No. 14-05-00181-CR
Opinion filed July 20, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the County Criminal Court at Law No. 1, Harris County, Texas, Trial Court Cause No. 1260135. Affirmed.
Panel consists of Chief Justice HEDGES and Justices YATES and GUZMAN.
ADELE HEDGES, Chief Justice.
Appellant, George Hernandez, Jr., appeals from his conviction for assault on a family member. After a jury found him guilty, appellant was sentenced to 180 days in jail, probated for fifteen months, with ten days to be served in jail as a condition of the probation. In five issues, appellant contends that (1) the evidence was legally insufficient to sustain his conviction, (2) the evidence was factually insufficient to sustain his conviction, (3) the trial court erred in refusing to instruct the jury on the law of self-defense, (4) the trial court erred in refusing to instruct the jury on the law of defense of a third person, and (5) certain questions by the prosecutor violated his right to remain silent. We affirm.
Background
Appellant was charged with assaulting "Karen Secura" by choking her with his hand. At trial, Deputy Aaron Acosta testified that on September 22, 2004, he responded to a family disturbance call that led him to the home of appellant and Karen Segura. Acosta knocked on the door and was met by a crying woman who identified herself as "Karen Segura." He observed marks on her neck that were consistent with "strangulation." After speaking with Segura, Acosta believed that she had been assaulted by appellant. Segura testified that her last name is spelled "S-E-G-U-R-A." She stated that appellant threw her cell phone at her head after examining the text messages on the phone. She testified that the cell phone's impact had caused pain, but it did not last long. She then testified that she may have hit appellant first, that she pushed appellant, and that he threw her on the bed and proceeded to choke her. She said that the choking caused pain. Segura acknowledged that she voluntarily signed a statement that said appellant had not hurt her. Segura thought that the statement would "cancel the charges on [appellant]." Appellant testified that before he grabbed Segura, she had hit him repeatedly on the head and face. He stated that her arms were swinging wildly and his reaction was to hold her down. Appellant denied throwing Segura on the bed, instead claiming that they lost their balance and fell after he tried to restrain her. Appellant testified that he grabbed Segura in order to protect himself. Appellant denied throwing the cell phone at Segura and denied that he choked her or otherwise touched her neck during the encounter. Appellant also testified that he was concerned for the safety of his child, who was in the room, and was worried that Segura's actions might hurt the child. During cross-examination, the prosecutor asked appellant: "[Y]ou never gave a statement to the police, did you?" Defense counsel objected that this question implicated post-arrest silence, and the trial court sustained the objection. A short time later, the prosecutor asked appellant: "So, you didn't go down to the police station and tell them what happened?" Defense counsel objected on the same grounds again, and the court again sustained the objection. The prosecutor then asked appellant: "Before you were arrested, you never went to the police to give them a statement did you?" Defense counsel objected to this as a comment on appellant's Fifth Amendment right to remain silent, and the trial court overruled the objection. At the close of trial, defense counsel requested that instructions on self-defense and defense of a third person be included in the jury charge. The court denied both requests. The charge instructed the jury that it should find appellant guilty as charged if it believed beyond a reasonable doubt that he "unlawfully intentionally or knowingly [sic] caused bodily injury to Karen Secura [sic] . . . by choking [her] with his hand." Legal Sufficiency
In his first issue, appellant contends that the evidence was legally insufficient to sustain the conviction because he was charged with assaulting "Karen Secura," while the testimony at trial demonstrated that he assaulted "Karen Segura." Thus, appellant raises a variance between the charging instrument and the proof at trial. See Gollihar v. State, 46 S.W.3d 243, 246 (Tex.Crim.App. 2001). The Court of Criminal Appeals has decreed that a materiality inquiry must be made in all cases involving a sufficiency of the evidence claim that is based on a variance. Id. at 257. A variance will be considered "fatal," and thus render the evidence insufficient, only when it is "material." Fuller v. State, 73 S.W.3d 250, 253 (Tex.Crim.App. 2002); Gollihar, 46 S.W.3d at 257. A variance is material if it (1) deprived the defendant of sufficient notice of the charges against him such that he could not prepare an adequate defense, or (2) would subject him to the risk of being prosecuted twice for the same offense. Fuller, 73 S.W.3d at 253; Gollihar, 46 S.W.3d at 257. Generally, the prosecution's failure to prove the victim's name exactly as alleged in the charging instrument will not render the evidence insufficient to support a conviction because the victim's name is not a statutory element of the underlying offense. Fuller, 73 S.W.3d at 253-54. The burden of demonstrating materiality in the variance context rests with the defendant. See Santana v. State, 59 S.W.3d 187, 194-195 (Tex.Crim.App. 2001). The Penal Code section governing assault does not list the victim's name as an element of assault. TEX. PEN. CODE ANN. § 22.01 (Vernon 2005). Furthermore, appellant does not allege that the charging instrument provided him with insufficient notice of the charges against him or subjected him to the risk of being prosecuted twice for the same offense. Appellant testified at trial that he is well acquainted with the complainant and that he had a physical encounter with the complainant on the date in question. Consequently, it is extremely unlikely that appellant did not realize whom he was accused of assaulting, despite the apparent misspelling in the charging instrument. Additionally, the variance does not subject appellant to the risk of being prosecuted twice for the same offense because the entire record, not just the charging instrument, can be referred to in protecting against double jeopardy. Gollihar, 46 S.W.3d at 258. Accordingly, the variance between the charging instrument and the proof at trial is immaterial. Appellant's insufficiency argument is based solely on the variance. Having found that the variance is immaterial and must be disregarded in a sufficiency review, we overrule this first issue without further analysis. See Gollihar, 46 S.W.3d at 258 (concluding sufficiency analysis upon holding that variance was immaterial). Factual Sufficiency
In his second issue, appellant claims that the evidence is factually insufficient to support his conviction. We utilize the well-established standards of review in considering this issue. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). The charge instructed jurors to find appellant guilty if they believed that he intentionally or knowingly caused bodily injury to complainant by choking her with his hand. See TEX. PEN. CODE ANN. § 22.01 (Vernon 2005) (stating that a person commits the offense of assault if he or she "intentionally, knowingly, or recklessly causes bodily injury to another"). Appellant contends that the evidence is factually insufficient because (1) Segura signed a statement stating that appellant had not hurt her, and (2) she testified that she hit him first. Although Segura did indeed sign the statement and testify that she hit appellant first, she also testified that appellant choked her, thereby causing her pain. Discrepancies in a witness's testimony do not automatically make the evidence factually insufficient; it is within the province of the jury as fact-finder to believe certain portions of Segura's testimony and to disbelieve others. See Jones v. State, 984 S.W.2d 254, 258 (Tex.Crim.App. 1998) (stating that the jury is free to believe or disbelieve any portion of a witness's testimony); see also Dornbusch v. State, 156 S.W.3d 859, 872 (Tex.App.CCorpus Christi 2005, pet. ref'd) (stating that although in-court testimony was inconsistent with prior statements, the inconsistency did not render the evidence factually insufficient). Furthermore, Deputy Acosta testified that the marks he saw on Segura's neck were consistent with "strangulation." He stated that the marks looked fresh and that it appeared as if someone had wrapped his fingers around her neck in a choking motion. After talking with Segura, Acosta concluded that appellant had assaulted her. Additionally, the jury was shown photographs of Segura taken by a crime scene photographer on the night of the alleged assault. These photographs show marks on Segura's neck, thus corroborating the testimony of Segura and Acosta. Unless the available record clearly reveals that a different result is appropriate, an appellate court must defer to the jury's determination concerning how much weight to give contradictory testimonial evidence. Johnson, 23 S.W.3d at 11. Based on the foregoing, we find that the evidence was factually sufficient to support the conviction. Accordingly, we overrule appellant's second issue. Instruction on Self-Defense
In his third issue, appellant contends that the trial court erred in refusing to instruct the jury on the law of self-defense. Specifically, appellant argues that since Segura testified that she was the first to strike, and he testified that his only reaction was to restrain her, he was entitled to a self-defense instruction under section 9.31 of the Texas Penal Code. See TEX. PEN. CODE ANN. § 9.31 (Vernon 2005). Generally, a defendant is entitled to an instruction on self-defense whenever the evidence raises the issue, regardless of whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense. Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App. 1996). However, self-defense is inconsistent with denial of the conduct alleged. Ford v. State, 112 S.W.3d 788, 794 (Tex.App.CHouston [14th Dist.] 2003, no pet.). Thus, in order for the evidence to have raised the issue of self-defense, a defendant must have first admitted that he or she committed the charged offense and then offered self-defense as a justification for the conduct. Id. Here, appellant does not assert that he admitted the charged offense at trial. Both the charging instrument and the jury charge alleged that appellant assaulted the complainant by intentionally or knowingly causing her bodily injury by choking her with his hand. At trial, appellant denied that he choked Segura or even touched her neck, and he denied intending to hurt her. In fact, he only admitted that he grabbed her and they lost their balance and fell on the bed. Because appellant expressly denied the only allegedly assaultive conduct charged, we find that he was not entitled to a jury instruction on self-defense. See id. (holding that defendant was not entitled to a self-defense instruction because he did not admit the offense as charged and then offer justification for it); see also Young v. State, 991 S.W.2d 835, 839 (Tex.Crim.App. 1999) (holding that defendant was not entitled to a defensive instruction because the defendant did not admit that he performed the actions as alleged by the State); McGarity v. State, 5 S.W.3d 223, 227 (Tex.App.CSan Antonio 1999, no pet.) (holding that defendant was not entitled to a defensive instruction because although he admitted throwing the complainant on the bed, he did not admit striking the complainant in the face, which was the specific conduct charged). We overrule appellant's third issue. Instruction on Defense of a Third Person
In his fourth issue, appellant contends that the trial court erred in refusing to instruct the jury on the law of defense of a third person as described in section 9.33 of the Texas Penal Code. See TEX. PEN. CODE ANN. § 9.33 (Vernon 2005). Appellant bases this contention on his testimony that he restrained Segura, in part, because he feared for the safety of his child, who was in the room at the time of the confrontation. Our analysis of appellant's third issue appears equally applicable to his fourth issue. Like self-defense, defense of third persons is a justification defense. See id. §§ 9.31, 9.33; Burkett v. State, 179 S.W.3d 18, 27 n. 1 (Tex.App.CSan Antonio 2005, no pet.). As explained above, in order to be entitled to a jury charge on a justification defense, a defendant must have first admitted that he or she committed the charged offense and then have offered a justification for the conduct. See Reich-Bacot v. State, 976 S.W.2d 678, 679 (Tex.Crim.App. 1998); Ford, 112 S.W.3d at 794. Here, appellant does not assert that at trial he admitted the charged offense; in fact, at trial, he expressly denied the only allegedly assaultive conduct charged. Accordingly, we overrule appellant's fourth issue. Right to Silence
In his fifth issue, appellant contends that the trial court erred in permitting the State to ask him whether he had contacted the police regarding being attacked by the complainant. Appellant asserts that this questioning violated his right to silence under the Fifth Amendment of the United States Constitution. Specifically, appellant points to a portion of the record where he objected to three successive questions posed by the prosecutor: (1) "[Y]ou never gave a statement to the police, did you?"; (2) "So, you didn't go down to the police station and tell them what happened?"; and (3) "Before you were arrested, you never went to the police station to give them a statement, did you?" In his brief, appellant acknowledges that the third question was not objectionable because it inquired about his pre-arrest silence. See Jenkins v. Anderson, 447 U.S. 231, 238 (1980) (holding that the use of pre-arrest silence to impeach a defendant's credibility does not violate the Fifth Amendment). Furthermore, the trial court sustained defense counsel's objections to the first two questions. Defense counsel did not then request an instruction to disregard or move for a mistrial. To preserve an issue for appeal, a timely objection must be pursued to an adverse ruling. TEX. R. APP. P. 33.1(a)(2); Haley v. State, 173 S.W.3d 510, 516 (Tex.Crim.App. 2005). When a party's objection is sustained, there is no adverse ruling. See Caron v. State, 162 S.W.3d 614, 617 (Tex.App.CHouston [14th Dist.] 2005, no pet.). To reach the level of an adverse ruling when an objection has been sustained, counsel must ask for an instruction to disregard, and if the instruction is given, counsel must then move for a mistrial. Wilson v. State, 179 S.W.3d 240, 256 (Tex.App.CTexarkana 2005, no pet.). Because defense counsel failed to obtain an adverse ruling, nothing was preserved for appeal. Accordingly, we overrule appellant's fifth issue. We affirm the trial court's judgment.