] ode.” See T EX . F AM . C ODE A NN . § 71.0021 (W est 2014). Appellant argues that the State presented no evidence at trial that such a “ dating relationship ” existed between Rach a el and him at the time of the assault

. Appellant maintains that the evidence conclusively established that5 he and Rachael were married at the time of the assault . It is Appellant’s position that , b ecause he and Rachael were married at the time of the alleged assault, Rachael was not a person with whom he “has or has had” a dating relationship

. Therefore, Appellant urges that, because he was married to Rachael at the time of the alleged assault and not in a dating relationship with her, the trial court could not convict him of third

- degree felony assault as expressly charged in the indictment. We disagree. Appellant’s pos ition is founded in part on the fact that i n June 2010, subsequent to the date of the alleged assault, Rachael filed a petition for divorce. In that petition, she sought a divorce from Appellant and alleged that he was “guilty of cruel treatment

. . . of a nature that renders further l iving together insupportable.” A trial court eventually granted Rachael’s petition for divorce from Appellant prior to Appellant’s trial on the criminal charges

. Appellant ’s first challenge to the sufficiency of the evidence is actually a complaint about a variance between the allegations in the indictment and the proof at trial. See Gollihar v. State , 46 S.W.3d 243, 247 (Tex. Crim. App. 2001). “In a variance situation, the State has proven the defendant guilty of a crime, but has proven its commission in a manner that varies from the allegations in the charging instrument.” Id. at 246. “A ‘variance’ occurs when there is a discrepancy between the allegations in the char g ing instrument and the proof at trial.” Id. T he Stat e argues that , “[e]ven assuming for the sake of argument that a common - law marriage was indisputably established here, in cases involving a sufficiency claim based on a variance,” the reviewing court does not apply traditional sufficiency standards but “must instead consider the materiality of the variance.” The State argues that the variance in this case was immaterial and that the evidence is, thus, suffici ent to support the conviction.6 The Court of Criminal Appe als has instructed, however, that “Texas ‘immaterial variance’ law as set out in Gollihar does not apply to the specific statutory elements alleged in the indictment.” Cada v. State , 334 S.W.3d 766, 774 (Tex. Crim. App. 2011)

. Due process requires the St ate to prove every element of the crime charged. Id. a t 772

– 73 (citing Jackson v. Virginia , 443 U.S. 307 (1979)). “The focus of the inquiry under

. . . Gollihar ‘is upon the elements of the offense.’” Id. at 773 (quoting Gollihar , 46 S.W.3d at 258 (Keller, P.J., concurring) ) . The “elements of the offense” are the elements that the State is required to plead and prove . W e measure the sufficiency of the evidence by the specific elements that the S tate has alleged in the indictment. Id. at 773

– 74. “Thus, if the State pleads one specific element from a penal offense that contains alternatives for that element, the sufficiency of the evidence is measured by the element that was actually pleaded, not any other statutory alternative element” that was not pleaded

. Id. at 774. A n actor commit s third

- degree assault by , among other ways not relevant here , impeding the normal breath ing or circulation of the blood of a person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth. T he “person” mentioned in the statute includes persons involved with the actor in several different types of situations as provided in Sections 71.0021(b) , 71.003, 71.005 of the Texas Family Code . However, insofar as this case is concerned , the State limited its charge to a “ person ” with whom Appellant “ has or has had ” a dating relationship. P ENAL § 22 .01(b) (2)(B) ; s ee F AM . §§ 71.0021(b), 71.003, 71.005

. A dating relationship is defined as “a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature.” F AM . § 71.0021(a)(1)(A) , (b). As a result of the intervening divorce proceedings, the evidence conclusively negates the possibility that the alleged assault occurred between individuals who7 “have” a dating relationship. In this regard, we agree with the dissent’s proposition that indi viduals in a marriage are not in a dating relationship. Accordingly, we direct our attention to the “have had” element of S ection 71.0021(b). Specificially, we must determine if the evidence establishes that the alleged assault occurred between individua ls who “have had” a dating relationship. Id

. When we construe a statute, we attempt to determine the intent or purpose of those who enacted the statute. Harris v. State , 359 S.W.3d 625, 629 (Tex. Crim. App. 2011). We first examine the literal text of th e statute. Id

. In so doing, “we read words and phrases in context and construe them according to the rules of grammar and usage.” Lopez v. State , 253 S.W.3d 680, 685 (Tex. Crim. App. 2008). We are required to “presume that every word in a statute has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible.” State v. Hardy , 963 S.W.2d 516, 520 (Tex. Crim. App. 1997). There are at least two decisions in which the appellate courts of this State dealt with the “dating relationship” issue with respect to the “have had” element of the statute

. In White , decided in an unpublished opinion by the Dallas Court of Appeals, the defendant was convicted of first

- degree aggravated assault. White v. State , No. 05

- 09

- 00112

- CR, 2010 WL 2951748 (Tex. App.

— Dallas July 29, 2010, pet. ref’d) (mem. op., not designated for publication)

. There, the defendant and the victim dated for about two months. They ceased dating a few weeks before the assault. The State alleged in the indictment that the defendant “has or has had a dating relationship with the complainant and was a member of her family and household.” Id

. at *2. The court held that the fact that the defendant and the victim had stopped dating shortly before the assault wa s irrelevant because Section 71.0021(b) provide d that a dating relationship include d persons who have had a8 continuing romantic or intimate relationship. White is instructive i n the case before us , and we see nothing that would require a different application here

. Hill is another case in which an appellate court addresse d Section 71.0021(b). Hill v. State , No. 01

- 10

- 00926

- CR, 2012 WL 983338 (Tex. App.

— Houston [1 st Dist.] Mar

. 22, 2012, no pet.) (mem. op., not designated for publication)

. The State charged Hill with assaulting a person with whom he had a dating relationship. Hill claimed that the evidence was insufficient to prove that he had a dating relationship with the complainant. Hill and the complainant “ lived toge ther from 2006 un til 2007 ” and fo r a few days in 2008. Hill offered conflicting evidence about the date of the breakup of that relationship. He initially said that he and the complainant stopped dating the year before the assault. Later, he said that the breakup occurre d only a month before the assault. It was Hill’s claim that the State was required to prove that the relationship was ongoing at the time of trial and that, in the absence of that proof, the evidence was insufficient. The court in Hill rejected Hill’s argument because that position “would render the words ‘have had’ meaningless.” Id. at *3 The court concluded “that the inclusion of the words ‘have had’ permitted the jury to find that a dating relationship existed if it found that Hill and [the victim] had a continuing relationship of a romantic or intimate nature in the past , regardless of whether that relationship was ongoing at the time of the assault.” Id

. We agree with the holdings in White and Hill that the “have had” element of Section 71.0021(b) eliminates the requirement of an ongoing dating relationship at the time of the alleged assault. Accordingly, we conclude that , because Appellant and Rach a el had a dating relationship in the past , such a relationship falls within the provision s of the statute that increase this assault to a third

- degree felony. Appel lant also argues that the evidence is insufficient to prove that he committed the offense of assault. When we review the sufficiency of the evidence,9 we consider the evidence in t he 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 , 443 U.S. at 316 ; Gross v. State , 380 S.W.3d 181, 185 (Tex. Crim. App. 2012). This standard requires us to defer to the factfinder to resolve conflicts in the evidence, to weigh the evidence, and to draw reasonable inferences to reach ultimate facts. See Jackson , 443 U.S. at 316; Gross , 380 S.W.3d at 185. The factfinder is the sole judge of the credibility of the witnesses, and it is free to accept or reject any or all of a witness’s testimony. Saxton v. State , 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). A person commits the offense o f assault if he “intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse.” P ENAL § 22.01(a)(1). Bodily injury means physical pain, illness, or any impairment of physical condition. Id. § 1.07 (a) (8) ( West Supp. 2014 ). Rachael testified that Appellant beat her, dragged her by her hair, held a knife to her throat, wrapped a telephone cord around her neck , and forced her to phone her co worker to obt ain the cousin’s phone number. Rachael testified that t he cor d was tight and restricted her breathing and that she could hardl y speak during the phone call. When Appellant finally released Rachael, he shoved her again st the wall and left the room. Rachael had marks on her neck when she went to work that evening. The State introduced into evidence thirteen photographs of Rachael’s injuries. The photographs were taken two days after the assault, and the marks were still visible at that time

. Rachael testified that the mark on her neck shown in one of the photograp hs was caused by Appellant when he tighten ed the phone cord around her neck

. This evidence is sufficient to support a finding that Appellant committed the assault. It is Appellant ’s contention that Rachael’s testimony is not credible in light of the fact that Rachael had given different explanations for her injuries in the past

.10 Appellant argues th at “[a] small scratch on [Rachael’s] neck did not prove beyond a reasonable doubt that [Appellant ] kicked her, beat her, drug her down the hall by her hair, and attempted to strangle her by wrapping an extension c ord around her neck.” That, however, is not the only evidence of assault. The pictures showing the marks on Rachael’s neck support her tes timony that Appellant assaulted her. Because of Rachael’s credibility, Appellant contends that , without tangible evidence, expert testimony, or medical records to support her allegations , the evidence is insufficient to show that he assault ed Rachael. As discussed above, the factfinder is free to believe or disbelieve a witness. See Saxton, 804 S.W.2d at 914. We have review ed the evidence in accordance with the well

- established standards of review , and we conclude that there is sufficient evidence to support a conclusion that Appellant intentionally, knowingly, or recklessly caused bodily injury to Rachael Price

. Appellant’s sole issue on appeal is overruled. We affirm the judgment of the trial court.

JOHN M. BAILEY JUSTICE March 5 , 2015 Publish. See T EX . R. A PP . P. 47.2( b). Panel consists of: Wright, C.J., Willson, J., and Bailey, J.

### APPENDIX BOpinion filed March 5, 2015



### In The 

# Eleventh Court of Appeals

__________ 

### No. 11 - 12 - 00 2 7 9 - CR

__________ 

### LUIS SANCHEZ , Appellant V . THE STATE OF TEXAS , Appellee On Appeal from the 161st District Court Ector County, Texas Trial Court Cause No. B - 37,135

D I S S E N T I N G A N D C O N C U R R I N G O P I N I O N Because I believe that the legislature did not intend to include within the purview of Section 22.01 all persons who had ever dated in their lifetime, and because I believe that marriage is not included within the term “dating relationship,” I would revers e the conviction for the third

- degree felony, but I would join the major ity opinion in which they find sufficient evidence to convict2 Appellant of the Class A misdemeanor assault and would remand to the trial court for a new punishment hearing. In order to address Appellant’s first argument, I believe that this court must dec ide whether the state of “marriage” is included within the term “dating relationship”

— again, that being “a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature.” T EX . F AM . C ODE A NN . § 71.0021(b) (West 2014). At the risk of seeming to be insensitive to the nature of a marriage relationship, I do not believe, for a number of reasons, that the legislature contemplated that “marriage” should be included within the definition of “dating relationship.” The majority has set forth the standards to use when a court determines the legislative intent that lies behind a statute. I need not repeat them here. With those standards in mind, I would note first that , in Section 71.0021 of the Family Code , the leg islature twice refers to “marriage to or dating relationship with an individual with whom the actor is or has been in a dating relationship or marriage.” F AM . § 71.0021(a)(1), (b)(2)(B) (emphasis added). If marriage was included within the term “dating r elationship,” the legislature had no need to mention the two disjunctively. Otherwise, the use of the phrase “or marriage” is rendered meaningless, thus indicating that the two relationships are separate and distinguishable. Furthermore, Section 71.0021( b) instructs that the existence of a dating relationship is to be determined based upon a consideration of the following: “(1) the length of the relationship; (2) the nature of the relationship; and (3) the frequency and type of interaction between the per sons involved in the relationship.” F AM . § 71.0021(b). Those considerations are of no use in a determin ation of whether a marriage exists or has existed; they only find utility when we determine whether a dating relationship exists or has existed.3 Addit ionally, Section 71.0021(c) specifically excludes “[a] casual acquaintance ship or ordinary fraternization in a business or social context” from the definition of “dating relationship.” F AM . § 71.0021( c ). Again, that language has no applicability to marriage, but only to a dating relationship. For these reasons alone, I believe that the terms “dating relationship” and “marriage” are mutually exclusive as used in this legislation. There are other reasons that lead me to conclude that the State cannot use the term “dating relationship” to support the third

- degree felony conviction in this case. The statute first provides that a dating relationship “means a relationship between individuals who have

. . . a continuing relationship of a romantic or intimate nature.” F AM . § 71.0021(b) (emphasis added). The use of the present tense verb “have” indicates that the dating relationship is ongoing at the time of the assault. Although the relationship is hopefully a roma ntic and intimate one, sad ly, that is not always the case. P ersons who are married are engaged in much more than a dating relationship. I propose that the le gislature contemplated that dichotomous concept ; otherwise, it would not have used the term “dating relationship or marriage” disjunctively in the parts of the statute to which I referred earlier in this opinion. Next, t he statute includes within its definition of “dating relationship” those relatio nships “between individuals who . . . have had a continuing relationship of a romantic or intimate nature.” F AM . § 71.0021(b) (emphasis add ed). Have had is of the present perfect tense classification of verbs. The present perfect tense utilizes the verb has or have and can be used (1) to represent an action that has been completed recently, (2) to represent an action that has been completed at some in definite time in the past, or (3 ) to represent an action that began in the past and continues in to the present. Our focus should be upon dis covering which one of those uses the legislature intended when it used the term has had in connection4 with the term “dating relationship.” To me, it seems to be reasonable that the legislature did not use the term to represent an action that began in the past and continues in the present because the parties were married, not dating, at the time of the assault and because the same facts would be accomplished as would the use of the present tense; this use of the present p erfect tense would render “have . .

. a continuing relationship” meaningless. As to the second possible use of the present perfect tense, if it were not for my belief that the legislature, by its disjunctive presentation of the concepts of dating relationships and marriage in other parts o f the applicable statutes, separated the two types of relationships, I might feel constrained to say that , at some indefinite point in the past, Appellant and Rachael dated and therefore had been in a dating relationship such as would support the finding o f guilt in this case. However, that would mean that it would not matter when a dating relationship existed, even decades prior, and would give no regard to intervening circumstances, so long as the relationship ended at some indefinite time prior to the t ime of an assault for which the State charges a person

. The words tha t the legislature actually used do not indicate to me that the legislature intended that result

. Further, laying aside my expressed belief that the legislature has explicitly separated dating from marriage in parts of this statute, if the legislature intended that the statute was to be applied to parties who had ever been in a dating relationship

— no matter how far antecedent to the assault

— and with no consideration to an intervening marr iage or other circumstance, then the past per fect tense was available to the legislature to accomplish that result. The past perfect tense uses the verb had and describes action that happened at a time earlier than a specific time or action in the past. Had the legislature intended to include dating relationships that had ever existed in a person’s lifetime, then it could have5 written the statute so that the term would include persons who had had a dating relationship. The only use, then, that the legisl ature could have intended is that , to “have had” a dating relationship, the dating relationship must have recently ended. I do not know, nor do I think it necessary for us to decide in this case, the limits of the word “recently” because I think that, as a matter of law, a period from 2006 to December 18, 2009, does not fit within the concept of “recently.” I am mindful of the two appellate court decisions cited by the majority in support of their position. In each of those cases, the courts dealt with t he “dating relationship” issue. I do not see White , as being in opposition to that which I suggest in this dissent. There, there were no intervening issues such as marriage, and the period of time that the re lationship existed was two months as opposed t o two and one

half years as in this case. White v. State , No. 05

- 09

- 00112

- CR, 2010 WL 2951748 (Tex. App.

— Dallas July 29, 2010, pet. ref’d) (mem. op., not designated for publication). Such a situation clearly fits the language used by the legislature. If the Dallas court is opining that have and have had are two separate things, then I agree to the extent such is not inconsiste nt with respect to the distinct tenses of the two verbs. Neither do I see Hill as being contrary to my position her e. It was Hil l’s position that the State was required to prove that the relationship was ongoing at the time of trial and that, in the absence of that proof, the evidence was insufficient. Hill v. State , No. 01

- 10

- 00926

- CR, 2012 WL 983338 (Tex. App.

— Houston [1 st Dist.] Mar. 22, 2012, no pet.) (mem. op., not designated for publication). As stated by the majority, the court in Hill rejected Hill’s argument because that position “would render the words ‘have had’ meaningless.” Id. at *3. Again, the Houston c ourt held “that the inclusion of the words ‘have had’6 permitted the jury to find that a dating relationship existed if it found that Hill and [the victim] had a continuing relationship of a romantic or intimate nature in the past , regardless of whether that rel ationship was ongoing at the time of the assault.” Id

. Hill did not involve the question of marriage as an intervening circumstance , and there was evidence in Hill that the relationship had ended just one month prior to the assault. Those are sufficient differences to distinguish this case from Hill

. There are yet other reasons that support Appellant’s position in this case. Section 22.01 of the Penal Code includes within its third

- degree felony provisions those persons listed in Section 71.003. P EN AL § 22.01(b) (2). Those persons are denominated “Family” and are “individuals related by consanguinity or affinity,

. . . individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together.” F AM . § 71.003. The State did not charge Appellant under this portion of the statute, although it clearly could have. Section 22.01 of the Penal Code includes within its third

- degree felony provisions those persons listed in Section 71.005 of the Family Code. P ENAL § 22.01(b) (2). Section 71.005 refers to “Household” and defines that concept as “persons living together i n the same dwelling , without regard to whether they are related to each other.” F AM . § 71.005. The State did not charge Appellant under this portion of the statute. The offense of assault is enhanced from a Class A misdemeanor to a third

degree felony when the assault is committed against certain classes of people in addition to those included within the definition of “dating relationship.” It is clear that Rachael was a member of more than one of the classes described in Section 22.01. The evidence c onclusively establishes that, at the time of the assault,7 Appellant and Rachael were married, that they were parents of the same child, and that they were members of the same household. He could have been charged under any of those third

- degree felony pro visions. However, the State did not allege any of those other relationships in the indictment. “Under Jackson , the State must prove the statutory elements that it has chosen to allege, not some other alternative statutory element that it did not alleg e.” Cada v. State , 334 S.W.3d 766, 776 (Tex. Crim. App. 2011); see Jackson v. Virginia , 443 U.S. 307 (1979) . I recognize that there may be some overlap between the categories, as evidenced in this case, but the nature of each relationship is nevertheless distinct. The State did not allege that the assault was committed against a member of some other class named in Section 22.01 of the Penal Code but , rather , limited itself to the “dating relationship” provision of the statute. I would hold that t he Stat e alleged a single narrow element for which I find no support in the evidence. I do not fault the State for charging Appellant as it did. I recognize that it is not always easy to define the nature of the relationship between two parties to the exclusion of all characterizations. And perhaps the State was not awa re of the divorce or the marriage between Rachael and Appellant. However, as the Court of Criminal Appeals has explained, “when there is overlap or uncertainty

. . . the State may plead alternati ves in the indictment.” Cada , 334 S.W.3d at 772. In this case, the State did not plead any of the several available and applicable alternatives. I would find that there was a variance between the indictment and the proof. Because we do not consider materiality of the variance, I would conclude that the variance is fatal. See i d

. at 776. However, I join in that portion of the majority opinion in which it finds the evidence sufficient to support the finding that Appellant committed the offense of assault and I would remand this case to the trial court for a new punishment8 hearing. See T EX . R. A PP . P. 43.2(d); Thornton v. State , 425 S.W.3d 289, 30 6

– 07 (Tex. Crim. App. 2014).

JIM R. WRIGHT CHIEF JUSTICE March 5, 2015 Publish. See T EX . R. A PP . P . 47.2(b). Panel consists of: Wright, C.J., Willson, J. , and Bailey, J.