Henderson v. State
| Decision Date | 01 October 2020 |
| Docket Number | NO. 14-18-00926-CR,14-18-00926-CR |
| Parties | JEREMY HENDERSON, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 178th District Court Harris County, Texas
Appellant Jeremy Henderson appeals his conviction by a jury of the second-degree felony offense of "assault of family member second and impeding breathing." In addition, the jury found true two punishment-enhancement allegations and sentenced appellant to sixty-five years' confinement. In six issues on appeal, appellant challenges the trial court's judgment of conviction. We affirm.
A grand jury indicted appellant for the second-degree felony offense of "assault of family member second offender and impeding breathing."1 The State alleged that appellant assaulted his girlfriend ("complainant"), with whom appellant had a dating relationship, on February 13, 2017. The indictment further alleged that appellant was previously convicted of assault against a family member.2 Appellant pleaded "not guilty" to the charged offense, and the case proceeded to trial.
In August 2016, the complainant began dating appellant. The complainant broke up with appellant several times because of appellant's anger and jealousy issues. By February 2017, the complainant had finally had enough and ended the relationship. On February 13, 2017, appellant called the complainant, and pleaded with her to meet with him to talk. Eventually, the complainant agreed, picked up appellant at his mother's house, and drove to a motel located on Hempstead Road, in Harris County, Texas, where they rented a room for a few hours. Once inside the room, appellant showed the complainant his chest where he had a tattoo of her name, and tried to give her a necklace as a Valentine's Day present. The complainant refused to accept the necklace because she was "finished with [the] relationship for good this time[,]" at which point appellant became jealous, angry, and accusatory. The complainant argued with appellant and, when she conceded that she had recently spoken to another man—her son's father—appellant "lost it" and flew into a rage. Appellant shouted at the complainant, "Bitch, I'm tired of you playing with myfeelings, you always playing with my feelings[,]" as he began to punch her on her head and face. Appellant's blows knocked the complainant backwards onto the bed and dazed her. Before the complainant could react, appellant then got onto the bed and straddled her—using his weight to pin her down—and started forcefully choking her with his hands.
Appellant strangled the complainant to the edge of "blacking out" several times, but shocked her back into consciousness by biting her breasts and hand. At some point during the attack, the complainant told appellant that she needed to use the restroom. Appellant agreed to let her up, but when the complainant did not move quickly, he grabbed the complainant by her hair, dragged her to the bathroom, and then stood over her while she relieved herself. Without waiting for the complainant to rise from the toilet, appellant dragged the complainant out of the bathroom by her hair, threw her to the floor, kicked her in the stomach and back, and then punched her in the head again. Soon thereafter, the phone in the motel rang, as the front desk clerk called to alert appellant and complainant that their time was up and they needed to leave. Appellant emptied the contents of the complainant's purse, took her cellphone, house keys, ID and debit card, and then departed the room, leaving complainant in the room. The complainant checked the hallway to ensure that appellant was gone and then called 911 with the room phone. Police and emergency medical services ("EMS") personnel arrived and made contact with the complainant, whom they observed had "fresh" injuries and was crying and "frantic." EMS transported the complainant to a hospital, and after tests were performed, she was released.
Two days later, on February 15, 2017, the complainant went to the police station to provide a statement, pursue charges against appellant, and have her injuriesphotographed. The police filed charges and, on March 4, 2017, arrested appellant for the assault and choking of the complainant on February 13, 2017.
The jury found appellant guilty as charged of "assault of family member second and impeding breathing, as charged in the indictment." The trial court then arraigned appellant on two enhancements, to which appellant pleaded "not true." The jury found both enhancement paragraphs (regarding 2004 aggravated assault with a deadly weapon conviction and 2013 felony assault of a family member conviction)3 true. The jury assessed appellant's punishment at sixty-five years' confinement.
On October 11, 2018, the trial court entered the written judgment of conviction and sentence. On November 12, 2018, appellant filed a motion for new trial and motion in arrest of judgment, which were overruled by operation of law.
Appellant now appeals his conviction.
Appellant presents the following six issues on appeal:
We initially consider appellant's sixth issue in which he claims that the evidence is legally insufficient to support his conviction because, if sustained, that issue would afford the greatest relief. See Tex. R. App. P. 43.3; Campbell v. State, 125 S.W.3d 1, 4 n.1 (Tex. App.—Houston [14th Dist.] 2002, no pet.) ( reviewing court should first address complaints that would afford the greatest relief).
We apply a legal-sufficiency standard of review in determining whether the evidence supports each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); see also Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). Under this standard, we examine all the evidence adduced at trial in the light most favorable to the verdict to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Temple, 390 S.W.3d at 360; Criff v. State, 438 S.W.3d 134, 136-37 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). We consider all evidence in the record, whether admissible or inadmissible. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013). We also consider both direct and circumstantial evidence, as well as any reasonable inferences that may be drawn from the evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We will uphold the jury'sverdict unless a rational factfinder must have had a reasonable doubt as to any essential element. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009); West v. State, 406 S.W.3d 748, 756 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd).
We consider all evidence presented at trial, but we do not re-evaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Because the jury is the sole judge of the witness's credibility and the weight given their testimony, we resolve any evidentiary conflicts or inconsistencies in favor of the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) .
Sufficiency is measured by the elements of the offense as defined by a hypothetically correct jury charge and as authorized in the indictment. Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). "The 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). "The 'law as authorized by the indictment' includes the statutory elements of the offense and those elements as modified by the indictment." Id. (quoting Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013)). Our use of the hypothetically correct jury charge ensures a judgment of acquittal is reserved for cases in which there is an actual failure in the State's proof of the crime, rather than a mere error in the jury charge. McCombs v. State, 562 S.W.3d 748, 759 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (citing Malik, 953 S.W.2d at 240).
Such a charge in this case would state that a person commits the second-degree offense of assault family violence by impeding breathing if the person intentionally, knowingly, or recklessly causes bodily injury to an individual with whom the accused is in a dating relationship by impeding the normal breathing or circulation of the individual by applying pressure to the individual's throat or neck, while having a prior family violence conviction. See Tex. Penal Code §§ 22.01(a)(1); 22.01(b-3); Tex. Fam. Code Ann. § 71.0021(b).
From the complainant, the jury heard testimony that the complainant had dated appellant for six...
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