Fang v. State

• Decision Date: 29 March 2018
• Docket Number: NO. 14-16-00973-CR,14-16-00973-CR
• Citation: 544 S.W.3d 923
• Parties: BIN FANG, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

544 S.W.3d 923

BIN FANG, Appellant

v.The STATE of Texas, Appellee

NO. 14-16-00973-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed March 29, 2018.

Dan McCrory, Houston, TX, for Appellee.

James Stafford, Houston, TX, for Appellant.

Panel consists of Chief Justice Frost and Justices Busby and Wise.

OPINION

Ken Wise, Justice

The jury convicted appellant of assaulting a family member. He challenges his conviction in two issues, contending that (1) the trial court erred by admitting out-of-court statements from the complainant in violation of the Confrontation Clause in the Sixth Amendment to the United States Constitution; and (2) the evidence is insufficient to support the conviction. We affirm.

I. SUFFICIENCY OF THE EVIDENCE

We address appellant’s second issue first because it would afford him greater relief than his first issue. See Bradleys' Elec., Inc. v. Cigna Lloyds Ins. Co. , 995 S.W.2d 675, 677 (Tex. 1999) ; Sifuentes v. State , 494 S.W.3d 806, 809 n.1 (Tex. App.—Houston [14th Dist.] 2016, no pet.). In his second issue, appellant contends the evidence is legally insufficient to support the conviction because the State failed to prove that appellant (1) intentionally or knowingly struck the complainant with his hand; (2) caused any bodily injury to the complainant; or (3) had a dating relationship with the complainant.

A. Standard of Review

In a sufficiency review, "we consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, any rational juror could have found the essential elements of the crime beyond a reasonable doubt." Balderas v. State , 517 S.W.3d 756, 765–66 (Tex. Crim. App. 2016). "The jury is the sole judge of the credibility and weight to be attached to witness testimony." Id. at 766. "When the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict, and we defer to that determination." Id. We consider all the evidence in the record, whether it was admissible or not. See Winfrey v. State , 393 S.W.3d 763, 767 (Tex. Crim. App. 2013).

"We measure whether the evidence presented at trial was sufficient to support a conviction by comparing it to ‘the elements of the offense as defined by the hypothetically correct jury charge for the case.’ " Hernandez v. State , No. PD-1049-16, ––– S.W.3d ––––, ––––, 2017 WL 4675371, at *2 (Tex. Crim. App. Oct. 18, 2017) (quoting Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) ). "A hypothetically correct jury charge is ‘one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.’ " Id. (quoting Malik , 953 S.W.2d at 240 ).

"A ‘variance’ occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial." Gollihar v. State , 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). A variance that is immaterial is disregarded in the hypothetically correct jury charge, but allegations giving rise to a material variance must be included. Hernandez , ––– S.W.3d at ––––, 2017 WL 4675371, at *2. Generally, allegations included in the charging instrument that are not essential to constitute the offense give rise to immaterial variances. See Gollihar , 46 S.W.3d at 249–50.

B. Factual and Procedural Background

The State’s evidence included a recording of a 911 phone call and the testimony of two officers who responded to the call. In the 911 call, a person who identified herself as "Lee-Lee" said that her husband "beat" her with his "fist."¹ She gave her address and said her husband was Asian. She mentioned having a baby.

The officers testified that they were dispatched to the address given during the 911 call. Appellant, an Asian man, opened the door. He said that the police were not needed, or that no one called the police. An officer asked if anyone named "Lee-Lee" was there, and appellant said "yes." Appellant said, "[T]hat’s my wife Lee-Lee." Appellant did not ask why the police were there. He opened the door wider, and the officers could see the complainant. The officer asked to speak with the complainant, and she approached slowly. She seemed upset, sad, in fear, and shaken up. She held a baby in her arms.

The officers saw blood in the corners of the complainant’s mouth and nostril. One officer described the blood as "wet" and "very fresh" as if "it had just occurred or it just had happened recently"; the other officer described it as "freshly dried." The officers saw two scratches on the complainant’s forehead and a bruise on her bicep about the size of a thumbprint. It seemed to the officers like the complainant had just finished crying because her cheeks and eyes were puffy and red.

The complainant told the officers that everything was fine, she did not need police, her husband did not do anything to her, and she had caused her own injuries. An officer testified that he did not believe her. The complainant did not say how she injured herself. An officer asked appellant if he knew how the complainant sustained the injuries. Appellant did not indicate that he knew; he asked for a lawyer.

Appellant was charged by information with assault. After the trial court struck several paragraphs of the information, it read in relevant part as follows:

BIN FANG, hereafter styled the Defendant, heretofore on or about JUNE 5, 2016, did then and there unlawfully intentionally and knowingly cause bodily injury to [the complainant] a PERSON WITH WHOM THE DEFENDANT HAD A DATING RELATIONSHIP, hereafter styled the Complainant by STRIKING THE COMPLAINANT WITH HIS HAND.

The trial court instructed the jury consistent with the information, and the jury found appellant guilty. The trial court made an affirmative finding under Article 42.013 of the Texas Code of Criminal Procedure that appellant "was prosecuted for an offense under Title 5 of the Penal Code that involved family violence."² The court assessed an agreed punishment and placed appellant on community supervision.

C. Sufficient Evidence of Guilt

Under the hypothetically correct jury charge authorized by the information, the State was required to prove that appellant intentionally or knowingly caused bodily injury to the complainant. See, e.g. , Wert v. State , 383 S.W.3d 747, 755 (Tex. App.—Houston [14th Dist.] 2012, no pet) (citing Tex. Penal Code § 22.01(a)(1) ).³ We now review the elements and issues fairly raised by appellant’s brief.

1. Appellant’s Identity

The State must prove that the accused is the person who committed the crime charged.

Smith v. State , 56 S.W.3d 739, 744 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd). Identity may be proven through direct or circumstantial evidence, and through inferences. Id. ; see also Balderas , 517 S.W.3d at 766.

In this case, the jury could infer that the person identifying herself as "Lee-Lee" during the 911 call was the complainant and that the "husband" described during the call was appellant. The person who made the 911 call said that her husband beat her; she gave the correct address for the complainant; she described her husband as Asian; and she mentioned having a baby. The officers responded to the address and encountered appellant, an Asian man. Appellant identified the complainant as "Lee-Lee," his wife. The officers saw the complainant holding a baby and observed that the complainant had scratches, a bruise, and a bloody mouth and nose.

A rational juror could infer from the 911 recording and the officers' testimony that appellant was the person described during the call as beating the complainant with his fist. The evidence is sufficient to prove appellant’s identity as the person who committed the crime.

2. Bodily Injury

"Bodily injury" includes physical pain or any impairment of physical condition. Tex. Penal Code § 1.07(a)(8). "Any physical pain, however minor, will suffice to establish bodily injury." Garcia v. State , 367 S.W.3d 683, 688 (Tex. Crim. App. 2012). A jury may infer whether a person felt physical pain because "people of common intelligence understand pain and some of the natural causes of it." Id.

Evidence of a cut or bruise is sufficient to show bodily injury. See Shah v. State , 403 S.W.3d 29, 34–35 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) (sufficient evidence of bodily injury because the jury could reasonably infer that a "lesion on the bridge of [the complainant’s] nose would cause physical pain"); Arzaga v. State , 86 S.W.3d 767, 778 (Tex. App.—El Paso 2002, no pet.) (noting that the "existence of a cut, bruise, or scrape on the body is sufficient evidence of physical pain"); Goodin v. State , 750 S.W.2d 857, 859 (Tex. App.—Corpus Christi 1988, pet. denied) (sufficient evidence although the complainant did not testify about physical pain because there was a reasonable inference that "bruises and muscle strain caused him ‘physical pain’ ").

The officers testified that the complainant had scratches on her forehead, a bruise on her arm, and fresh blood on her mouth and nose. This evidence is sufficient to prove bodily injury. See, e.g. , Shah , 403 S.W.3d at 35.

3. Culpable Mental State

"Assault by causing bodily injury is a result-oriented offense." Darkins v. State , 430 S.W.3d 559, 565 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd) ; see also Landrian v. State , 268 S.W.3d 532, 536 (Tex. Crim. App. 2008). Accordingly, the State had to prove that appellant caused the result of bodily injury with the requisite culpable mental state. See Darkins , 430 S.W.3d at 565. A person acts knowingly with respect to the result of the person’s conduct when the person is aware that the conduct is reasonably certain to cause the result. Tex. Penal Code § 6.03(b). Proof of a culpable mental state generally relies on circumstantial evidence. Gilder v. State , 469...