Affirm and Opinion Filed July 29, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00968-CR
JOSE DOMINGUEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 86th Judicial District Court
Kaufman County, Texas
Trial Court Cause No. 19-10909-86-F
MEMORANDUM OPINION
Before Justices Partida-Kipness, Pedersen, III, and Nowell
Opinion by Justice Nowell
A jury convicted Jose Dominguez of aggravated assault with a deadly weapon
causing serious bodily injury, involving family violence, and he was sentenced to
forty years’ incarceration. In two issues, appellant argues the evidence is insufficient
to support the deadly weapon finding and the trial court erred by finding forfeiture
by wrongdoing. We affirm the trial court’s judgment.
A. Sufficiency of the Evidence1
Appellant argues the evidence is insufficient to support a finding that he used
a deadly weapon during the commission of the assault. When reviewing the
sufficiency of the evidence to support a conviction, we consider the evidence in the
light most favorable to the verdict. Edward v. State, 635 S.W.3d 649, 655 (Tex.
Crim. App. 2021). The verdict will be upheld if any rational trier of fact could have
found all the essential elements of the offense proven beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Edward, 635 S.W.3d at 655. “This
familiar 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.” Jackson, 443 U.S. at 319. The jury is
the sole judge of the weight and credibility of the evidence. Edward, 635 S.W.3d at
655. When considering a claim of evidentiary insufficiency, we must keep in mind
that a juror may choose to believe or disbelieve all, some, or none of the evidence
presented. Id. Further, while jurors may not base their decision on mere speculation
or unsupported inferences, they may draw reasonable inferences from the evidence.
Id.
1
Although appellant’s first issue states that he is challenging the factual and legal sufficiency of the
evidence, factual sufficiency review was abolished in Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim.
App. 2010) (plurality op.). Accordingly, we limit our consideration of appellant’s first issue to the legal
sufficiency of the evidence.
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As applicable here, a person commits aggravated assault if he commits assault
and uses or exhibits a deadly weapon during the commission of the assault. See TEX.
PENAL CODE ANN. § 22.02(a)(2). Aggravated assault is a felony in the first degree if
“the actor uses a deadly weapon during the commission of the assault and causes
serious bodily injury” to a person with whom he is in a dating relationship or to
whom he is married. See id. § 22.02(b)(1); see TEX. FAMILY CODE §§ 71.0021(b),
71.003. A deadly weapon includes “anything manifestly designed, made, or adapted
for the purpose of inflicting death or serious bodily injury” or “anything that in the
manner of its use or intended use is capable of causing death or serious bodily
injury.” TEX. PENAL CODE ANN. § 1.07(a)(17). Serious bodily injury means “bodily
injury that creates a substantial risk of death or that causes death, serious permanent
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” Id. § 1.07(a)(46).
To determine whether a weapon is a deadly weapon, we may consider (1) any
words or threatening actions by the defendant, including his proximity to the victim,
(2) the weapon’s ability to inflict serious bodily injury or death, including the size,
shape, and sharpness of the weapon, and (3) the manner in which the defendant used
the weapon. Johnson v. State, 509 S.W.3d 320, 323 (Tex. Crim. App. 2017). These
are, however, merely factors used to guide a court’s sufficiency analysis and are not
“inexorable commands.” Id. In Johnson, the court of criminal appeals considered
whether a butter knife used or exhibited during a convenience store robbery was a
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deadly weapon. Because of the defendant’s proximity to victims, his threats to harm,
and victim testimony that the knife was capable of causing serious bodily injury, the
court concluded the jury could have reasonably inferred it was capable of causing
serious bodily injury or death. Id. at 324.
Ashley Breland lived in a house with appellant and seven children. Breland
and appellant were in a common-law marriage or a long-term dating relationship.
On the night of September 8, 2019, Breland called 911 and reported appellant had
stabbed her with a pair of scissors and he refused to leave her house. The children
fled to a neighbor’s house. One of the children, a thirteen year old boy, told the
neighbor, Jerry Ytuarte: “Joe stabbed my momma.” When Breland came to Ytuarte’s
house, Ytuarte saw the wound and blood on her arm.
Breland told Joshua Phillips, patrol sergeant for the Kaufman County Sheriff’s
Office, that she and appellant had been fighting all day. Eventually appellant picked
up some scissors and stabbed her in the arm. Breland also provided a written
statement to Phillips, which he read to the jury:
In the morning Joe had choked me in the laundry room. In the night
time, he came in my room after waking me up and was just upset about
multiple things. We argued [b]ack and forth and I asked him to leave
me alone and get out. I told him I was going to call the cops and he told
me do I know what will happen to me when he gets out if I do[.] [T]hen
he choked me quickly and grab[b]ed [scissors] of[f] the desk next to us
and hit my arm and I started bleeding[.]
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The scissors were “safety scissors” with rounded ends for children’s use. Phillips
described them as being six-to-eight inches long. The jury saw photographs of the
scissors and Breland’s injuries.
Breland indicated appellant had assaulted her multiple times in the past. She
had not reported the previous acts of violence because appellant threatened her with
what would happen “when I get out.”
The emergency medical technician who treated Breland in the ambulance
testified that Breland did not have any immediately life threatening injuries.
However, the technician checked to see how deep the scissors penetrated into
Breland’s arm, whether the scissors “hit any muscle tissue or tendons,” and whether
Breland could feel her fingers “because you don’t know what you’re going to hit,
you know, at any point in your body, and whether there was anything in the wound.
And you’ve got nerves and muscles that run down all sides. You got nerves that
branch off here and, you know, somebody could hit one of those.” When Breland
told the technician that the wound was caused by safety scissors, the technician
thought there “was a lot of force that was put into that. Those are made for children
that fall on scissors. And for it to penetrate her skin like it did, it was made with
force.” The technician took pictures of numerous bruises on Breland’s body,
including on her neck, that Breland said were from appellant.
Viewing this evidence in the light most favorable to the verdict, we conclude
the evidence is sufficient to show the scissors used by appellant were capable of
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causing serious bodily injury in the manner appellant used them and, thus, the
evidence is sufficient to support the finding that they were used as a deadly weapon.
See Johnson, 509 S.W.3d at 323-24; see also Snowdy v. State, No. 05-18-00643-CR,
2019 WL 3886653, at *2 (Tex. App.—Dallas Aug. 19, 2019, no pet.) (mem. op., not
designated for publication) (concluding a sharpened plastic spoon brandished at jail
officials was a deadly weapon). The evidence shows that appellant choked Breland
and then forcefully stabbed her with the six-to-eight inch long scissors. The scissors
when used in this manner could hit a tendon, nerve, or muscle and could cause a
person such as Breland to lose feeling in her fingers. Breland told both the EMT
technician and Phillips that appellant had physically attacked her before, and they
both saw the bruises on her body, including around her neck. Appellant threateningly
told Breland that it did not matter whether he went to jail because he would come
back. Based on our review of the record, we conclude the evidence is sufficient to
sustain the deadly weapon finding in this case. We overrule appellant’s first issue.
B. Forfeiture by Wrongdoing
In his second issue, appellant argues the trial court erred by finding forfeiture
by wrongdoing. Based on its ruling, the trial court admitted Breland’s written
statement made on the night of the assault and verbal statements to the EMS
technician even though Breland did not appear at trial.
Under the doctrine of forfeiture by wrongdoing, a defendant is barred from
asserting his right of confrontation or complaining about hearsay when he has
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wrongfully procured the witness’s unavailability. See Colone v. State, 573 S.W.3d
249, 264–65 (Tex. Crim. App. 2019). The doctrine is based on the principle that
“any tampering with a witness should once [and] for all estop the tamperer from
making any objection based on the results of his own chicanery.” Gonzalez v. State,
195 S.W.3d 114, 117 (Tex. Crim. App. 2006). The doctrine has been codified in the
Texas Code of Criminal Procedure, which provides:
(a) A party to a criminal case who wrongfully procures the
unavailability of a witness or prospective witness:
(1) may not benefit from the wrongdoing by depriving the trier
of fact of relevant evidence and testimony; and
(2) forfeits the party’s right to object to the admissibility of
evidence or statements based on the unavailability of the witness as
provided by this article through forfeiture by wrongdoing.
(b) Evidence and statements related to a party that has engaged or
acquiesced in wrongdoing that was intended to, and did, procure the
unavailability of a witness or prospective witness are admissible and
may be used by the offering party to make a showing of forfeiture by
wrongdoing under this article, subject to Subsection (c).
(c) In determining the admissibility of the evidence or statements
described by Subsection (b), the court shall determine, out of the
presence of the jury, whether forfeiture by wrongdoing occurred by a
preponderance of the evidence. If practicable, the court shall make the
determination under this subsection before trial using the procedures
under Article 28.01 of this code and Rule 104, Texas Rules of Evidence.
(d) The party offering the evidence or statements described by
Subsection (b) is not required to show that:
(1) the actor’s sole intent was to wrongfully cause the witness’s
or prospective witness’s unavailability;
(2) the actions of the actor constituted a criminal offense; or
(3) any statements offered are reliable.
TEX. CODE CRIM. PROC. ANN. art. 38.49.
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A decision whether to admit evidence is a matter within the trial court’s
discretion, and the decision will not be reversed in the absence of an abuse of
discretion. Osbourn v. State, 92 S.W.3d 531, 537–38 (Tex. Crim. App. 2002). If
there is evidence to support the trial court’s decision to admit evidence, there is no
abuse of discretion, and we must defer to that decision. Id. at 538.
Before trial, the State filed a motion for a finding of forfeiture by wrongdoing,
and the trial court held a hearing on the motion.
When Joshua Phillips met Breland on the night of the assault, he completed a
family violence packet, and Breland made a written statement. The witness
statement and family violence packet were admitted at the hearing. Phillips read
Breland’s statement, which is quoted above, into the record.
Breland told Phillips that appellant assaulted her multiple times in the
preceding twelve months and as recently as the previous weekend. In addition to the
puncture wound on her arm, Phillips noticed bruising on Breland’s body, including
on her arms and around her neck. Appellant had threatened to kill her dogs and burn
her house. Breland’s demeanor was “[a]fraid, apologetic, and crying.”
Explaining why she had not previously reported appellant’s violence, Breland
stated that, on multiple occasions, appellant had threateningly told her that it did not
matter whether she called the police because “you know, what I’ll do when I get
out.” Ytuarte also reported that, on the night of the assault, appellant threatened
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Breland and him saying: “Call the cops. You know what I’ll do when I get out. I’m
not afraid to go back.”
On October 28, 2019, Daniel Hargrove, a felony investigator for the district
attorney’s office in Kaufman County, and a prosecutor went to Breland’s residence.
They called her when they arrived, but she did not answer her phone. Hargrove
testified: “[s]he finally answered and came outside but very hesitantly and looked to
her left and right as to whether or not it looked like somebody might be watching
our actions while we were there.” A gate surrounded her house, and Breland spoke
to them from inside the gate. When Hargrove asked if they could speak inside her
home as the weather was misty rain, “[s]he was very adamant about no. She was
hesitant to even continue talking to us outside at the gate by the road.” Hargrove
returned to Breland’s residence in March 2020. Breland came outside “and this time
was more agitated and upset that I was there trying to talk to her.” Breland told him
that “she was wanting to get out of here, get finished with this, and leave. She was
trying to sell the place.” After that, Breland cut off communication with Hargrove;
she stopped answering or returning his phone calls and emails. Hargrove continued
trying to contact Breland via email, telephone, and Facebook and by going to her
property again to serve a subpoena to appear at trial; Breland did not respond.
In September 2020, Hargrove learned Breland moved to Oklahoma. In
October, Hargrove located Breland in Oklahoma and found a new phone number for
her. When he called her new number, no one answered. He contacted relevant
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authorities in Oklahoma to have a subpoena served, but the authorities were
unsuccessful in obtaining service.
After appellant was arrested, a protective order was put into place. Even so,
during appellant’s first week in jail, he called Breland eighty six times. Hargrove
testified there were “an astronomical amount of phone calls” between appellant and
Breland while appellant was in jail awaiting trial. During the first week, appellant
acknowledged on the phone that there was a protective order in place and he was not
supposed to be talking to her; however, he asked Breland several times to have the
protective order lifted. He also asked her to help him post bail. Breland repeatedly
asked appellant whether he knew that she had added money to his account for the
phone calls.
The first week appellant was incarcerated, Breland told appellant that she had
talked to a detective. Appellant replied that “if they told the detective of any abuse,
that he’d be fucked.” Appellant told Breland she did not have to talk to the district
attorney’s office, and the district attorney would try to coerce her into making a
statement. He also told her: “I’m your husband. I take care of you. Our stories need
to coincide. You don’t need to lie. Tell the truth about this. We’ve never had any
police calls out here.”
On several occasions, appellant also asked her to complete an affidavit of non-
prosecution, but Breland never did. During a March 5, 2020 phone call, appellant
said: “What I need you to do is go sign that fucking affidavit of non-prosecution.”
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They then discussed selling the house and appellant told Breland: “Just send me the
fucking paperwork. Get the hell out of Dodge.” The trial court listened to this phone
call. On June 3, 2020, appellant told Breland: “Don’t nobody want to see you. You
know what I mean, right? As long as you don’t come, they ain’t got shit.”
Appellant argues there is no evidence linking his wrongdoing to Breland’s
absence at trial. We disagree. The evidence shows Breland was afraid of appellant,
appellant repeatedly threatened Breland about his return to her when he was released
from jail, and he had abused her repeatedly. Appellant contacted Breland dozens of
times in knowing violation of a protective order, he told her their stories needed to
“coincide,” he repeatedly told her to execute an affidavit of non-prosecution, he told
her to sell the house and “[g]et the hell out of Dodge,” he told her that no one wanted
to see her, and he said that as long as she did not appear, the State “ain’t got shit.”
Breland moved to Oklahoma and, although she initially spoke to Hargrove, she
terminated communication with him and stopped answering or returning his phone
calls and emails.
Having reviewed the evidence presented at the hearing on the State’s motion
for finding of forfeiture by wrongdoing, we conclude the trial court did not abuse its
discretion by concluding the State showed by a preponderance of the evidence that
appellant wrongfully procured Breland’s unavailability at trial. Accordingly, the trial
court did not abuse its discretion by admitting Breland’s out of court statements. We
overrule appellant’s second issue.
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C. Conclusion
We affirm the trial court’s judgment.
/Erin A. Nowell//
ERIN A. NOWELL
JUSTICE
200968f.u05
Do Not Publish
TEX. R. APP. P. 47.2(b)
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOSE DOMINGUEZ, Appellant On Appeal from the 86th Judicial
District Court, Kaufman County,
No. 05-20-00968-CR V. Texas
Trial Court Cause No. 19-10909-86-
THE STATE OF TEXAS, Appellee F.
Opinion delivered by Justice Nowell.
Justices Partida-Kipness and
Pedersen, III participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 29th day of July, 2022.
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