Opinion
No. 07-16-00295-CR
05-01-2018
THOR CASTILLO, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 108th District Court Potter County, Texas
Trial Court No. 71,507-E, Honorable Richard Dambold, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant Thor Castillo appeals his conviction by jury of the offense of Assault Domestic Violence by Strangulation and the resulting court-imposed sentence of imprisonment for a term of thirty years. On appeal, appellant challenges the sufficiency of the evidence to support his conviction. We will affirm.
See TEX. PENAL CODE ANN. § 22.01(b)(2)(B) (West 2018).
The indictment also alleged appellant had been previously convicted of one felony offense. The State later provided notice of its intent to further elevate the punishment range by proving appellant had been convicted of another felony offense. Appellant pled "true" to the allegations.
Background
The indictment alleged appellant "intentionally, knowingly or recklessly cause[d] bodily injury to [N.C.], a person with whom the defendant had or has had a dating relationship as described by Section 71.0021(b), Family Code, and did intentionally, knowingly or recklessly impede the normal breathing or circulation of the blood of [N.C.] by blocking the nose or mouth of [N.C.]."
On appellant's plea of not guilty, the victim, N.C., told the jury she lived with appellant and described his attack on her outside an Amarillo fast food restaurant. The State also presented the testimony of two employees of the restaurant and that of two responding police officers. Appellant did not testify and presented his case through the cross-examination of the State's witnesses.
Analysis
In this Court, appellant presents a single issue. He does not challenge the sufficiency of the evidence to prove he intentionally or knowingly caused bodily injury to N.C. His argument challenges the sufficiency of the evidence supporting enhancements that elevate the assaultive offense to felony status. He argues the evidence was insufficient in two respects: to prove beyond reasonable doubt that he covered N.C.'s nose and mouth during the assault; and to prove the two were in a dating relationship. Standard of Review
We examine sufficiency issues under the standard set out in Jackson v. Virginia, by which we view the evidence in the light most favorable to the verdict. Marshall v. State, 479 S.W.3d 840, 845 (Tex. Crim. App. 2016) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.)). We then decide, based on the evidence, whether a rational jury could find all the elements of the offense beyond a reasonable doubt. Id. (citation omitted). We defer to the jury's finding when the record provides a conflict in the evidence. Id. (citation omitted). As the factfinder, the jury is entitled to judge the credibility of the witnesses, and may choose to believe all, some, or none of a witness's testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); see Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012) (the factfinder exclusively determines the weight and credibility of the evidence).
Sufficiency of the evidence should be "measured by the elements of the offense as defined by the hypothetically correct jury charge for the case." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would be 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. The "law as 'authorized by the indictment' includes the statutory elements of the offense 'as modified by the charging instrument.'" Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). Proof to Support Appellant Impeded Normal Breathing or Blood Circulation
A person commits assault if he "intentionally, knowingly, or recklessly causes bodily injury to another . . . ." TEX. PENAL CODE ANN. § 22.01(a)(1). The offense is generally a Class A misdemeanor but is elevated to a third-degree felony if: (1) the offense is committed against a person with whom the defendant has a "dating relationship," and (2) "the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth." Everhart v. State, No. 14-11-00655-CR, 2012 Tex. App. LEXIS 5805, at *5 (Tex. App.—Houston [14th Dist.] July 19, 2012, pet. ref'd) (mem. op., not designated for publication) (citing TEX. PENAL CODE ANN. § 22.01(b)(2)(B); TEX. FAM. CODE ANN. § 71.0021(b)); see Price v. State, 457 S.W.3d 437, 442 (Tex. Crim. App. 2015) (also analyzing § 22.01(b)).
Appellant points out the indictment alleged he impeded N.C.'s normal breathing or circulation by blocking her nose or mouth, and did not allege he did so by applying pressure to her throat or neck, and he contends the evidence supporting the indictment's allegation was insufficient. He points to N.C.'s equivocating testimony regarding the means by which appellant impeded her breathing. Appellant acknowledges N.C. testified clearly that he placed his hands on her neck and impeded her breathing, but contends the evidence he covered her nose or mouth was insufficiently clear to permit the jury to find the allegation true.
The State responds with two arguments. It first contends that any variance between the indictment's allegation appellant impeded N.C.'s breathing by covering her nose and mouth and proof that he impeded her breathing only by applying pressure to her throat or neck would not be material, and thus would not be reflected in the hypothetically correct jury charge by which we measure the sufficiency of evidence. See Malik, 953 S.W.2d at 240. Second, the State contends there was no such variance in the evidence because the jury rationally could have determined appellant impeded N.C.'s breathing by covering her nose and mouth as the indictment said.
After review of the entire record, we find we need not consider whether the State is correct that the conviction could be affirmed on proof that appellant impeded N.C.'s breathing only by applying pressure to her throat or neck. The evidence permitted the jury rationally to find appellant blocked N.C.'s nose or mouth and in that manner impeded her normal breathing.
N.C. told the jury she and appellant drove from Pampa, where they lived, to Amarillo to visit friends. On their way back to Pampa, the couple stopped at the fast food restaurant. While there, she said, appellant became upset and "he choked me or he had his hands around my neck."
N.C. described appellant choking her and being unable to breathe. She at times testified she was unable to breathe because appellant choked her and at other times that she was unable to breathe because appellant also covered her nose and mouth. N.C. admitted that in her initial statement to police she neglected to include the fact that appellant covered her nose and mouth. But, on redirect examination, she confirmed appellant covered her mouth and nose. And, at one point during cross examination, pressed to resolve the inconsistencies in her testimony, she told the jury "[w]hen he was choking me, he -- he used both of his hands. And when I went to yell, yeah, he covered my nose and my mouth, when I went to yelling."
The restaurant employees testified they saw appellant hitting N.C. One described seeing appellant punch N.C. twice and then when he told appellant to "stop swinging" appellant "punched twice again." A responding officer testified he observed signs indicating N.C. had been choked or strangled. Photographs of the injuries were admitted. The officer told the jury he saw "a lot of redness on the victim's neck and on her face . . . she did have some small cuts to her face that looked similar to be from possibly a fingernail trying to cover over the nose and mouth." He testified that based on his investigation, N.C.'s "breath was cut off by the covering of the nose and the mouth." Several photographs depicted a scratch on N.C.'s nose. N.C. testified appellant caused the scratch during the assault.
It was the jury's role to judge the credibility of N.C.'s statements during her testimony, to resolve conflicts in the evidence, and to determine the weight to be given the photographs and other testimony. See Jackson, 443 U.S. at 319 (evidentiary sufficiency standard "gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts"); Wise, 364 S.W.3d at 903. Viewed in the light most favorable to it, the evidence supports the jury's verdict. Price, 457 S.W.3d at 442. Proof of Dating Relationship
Section 71.0021(b) of the family code provides that a "dating relationship" means "a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature." TEX. FAM. CODE ANN. § 71.0021(b) (West 2015). The existence of this relationship is determined based on consideration of: (1) the length of the relationship; (2) the nature of the relationship; and (3) the frequency and type of interaction between the persons involved in the relationship." Id.
Appellant contends the evidence was insufficient to prove he and N.C. had a relationship of a romantic or intimate nature. We agree the prosecutor may not have directly established that fact in his questioning of N.C., but we find its truth is a reasonable inference from facts that were established. Hooper v. State, 214 S.W.3d 9, 15-16 (Tex. Crim. App. 2007) (inference is "a conclusion reached by considering other facts and deducing a logical consequence from them"); see Jackson, 443 U.S. at 319 (trier of fact may draw reasonable inferences "from basic facts to ultimate facts").
At the outset of N.C.'s direct examination, this exchange occurred:
Q. [W]hen this happened, who were you living with?
A. Him.
Q. You were living with him?
A. I was living with him and his brother.
Q. Okay. And how long had y'all been together?
A. Almost six months.
Q. Almost six months?
A. Yes.
Q. Okay. Did y'all do a lot together?
A. Yeah.
Q. Okay. Did y'all travel together?
A. Uh-huh. Yes.
At oral argument in this case there was discussion regarding N.C.'s statement she lived with appellant "and his brother," and the imprecision of the prosecutor's questions asking how long "y'all" had "been together." After review of the entire record, we are satisfied the jury would have understood N.C.'s testimony to refer only to her relationship with appellant. Her testimony contains no further reference to the brother, other than her statement she "had handprints around my neck when I got to his brother's house because the brother looked at it and seen them." So understood, N.C.'s testimony demonstrated she and appellant: (1) had "been together" almost six months, demonstrating the length of their relationship; (2) lived together, indicating the nature of their relationship; and (3) engaged in frequent interactions of varying types, reflecting the frequency and type of interaction between the two.
The court sustained appellant's objection that the statement was nonresponsive, and, on further request, directed the jury to disregard "the last portion of the answer."
The jury also heard N.C. respond negatively to a question asking if she went "back to" appellant after the assault. And the jury heard one of the officers give a positive answer to appellant's counsel's question asking "Isn't it true, Officer, that [appellant] indicated to you that he had gotten in a scuffle with his fiancé while trying to get his money back from her?" The jury could have seen the question and response as indicating appellant had characterized N.C. as his fiancé in his conversation with the officer.
Appellant's defensive theory at trial, by which he asserted his confrontation with N.C. was an attempt to "get his money back from her," also speaks to the nature of their relationship. N.C. agreed under cross examination that she had "several hundred dollars" on the day of the assault because appellant had cashed his paycheck that day.
The evidence here is comparable to that other courts have found sufficient to prove a dating relationship. See, e.g., Tolleson v. State, No. 02-11-00140-CR, 2012 Tex. App. LEXIS 1423, at *4-5 (Tex. App.—Fort Worth Feb. 23, 2012, no pet.) (mem. op., not designated for publication) (evidence sufficient to show the parties were in a dating relationship when victim testified she and the defendant were "boyfriend-girlfriend" and had been living together for eighteen months); Caballero v. State, No. 03-09-00473-CR, 2010 Tex. App. LEXIS 4072, at *11-12 (Tex. App.—Austin May 28, 2010, pet. ref'd) (mem. op., not designated for publication) (evidence sufficient to show parties were in a dating relationship when testimony showed the couple had been living together "on and off for eight months," that they were a "couple" and "in a relationship" and that they were affectionate with one another). See also Villarreal v. State, 286 S.W.3d 321, 324 (Tex. Crim. App. 2009) (evidence couple dated for about a month and occasionally spent the night at the other's residence showed dating relationship). We find it sufficient to support the jury's finding that this relationship satisfied the requisites of the statute.
Based on the rationale stated, we find the evidence sufficient to support appellant's conviction, and so overrule his appellate issue. We affirm the judgment of the trial court.
James T. Campbell
Justice Do not publish.