## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 21

- 00150

- CR

JEFFERY DILLON GRANTHAM , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 71st District Court Harrison County, Texas Trial Court No. 20

- 0197X

Before Morriss, C.J., Stevens and van Cleef , JJ. Memorandum Opinion by Chief Justice Morriss2 

### ME MORANDUM OPINION A Harrison County jury convicted Jeffery Dillon Grantham of family violence assault by

o cclusion and evading arrest with a mot or vehic le, both third

- degree felonies. See T EX
. P ENAL C ODE A NN
. § 22.01(b ) ( 2 ) ( B) (Supp.) , § 38.04(b ) ( 2 ) ( A). After the jury found the State ’ s punishment enhancement allegations true, it assessed a sentence of fifty years ’ imprisonment for the family vio lence as s ault and a sentence of twenty

- five years ’ imprisonment for evading arrest. On appeal, Grantham argues that the trial court erred by failing to grant his counsel ’ s motion to withdraw and that his absence during v oi r dire warranted a mistrial . G rantham a lso
argue s that the evidence is legally insufficient to support the jury ’ s fin dings of guilt for both offenses and that the trial court erred by admitting hearsay testimony and the dash

- cam era recording

. We fin d that (1) the trial court di d not abu se its discre tion by ov erruling the motion to withdraw, (2) Grantham ’ s absence during voir dire did not require a mistrial , (3) legally sufficient evidence supports both conviction s, (4) the trial court properly overruled Grantham ’ s hearsay object ion, and (5 ) Gra ntham failed to preserve his appellate point concerning the dash

camera recording . As a result, we affirm the trial court ’ s judgment. (1) The Trial Court Did Not Abuse Its Discretion by Overruling the Motion to Withdraw The recor d here established Gra ntham ’ s d issatisfac tion with his first and second appointed counsel. The trial court initially appointed Coke Solomon to represent Grantham. Solomon filed a motion to withdraw alleging “ a total breakdown in communication and an irre concilable conflic t. ” The tria l court gr anted Solomon ’ s motion to withdraw and appointed Kyle Dansby in his place. On September 14, 2021, Dansby also filed a motion to withdraw ,3

which stated that Grantham refused to listen to him, accused the courts and poli ce of being

un fair , and “ fi red Counse l at the end of a jail visit on September 8

. ” At the hearing on counsel ’ s motion, Grantham said that he had fired Dansby because he did not like or trust him and did not feel that Dansby would “ fight for [him]

. . . at all

. ”
Grant ham, who took issue wit h Dansby ’ s request to question Grantham ’ s father about the offenses , also accused Dansby of threatening him, which prompted Dansby to notify the trial judge , “ A lmost everything [Grantham] ’ s telling you is a lie. ” The trial cou rt co nclude d that
Grant ham ’ s complaints did not require the appointment of new counsel. On appeal, Grantham argues that the trial court erred by failing to grant Dansby ’ s motion to w ithdraw. We disagree.

“ A trial court has discreti on to determine whether co u nsel s hould be allowed to withdraw from a case. ” Temple v. State , 581 S.W.3d 812, 817 (Tex. App.

— Texarkana 2019, no pet.) (citing King v. State , 29 S.W.3d 556, 566 (Tex. Crim. App. 2000) )

. “ A trial court abuses its discretion w hen it acts without guidin g rules or pr inciples. ” Id. (citing Robbins v. State , 88 S.W.3d 256, 259

– 60 (Tex. Crim. App. 2002) )

. “ We review the trial court ’ s ruling in light of what was before the t rial court at the time the ruling was made and uphold the trial court ’ s judgment if i t lies withi n the zone of reasonable disagreement. ” Id. (citing Weatherred v. State , 15 S.W.3d 540, 542 (Tex. Crim. App. 2000) )

.

“ A trial judge is under no duty to search until he finds an attorney agreeable to the [indigent] de fendant. ” Barnett v. Stat e , 344 S.W.3d 6, 24 (Te x. App.

— Texarkana 2011 , pet. ref ’ d ) (citing Lyles v. State , 582 S.W.2d 138, 141 (Tex. Crim. App. [Panel Op.] 1979); Webb v.
State , 533 S.W.2d 780, 784 (Tex. Crim. App. 1976) )

. “ Once the court has appointed an attorney4

to represent t h e indi gent d efendant, the defendant has been accorded ” his right to counsel, “ and the defendant then carries the burden of proving entitlement to a change of counsel. ” Id. (citing Webb , 533 S.W.2d at 784 )

. “ A defendant does not have the right to choose a ppoint ed cou nsel, and , unless he waive s his right to counsel and choose s to represent himself or show s adequate reasons for the appointment of new counsel, he must accept court

- appointed counsel. ” Maes v.
State , 275 S.W.3d 68, 7 1 (Tex. App.

— San Antonio 2 0 08 , no pet. ) (citing B urks v. State , 792 S.W.2d 835, 838 (Tex. App.

— Houston [1st Dist.] 1990, pet. ref ’ d ) ). Based on its language, the trial court could have determined that Solomon ’ s motion to withdraw was submitted due to Grant ham ’ s unwillingness to coo p erate with h im

. Grant ham ’ s comments and demeanor during the hearing on Dansby ’ s motion likely led the trial court to find Grantham to be a difficult clien t who disagreed with Dansby’s trial strategy to question Grantham ’ s father as a potential witness

. T he tri al cou rt was fre e to find that Grantham ’ s vague expressions of dissatisfaction with his counsel amounted to nothing o ther than “ personality conflicts [or] disagreements concerning trial strategy , ” which are “ typically not v alid grounds for withdrawa l

. ” Ba rnett , 344 S.W.3 d at 24 (quoting King , 29 S.W.3d at 566 )

. As a result, we find that the trial court did not abuse its discretion in overruling Dansby ’ s motion to withdraw and , consequently, overrule this point of error. ( 2) Grantham ’ s Absence Dur in g Voir Dire Did Not R equire a Mistrial Grantham asserts that he was entitled to a mistrial after the trial court excluded him from the courtroom during that phase of the proceedings. We conclude that a mistrial was not5

required for two reasons: (a) Grant ham fo rfeited his consti tutional right to be present during voir dire , and (b) Grantham was not harmed by any statutory error

. T he record shows that , before trial, Grantham ’s objections to going to trial with Dansby as his couns el resulted in impassioned u tteran ces , whi ch included telling the trial court , “ I ’ m going to finish what I ’ ve got to say, ma n . You can ’ t make me close my mouth. ” Grantham ’ s demeanor and tone of voice prompted the trial court’s warning for him to cal m down. Nevertheless, Gra ntham c ontinu ed his accusat ions that D ans b y had “ lie[d] to the judge ” in the motion to withdraw by accusing Grantham of threatening him. When the trial court asked Grantham if he wished to be held in contempt of court, Grant ham responded, “ T hen lo ok what happens , ” and contin ued to tell Dans by that he did not trust him because he was “ on the other side

. . . on their side. ” As shown by th e following transcript, Grantham did not heed the trial court ’ s warnings to curb his dis ruptive behavior and w as removed from the c ourtroo m :

THE COURT : - - another word, Mr. Grantham, I ’ m going to pick the jury without you because I ’ m trying to be respectful to you, sir.
THE DEFENDANT : That ’ s not my lawyer.
THE COURT : Do you want a jur y to assess punishment or do you want the Court to do that

-- THE DEFE N DANT : I want

-- THE COURT : -- in the event you are convicted, sir ?
THE DEFENDANT : I want another attorney, man.
THE COURT : We

-- answer the question, please, sir, Mr. Grantham.6 T HE DEFENDANT : I need a la wyer. THE COURT : Do yo u want

-- THE DEFENDANT : I need a lawyer.
THE COURT : Mr. Grantham, the last time, sir. After this you ’ ll be removed because I ’ ve tried to be

-- THE DEFENDANT : I need a lawyer.
THE COURT : You can remo ve Mr. Grantham. I ’ m find ing him in contempt of co urt for his conduct

. . . . Jury selection, we ’ ll bring you back for jury sel ection, Mr. Grantham.
THE DEFENDANT : Like I was saying, next thing you know, here comes Kyle Dansby. He ’ s my lawyer. I ’ m - - I ’ m -- I ’ m explaining m yself to him why did he put y ou an oral motion for speed y t rial. Ain ’ t nobody else going to

-- having speedy trial around there

-- I mean, going to trial around this motherfucker, man.
THE COURT : Can you please have him removed ?
THE DEFEN DANT : Come on, man. COURT OFFICER : Y es, on my way, Ju dge.

. . . . THE D EFENDANT : Man, you know this shit is crooked as a motherfucker around here, crooked ass shit, man. Fuck y ’ all. (Defendant removed.)
MR. DANSBY : Your Honor, for purposes of the re cord, as his attorney I do object to him b eing removed so that he can be p resent for the purposes of voir dire or even

-- THE COURT : No, he ’ ll be

-- I ’ m going to bring him back for voir dire. When we take a break, I ’ ll bring him in, a nd I ’ ll explain to him aga in what is expected of his be havior

.7 MR. DANSBY : I understand.
TH E COURT : And if he can ’ t conform, then the same thing will happen. I am trying to be as respectful as I can, Mr. Dansby. After Grantham was returned to the cou rtroom , the trial court ex plained that it was about to begin voir dire and woul d r e quire Granth am to behave appropriatel y or he would again remove him from the courtroom. Grantham assured the trial court that he would behave , but the promise was short

- liv ed

. In front of the jury , Grantham interrupted voir d ire to expr e ss his view that he was unhappy with Dansby , stating, “ T his is unconstitutional

. ” He then told the trial court , “ [Y] ou can take me back to the jail. I don ’ t care. ” Granth am then told the jury panel that he had two lawyers and that Dan sby had come t o see him only twice, an u tterance that resul ted in his second removal from the courtroom. The record reflected that “ five deputies had to take him down ” and that Granth am “ reacted violently ” and made “ mu ltiple comments

. . . as he had to get put o n his stomach. ” During a brief re cess, Dansby moved for a mistrial because Grantham had “ effectively on his own busted th[e] panel and introduced

. . . bias and prejudicial in formation. ” After not ing that he h ad declined several oppor t unities to behave even a fter being admonished that he would be removed f

rom the courtroom as a cons equence of his misbehavior, the trial court denied the motion for a mistrial. The trial court a dded that it had done everything it could “ based on [Gra n tham ’ s] disrespect, hi s unru liness and behavior , ” ruled tha t he would be brought b ack after jury selection to be admonished again before trial , and provided G r antham with another opportunity to corre ct his behavior. The trial court t hen instruc t ed the venire to disregard8

Grant ham ’ s comments and behavior and to en sure that any verdict w ould be based solely on the admitted evidence . It then struck for cause any panel member who indicated that they could no t be fair and impartial based on Gr antham ’ s be h avior

. The jury was s elect ed fr o m the remaining venire , and Dansby st ated that he had no objectio n to the panel. The trial court requested Grantham ’ s presence for trial , but after being placed under oath , a de puty testified th a t Grantham

re fused to dres s or exit his ja il cell.

“ W e r evi ew a trial court ’ s decision to exclude a criminal defendant fr om trial for an abuse of discretion. ” Morrison v. Stat e , 480 S.W.3d 647, 655 (Tex. App.

— El Paso 2015 , no pet

. ) ; see Illin o is v. Allen , 397 U.S. 3 37, 3 43 (1970) ( “ We believe tr ial judges c on f ron ted with disruptive, contumacious, stu bbornly defiant defenda nts must be given sufficient discretion to meet the circumstances of each case. ” )

. “ We [also] review a trial court ’ s denia l of request for a mistr ial under an abuse

- of

- discreti on standard. ” Bar ba v. State , 486 S.W.3d 715, 720 (Tex. App.

— Texarkana 2016, n o pet.) (quoting Ocon v. State , 284 S.W.3d 880, 884 (Tex. Crim. App. 2009 ) )

. “ If the ruling was within the zo ne of reasona b le disagreement, it mus t be upheld. ” Id. (citing Oco n , 284 S.W.3 d a t 8 84 ).

“ Mistrial is

. . . an appropria te remedy [ only ] when t he error is highly prejudicial and incurable. ” Id

. (citing Ocon , 284 S.W.3d at 884 (citing Hawkins v. State , 135 S.W.3d 7 2 , 77 (Tex. Crim. App. 2 004)) )

. It “ is a device used t o halt trial p r oce edings when error is so prejudicial th at expenditure of furth er time and expense would be wasteful and futile. ” Id. (quoting Ladd v. State , 3 S.W.3d 547, 567 (Tex. Crim. App. 1999) )

. The remedy of a “ mistri al is appropriate only ‘ when t he objection ab l e e vent is so emotionally inflammatory th at curative9

instruction s are not likely to prevent the jury from being unfairly prejudiced against the defendant. ’ ” Id. (quoting Can o v. State , 3 S.W.3d 99, 109 (Tex. Ap p.

— Corpus Christi 1999, pet.

r ef ’ d) ). (a) Gran th a m F orfeited His Constitutional Right to b e Present During Voir D ire The Confrontation Clause of the Sixth Amendment is made applicable to the states via the Fourteenth Amendm ent. U.S. C O N ST
. amends. VI, XIV; Po inter v. Tex as , 380 U.S. 400, 4 06 (1965); W

oo d al l v. State , 336 S.W.3d 634, 641 (Tex. Crim. App. 2011 )

. “ One of the most basic of the rights guaranteed by the Confrontation Clause is the accused ’ s right to be present in the
courtro o m at every stage of th e trial. ” Allen , 397 U.S. at 33 8

. Grantham a r gu e s that his re moval during voir dire vio lated the rights guaranteed to him under the Sixth and Fourteenth Amendments

. Yet , “ [a] defendant ’ s c on stitutional right to be present in the courtroom is not unlimited

. ”
Morrison , 480 S.W.3d at 65 6. “ The def en d an t ’ s voluntar y absence from trial does not create grounds for reversal. ” Morris v. State , 554 S.W.3d 98, 121 (Tex. App.

— El Paso 2018 , pet. ref ’ d )

. “ For c onsti t utional purposes, th e defendant need only be present in the courtroom at the

co mmencement o f a t r ial, whic h includes any time after the voir di re process has begun, and may thereafter voluntarily absent himself from the trial, either exp ressly or through h is disruptive conduc t. ” Morrison , 480 S.W.3d at 65 7.

“ It is essential to the p roper admini st r at i on of c riminal justice that digni ty, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the
courtroom o f elementary standard s of proper conduct should not and ca nnot be tolerated. ” All en ,10

397 U.S. a t 3 4 3. As a result, a defendant ’ s c o nstitutional right to be present can be lost “ if, after he has been warned by the judge th at he will be removed if he conti n ues his disruptive b ehavior, he nevertheless insists on conducting himself in a m anner so dis or d er l y, disr uptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. ” 1 Id. ; see Mo rris , 554 S.W.3d at 121 ; M o rrison , 480 S.W.3d at 65 6

. Here, the record demonstrates that Grantham ’ s “ behavior was clearly of su c h a n extreme

a nd aggra vated nature as to justify

. . . his removal from the courtroom

. ” Allen , 397 U.S. at 34 6. Before “ his [initial] removal [,] h e was repeatedly w arned by the trial judge that he would be removed from the courtroom if he persisted in h i s u nruly conduct

. ” Id. When warned, Grantham indicated that he had no intention of comply ing when he tol d the trial court that he

was “ going to finis h what ” he w anted to say and proclaimed, “ You can ’ t make me close my mouth. ” The trial co urt ’ s warnin g t h a t it was going to proceed with voir dire in Grantham ’ s absence had no effect on Grantham, who simp ly kep t talking over the court and resta t ing his des ire f or new counsel in flagrant disregard for the trial court ’ s ruling that he was not en titled to

an a p p o i nted counsel of his choic e. While being removed, Grantham cursed in open court, further di srupting the proceedings and showing his disre s pect for the tri al court and the judicial system. Despite his removal, Grantham “ was constantly in formed that he c o u ld return to the trial wh en he would agree to conduct himself in an orderly manner. ” Id. When t he trial court afforded Grantham an oppo r tunity to return and participate in voir dire , Grantham promised to

1 “Once lost, the right to be present can, of c ourse, be recla imed as soon a s the defendant is willing to condu c t him s elf consistently with t he decorum and respect inhere nt in the concept of court s and judicial proceedings.” Id.11

behave but interrupted voir dire to express hi s v i ew that the proceedings a gainst him were unconstitutional. When again asked to curb his be havior, Grantham refused, instead telling the
t rial court that he did not care if he was retur ned to jail. That showed that Grantham “ would not ha ve been at a ll di s suade d by the trial judge ’ s use of his criminal contempt powers. ” Id.
Mor eover, Grantham engaged in a violent scuffle with five deputies who w ere trying to remove
him

. Just as in Allen , “ [t] he trial court in this case decided under th e circumstan ce s t o remo ve the defendant from the courtroom and to continue his trial in his a bsence until and unless he promised to conduct himself in a man ner b e fitting an American courtroo m. ” Id. at 345

– 46 . The United States Supreme Court has stated th a t removing a d ef e ndant from the court room “ until he promises to conduct hims elf properly ” is a “ constitutionally permissible way [] for a t rial judge to handle an obstreperous defendant. ” Id. at 343

– 44 ; see Morrison , 480 S.W.3d at 65 6. 2 This is because “ t he accused [c a nn o t] be permitted by his disruptive conduct indefinitely to avoid being tried on the charges brought against him

. ” Allen , 397 U.S. a t 346.

“ It would degrade our country and our judicial system to permit our courts to be bullied, insulted, and humilia t ed an d their orderly prog ress thwarted and obstructed by defenda nts brought before them charged with crim es. ” Id. Just as the United St a te s Supreme Court found under similar circumstances, we find here that Grantham , by his behavior, forfeite d “ his righ t
g u ar a nteed by the Sixth and Fourteenth Amendments to be present throughout his trial. ” Id. W e

2 Becaus e Morrison noted th at the trial court granted a mistrial after t he defendant’s i nitial outburs t , Grantham argues that “ Morrison g r an ted a mistrial and only aft er that step d id the court de ny the se cond motion for m istrial.” Morrison , 480 S.W.3d at 651. Because the appeal was from the trial court’s decisio n to exclude Morrison from a second trial after a second outburst , Morrison n e it her addressed nor held that a mistrial is required after a defend ant’s outburst.12

conclude that , as a result, th e trial co u rt did not abuse its discretion by denying Grantham ’ s motion for a mistrial on c onstitutional grounds. Se e Moore v. S t a t e , 670 S.W.2d 259, 261 ( Tex. Crim. App. 1984) ( “ In the instant case, appellant offered no eviden ce at his motion for new tri al to indica t e that his absence was anything other than voluntary. Absent any evidence from the defendant to refute th e trial co u r t ’ s determination that hi s absence was voluntar y, we will not disturb the trial court ’ s finding. ” ). (b) Grantham Was Not Harm ed by Any St a tutory Error Next, Grantham argues that the trial court abused its discretion by failing to grant a mist ri al because A r ti c le 33.03 of the Texas Code of Criminal Proc edure unequivocally requires a defendant ’ s presence during voir dire . While w e agree that there was statutory error under Article 33.03, we conclude that a mistrial was not warranted. Article 3 3. 03 of the T e x as Code of Criminal Proc edure requires the def endant ’ s personal presence at trial, except “ when the defendant voluntarily ab sents himsel f after pleading to the indictment or information, or after the jury has been selected when trial is befo re a jury. ” T E X
. C ODE C RIM
. P ROC
. A NN
. art. 33.03 (emphasis added)

. Because “ an accused ’ s right to be present at his trial is unwaivable ” until after he has pled to the indictment or until the jury has been selected , A rticle 33.03 affords more protection t o a defend a n t t h an do the Sixth and Fourteenth Amendment s to the United States Constitution. Morrison , 480 S.W.3d at 657 (quoting Mill er v. State , 692 S.W.2d 88, 91 (Tex. Crim. App. 1985) ) ; see Tracy v. State , 14 S.W.3d 820, 826 (Tex. App.

— Dallas 2000 , pet. ref ’ d )

.13

“ S ince the right to b e present in the court room until jury selection has concluded is nonwaivable, ” Grantham ’ s removal du ring voir di r e constituted statutory error under Article
33.03. See Morrison , 480 S.W.3d at 65 8

. Even so, i n the abs e nce of any c o n st i t utional error, a
st atutory violation of Article 33.03 “ must be disregarded ” unless we determine that the violation aff ected Granth a m ’ s “ substantial rights. ” T EX
. R. A PP
. P. 44.2(b). Because Gra ntham was absent only during voir dire, w e ask whethe r h e w as denied a fair and impart ial jury. See Ashley
v. State , 404 S.W.3d 672, 681 (Tex. App.

— El Paso 2013 , no pet. ) (citing Gray v. Sta t e , 233 S.W.3d 295, 298

– 99 (Tex. Crim. App. 2007) ; Ladd v. State , 3 S.W.3d 547, 562 (Tex. Crim. App. 1999) )

. Here, no th i ng sh owed that Grantham was de nied a fair and impartial jury because the trial court struck for cause any panel member who indicated th a t Grantham ’ s behavior might impact their ability to be fair or impartial . T he trial court also instructe d the venire t o d i sr egard Grantham ’ s c omments and behavior and to ensure that any verdict would be based solely on the admitted evidence

. “ Mistrial i s . . . an appropriate remedy [ only ] when the error is highly prejudicial and incurable , ” Barba , 486 S.W.3 d at 720 , bu t “ [t ] he law generally pre sumes t hat instructions to disregard and other cautionary instructions will be duly obeyed , ” Archie v. State , 34 0 S.W.3d 734, 741 (Tex. Crim. App. 2011)

. S ee Hollaway v. State , 446 S.W.3d 847, 856 (Tex. App.

— Texarkana 2014, no pe t. )

. Si nce n o evidence wa s offer ed to rebut the presumption that the trial court ’ s instruction ha d the desired curative effec t , the trial court was free to conclude that the curative instruction was likely to prevent the jury panel from being u nfairly
pre ju d ic e d against Grantham. See Ba rba , 486 S.W.3d at 720

. Also, Dansby affirmativ ely stated14

that he had no objection to the se ated jury

. A s a result, we conclude that the trial court did not abuse its discretion by finding that none of the eve n ts witnesse d b y t he venire during voi r dire

were “ so prejudicial that expenditure of further ti me and expense would be wasteful and futil e. ” Id.
H aving found no abuse of discretion in the trial court ’ s decision to overrule Grantham ’ s motion for a mist ria l, we ove rr u le th is point of error. (3) Legally Sufficient Evidence Supports Both Conviction s Grantham also ch allenges the legal s ufficiency of the evidence to support the jury ’ s verdict of guilt for both offenses. After reviewing the evidence at t ri al and app l y i ng th e proper standard o f rev iew, we find the jury was presented with sufficient evidence to support its verdict that Gran tham was guil t y of (a) family violence assault by occlusion and (b) evading arrest with a motor vehicle. J.W. Harrell l iv ed next do o r to Gr antham ’ s father

. A ccord ing to Harrell, G rantham lived in his father ’ s guesthouse. On the day of the incident , Harre ll testified that he witnes sed Grantham arguing with Lacy Broadway

. When asked if Grantham and Broadway were in a dati ng relations h i p , H ar

rell responded, “ It ’ s a relationship. I ’ m not sure exactly what they would have called it, but they w ere seeing each other. ” Harrell added that Broadway would stay with Grantham a few days at a time. According to Harrell, Broadway w as trying t o l ea v e the gue stho use during her argument with Grantham. Harrell sa i d that he and Grantham ’ s father had just v olunteered to take Broadway home when Grantham hit her. Harrell said that Grantham punched Broadway in the15

left side of h er jaw and that s he st ar t ed bl eeding righ t away, but that Grantham slapped Broadw a y again. Harrell and Grantham ’ s father tried to bre ak up the fight , but that prompted Grantham to start fighting with his father. Francis Harris, a dispatcher with the Har rison Coun t y Sheriff ’ s O f fi c e (HCSO), tes tified that she rec e ived an emergency call from Har r ell ’ s wife requesting a welfare check for her neighbors

. Harrell also spoke to Harris and said that Grantham was going to “ beat the hell out of his girlfriend an d [ then was] go ing for [his ] d a d

. ” Har r e ll testified that he encouraged Broadway to run toward the road to flag down a n appro aching trucker. The truck driver , Daniel Carter, called 9

- 1

- 1 and spoke with Harris. On the call that was played for the jury, Carter said that B roadway ra n o u t of a res i d ence with blood on her face, arms, and legs and flagged him down to get help. Broadway could be heard on the call and identified Grantham as the perpetrator. According to Carter, Grantham was still at the residence

w it h his fa t her

. Rich ar d K o ller, a d eputy with the HCSO, testified that he was dispatched to Grantham ’ s guesthouse , where he saw smoke coming from the building

. As he app roached the guesthouse , Grantham looked at Koller and “ saw [Koll e r] running towards him. ” Gra n tham then r an t o w ard
a mot orcycle and drove away, leading HCSO officers to chase him. Koller testified that h e was in uniform and th at the lights and sirens o f his marked patrol unit were activated. The ir chase of Grantham was recorded by two dash camer a s , and the t w o r e cord ings were played for the ju ry . The recordings showed Grantham evading officers on his motorcycle while they attempt ed to16

apprehend him in marked patrol units

. The recordings also showed that at least one patrol unit had flashing li ghts and a bl a r in g sir en. In spite of the HCSO ’ s efforts, Granth am escaped on foot into a wood ed a rea after abandoning his motorcycle. Yet, because he returned to the scene of the crime, Granth a m was apprehended at his hom e later that day after a scuffle with three po l i ce o ffi cers. In the me antime, David Newsome, an HCSO investigator, had spoken with Broadway.
Ne wsome testified that Broadway was injured, “ disoriented, ” and “ sweat i ng profusely ” and that she had dishev eled hair. He saw that Broadway “ was covered in br u i se s , ” had blood coming from her mou th and left hand, “ had a s ubstantial welp on her right q uad, ” “ w as not speaking very much [,] and seemed like she was faint. ” According to Newsome, Broadway also had tw o black eyes and “ [s]everal marks on h er neck. ” Ph o t o g r a phs of Broadwa y ’ s extensive injuri es were shown to the jury. Acco rding to New some, Broadway stated that her “ boyfriend tried to kill ” her. She continued, “ He beat me i n the head and choked me . ” Broadway was taken by ambulance to the h ospital. Her m ed i c al records contained her
stateme nt to medical person nel that “ sh e was in an al tercation with her boyfriend , ” and the

“ mechanism of inju r y ” was noted as “ aggravated assau lt with blunt object by boyfriend. ” Lindsey Gil reath, Broadway ’ s si ster, testifi e d t h a t she received a call from a paramedic on the day of the incid ent an d went to the hospit al because Broadway had been “ attacked and

. . . sustained injuries to where she

. . . needed a ride home. ” 3 Gil reath testified that “ every part ” of Broadway ’ s b o d y w a s bruised, including her face, hands, chest, neck, kn ees, and legs. G ilreath

3 Gil reath testified that Broa dway was a drug addict with a history of mental illness and could not be located.17

said t hat Broadway ’ s lip “ wa s cut open [and] stitched back up ” ; that “ her eyes were alm ost completely swollen shut ” ; that “ [h]er hands

. . . looked like they h ad been blown u p ” ; that her fingers did not bend ; and tha t Br oadway was hurti ng, limping, and “ moaning and groaning the whole time. ” Gil reath also saw that Broadway had red marks on her neck. After hearing this evidence, the jury convicted Grantham of f amily violenc e ass a ult by occlusion and evading arrest wi th a motor vehicle. Grantham arg ues that the e v i dence was insufficient to support the jury ’ s verdict s of gui l t for both offense s . “ In evaluating legal sufficiency, we review all the evidence in the light most fa v o rab l e to the trial court ’ s judgment to det ermine whether any r ational jury could have fo u n d the essential elements of the offense beyond a reasonable doubt. ” Williamson v. State , 589 S.W.3d 292, 297 (Tex. App.

— Texarkana 2019, pet. ref ’ d) (c iting Brooks v . St a te , 323 S.W.3d 893, 9 12 (Tex. Crim. Ap p. 2010) (plurality op.); Jackso n v. Virginia , 4 43 U.S. 307, 319 (1979); Hartsfield v. State , 305 S.W.3d 859, 863 ( Tex. App.

— Te xarkana 2010, pet. ref ’ d)). “ We examine legal sufficiency under the dir ection of the B roo k s opinion, while givi ng deference to
t he responsibility of the jury ‘ t o fairly resol v e conflicts in testimony, to weigh the evidence, and to draw reasona ble inferenc es from basic facts to ultimate facts. ’” Id. (quoting Hooper v. State , 214 S.W.3d 9, 1 3 ( T ex. Crim. App. 2007) (citing Jackson , 443 U.S. at 318

– 19; Clayton v. S tate , 235 S.W. 3 d 772, 778 (Tex. Crim. App. 2007))). Grantham ’ s sufficiency complaint s as sume th at we are to ignore evidence admitted at trial that Grantham alleges wa s improperly a d mit t ed. In other words, Grantham ’ s argume nt suggests that the evidence wo uld have been i n sufficient absent any improperly admitted18

evidence. This argument ignore s the applicable standard of review. The Texas Court of Criminal Appeals has expressly sta t e d t h at “ [o] ur review of ‘ all of the eviden ce ’ includes evidenc e that was p roperly and im p r operly admi tted. ” Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) ; see Williamson , 589 S.W.3d at 297

.

“ Legal sufficiency of the evidence i s measured by t he e lements of the offens e as defined by a hypothetically corr ect jury cha rge. ” William s o n , 589 S.W.3d at 297 (quoting Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. A pp. 1997)). “ The ‘ hypothetically correct ’ jury charge is ‘ one that accu rately sets o u t th e law, is authorized b y the indictment, does not unnecessar ily increase the State ’ s b u r d en of proof or unnecessarily restrict the State ’ s theories of liability, and

a dequately describes the particular offense for which the defendant was t ried. ’” Id

. ( q uot i ng Malik , 953 S.W.2d at 240). We addre ss Grantham’s eviden tiary points of error as t o t he two offense s in turn. (a) Family Violence Assault b y Occlusion The State a lleged in its indictment that Grantham “ intentionally, knowingly, and re cklessly

caus e [ d] b odily injury to L. Br oadway,

. . . a p erson with whom the defendant ha d or has had a d ating relationship,

. . . by intentionally, knowingly, and recklessly impeding the normal breathing or circulation of the blood of the complainant by a pplying press u r e t o the throat or neck

. ” While Grantham acknowledges that th e State prov ed h is c aus ing bodily injury to Broadway with the requi site intent, he argues that ther e was insufficient evidence to establish that they were in a dating relationship or that he i m p e de d her normal bre athing or circulation of19

the blood by applyin g pressu re t o her n e ck. W e find that sufficient evidence established (1) that Grantham and Broad way were in a dating relationship and (2) that occlusion occurred

. A “ dating r elationship ” “ m ean s a relationship between individuals who have or have had a

c ontinuing re lations h ip of a romantic or intimate nature. ” T EX
. F AM
. C ODE A NN
. § 71.0021(b).

“ Th e existence of such a relationship shall be determined based on consideration of : (1) the le n g th o f the relations hip; (2) the nature of th e relationship; and (3) the freq uency a n d type of interaction between the persons involved in the relationship. ” Id

. “ [T] hese factors are not standalone elements of the offense which the prosecut ion must prov e bey o nd a reasonable doubt. ” Edward v. State , 635 S.W.3d 649, 65 7 (Tex. Crim . App. 2 021)

. “ Instead, they are guideposts for the jury to weigh in evaluating whet her the br oader definition in Subsection (b)

—

a ‘ continuing relationship of a rom antic or inti m a te n ature ’

— is met. ” Id. “ A casual acquaint anceship or ordinary fraternizat ion in a busin ess or social context does not constitute a

‘ dating relationship

. ’” T E X
. F AM
. C ODE A NN
. § 71.0021(c). By a pplying the statutory requirements and viewi ng the eviden c e in the light most favorable to the verdict, we find that the da ting

- relatio nship e l ement was satisfied. Harrell testified that Grantham and Broadway were in “ a relationship ” and “ were seeing each other. ” Newsome testified, and Broadway ’ s medical recor d s sh o wed, that Broadway referred to Grantham as her boyfriend. “ Common us a ge of the word [ boyfriend] by itself implies a continuing relationship of a romantic or intimate nature. ” Edward , 635 S.W.3d at 65 8. Moreover, Harrell testified that Broadway wou l d co m e out and stay with Grantham a few days at a time. Evidence that Granth am and Broadwa y spent the night together when “ viewed20

holistically with the other evi dence, would permit the jury to rationally infer that there was an intimate rela tionship betw e e n ” t he two. 4 Id. In light of “ the cumulativ e force of all the e v idence thro ugh the approp riate lens of deference to the jury ’ s verdict, ” we conclude that the ev idence was legally sufficient for the jury to have rationally determined that Gr antha m a nd B r o a dwa y “ ‘ had a continuing relatio nship of a romantic o r intimate nature, ’ rathe r than just a ‘ casual acquaintanceship or ordinary fraternization. ’” I

d. at 659 (quoting T EX
. F AM
. C ODE A NN
. § 71.0021(b), (c) )

. We likewise find that the evidenc e was legally s uff i cient to support the jury ’ s finding that Granth a m impeded B roadway ’ s norm al breathing or circulation of the blood by applying pressure to her ne ck. The Texas Court of Criminal Appeals has interpreted the term “ ‘ impeding ’

. . . to includ e any degree o f im p ediment to one ’ s normal bre athing or circulatio n of blood f low. ” Philmon v. State , 609 S.W.3d 532, 537 (Tex. Crim. App. 2020)

. As a result, “ e vidence of the complainant simply being unable to take deep breaths ” will support th e jury ’ s fi nding on th e

occ l usion element. Id. “ This is an exceptionally l ow bar , ” si nce “ [i] t take s very little effort or force to slightly hinder another ’ s breathing or circulation, and there is notably no injury or threat of injury requirement aside f rom the i mp ediment, ho w e ver minimal. ” Id. Even thoug h Broadway ’ s medical records sho w ed that her n eck condition was within normal limits and that she did not complain of neck pain, Newsome testified that Broadway accused Grantham of choking her. Newsome said th at he observe d sig n s of strangulation on

4 See Edwa rd , 635 S.W.3d at 659 (citing Hooper , 214 S.W.3d a t 13 ( “Circumstantial eviden ce is as proba tive as direct ev idence in establishing the guilt of an act or, and circumstantial evidence alone can be sufficient to esta b lish guilt.”)).21

Broad way including bruisi ng and redne ss on her neck , disorientation, and her “ raspy , ” “ hoarse voice. ” Photograph s of Broadway ’ s neck after the incident were shown to the jury , and Gilreath als o testified that she s aw bruises an d red marks on Broadway ’ s nec k

. Fro m this evidence , a

r ational juror could have reason ably infer red that Grantham impeded Broadway ’ s normal breathin g. We conclude that the evidence, when viewed in the light most favorable to t he judgment,

es tablishes tha t any rati onal jury could have found the es sential elements of the offense of family viol ence assault by occlusion beyond a reasonable doubt. As a result, we overrule Gr antham ’ s sufficiency point of error with respect to this o ffense. ( b) Ev ading Arrest w ith a Mot or Vehicle The State alle g ed that Grantham “ did then and there whil e using a ve hicle, intentionally flee from Richard Koller, a person the defendant knew was a peace officer who was attempting lawfully to arrest or de tain the defenda nt. ” Grantha m arg u es t hat there was no e vidence establi shing that he knew a peace officer was pursuin g him to arrest him. We disagree. After receiving e mergency calls, HCSO dispatched police officers to the Grantham residence. Koller testified that he approached t h e gu e st ho use in his marked patrol unit with lights flashin g an d siren blaring. By the t ime he arrived, firefighters were already on the s cene attempting to subdue the fire coming from the guesthouse. Koller exited th e vehicle and ran toward Grantham in u nifo r m. 5 On video, Granth a m is seen d riving away on a mot orcy cle that passed right by K oller ’ s marked patrol unit. Lights and sirens are heard following Grantham

5 Koller read ily ident if

ied Grantham by his visible tattoos.22

during the chase , even when he led officers off the ro ad and into a previously unoccupied m a rshy

area . With obvious k n owledge tha t he was the one bei ng c hased in the marsh , Granth am abandoned his motorcycle and fled on foot into the woods. From the recording of the chase and Koller ’ s testimony, the jury could have ea sily conclude d , bey ond a reasona b l e d o ubt, that Grantham , while t h e guesthous e was in flames, use d

a motor vehicle to fle e from Koller with full knowledge that Koller was a peac e officer who was attempting to lawfully arrest or detain him. As a result, we find that legally sufficient ev i d enc e supports Grantham ’ s convic t ion for eva ding arrest with a m otor vehicle. We overrule
Gra ntham ’ s sufficiency point of error with respect to this offense. (4) The Trial Court Properly Overruled Grantham ’ s Hearsay Objecti on Grantham also argues that t h e t r ial court erred by admitti n g , over a he arsay objection,
New some ’ s statement that Broadway told him her “ boyfriend tri ed to kill [her and] b eat [her] in the head

. ” “ We review a trial court ’ s decision to admit or exclude evidence for an a buse of discr e t ion

. ” Flow e rs v. State , 438 S.W.3d 96, 103 (Tex. App.

— Texarkan a 20 14, pet. ref ’ d) (citing Ma rtinez v. State , 327 S.W.3d 727, 736 (Tex. Crim. A pp. 2010)). “ Abuse of discretion occurs only if the decisio n is ‘ so clearly wrong as to lie outsi de the zone w i t hin which r e as onable people might disagree. ’” Id. (quoting Tay lor v. State , 268 S.W.3d 571, 579 (Tex. Crim. App. 2008) ) (citing Montgomery v. State , 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh ’ g))

. “ We may not substitute our own decision for t hat of the t r i al court. ” Id. (citing Moses v. Stat e , 105 S.W.3d 622 , 627 (Tex. Crim. App. 200 3)). Moreover, “ [i]f the ruling was correct on

a ny theory of law applicable to the case, in light of what was before the trial court at the time t he23

ruling was m ade , then we m ust uphold the judgment. ” Pag e v. St ate , 213 S.W. 3d 3 32, 337 (Tex. Crim. App. 2 006)

.

“ Hearsay is a statement, other than one mad e by the declarant while testifying at a trial or hearing, of

fered in evidence to prove the truth of the matter a sse r ted. ” Z u l iani v. State , 97 S.W.3d 589, 595 (Tex. Crim. App. 200 3) (citing T EX
. R. E VID
. 8 01(d)). “ In order for hearsay to be admissible, it must fit into an exception provided by a statute or the Ru les of Evidence. ” Id

. (citing T EX
. R

. E VID
. 802). We f ind that t he theory of law applicable to the trial court ’ s d ecis ion is the excited utteran ce exception , which allows admission of a “ state ment relating to a startling event or condition made while the declarant was under the stress of ex citement that i t c a used. ” 6
T EX
. R. E VID
. 80 3 (2).

“ The basi s for the excited u ttera nce exception is ‘ a psycho logical one, namely, the fact that when a [perso n] is in the instant grip of violent emotion, excitement, or p ain, he [or she] ordinarily loses the capacity for r efl e ction ne c e ssary to the fabricati on of a falsehood and the

“ truth will come out. ” ’ ” Zulian i , 97 S.W.3d at 595 (quoting Evans v. State , 480 S.W.2d 387, 389

6 Rule 803 ( 1) of the Tex as Rules of Evi dence allows t he admission of hearsay that is also a present s ense impression. T EX
. R. E VID
. 803(1). T he State argued that Newsome’s testimony was admissible because Broadway’s statement was a present sense im pression, which i s “[a ] statement describing or explaining an event or condition, m ade while or immediately after the declarant perce ived it.” Id

. Under this exception, t he utterance is “instinctive, rather tha n deliberat e.” Fischer v . State , 252 S.W.3d 375, 381 (Tex. C ri m. A pp. 2008) (quoting Com monwealth v. C oleman , 326 A.2d 387, 389 ( Pa. 1974)). The rule is based on the notion that “the utterance is a reflex product of immediate sensual impressions , unaided by retrosp ective menta l processes.” Id. (quoting Commonwea l th v. Farquharson , 354 A.2d 545, 554 ( Pa. 1976)). “If the declarant has had time to reflect upon t he event and the conditions he observed, this lack of contemporaneity diminishe s the reliability of the sta teme nts and re nders them inadmissible under the r u le .” Id. “Once reflective narratives, c alculated statements, deliberate opinions, conclusions, or conscious ‘thin king

- it

- through’ statements enter the picture, the present sens e impression exception no lo nger allows th eir admission.” Id

. Grantham argue s t hat News ome’s testimony about Broadway ’s statement did not qualify as a present sense impression due to “a gap i n time wherein she was able to reflect and formulate her though t s and answers to the questio ns of the offi cer.” The record shows that Newsom e f irs t ar rived at the Grantham re sidence and took photos of the scene before interviewing Broad way. In any event, we express no opinion on whether Newsome’s stat e ment was admissible as a presen t sense impr ession because we find that it qualifies under th e e xci t e d utterance excep tion.24

(Tex. Crim. App. 1972)). “ In other words, th e statement is trustworthy because it represents a n

eve n t speaki n g through the person rather tha n the person speaki ng ab out the event. ” Id

. In de termining whether a hearsay statement is admissi ble as an excited utterance, the court may consider factors th at include “ the length of time betwee n the occurre n c e a n d the
st a t ement, the na ture of the decla rant, whether the s tatem ent is made in response to a question, and whether the statement is self

- s erving. ” Apolinar v. State , 155 S.W.3d 184, 187 (Tex. Crim.
A pp. 2005). These are simply factors to consider; t h ey a re not, b y themselves, d ispositive. Zuli ani , 97 S.W.3d at 596. “ The critical determinatio n is ‘ whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event ’ or co ndition at the time of the
statement

. ” Id

. (quot i n g M c Farland v

. State , 845 S. W.2d 824, 846 (T ex. Crim. App. 199 2),

ove rruled on other grounds by Bingham v. State , 915 S.W.2d 9 (Tex. Crim. Ap p. 1994)). From the evidence presented , the trial court could ha ve determined that not much time had passed b e twe en th e incident and Newsome ’ s interaction wit h Broad way. Carter ’ s 9

- 1

- 1 call showed that Harris had instructed him to pull over to the side of the road to wait for emergency responders to arrive and aid Bro adway

. Newsom e said he arrived at the Granth a m r es ide n c e

“ pretty quickly ” a fter the first HCS O offic er arrived on scene, but , a fter taking a few photographs, left the s cene because “ there was a victim up the road. ” The evid ence also showed t hat Broadway , who had been violently assaulted and sustain ed nu mer o us injuries, was i n the current gri p of pain an d that her response was no t responsive to Newsome ’ s quest ioning. Before Newsome ’ s testimony, Harrell testified that he witn essed Grantham ’ s assault , and Gilreath descr ibed the many painf u l in jures su sta in ed b y25

Broadway. Newso me said that he found Broadwa y injured, lying on the gr ound, sweat ing profusely, diso riented , and “ not speaking much. ” Broadway ’ s statement was made only after Newsome asked if she w as okay. Broa dway ’ s a nswer

— that her boyfriend tr ie d t o kill her

— was

n onre sponsive to Newsome ’ s que stion , and nothing indicat es that it was self

- serving

. After reviewing the evidence supporting th e relevant fact ors considered in an excited utterance anal ysis, we canno t say t h at the trial court ’ s dec isi on to allow Newsome ’ s testimony rel ating Broadway ’ s statement was so clearly wrong as to lie outside the zone of reasonable disagreement. As a result, the trial cou rt did not abuse its discretion by admi tting Broadway ’ s
statemen t

. We overrule this poin t of err or. 7 (5) Granth am Failed to P reserve His App ellate Poin t Concerning th e Dash Camera Recordin g Grantham also a ssert s that the trial court erred by “ admitting th e hearsay of ” D eputy Adam Jones ’ s das h camera recor ding through Koll e r. The State argu es t hat Grantham ’ s point of

err or on appeal does not comport with his trial objection. We ag ree with the State

. As a prerequisite to presenting Grantham ’ s hearsa y complaint to the dash camera recording for appellate rev iew, the r e cord must show that he ma de a ti m ely objection at trial that

“ stated the grounds for the ruling

. . . with suffi cie nt specificity to make the trial court aware of the complaint, unless the sp ecific grounds were apparent from the co ntext

. ” T EX
. R. A PP
. P. 33.1(a). “ The purpo se of r eq uir i ng a specific objection in the trial cou rt is twofold : (1) to inform the trial ju dge of the basis of the objection and give him the opportunity to rule on it ; [and] (2) to

7 Also, over hearsay and C onfrontation C lause objections, the tr ial court admitted Broadway’s medical records, which contained Broa d way’s statement to medical pers onnel that “ she was in an altercation with her boyfriend” an d th e n o tation that “me c hanism of injury” was “aggravated assault with blunt object b y boyfriend.” Gra ntham do es not complain about the admission of this evidence on appeal.26

give opposing counsel the opportunity t o respond t o the complaint. ” R esend ez v . S t ate , 306 S.W.3d 308, 312 (T ex. Crim. App . 2009). As a r esult, a “ point of erro r o n appeal must comport with the objection made at trial. ” Wilson v. State , 7 1 S.W.3d 346, 349 (Tex. Crim. App. 2002) ; see Swain v. State , 18 1 S.W.3d 359, 368 (Tex. Cr im

. App

. 2005). Koller ’ s body cam e ra video was introduced as St ate ’ s Exhibit 7. Kolle r t estified that he had reviewed State ’ s Exhibit 8, which was the dash cam er a recording of Jones, who had also been cal led out to the s c ene. Although there was no objec ti on to State ’ s Exhibit 7, Dansby

“ objec t[ed] as to auth entication on number eight

. ” After the State noted that Koller testified that he had also “ witnessed everything that was on [Exhibit 8], ” the trial c ourt overruled Dansby ’ s objection. The record sh ow s tha t Grantham objected only to the authe ntication of Jon es ’ s da s h camera video and raised no hearsay objection. As a result , his complaint on appeal that the recording contained hearsay i s unpreserved and overruled. 8
We affirm the trial court ’ s judgm en t.

J o sh R. Morriss, III Chi ef Justice
Date Submitted : July 27 , 202 2 Date Decided : September 14 , 202 2 Do Not Publish

8 To the extent that G rantham’s b rief can be in terpreted as also raising an authen t ic ati o n issu e to Jon es ’s continuous and uninterrupted video , we overrule the argum ent since there wa s testim ony from Koller that establish ed the unquestioned chain of custody , that he had personal knowledge “that [the] i tem [was] what it [was] claimed to b e , ” a n d that the v ideo dep icted the events he personally witnessed. T EX
. R. E VID
. 901( b)(1)

.