In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00376-CR
__________________
JAMES EDWARD PORTER IV, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 221st District Court
Montgomery County, Texas
Trial Cause No. 19-02-01899-CR
__________________________________________________________________
MEMORANDUM OPINION
In May 2019, a Montgomery County Grand Jury indicted James
Edward Porter IV for family violence assault, a third-degree felony. The
indictment alleges that in late January 2019, Porter assaulted his wife
Laura and that before January 2019, Porter had been convicted of
assaulting another member of his family, a member of his household, or
1
person with whom he was in a dating relationship. 1 Following a trial by
jury, Porter was found guilty of assault, family violence. In the
punishment hearing that followed, also before the jury, the State
presented evidence proving Porter had been convicted of committing two
other felonies, both of which had become final before Porter committed
the 2019 assault. 2 After the jury answered “true” to the enhancement
paragraphs in the charge, the jury decided Porter should serve a thirty-
year sentence. The judgment the trial court signed is consistent with the
jury’s verdict.
Porter appealed and filed a brief raising eight issues for our review.
In issue one, Porter argues the trial court erred in admitting testimony
about statements he made to police in what Porter characterizes as a
1We refer to the victim by a pseudonym to conceal her identity. See
Tex. Const. art. I, § 30(a)(1) (granting crime victims “the right to be
treated with fairness and with respect for the victim’s dignity and privacy
throughout the criminal justice process”). See also Tex. Penal Code Ann.
§ 22.01(b)(2) (describing the crime of family violence assault).
2The enhancement paragraphs relevant to the jury’s findings in the
trial on punishment allege that Porter was convicted in 2006 in the 176th
District Court of Harris County, Texas in Cause Number 1069696 for
possessing a controlled substance, and that Porter was convicted in 1999
in the 262nd District Court of Harris County Texas in Cause Number
0832045 for committing a robbery.
2
custodial interrogation, an interrogation that occurred at Porter’s home
about a week after Laura’s coworker called 911 to report that Porter had
assaulted Laura while she was on a break from work. During a hearing
to suppress the detective’s testimony, Porter argued that the detective
who conducted his interview failed to warn him he could remain silent
unless his attorney was present and failed to record everything said
during the interrogation. 3 In issues two through four, Porter complains
about the trial court’s rulings admitting some of the testimony and
several exhibits into evidence during the trial. In issues five and six,
Porter argues there are errors in the charge. In issues seven and eight,
Porter complains the evidence is insufficient to support the verdict.
We conclude the arguments Porter relies on to support his issues
lack merit. And when the evidence in the trial is viewed in the light that
favors the verdict, we conclude it is sufficient to support the verdict. For
the reasons explained below, we affirm.
3See Miranda v. Arizona, 384 U.S. 436, 467-68 (1966); Tex. Code
Crim. Proc. Ann. art. 38.22.
3
Background
The January 2019 Altercation
Porter’s indictment arose from an altercation that occurred
between Porter and Laura in late January 2019. Initially Laura on the
day of the alleged assault and Porter when a detective spoke to them nine
days later both said that Porter’s hand struck Laura’s head. When Porter
testified in the trial, he told the jury that he “smack[ed]” Laura with his
hand, although he explained he thought he hit her on her shoulder and
not on her “face or the head.”
Regardless of where his hand touched her body, Porter didn’t
dispute that his hand contacted Laura’s body. And during the trial,
Porter testified he thought that under the circumstances he was
confronted with he had to strike Laura with his hand. According to
Porter, when he and Laura were together on January 22 while Laura was
on a break from work, he noticed “she was shaking[.]” He told her “if she
was on that stuff, [he] wanted to leave her and get a divorce.” The
conversation occurred in Laura’s truck while Laura was in the driver’s
seat and Porter was sitting in the passenger’s seat with his door open. He
4
did not have his seatbelt on. According to Porter, Laura got “mad and
started hitting [him] with her right hand when she took off in the truck.”
Porter testified there were three reasons he decided he had to hit
Laura with his hand to get her to stop the truck. First, Laura “was
swerving back and forth and going around the whole parking lot” making
him “fear for [his] life because [he] didn’t know if [he] was to get ejected
from that truck[.]” Second, as Laura was swerving through the lot in the
truck, he saw “a couple of babies walking through the parking lot with
two ladies that was behind them,” so he didn’t “want her to be responsible
for running no babies over.” Third, according to Porter, he didn’t want
Laura to get hurt. According to Porter, after he hit Laura with his hand,
she stopped the truck and got out. Then, he drove off and left Laura at
the scene.
At trial, Laura’s explanation about what occurred when she was
with Porter in her truck is consistent with what Porter testified occurred.
Of course, the jury was aware that Porter and Laura were married when
the trial occurred. According to Laura, she had taken cocaine about an
hour before meeting Porter and taking her break. Laura testified that
she struck Porter after he threatened to leave her and said he wanted a
5
divorce. When Laura returned to work, she was crying and had a bruise
near her eye. According to Laura’s coworker, Laura said that Porter hit
her with his hand. At trial, however, Laura testified that Porter never hit
her when they were together in the truck during her break. And Laura
said that as she was driving the truck and swerving through the lot, she
heard Porter say there are “kids in the parking lot.” When she looked up,
she saw “two ladies and two little girls.” Porter’s door was open. Porter
didn’t have his seatbelt on. According to Laura, as Porter warned her
there were ladies and two little girls in the lot, he pushed her away from
the steering wheel of her truck.
Laura also explained why Porter’s hand did not cause bruises seen
in photos admitted into evidence that are around one of her eyes.
According to Laura, after she left the parking lot, she stopped on a side
street and “started banging [her] head on the steering wheel[,]” hitting
herself “like three or four times.” Laura said that after she left the side
street, she “went straight back to work.”
Even though Laura testified that Porter never hit her with his
hand, the jury did not just have to rely solely on her trial testimony when
reaching its verdict. In many respects, the accounts Laura and Porter
6
provided the jury in the trial are inconsistent with the accounts they gave
others either the day of or shortly after the January 2019 altercation in
the truck. For example, when Laura returned to work in January 2019
after taking a break, she spoke to Rachel Rodriguez, a coworker in the
grocery store where she worked that, just ten minutes earlier, she had an
altercation with Porter while on her break. The State called Rodriguez as
a witness in the trial. According to Rodriguez, when Laura returned from
her break, Rodriguez noticed that Laura was shaking, had bruises on her
face, and was upset and crying. Rodriguez testified that Laura said
Porter hit her in the face.
Rodriguez called 911 and reported the incident to the police. During
that call, Laura can be heard answering when Rodriguez asks Laura to
respond to questions the 911 operator asked Rodriguez while Rodriguez
is on the phone. The State introduced the recording of the 911 call into
evidence. The recording was admitted and played for the jury without
objection in the trial. During the call, Laura identifies Porter as the
person who hit her with his hand. Laura can also be heard stating Porter
hit her about ten minutes before Rodriguez called 911. Rodriguez
7
testified the bruises on Laura’s face grew larger while the women were
waiting for the police at the store.
Deputy Sheriff Troy Mosely, an employee of the Montgomery
County Sheriff’s Office, went to the grocery store in response to the call
Rodriguez placed to 911. The State called Deputy Mosely to testify in the
trial. Deputy Mosely testified he photographed Laura’s head, and the
photos he took show Laura has two lumps near her right eye and a slight
bruise on her right ear. The photos were admitted into evidence without
objection during the trial. According to Mosely, nothing in his encounter
with Laura that day caused him to believe that Laura had taken a
controlled substance or that she was high.
Porter’s Arrest
Nine days after Mosely responded to the call Rodriguez made to
911, two detectives from the Montgomery County Sheriff’s Office went to
Porter’s home to investigate the incident Rodriguez reported to the police.
At Porter’s request, the trial court conducted a hearing outside the
presence of the jury on Porter’s objection to the admission of Detective
Jacob Erickson’s testimony about what Porter told him when the
detective spoke to Porter at his home. During the hearing, Porter argued
8
the statements he made to Detective Erickson should be suppressed
because the detective failed to comply with the requirements of Miranda
and failed to record the interview based on the requirements of the Texas
Rules of Criminal Procedure. 4
Detective Erickson and Porter were the only two witnesses who
testified in the hearing. Detective Erickson explained he went to Porter’s
home to investigate the incident that Rodriguez reported to police. While
there, he saw Porter, accompanied by Laura, pull up to the residence in
a car. When Detective Erickson saw Laura, he knew there was a
protective order between the couple. However, without a copy of the
protective order, he said he couldn’t tell whether Porter was violating the
order by being with Laura in the car. According to Detective Erickson,
he detained Porter based on his training regarding that situation. Then,
he handcuffed Porter, started his recorder, and read Porter his Miranda
rights to investigate whether Porter was violating the protective order by
being with Laura in the car. After Detective Erickson started the
recorder, he explained, Porter “started to talk[.]”
4Id.
9
Shortly after Detective Erickson started the recorder, he
determined the recorder was not working. He noticed when he reached
into his pocket the recorder “was on” but it “wasn’t saying ‘record.”’ So
Detective Erickson removed the batteries from the recorder, put the
batteries back in, turned the recorder back on, and then pressed record.
Although that fixed the recorder, the detective captured only half the
conversation he had with Porter after placing Porter in handcuffs.
The trial court listened to the recording during the hearing. Porter
is heard in the recording stating that he “smacked” Laura in the head on
January 22. And during the recorded portion of Porter’s interview, Porter
acknowledges Detective Erickson gave him a Miranda warning. 5 After
the trial court finished listening to the recording, Detective Erickson
5While Porter acknowledged Detective Erickson gave him a
Miranda warning when starting the interview, the warning Porter
received is unrecorded. Detective Erickson did not repeat the warning
after the recorder started working. And during the hearing, no one asked
Porter or Detective Erickson when he interviewed Porter at his home. No
mention is made about the date in the recording. In opening statement,
the prosecutor mentioned that Detective Erickson found Porter with
Laura at his home on January 31st, so we assume the interview occurred
nine days after Porter allegedly assaulted Laura while the two of them
were together in her truck.
10
swore he did not take Porter into custody until after he told Porter he
was arresting Porter for violating the protective order.
As previously mentioned, Porter testified in the hearing. Porter
said he couldn’t recall if Detective Erickson told him he had the right to
have an attorney present when being questioned by police. Porter also
testified that had he known he had a right to have an attorney present,
he would have invoked that right. According to Porter, he was unaware
the detective was recording the interview. Porter testified (and Detective
Erickson did not dispute) that Porter was handcuffed while he was
questioned.
When the hearing ended, the trial court found that Detective
Erickson warned Porter of his Miranda rights even though the warning
was unrecorded. The trial court also found that Detective Erickson had
not taken Porter into custody for assault family violence when
questioning him on matters related to that case.
The Trial
The State called (1) Detective Erickson, (2) Officer Troy Mosely, (3)
Laura, (4) Rachel Rodriguez, (5) Mark Wright, (6) Pam Traylor, and (7)
Stacy Sherlock in the guilt phase of Porter’s trial. Except for Wright,
11
Traylor, and Sherlock, we have already mentioned Erickson’s, Mosely’s,
Laura’s, and Rodriguez’s roles in Porter’s case. The State called Wright
because he is a latent print examiner who has worked for the
Montgomery County Sheriff’s Office Crime Lab for fifteen years. When
Wright testified, the State offered a certified copy of a conviction Porter
incurred on a Class-A misdemeanor “ASSAULT-FAMILY VIOLENCE”
into evidence in Porter’s trial. The judgment on the Class-A misdemeanor
assault was marked as Exhibit 1 and the certified copy of the judgment
shows Porter was convicted of the assault in May 2013. Porter objected
to the exhibit and complained it was inadmissible, arguing the judgment
does not contain an “affirmative finding” of family violence, a finding he
suggested is a required finding before the judgment is admissible as a
prior conviction under Article 42.013 of the Texas Code of Criminal
Procedure. 6 The trial court overruled Porter’s objection and admitted the
exhibit into evidence in Porter’s trial.
6Tex. Code Crim. Proc. Ann. art. 42.013 (“In the trial of an offense
under Title 5, Penal Code, if the court determines that the offense
involved family violence, as defined by Section 71.004, Family Code, the
court shall make an affirmative finding of that fact and enter the
affirmative finding in the judgment of the case.”).
12
Pam Traylor testified she is a victim assistance coordinator with
the Montgomery County District Attorney’s Office. According to Traylor,
when she encountered Laura, Laura engaged in behavior typical of
victims of domestic violence based on Traylor’s training and experience
as a victim assistance coordinator. Traylor, who said that in 2012 she
worked as a deputy with the Montgomery County Sheriff’s Office,
testified she investigated the assault that resulted in Porter’s conviction
in 2013 on the Class-A misdemeanor assault. The assault Traylor
investigated ended with Porter’s conviction reflected by the judgment
marked and admitted as State’s Exhibit 1.
Analysis
Motion to Suppress
In Porter’s first issue, he raises two distinct arguments. First, he
claims the trial court erred in finding that Detective Erickson read Porter
his Miranda rights. Second, he argues that even if Detective Erickson did
so, the trial court nonetheless still erred in admitting the statement
because the detective failed to record the warning, as required by the
13
Texas Code of Criminal Procedure. 7 Porter argues that the trial court’s
decisions admitting Detective Erickson’s testimony about what he told
the detective and what he said in the recording were harmful because in
them, he “admitted that he assaulted [Laura]” when he never admitted
to having assaulted Laura when he spoke to anyone else. Porter
concludes that had the State not had the benefit of that evidence, which
corroborated the other evidence it had of the alleged assault, “the
prosecution’s case was weak overall.”
To begin, we note the defendant seeking to suppress a statement
that he gave to an officer based on his claim the officer violated his rights
under Miranda bears the burden to establish the statement was a
product of a custodial interrogation before the burden shifts to the State
to show the officer complied with Miranda. 8 On appeal, we use a
7See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(1) (providing that
no oral statement of an accused made as a result of custodial
interrogation is admissible against an accused in a criminal proceeding
unless “an electronic recording . . . is made of the statement”).
8Compare Tex. Code Crim. Proc. Ann. art. 38.22, with Miranda, 384
U.S. at 478-82.
14
bifurcated standard to review the trial court’s ruling on a motion to
suppress. 9 Under that standard:
The trial court is given almost complete deference in its
determination of historical facts, especially if those are based
on an assessment of credibility and demeanor. The same
deference is afforded the trial court with respect to its rulings
on application of the law to questions of fact and to mixed
questions of law and fact, if resolution of those questions
depends on an evaluation of credibility and demeanor.
However, for mixed questions of law and fact that do not fall
within that category, a reviewing court may conduct a de novo
review. 10
Thus, as that standard applies to Porter, we afford almost total deference
to the trial court’s finding that Detective Erickson gave Porter a Miranda
warning before asking Porter any questions about the altercation he had
with Laura on January 22. And we also afford almost total deference to
the trial court’s finding that Detective Erickson thought he had his
recorder on before starting the interview with Porter, as well as the trial
court’s finding that Detective Erickson was unaware that the recorder
was not working when the interview began.
9Lerma v. State, 543 S.W.3d 184, 189-90 (Tex. Crim. App. 2018).
10State v. Martinez, 570 S.W.3d 278, 281 (Tex. Crim. App. 2019)
(cleaned up).
15
When questions do not require the reviewing court to resolve issues
of credibility and demeanor, however, such as whether a reasonable
person under the circumstances would feel free to terminate an interview
being conducted by police and leave, they are reviewed de novo. 11 Stated
another way, we apply a deferential standard of review to the trial court’s
factual assessment of the circumstances surrounding Porter’s
interrogation, and a de novo review to the trial court’s legal
determination regarding whether Porter, under the circumstances, was
in custody. 12 After applying the above standards, we will sustain the trial
court’s ruling if it “is correct under any applicable theory of law.” 13
We note that Article 38.22 of the Texas Code of Criminal Procedure
requires custodial statements taken by an officer to be recorded even
though that requirement goes beyond the requirements imposed on police
by Miranda. 14 Specifically, section 3(a) of Article 38.22 makes oral
11SeeThompson v. Keohane, 516 U.S. 99, 113-14 (1995); State v.
Saenz, 411 S.W.3d 488, 494 (Tex. Crim. App. 2013).
12Saenz, 411 S.W.3d at 494.
13Furr v. State, 499 S.W.3d 872, 877 (Tex. Crim. App. 2016).
14Tex. Code Crim. Proc. Ann. art. 38.22.
16
statements taken of those accused of crimes in custodial interrogations
inadmissible unless the statement is recorded. 15
Here, no dispute exists about whether two detectives went to
Porter’s home and gathered evidence about an incident reported to police
on January 22, 2019, involving Porter’s wife Laura. And no dispute exists
about whether while the detectives were there, Porter arrived, and
Detective Erickson handcuffed him to investigate whether Porter was
violating a protective order because he was with Laura in a car. Nor is
there a dispute about whether Detective Erickson questioned Porter
about his version of what occurred in Laura’s truck nine days earlier after
Laura told a coworker that Porter hit her in the face.
What Porter disputes is whether Detective Erickson warned him of
his Miranda rights questioning him about the altercation in the truck.
As to whether Porter received a Miranda warning, Detective Erickson
testified he read Porter his Miranda rights before conducting the
interview. For his part, however, Porter testified he couldn’t remember
whether Detective Erickson had warned him he had a right to have a
15Id. art. 38.22, § 3(a).
17
lawyer present when interviewed by police. But the trial court found as
a matter of historical fact that Porter received his Miranda warning
before Detective Erickson questioned him. And as a reviewing court, we
must defer to that finding in the appeal. 16
Alternatively, Porter argues that even if he received a Miranda
warning, the detective’s testimony about what he told the detective is
inadmissible because Detective Erickson failed to accurately record the
statement as required by Texas law. 17 Under Article 38.22, statements
obtained by police in custodial interrogations are inadmissible unless an
accurate recording of the accused’s statement is obtained during the
interrogation. 18 In Porter’s hearing, the trial court found that Porter was
not in custody when Detective Erickson questioned him. Porter, however,
argues he was in custody because Detective Erickson had him handcuffed
with his hands behind his back. We note the testimony shows the
handcuffs were never removed during the interrogation. In response, the
16See Martinez, 570 S.W.3d at 281.
17See Tex. Code Crim. Proc. Ann. art. 38.22, § 3.
18Id.
18
State argues that the trial court found that Porter was not in custody and
argues that finding is supported by the record.
Here, even if we assume Porter was in custody for purposes of the
interrogation, a matter we need not decide, and further assume that
Article 38.22 permits no excuses for a malfunction in recording
equipment even when the excuse is one the trial court finds reasonable,
which is the finding the trial court made here, the error in admitting
testimony and evidence to show what Porter said to Detective Erickson
are procedural errors under State law that requires the reviewing court
to decide whether the error had a substantial or injurious effect on the
jury’s verdict. 19
The reason the error is procedural and not of constitutional
dimension is that Article 38.22 only prescribes the procedural
requirements the State must follow when it states officials conduct
custodial interrogations to permit the admission of those statements into
evidence in a trial. 20 Stated another way, the recording requirement
Porter relies on is not a constitutional requirement mandated by
19Tex. R. App. P. 44.2(b).
20Davidson v. State, 25 S.W.3d 183, 186 (Tex. Crim. App. 2000).
19
Miranda; instead the recording requirement is a procedural requirement
the State legislature imposed on police as a procedural hurdle as a hurdle
to the admission of a statement taken by an officer in a state statute.21
That is to say that Porter’s statement was not taken in violation of
Miranda, so the trial court’s ruling admitting it is characterized as “non-
constitutional” error. 22 Thus, the harm analysis that applies to Porter’s
issues requires us to decide if the trial court’s ruling admitting Porter’s
statement to Detective Erickson in violation of the recording
requirements of Article 38.22 had a substantial or injurious effect on the
jury’s verdict. 23
To evaluate harm, “the appellate court should consider everything
in the record, including any testimony or physical evidence admitted for
the jury’s consideration, the nature of the evidence supporting the
verdict, the character of the alleged error and how it might be considered
in connection with other evidence in the case.” 24 In our evaluation, we
21Compare Miranda, 384 U.S. at 478-482, with Tex. Code Crim.
Proc. Ann. art. 38.22.
22Tex. R. App. P. 44.2(b); Nonn v. State, 117 S.W.3d 874, 880-81
(Tex. Crim. App. 2003).
23Id.
24Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).
20
consider all evidence before the jury and “the jury instruction given by
the trial judge, the State’s theory and any defensive theories, closing
arguments and even voir dire, if material to appellant’s claim.” 25
When Porter explains how he was harmed by the ruling admitting
Detective Erickson’s testimony the recording about the statement, he
argues he was harmed because Detective Erickson testified Porter
“admitted that he assaulted the alleged victim.” Porter suggests his
admission to Detective Erickson that he assaulted Laura was not
cumulative of any other testimony in evidence, suggesting none of the
other testimony before the jury shows he assaulted Laura while they
were together in her truck.
We disagree. When Porter testified in his defense, the following
exchange occurred:
Q. What did you do next?
A. I had my head turned like this, and I smacked out at
her because I knew she was going to hit me again. . . . And I
did smack out at her. I own that. I did smack out at her
because I didn’t know where I connected with her at. You
know? The officer said the face or the head. I thought it was
the head and the shoulder area.
25Id.
21
On cross-examination, Porter testified “I am guilty of smacking her, but
I did not put those lumps on her head. I didn’t do that. I had my head
turned.” Finally, in the recording of the 911 call, which was admitted
without objection, Rodriquez (Laura’s coworker) can be heard telling the
911 operator that Laura’s “husband just hit her in the face.”
Since the admission of the evidence of Porter’s statement is solely a
statutory violation, the Rule 44.2(b) standard governing non-
constitutional error applies to the analysis of Porter’s complaint in his
appeal. At trial, Porter testified his hand struck Laura. And there were
photographs in evidence showing bruises to Laura’s face shortly after she
and Porter were together. Two witnesses, Mosely and Rodriguez,
encountered Laura within less than an hour of the altercation. Both of
their accounts are consistent with the jury’s conclusion that Laura was
recently assaulted and struck in the face. Thus, even if we assume the
trial court admitted the recording and Detective Erickson’s testimony
about what Porter told Detective Erickson in violation of the recording
requirement found in Article 38.22, we are not persuaded, based on how
Porter claims he was harmed, that admitting the recording and Detective
22
Erickson’s testimony about what Porter told him had a significant
adverse effect on the jury’s verdict. 26
Even though Laura denied Porter struck her in the face when the
case went to trial, the jury—as the trier of fact—was entitled to
reasonably believe all, some, or none of her testimony in the trial. 27 She
told Rodriguez that Porter hit her in the face the same day the altercation
occurred. The photos Deputy Mosely took show what appear to be bruises
around Laura’s face. In the end, Detective Erickson’s testimony and the
partial recording admitted into evidence are cumulative of other evidence
showing that Porter struck Laura while the two were together in Laura’s
truck. We conclude the admission of the evidence that Porter complains
about in his appeal did not affect his substantial rights. 28 Porter’s first
issue is overruled.
Admission of Prior Family Violence Judgment
In issue two, Porter complains the trial court erred in admitting a
judgment of conviction showing that in 2013, Porter was convicted of
26See Nonn, 117 S.W.3d at 883.
27See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App.
1991).
28Tex. R. App. P. 44.2(b).
23
“ASSAULT –FAMILY VIOLENCE” when the judgment does not include
a separate finding by the trial court on whether the crime he committed
involved family violence. 29 The indictment at issue here alleges that
Porter assaulted Laura in January 2019 and that he had a prior
conviction for assaulting her when they were in a relationship or
association described in section 71.003, section 71.005, or section
71.0021(b) of the Family Code. 30 By alleging Porter had previously been
convicted of an assault involving a crime involving family violence, as
that term is defined by the Family Code, the indictment elevated the
penalty that applied to Porter’s crime, if he was convicted, from the
penalty that applies to a Class-A misdemeanor to the penalty that applies
to a third-degree felony. 31 Porter concludes that without the benefit of the
2013 judgment, the State failed to establish that he was previously
convicted of a crime involving family violence required to elevate the
29See Tex. Code Crim. Proc Ann. art. 42.013 (requiring trial courts
to make an affirmative finding of the fact of family violence and enter the
affirmative finding in the judgment of the case if the court determines
that the offense involved family violence as defined by Section 71.004 of
the Family Code).
30See Tex. Penal Code Ann. § 22.01(b)(2).
31Compare Tex. Penal Code Ann. § 22.01(b)(1), with 22.01(b)(2).
24
penalty that applies to his conviction from that of a Class-A misdemeanor
to a third-degree felony. 32
Under Porter’s indictment, to prove Porter committed a third-
degree felony assault rather than a Class-A misdemeanor assault, the
State had to prove that Porter had been convicted of assaulting a person
whose relationship is described by section 71.0021(b), section 71.003, or
section 71.005 of the Family Code. 33 Generally, the State proves the prior
conviction by proving the judgment the trial court signed in the prior case
contains an affirmative finding of family violence, since trial courts are
required to include family violence findings in judgments convicting
defendants of assaults are listed under Title 5 of the Texas Penal Code.34
In response to Porter’s argument, the State does not argue the recitals in
the judgment in 2013 stating that Porter was convicted for “ASSAULT-
FAMILY VIOLENCE” complies with the affirmative finding requirement
32See Tex. Penal Code Ann. § 22.01(b)(2).
33Id.
34See Tex. Code Crim. Proc. Ann. art. 42.013 (requiring trial courts
to make affirmative findings of family violence in trials of offenses under
Title 5); Tex. Penal Code Ann. §§ 19.01-22.12 (Title 5, Offenses Against
Persons).
25
of Article 42.013. 35 Instead, the State argues it proved Porter’s 2013
conviction involved family violence by proving that Laura was the victim
of the assault that resulted in Porter’s 2013 conviction and that Laura
and Porter were dating when he committed the offense. 36
Porter essentially admitted to these facts during the trial. When he
testified, Porter said he had previously been convicted of assaulting
Laura when she was his girlfriend. On cross-examination, Porter
testified he assaulted Laura “on July 10, 2012.” 37 Porter also testified
that his thumbprint is on the judgment of conviction dated May 2013 tied
to the July 2012 assault, a judgment marked and admitted as State’s
35Tex. Code Crim. Proc. Ann. art. 43.013.
36See Wingfield, 481 S.W.3d at 379 (concluding that evidence
extrinsic to the judgment established the victim was a member of the
defendant’s household when the prior assault occurred even though the
trial court, on the prior judgment, had circled No on the judgment of
conviction when it made the family violence finding required by article
42.013); State v. Eakins, 71 S.W.3d 443, 445 (Tex. App.—Austin 2002, no
pet.) (explaining that in the felony assault case under section 22.02(b),
article 42.013 does not prohibit the State from proving the defendant
committed the prior offense against someone in one of the relationships
described in sections 71.0021(b), 71.003, or 71.005 of the Family Code
based on evidence extrinsic to the prior judgment).
37The 2013 conviction recites the offense “was committed on July
10, 2012.”
26
Exhibit 1. 38 Sergeant Stacey Sherlock testified that based on the
investigation she conducted in Porter’s case, she determined that Laura
was Porter’s victim in the assault he committed in 2012 and 2019.
Sergeant Sherlock also testified that Laura was Porter’s girlfriend in
2012. Laura testified that she and Porter dated for around ten years and
married around three years before the trial that occurred in 2019.
The prior judgment for assault was admissible because it was
relevant to proving that Porter had a prior conviction for committing an
assault against a person with whom he was in a dating relationship as
required by section 71.0021(b) of the Family Code. 39 The trial court’s
ruling admitting the 2013 judgment (State’s Exhibit 1) was not overly
prejudicial since the evidence the State presented demonstrated that
Laura was the victim of the assault. 40 Here, it’s undisputed that Porter
38The State also matched up the print through Mark Wright, a
latent print examiner whose testimony we described when describing the
witnesses who testified in the trial.
39Tex. R. Evid. 401 (Test for Relevant Evidence), Tex. R. Evid. 402
(Relevant Evidence Generally Admissible); Tex. Fam. Code Ann. §
71.0021(b) (defining dating relationship as “a relationship between
individuals who have or have had a continuing relationship of a romantic
or intimate nature”).
40Tex. Penal Code Ann. § 22.01(b)(2)(A).
27
and Laura were in a dating relationship in 2012 when the assault that
resulted in Porter’s conviction in 2013 occurred.
We conclude that Porter’s argument claiming the trial court erred
in admitting the 2013 judgment lacks merit. And we further conclude
Porter’s argument lacks merit to the extent that he may be arguing the
evidence is insufficient to support the jury’s conclusion that he and Laura
were in a dating relationship when the assault resulting in his 2013
conviction occurred. We overrule Porter’s second issue.
The Text Messages
In issue three, Porter complains the trial court erred when it
admitted text messages that Deputy Mosely recovered from Laura’s
phone on January 22. The messages Mosely recovered cover a period that
starts about 30-days before the fight Porter and Laura had in her truck.
When the State asked the trial court to admit the texts, Porter objected,
claiming they included extraneous offenses that were not relevant to the
alleged assault because in some of the texts Porter had threatened Laura
when he accused her of having an affair. In response to Porter’s objection,
the prosecutor argued the texts were relevant to proving the assault
because they revealed the nature of Porter’s and Laura’s relationship and
28
they impeached Laura’s testimony that Porter had “never threatened her
before.”
We review a party’s claim challenging the admission of an
extraneous offense under an abuse of discretion standard. 41 “As long as
the trial court’s ruling is within the ‘zone of reasonable disagreement,’
there is no abuse of discretion, and the trial court’s ruling will be
upheld.” 42 Generally, a trial court’s ruling to admit evidence of an
extraneous offense is within the zone of reasonable disagreement if the
evidence is relevant to a material issue and if the probative value of the
evidence is not outweighed by the danger of unfair prejudice. 43
While subject to numerous exceptions, the general rule is that
evidence showing a defendant committed an extraneous bad act or crime
is inadmissible.44 Thus, Rule 404(b) provides that evidence of other
crimes, wrongs, or acts is not admissible “‘to prove the character of a
41De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009).
42Id. at 343-44 (quoting Montgomery v. State, 810 S.W.2d 372, 391
(Tex. Crim. App. 1991) (op. on reh’g)).
43Id. at 344.
44See Tex. R. Evid. 404(b).
29
person in order to show action in conformity therewith[.]’” 45 That said,
evidence of an extraneous bad act or crime may be admissible, when
relevant, to proving motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. 46
In prosecutions involving alleged assaults against a member of a
defendant’s family, the Code of Criminal Procedure authorizes a trial
court to admit evidence of any relevant facts that will assist the jury in
determining whether the defendant committed the offense, “including
testimony or evidence regarding the nature of the relationship between
the actor and the alleged victim.” 47 At trial, the argument the prosecutor
presented implies the State was relying on article 38.371 to explain why
45Berry v. State, 233 S.W.3d 847, 858 (Tex. Crim. App. 2007)
(quoting Tex. R. Evid. 404(b)).
46Tex. R. Evid. 404(b); see De La Paz, 279 S.W.3d at 342-43; see also
Powell v. State, 63 S.W.3d 435, 439 (Tex. Crim. App. 2001) (noting that a
trial court has discretion to admit extraneous offense evidence to rebut a
defensive theory raised in an opening statement); Ransom v. State, 920
S.W.2d 288, 301 (Tex. Crim. App. 1996) (“[E]xtraneous offenses are
admissible to rebut defensive theories raised by the testimony of a State’s
witness during cross-examination.”); Halliburton v. State, 528 S.W.2d
216, 219 (Tex. Crim. App. 1975) (op. on reh’g) (“If the extraneous offense
is relevant in tending to disprove the defensive theory, it should be
admissible.”).
47See Tex. Code Crim. Proc. Ann. art. 38.371(b).
30
the texts were admissible in Porter’s trial. And the text messages are
relevant to a material, non-propensity issue because they contextualize
the nature of Laura’s and Porter’s relationship since they provide the jury
insight into the dynamics of Porter’s and Laura’s relationship so the jury
could evaluate Porter’s claim that he was justified and found it necessary
to strike Laura with his hand to force her to stop the truck. 48 On top of
that, the texts rebut Laura’s testimony that Porter never threatened her
before January 22 since they show he threatened to harm her several
times in the thirty-day period preceding the assault.
When the evidence a party wants to introduce is relevant, courts
start with a presumption that evidence “is more probative than
prejudicial.” 49 Porter argued the texts were not relevant. 50 Porter also
argued that admitting the texts was unfairly prejudicial. 51 To determine
whether evidence is unfairly prejudicial, trial courts balance:
48See Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011) (“A
trial court’s 404(b) ruling admitting evidence is generally within [the
zone of reasonable disagreement] if there is evidence supporting that an
extraneous transaction is relevant to a material, non-propensity issue.”).
49Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997).
50See Tex. R. Evid. 401.
51See id. 403.
31
(1) the inherent probative force of the proffered item of
evidence along with (2) the proponent’s need for that evidence
against (3) any tendency of the evidence to suggest decision
on an improper basis, (4) any tendency of the evidence to
confuse or distract the jury from the main issues, (5) any
tendency of the evidence to be given undue weight by a jury
that has not been equipped to evaluate the probative force of
the evidence, and (6) the likelihood that the presentation of
the evidence will consume an inordinate amount of time or
merely repeat evidence already admitted. 52
On appeal, Porter argues that the texts were not relevant because
Laura “did not deny being threatened by [Porter].” While that may be
true, she also never unequivocally admitted that Porter had threatened
her before January 22. During the trial, the prosecutor asked Laura
during the State’s case-in-chief: “Has [Porter] ever threatened you
before?” Laura answered: “Not that I recall.”
Generally, the text messages show that Porter had threatened
Laura several times in the month leading up to the altercation on
January 22. For example, one of the text messages states: “I[ʼ]ll smack
ur mf face.” Another states: “I[ʼ]m bout to kill u[.]” Porter suggests that
Laura’s failure to recall these messages is not an outright denial that she
52Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App.
2006).
32
received them. But the trial court had the discretion to interpret Laura’s
response “Not that I recall[]” as a denial, and at best the court’s decision
to do so is a decision that falls in the zone of reasonable disagreement.
We conclude the trial court did not abuse its discretion in finding
the text messages relevant to issues material to Porter’s trial.53 We
further conclude the rulings admitting the texts fall in the zone of
reasonable disagreement. For these reasons, we overrule Porter’s third
issue.
Rodriguez’s Testimony About What
Laura Said When Laura Returned From Lunch
In Porter’s fourth issue, he complains the trial court allowed
Rodriguez to testify that Laura said “her husband hit her” when she
returned to work from her break. According to the State, Porter failed to
preserve his complaint that Rodriguez’s testimony about what Laura said
was inadmissible hearsay because Porter failed to object before
Rodriguez answered the question. Additionally, the State points out that
Porter failed to object when for a second time the prosecutor asked
Rodriguez a short time later: “Who did she tell you hit her?” Rodriguez
53Tex. R. Evid. 402, 403.
33
responded: “Oh, her husband.” Porter did not object to the question or to
Rodriguez’s answer.
To preserve error, the party who complains must generally
demonstrate that he lodged a timely objection to the matter that notified
the trial court of the complaint. 54 If a question clearly calls for an
objectionable response, attorneys should object to the question before the
witness responds.55 When the record shows the defendant failed to object
until after the objectionable question was answered and no legitimate
reason justifies the delay, the “objection is untimely and [the] error is
waived.” 56
The question the prosecutor asked Rodriguez called for a hearsay
response. The prosecutor asked Rodriquez: “Did she mention who had hit
her? Rodriguez responded: “She said her husband hit her.” Porter did not
object to the prosecutor’s question until after Rodriguez had answered.
And Rodriguez gave the same basic answer again a short time later, and
when she did, Porter failed to make any objection. His failure to object
54Tex. R. App. P. 33.1(a).
55Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995).
56Id.
34
the second time cured any error even had Porter properly and timely
objected to the question when the prosecutor first asked Rodriguez
whether Laura mentioned who had hit her. 57 We conclude Porter failed
to preserve the error he complains about in his fourth issue for appellate
review. 58
Charge Error — Additional Language on Porter’s Defense of Necessity
Section 9.22 of the Penal Code creates a “necessity” defense if:
(1) the actor reasonably believes the conduct is immediately
necessary to avoid imminent harm;
(2) the desirability and urgency of avoiding the harm clearly
outweighs, according to ordinary standards of
reasonableness, the harm sought to be prevented by the law
proscribing the conduct; and
(3) a legislative purpose to exclude the justification claimed
for the conduct does not otherwise plainly appear. 59
In the charge conference, Porter asked the trial court to submit a
necessity defense as part of the charge. On appeal, Porter argues that as
to his necessity claim, the trial court omitted language that he requested
from the charge that had the language he wanted been included, the jury
would have considered whether Porter was justified in hitting Laura to
57Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003).
58Tex. R. App. P. 33.1(a).
59Tex. Penal Code Ann. § 9.22.
35
prevent her from causing an accident or throwing him out of the truck to
avoid her injuring Porter specifically rather than just others.
The application language the trial court submitted on Porter’s
claim of necessity states, in relevant part:
Therefore, even if you believe from the evidence beyond a
reasonable doubt that on or about January 22, 2019, in
Montgomery County, Texas, the defendant, JAMES
EDWARD PORTER, did then and there, intentionally,
knowingly, or recklessly cause bodily injury to Lyndsey
Porter, as alleged in the indictment, but you further believe,
or you have a reasonable doubt thereof, that, at the time of
such conduct, the defendant reasonably believed such conduct
was immediately necessary to avoid imminent harm, to-wit:
injuring others, and that the desirability and urgency of
avoiding that harm clearly outweighed, according to ordinary
standards of reasonableness, the harm sought to be prevented
by the law proscribing such conduct, you will find the
defendant not guilty. 60
60We expressly do not approve or endorse the language the trial
court used in the charge to submit the issue of necessity to the jury in
Porter’s case since the charge includes no abstract language on the
defense; however, Porter does not complain about the absence of that
language in his appeal. And given the argument Porter makes, we need
not decide whether the charge correctly submits a necessity claim and
instead resolve the much narrower argument Porter complains about in
his appeal. See generally COMMITTEE ON PATTERN JURY CHARGES OF STATE
BAR OF TEXAS, CRIMINAL PATTERN JURY CHARGES CPJC 28.2 (2018)
(suggesting how the defense when raised should be submitted).
36
During the charge conference, Porter asked the trial court to
include the words “or to the Defendant” after the words “injuring others”
in the paragraph quoted above. Porter argued the jury needed the
additional language he wanted the court to include in the charge so the
jury could consider whether it was necessary for him to hit Laura to
“avoid danger to himself.”
“Texas law mandates that a trial court submit a charge to the jury
setting forth ‘the law applicable to the case.’”61 “All alleged jury-charge
error must be considered on appellate review regardless of preservation
in the trial court.” 62 “Appellate review of purported error in a jury charge
involves a two-step process.” 63 “First, we determine whether the jury
instruction is erroneous.” 64 “Second, if error occurred, then an appellate
court must analyze that error for harm.” 65
Under Section 2.03(c) of the Penal Code, “the issue of the existence
of a defense is not submitted to the jury unless evidence is admitted
61Druery v. State, 225 S.W.3d 491, 505 (Tex. Crim. App. 2007).
62Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).
63Id.
64Id.
65Id.
37
supporting the defense.” 66 That said, trial courts must submit
instructions on defenses raised by the evidence, regardless of the source
of the evidence or its strength and even if the evidence is contradicted or
incredible. 67 “[A] defense is supported (or raised) by the evidence if there
is some evidence, from any source, on each element of the defense that, if
believed by the jury, would support a rational inference that the element
is true.” 68 “While the evidence may be weak or contradicted, there must
be at least some evidence to support the defense as a rational alternative
to the defendant’s criminal liability.” 69
Here, Porter argues he had no reasonable option other than hitting
Laura to make her stop the truck to prevent her from causing a collision
or ejecting him from the car, an event he claims might have resulted in
his injury. Even so, there is no rational basis on which the jury could have
concluded that Porter would have been safer by striking Laura in the face
while she was driving the truck as opposed to grabbing for the truck’s
66Tex.Penal Code Ann. § 2.03(c).
67Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. Crim. App. 2013).
68Id. (quoting Shaw v. State, 243 S.W.3d 647, 657-58 (Tex. Crim.
App. 2007)).
69Id.
38
wheel. At trial, no witness testified how fast the truck was traveling when
Laura was driving through the lot. Thus, no rational basis exists for the
jury to gauge what Porter’s risk of injury was from being thrown from a
moving truck as opposed to his risk of striking Laura and causing her to
lose control over the truck. Nor from the evidence before the jury could a
jury rationally decide whether ordinary standards of reasonableness
require someone to strike the driver in the face to make them stop when
a rational reaction based on the situation Porter described would be for
the passenger to grab for the steering wheel or to have placed their foot
on the brake. Porter’s testimony that he was afraid he might be injured,
even if true, does not raise an issue on necessity of striking his wife who
was driving rather than grabbing for the wheel or reaching for the
brake. 70
Simply put, Porter was not entitled to a submission of necessity
based on the evidence before the jury in his trial. 71 For that reason, we
70See Tex. Penal Code Ann. § 2.03(c).
71Id.; see Jackson v. State, 50 S.W.3d 579, 595 (Tex. App.—Fort
Worth 2001, pet. ref’d) (holding appellant was not entitled to necessity
defense when evidence “failed to provide any evidence that he reasonably
believed his erratic driving was immediately necessary to avoid
imminent harm”).
39
need not analyze the argument Porter relies on in his fifth issue to
determine whether the trial court’s omission of the additional language
Porter asked for caused harm. 72 Porter’s fifth issue is overruled.
Charge Error — Failure to Submit Simple Assault
In Porter’s sixth issue, he argues that the trial court erred in failing
to submit instructions allowing the jury to consider whether he
committed simple assault, a Class-A misdemeanor, rather than family
violence assault, a third-degree felony. 73 Porter argues the jury could
have rationally found he was not convicted in 2013 of assaulting Laura
when the two were in a dating relationship.
We disagree. To be entitled to an instruction on a lesser-included
offense, there must be “some evidence that would permit a jury
to rationally find that if the defendant is guilty, he is guilty only of
the lesser-included offense.” 74 Stated another way, “[t]he evidence must
72See Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005).
73Compare Tex. Penal Code Ann. § 22.02(a) (simple assault), with
Tex. Penal Code Ann. § 22.01(b)(2) (family violence assault).
74Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011).
40
establish the lesser-included offense as a valid rational alternative to the
charged offense.” 75
Here, the record shows that during the trial, Porter testified his
thumbprint is on State’s Exhibit 1, which is the judgment where he was
convicted of committing a Class-A misdemeanor assault. The exhibit
recites the conviction is for “ASSAULT – FAMILY VIOLENCE, a Class
A misdemeanor,” yet the judgment does not contain the trial court’s
separate affirmative finding of family violence even though that finding
was required under article 42.013. 76 Still, the State presented testimony
separate from the 2013 judgment (including Porter’s own testimony) to
prove that he was in a dating relationship with Laura, the victim who
was the subject of the assault relevant to State’s Exhibit 1.
Porter points to no evidence showing any conflict exists in Porter’s
own testimony showing that he and Laura were in a dating relationship
when the assault relevant to State’s Exhibit 1 occurred; rather, Porter
suggests conflict exists because the trial court failed to make the
affirmative finding required by article 42.013. Of course, the record that
75Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000).
76Tex. Code Crim. Proc. Ann. art. 42.013.
41
is before us here supports the verdict the jury reached that Porter and
Laura were in a dating relationship when Porter assaulted Laura in 2012
and was then convicted of that assault in 2013. 77 The fact that in 2013
the judge of the 221st District Court failed to include the affirmative
finding required by article 42.012 in the judgment of conviction it signed
is unexplained in this record. And given the evidence the State presented
proving that the 2013 conviction was a conviction for assault against a
person with whom Porter was in a dating relationship, Porter’s sixth
issue lacks merit and is overruled.
Sufficiency Challenge
In Porter’s last two issues, issues seven and eight, he argues the
State failed to present sufficient evidence to support his conviction and
erred in denying his motion for directed verdict. “A motion for instructed
verdict is essentially a trial level challenge to the sufficiency of the
evidence.” 78 The Jackson v. Virginia standard of review applies when the
defendant complains in the appeal that the evidence is insufficient to
77State’s Exhibit 1 reflects the “offense was committed on July 10,
2012.”
78Smith v. State, 499 S.W.3d 1, 6 (Tex. Crim. App. 2016).
42
support the verdict the jury reached. 79 Accordingly, we address Porter’s
last two issues together.
We review Porter’s legal-sufficiency arguments under the standard
set forth in Jackson. 80 Under Jackson, the relevant inquiry is “whether,
after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” 81 In reaching a verdict, the jury is the
judge of the credibility of witnesses and may assign the weight it chooses
to assign to the testimony it hears in the trial. 82 On appeal, the reviewing
court does not sit as a thirteenth juror and then substitute its judgment
for the judgment the factfinder made based on the evidence it heard in
the trial. 83 Instead, we must defer to the jury’s responsibility to resolve
the conflicts in the testimony, to weigh the evidence, and to draw
79Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996)
(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
80Fernandez v. State, 479 S.W.3d 835, 837 (Tex. Crim. App. 2016).
81Jackson, 443 U.S. at 318-19 (emphasis in original); see Brooks v.
State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010).
82Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel
Op.] 1981).
83See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999);
see also Brooks, 323 S.W.3d at 899.
43
reasonable inferences from the evidence the parties present to the jury in
the trial. 84 If the testimony the parties present to the jury conflicts, we
presume the jury resolved that conflict in a manner that favors its
verdict. 85 To decide whether the inferences the jury made in reaching its
verdict are reasonable, we examine the combined and cumulative force of
the evidence after viewing it in the light that favors the verdict the jury
reached. 86 We treat direct and circumstantial evidence equally in our
review. 87 “If a rational fact finder could have so found, we will not disturb
the verdict on appeal. 88
On appeal, Porter argues the State failed to present sufficient
evidence to prove he assaulted Laura. He points to Laura’s testimony
that he never struck her while they were together in her truck. He argues
she accused him of assaulting her because she was upset with him after
he told her that he wanted a divorce. Laura also testified she felt no
physical pain, illness, or impairment when Porter pushed her off the
84Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
85Brooks, 323 S.W.3d at 899 n.13; Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
86Clayton, 235 S.W.3d at 778.
87Id.
88Fernandez v. State, 479 S.W.3d at 838.
44
truck’s wheel. Other than noting that Laura’s testimony in the trial does
not support his conviction for assault, Porter argues he was justified in
striking Laura because he needed to prevent her from running over
others who were present in the parking lot and to prevent her from
injuring him since she was driving recklessly in the lot.
But the jury was not limited to considering Porter’s and Laura’s
trial testimony in reaching its verdict in the trial. Along with their
testimony, the jury heard the 911 call Rachel Rodriguez made within
minutes of Laura’s report of the alleged assault. When Laura reported
that Porter assaulted her to her coworker, Laura had bruises to her head,
which she told Rodriguez were caused when Porter hit her with his hand.
We recognize, of course, that Laura testified differently about how she
got the bruises in the trial, as she told the jury she stopped the truck on
her way back to the store and intentionally struck her head against the
steering wheel of the truck. Yet the jury saw the photos taken by Deputy
Mosely, and as the factfinder, it was up to the jury to decide whether
Laura intentionally caused bruises to her head by hitting her head on the
steering wheel as she claimed in the trial or whether the bruises were
there because Porter hit her in the head with his hand like she told
45
Rodriguez when she came back to work from her break. Acting as the
factfinder, the jury could believe or disbelieve any witness’s testimony,
and it had the responsibility to reconcile any conflicts in testimony
presented in the trial. 89
While Laura testified Porter did not hurt her when they were in her
truck, the jury was free to infer that Laura experienced pain based on the
bruises she suffered to her face and from the fact that Laura was still
crying when she appeared at the store about ten minutes after the
altercation with Porter occurred. 90 Although the jury could have accepted
Porter’s and Laura’s version of the events based on the testimony they
provided the jury in the trial, the jury chose not to do so and that choice
89See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)
(it is the responsibility of the trier of fact to fairly resolve conflicts in
testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts); see also Bowden v. State, 628 S.W.2d 782,
784 (Tex. Crim. App. 1982) (holding that contradictions in evidence are
reconciled by the jury and will not result in reversal so long as there is
enough credible testimony to support the verdict).
90See Garcia v. State, 367 S.W.3d 683, 688 (Tex. Crim. App. 2012);
Arzaga v. State, 86 S.W.3d 767, 778 (Tex. App.—El Paso 2002, no pet.)
(“The existence of a cut, bruise, or scrape on the body is sufficient
evidence of physical pain necessary to establish ‘bodily injury’ within the
meaning of the statute.”).
46
was also reasonable from the evidence viewed as a whole. 91 After viewing
the evidence as a whole and in the light that favors the verdict the jury
reached, we find the evidence supports the jury’s verdict and we overrule
Porter’s last two issues.
Conclusion
Having concluded that Porter’s issues lack merit, the trial court’s
judgment is
AFFIRMED.
_________________________
HOLLIS HORTON
Justice
Submitted on September 1, 2021
Opinion Delivered June 22, 2022
Do Not Publish
Before Kreger, Horton and Johnson, JJ.
91SeeJackson, 443 U.S. at 318-19 (emphasis in original); Brooks,
323 S.W.3d at 912.
47