PD-1142-15
CASE NO 05-14-00441-cr
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS
IN AUSTIN
__________________________________________________________________
CHRISTOPHER MICHAEL DUNLOP PETITIONER
VS.
THE STATE OF TEXAS RESPONDENT
__________________________________________________________________
PETITION FOR DISCRETIONARY REVIEW
__________________________________________________________________
On Petition for Discretionary Review from the Fifth District Court of Appeals in
Cause No. 05-14-00441-CR in Affirming Conviction in cause No. 296-82462-
2012 from the 296th District Court of Collins County, Texas.
__________________________________________________________________
Christopher M. Dunlop
435 Merrimac court
November 18, 2015
Roselle, IL 60172
Pro se PETITIONER
ORAL ARGUMENTS REQUESTED
1
Identity of Parties and Counsel
______________________________________________________________________________
JUSTICES: Before Justices Bridges, Fancis, and Lang
Opinion by Justice Lang
TRIAL JUDGE: Honorable John Roach, Jr.
APPELLANT–PETITIONER: Christopher M. Dunlop
ATTORNEY FOR THE PETITIONER AT TRIAL:
William H. Underwood
1413 Harroun Avenue
McKinney, TX 75069
ATTORNETY FOR PETITIONER ON APPLEAL:
William H. Underwood
1413 Harroun Avenue
McKinney, TX 75069
APPELLEE-RESPONDANT: The State of Texas
ATTORNEY AT TRIAL FOR THE STATE:
Wes Wynne
Collin County District Attorney's Office
2100 Bloomdale Road, Ste 100
McKinney, TX 75071
ATTORNEY ON APPEAL FOR THE STATE:
John Rolater
Collin County District Attorney’s Office
2100 Bloomdale Road, Ste 100
McKinney, TX 75071
2
TABLE OF CONTENTS
Cover Page………………………………………………………….…………..…….…1
Identity of Justices, Judge, Parties, and Counsel..……………………….…………..….2
Table of Contents…………………………………………………………………..…....3
Statement Regarding Oral Argument..………………………………………,………....4
Statement of the Case……………………………………………………………….…..4
Statement of Procedural History……………………………………………………….…….5
Ground for Review……………………………………………………………...…........5
Statement of the Facts………………………………………………………….……….6
GROUND FOR REVIEW ONE………………………………………………...…….14
The appeals court erred in finding that the evidence was legally sufficient to sustain a
conviction where there was no physical evidence that anyone was injured but the
defendant himself. The suspicion of guilt was due to the defendant inflicting harm
upon himself, but the complaining witness testified that she had drugged him. The
appeals court erred because they only took into account the police offices
testimony that both the complaining witness and the 911 callers written statements
were consistent and therefore factual when the appeals court did not compare the
original 911 call with the 911 callers written statement which is completely
different. If they would have done that and considered all of the evidence they
would have seen that the complaining witnesses testimony of how they were left
alone for over an hour before they were even spoken to by the Plano police
department then they would have known that the complaining witnesses falsified
the police report as she stated on the stand.
GROUND FOR REVIEW TWO……………………………………………………...14
The trial appeals court erred in not taking into account all of the evidence as stated
in GROUND FOR REVIEW ONE and noting that the defendant wordlessly cut
his own throat in front of the Plano officers because he had been involuntarily
drugged and not in his right mind as the complaining witness testified to drugging
him during the trial.
Prayer of Relief…………….................………………………….…….……………....14
Certificate of Compliance..........................................................................................15
3
STATEMENT REGARDING ORAL ARGUMENT
Because this case presents novel issues this Court has not previously addressed,
oral argument would be helpful. Argument would assist the Court because
resolution of the grounds for review depends upon a detailed exploration of the
facts of the cases. Further, oral argument would provide this Court with an
opportunity to question the parties regarding their positions.
STATEMENT OF THE CASE
Appellant, Christopher M. Dunlop, was charged by indictment with the felony
offense of assault family violence by impeding the normal breathing or circulation
of blood of Laura Free by applying pressure to Laura Free's throat or neck. 1 After
a jury trial, Mr. Dunlop was acquitted of the 3rd degree felony offense of Assault
by Impeding, but was convicted of the lesser-included Class A offense of Assault
Causing Bodily Injury to a Family Member. 2 Mr, Dunlop was sentenced to 1
year incarceration in the county jail, but the sentence was suspended and Mr.
Dunlop was placed on community supervision for 2 years. 3 This is a direct appeal
from that conviction and sentence.
______________________
1 (Clerk's Rat 11)
2 (Clerk's Rat 77)
3 (Clerk's Rat 78-80)
4
STATEMENT OF PROCEDURAL HISTORY
The judgment of Petitioner's conviction was entered on March 18, 20
I 4. Petitioner's notice of appeal was timely filed on April 10, 20 I 4 , the Fifth
District Court of Appeals its affirmation of conviction on July 31, 2015.
Motion for rehearing was not filed in time due to appellant not being notified
until 2 weeks after the verdict and was unware of his rights that he could
have still requested a hearing Pro se 15 days after his counsels notification of
the verdict.
GROUND FOR REVIEW
The Fifth Court of Appeals affirmed the conviction in this case despite the
lack of any physical evidence of wrongdoing and not considering the actual
testimony of the complaining witness herself stating the charges were
falsified because the complaining witness thought she and her daughter had
killed the defendant by drugging him. The Fifth Court of Appeals did not
discharge its duty of review to conscientiously and impartially apply the law
of Jackson v. Virginia, 443 U.S.319 (1979) and Brooki v. State, 323 S.W.3d
893 (Tex. Crim. App. 20!0), to a fair consideration of all the evidence. See
Arcila v. State, 834 S.W.2d 357, 360-61 (Tex. Crim. App. 1992).
5
STATEMENT OF FACTS
In the early morning hours of July 11, 2012, Officers David Thornsby and Kevin
Gendron of the Plano Police Department responded to a domestic disturbance call
from a residence located at 3829 Carrizo Drive in Plano, Texas. 4 Upon arrival at
the location, officers made contact with the 911 caller, Kirstin Reigelsperger, who
allowed them entry into the home. 5 As soon as the officers entered the residence,
they observed the suspect, Christopher M. Dunlop, wordlessly pick up a large
kitchen knife, place the knife to his own throat, and make a deep incision in his
neck. 6 Mr. Dunlop then went into a bedroom and shut and locked the bedroom 7
door. Officer Thomsby immediately ordered both of the females (Laura Free, the
complaining witness, and Kirsten Reigelsperger, the 911 caller) to exit the house
and go across the street to a neighbor's yard. 8 Eventually, the officers gained
entry into the bedroom and medical treatment was started by Emergency Medical
Technicians on Mr. Dunlop. 9
________________
4 (Rep.'s R. vol 3 at 128: 13-15); (Rep.'s R. vol 3 at 131: 6-10)
5(Rep.'s R. vol 3 at 136: 15-19); (Rep.'s R. vol 3 at 177: 23-178: 4)
6(Rep.'s R. vol 3 at 139: 2-10); (Rep.'s R. vol 3at 181: 21-23)
7(Rep.'s R. vol 3 at 139: 22-25)
8(Rep.'s R. vol 3 at 142: 3-4); (Rep.'s R. vol 3 at 169: 10-19); (Rep's R. vol 3at 186: 4-18)
9(Rep.'s R. vol 3 at 143: 19-144: 4)
6
During the estimated 30 minutes to an hour that Officers Thonsby and Gendron
were attempting to gain entry into the bedroom and tend to Mr. Dunlop's injury,
no contact was made with either Laura Free or Kirsten Reigelsperger by anyone
from law enforcement. 10 In fact. Officer Gendron had no contact or interaction
whatsoever with the complaining witness, Laura Free. 11 Once Mr. Dunlop had
been stabilized and loaded onto a gurney for transport to the hospital, Officer
Thomsby resumed contact with Laura Free and Kirsten Reigelsperger. 12 Officer
Thomsby testified that Laura Free claimed that Mr. Dunlop had pulled her hair to
the point that a chunk of her hair had come out of the backside of her scalp, and
that she had been choked. 13 Officer Thomsby also stated that Laura Free had
complained of pain in her head and neck area. 14 In his observations of Laura
Free, Officer Thomsby stated that he observed no bruising or redness or scratches
on her person the night of the incident. 15
________________
10 (Rep.'s R. vol 3 at 157: 5-15); (Rep.'s R. vol 3 at 181:6-14) "
11(Rep.'s R. vol 3 at 186: 1-9)
12 (Rep.'s R. vol 3 at 144: 14-22)
13 (Rep.'sR.vol3 at l62: 2-8)
14 (Rep.'s R. vol 3 at 145: 18-22)
15 (Rep.'s R. vol 3 at 156: 1-4)
7
As part of his investigation, Officer Thornsby also had Ms. Free fill out a
Voluntary Witness Statement (State's Exhibit 57) 16, an Assault Supplement
Packet (State's Exhibit 57) 17, and a page detailing "background information"
contained within the Assault Supplement Packet (State's Exhibit 59) 18..
When Laura Free appeared before the court, she stated her intention to assert her
Fifth Amendment privilege. 19 The state's prosecutor, Wes Wynne, offered Ms.
Free testimonial (use) immunity. 20 Judge John Roach, Jr. appointed counsel to
advise Ms. Free in regard to her 5th Amendment rights and the Grant of Use
Immunity offered to her by the prosecution. 21 Ultimately, Ms. Free accepted the
Grant of Use Immunity and opted to testify. 22
_________________
16(Rep.'s R, vol 3 at 146: 10-19)
17 (Rep.'s R. vol 3 at 142: 21-25)
18 (Rep.'s R. vol 3 at 148: 25-149:10)
19 (Rep.'s R. vol 3 at 201: 13-16)
20 (Rep.'s R. vol 3 at 203: 24-204: 19);(Clerk's R. at 65-66)
21(Rep.'s R. vol 3 at 205: 8-14); (Rep/s R. vol 3 at 206: 1-15)
22 (Rep.'s R. vol 3 at 228: 13-23); (Clerk's R. at 67)
8
Prior to the trial, Ms. Free had also filled out an Affidavit of Non-Prosecution, and
she flatly stated that she did not want to see Mr. Dunlop prosecuted for this
offense as he did nothing wrong and she was afraid for having drugged him. 23
Ms. Free's trial testimony was contradictory to the and verbal statements she had
provided to the police on July 11, 2012. In regard to written hair-pulling, Ms. Free
testified that the hair-pulling in question was done in a playful, sexual manner and
denied that it caused any pain, or if it caused pain, she stated it was the type of
pain she had encouraged and wanted. 24 When pressed about the "chunk ofhair"
that had reportedly been ripped out, she stated that only 4-5 strands of hair may
have been pulled out, but that they also may have just fallen out on their own. 25
Ms. Free admitted that she had drugged Mr. Dunlop that night, without his
knowledge, by pouring Hydrocodone cough syrup initially into a Four Loko, then
later into a pot of coffee Mr. Dunlop was drinking. 26 She stated that she and her
daughter, Kristen, decided to pour the rest of the bottle of hydrocodone cough
syrup into Mr.
_________________
23(Rep.'s R. vol 4 at 21: 9-14)
24 (Rep.'s R. vol 4 at 32: 17-33:9); (Rep.'s R. vol 4 at 84: 3-20)
25 (Rep.'s R. vol 4 at 33: 10-24) (Rep.'s R. vol 4 at 34: 23-35: 24)
9
Dunlop's coffee because the first attempt at drugging him had no effect. 27 Ms.
Free claimed to have fabricated the story about Mr. Dunlop assaulting her because
she believed Mr. Dunlop had actually died from his injuries, 28 and because she
was worried that she would now be forced to pay all the bills at the residence. 29
Ms. Free testified that not only had she fabricated the details of her written
voluntary Witness Statement, she had also lied about her description of the night's
events when she was verbally questioned by the police on July 11, 2012. 30
In regard to the allegation of hair pulling, in her written statement Ms. Free wrote
that Mr. Dunlop "grabbed me by the back of the hair and yanked my head
backward ripping out a fistful of my hair. 31 During her trial testimony, however,
she denied that Mr. Dunlop ripped out a fistful of her hair,but she confirmed that
Mr. Dunlop had yanked her hair and yanked her head backwards,and that she felt
pain when he ripped her hair out. 33
_______________________
27(Rep.'s R. vol 4at37: 25-39: 24)
28(Rep.'s R. vol 4 at 49: 18-24)
29(Rep.'s R. vol 4 at 50: 3-22)
30 (Rep.'s R. vol 4 at 51: 4-52: 14)
31State's Exhibit 58, Voluntary Witness Statement, page 3)
32(Rep.'s R. vol 4 at 64: 16-25)
33(Rep.'s R. vol 4 at 72: 17-18); (Rep.'s R. vol 4 at 73: 3-5)
10
In regard to the allegation of assault by strangulation, in her voluntary statement
Ms. Free wrote, "he put his hands around my neck and squeezed; but I could still
breathe, it was just a bit harder." 34 In her trial testimony, Ms. Free initially stated
that Mr. Dunlop never put his hands on her neck. 35 Later, she clarified that Mr.
Dunlop had put his hands on her clavicle area, trying to calm her down, but all she
felt was the "heat from hands near my neck, but I could not state with certainty
there was ahand on my neck.” 36 When specifically asked whether her breathing
was impeded, Ms. Free again stated that Mr. Dunlop did not have his hands
around her neck. 37 "They were near my neck, and he never squeezed and
impeded my air flow." 38 When the prosecutor questioned Ms. Free about the
Assault Supplement Report she had filled out on the night of the incident, 39 Ms.
Free again denied that Mr. Dunlop put his hands around her neck, and she further
denied any pain associated with her neck or neck area." 40
_________________
34(State's Exhibit 58, Voluntary Witness Statement,page 3)
35 (Rep.'s R. vol 4 at 65: 3-4)
36(Rep.'s R. vol 4 at 66: 1-10)
37(Rep.'s R. vol 4at66; 25-67: 7)
38(Rep.'s R. vol 4 at 66: 18-20)
39(State's Exhibit 59,Assault SupplementReport)
40(Rep.'s R. vol 4 at 72: 17-73:24); (Rep.'s R. vol 4 at 86: 14-24
11
On cross-examination, Ms. Free stated that she had lied to the police about the
assault allegations concerning Mr. Dunlop because she and her daughter had
drugged Mr. Dunlop, because they believed he was deceased or about to die, and
because she feared she would be stuck in a lease she could not afford on her own."
41 She also stated that she had lied in the Victim's Assistance portion of the
Assault Supplement Packet in order to qualify for victim's assistance money, and
to allow her to terminate the lease." 43 Ms. Free stated that she concocted her
fabricated story during the time period of"at least an hour" when she and Kirsten
Reigelsperger were left unattended by the police." 44
Ms. Free was shown all the photographs of her neck and body that were taken by
the police the night ofthe incident." 45 Ms. Free confirmed that there was no
discoloration or bruising depicted in any of the photographs." 46
_________________________
41 (Rep.'s R. vol 4 at 79: 24-81:20); (Rep.'s R. vol 4 at 94: 19-95:5).
42 (State's Exhibit 59, Assault Supplement Report)
43(Rep.'s R. vol 4 at 81: 12-82: 10)
44(Rep.'sR.vol4at82: 11-23)
45 (State's Exhibits 2-4, 6-8,12 and 13)
46(Rep.'s R. vol 4 at 89: 19-92: 18)
12
Ms. Free stated that she lied about Mr. Dunlop assaulting her because of the"fear
factor" of getting into trouble herself due to having drugged him." 47 She also
stated that when she gets angry or upset, she tends to embellish and lie about the
facts." 48
Christopher Dunlop elected not to testify during the case in chief." 49
After closing arguments and deliberation the jury returned a verdict of Guilty on
the lesser-included offense of misdemeanor assault. 50 However, the Charge of
the Court submitted to the jury required a finding as to the manner and means of
the misdemeanor assault, specifically, "by applying pressure to Laura Free's throat
and neck." 51 Punishment was assessed by the court at 1 year in county jail
probated for 2 years; completion of a batterer's intervention prevention program;
completion of a psychological exam; no consumption of alcohol: no contact with
Laura Free or her children; 100 hours of community service; and 30 days term and
condition time with authorization for off-work hours. The court also made an
affirmative finding of family violence. 52
________________________
47(Rep.'s R. vol 4 at 87: 1-5)
48(Rep.'s R. vol 4 at 108:11-14)
49(Rep.'s R. vol 4 at 97: 13-21)
50(Rep.'s R. vol 4 at 147: 15-19)
51 (Clerk”s R.at 74)
52 (Rep.'s R. vol 4 at 158: 5-17)
13
GROUND FOR REVIEW NO. 1. RESTATED
THE APPELLATE COURT ERRED IN FINDING THAT THE EVIDENCE
IS LEGALLY SUFFICIENT TO JUSTIFY A FINDING OF GUILTY OF THE
OFFENSE OF ASSAULT FAMILY VIOLENCE.
GROUND FOR REVIEW NO. 2. RESTATED
COMPLAINING WITNESS TESTIFIED OF FALSIFYING POLICE REPORT
BECAUSE HER AND HER DAUGHTER DRUGGED THE DEFENDANT
AND THOUGHT THEY KILLED HIM.
PRAYER FOR RELIEF
For the reasons stated, the Petitioner was denied a fair trial in Cause No. 296-82462-
2012. Therefore, Appellant prays that this Court grant his petition for discretionary
review and upon reviewing the judgment entered below, reverse this Cause and dismiss
the prosecution or remand it for a new trial.
Very Respectfully submitted,
Chris Dunlop
435 Merrimac ct
Roselle, IL 60172
Pro se
14
CERTIFICATE OF COMPLIANCE
I, Chris Dunlop, Appellant, hereby certify that this document contains 2,837
Words, exclusive of the content excepted by Tex. R. App. Pro. 9.4(i)(3). This is a
computer-generated document, and I have relied on the word count of the
computer program used to prepare this document.
15
AFFIRMED; and Opinion Filed July 31, 2015.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00441-CR
CHRISTOPHER M. DUNLOP, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 296th Judicial District Court
Collin County, Texas
Trial Court Cause No. 296-82462-2012
MEMORANDUM OPINION
Before Justices Bridges, Francis, and Lang
Opinion by Justice Lang
Christopher M. Dunlop appeals his conviction for misdemeanor assault involving family
violence. See TEX. PENAL CODE ANN. § 22.01(a)(1) (West 2011); TEX. CODE CRIM. PROC. ANN.
art. 42.013 (West 2006). After a jury found Dunlop guilty, the trial court made an affirmative
finding of family violence, assessed punishment at one year confinement, suspended
confinement, and placed Dunlop on community supervision for two years. In two issues, Dunlop
argues (1) a fatal variance exists between the manner and means alleged in the indictment and
the injury proved at trial, and (2) because this fatal variance exists, the evidence is insufficient to
support the conviction of misdemeanor assault involving family violence. We decide against
Dunlop on both issues. We affirm the trial court’s judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Dunlop was charged by indictment with the third-degree felony offense of assault
involving family violence. See TEX. PENAL CODE ANN. § 22.01(b)(2)(B). The indictment states
that on or about July 11, 2012, Dunlop did
then and there intentionally, knowingly, and recklessly cause bodily injury to
Laura Free, a member of the defendant’s family, member of the defendant’s
household, and person with who defendant had and has had a dating relationship,
by intentionally, knowingly, and recklessly impeding the normal breathing and
circulation of the blood of the said Laura Free by applying pressure to the throat
and neck of said Laura Free.
According to the record, at approximately 3:00 a.m. on July 11, 2012, Officers David
Thornsby and Kevin Gendron, of the Plano Police Department, were dispatched to the home of
Dunlop and Laura Free, Dunlop’s girlfriend, in response to a 911 call placed by Free’s daughter.
After the officers arrived, Thornsby spoke with Free and her daughter. He testified that they
seemed “very frightened,” “very, very upset,” “very scared,” and “were crying.” Both women
described to Thornsby what had happened and voluntarily gave written witness statements.
Thornsby testified that the statements made by Free and her daughter “were matching.” He also
stated that Free complained of pain to her “head and neck area.” According to Free’s witness
statement from July 11, 2012, which was admitted into evidence, after she refused to go to bed at
Dunlop’s request, Dunlop “grabbed [her] by the back of the hair and yanked [her] head backward
ripping out a fistful of [her] hair. He put his hands around [her] neck and squeezed but [she]
could still breathe it was just a bit harder. He then told [her] he should just snap [her] neck.”
At trial, Free recanted and stated that she had lied to the police on July 11, 2012. She
testified that she had been the aggressor and Dunlop had never placed his hands on her throat or
neck. Free stated that Dunlop did pull her hair, but he did so in a “sexual way,” and “if it hurt, it
was a pain that [she] wanted.”
–2–
Following a plea of not guilty, the jury found Dunlop guilty of the lesser included offense
of misdemeanor assault. The trial court made an affirmative finding of family violence, assessed
punishment at one year confinement, suspended confinement, and placed Dunlop on community
supervision for two years.
II. LEGAL SUFFICIENCY & FATAL VARIANCE
In two issues, Dunlop argues that the evidence adduced at trial supports a conviction for
misdemeanor assault only by means of pulling Free’s hair, whereas the indictment alleges assault
by means of “applying pressure to the throat and neck of [Free].” Therefore, Dunlop argues a
fatal variance exists and renders the evidence insufficient to support the verdict. The State
responds that no variance exists because the evidence is sufficient to support “the lesser injury
alleged in the indictment, specifically, injury to the victim’s neck.”
A. Standard of Review
In determining the sufficiency of the evidence, we view all the evidence in the light most
favorable to the verdict to determine whether any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
318–19 (1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). “Circumstantial
evidence is as probative as direct evidence in establishing the guilt of the actor, and
circumstantial evidence alone may be sufficient to establish guilt.” Dobbs, 434 S.W.3d at 170
(citing Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013). The jury is the sole
judge of credibility and weight to be attached to the testimony of witnesses. Id. As such, the
jury “can choose to believe all, some, or none of the testimony presented by the parties.”
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). “When the record supports
conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict, and
we defer to that determination.” Dobbs, 434 S.W.3d at 170.
–3–
A “variance” occurs when there is a discrepancy between the allegations in the
indictment and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001).
When reviewing a variance claim, the “‘sufficiency of the evidence should be measured by the
elements of the offense as defined by the hypothetically correct jury charge for the case.’” Id. at
253 (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). This charge “‘would
be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily
increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and
adequately describes the particular offense for which the defendant was tried.’” Id. at 253
(emphasis omitted) (quoting Malik, 953 S.W.2d at 240). To render the evidence insufficient to
support the verdict, the variance must be “fatal,” meaning “it is material and prejudices [the
defendant’s] substantial rights.” Id. at 256–57.
B. Applicable Law
A person commits assault if he “intentionally, knowingly, or recklessly causes bodily
injury to another.” TEX. PENAL CODE ANN. § 22.01(a)(1). “‘Bodily injury’ means physical pain,
illness, or any impairment of physical condition.” Id. § 1.07(a)(8); see also Lane v. State, 763
S.W.2d 785, 786 (Tex. Crim. App. 1989) (“This definition [of bodily injury] appears to be
purposefully broad and seems to encompass even relatively minor physical contacts so long as
they constitute more than mere offensive touching.”).
C. Application of the Law to the Facts
Dunlop argues that because “the only uncontroverted testimony regarding an assault” was
that Dunlop pulled Free’s hair, the evidence is insufficient to support his conviction for assault
by the means alleged in the indictment, “applying pressure to the throat and neck of [Free].”
However, the testimony concerning pulling Free’s hair was not the only evidence offered at trial.
–4–
According to Free’s witness statement from July 11, 2012, which was admitted into
evidence without objection, Dunlop “put his hands around [her] neck and squeezed but [she]
could still breathe it was just a bit harder. He then told [her] he should just snap [her] neck.”
Thornsby testified that he spoke with Free and her daughter after the incident, and that both
women gave “matching” accounts of the events that day. He also stated that both women
seemed “frightened,” “upset,” and “scared” and that Free had complained of pain to her “head
and neck area.” See Lane, 763 S.W.2d at 786; York v. State, 833 S.W.2d 734, 736 (Tex. App.—
Fort Worth 1992, no pet.) (concluding evidence was sufficient to support assault conviction
when the record showed appellant “choked” complainant, which restricted her breathing and
“scared [her] to death,” and no evidence suggested appellant’s actions were accidental or
involuntary).
Although Free recanted at trial and stated she had lied to the police on July 11, 2012, the
jury observed Free’s demeanor and was entitled not only to reconcile any conflicts, but also to
disbelieve her recantation. See Chambers, 805 S.W.2d at 461; Michael v. State, No. 05-12-
00895-CR, 2013 WL 1729280, at *1–2 (Tex. App.—Dallas Apr. 22, 2013, no pet.) (mem. op.,
not designated for publication) (concluding evidence was sufficient to support appellant’s
conviction for assault of his wife when wife’s recantation at trial conflicted with officer’s
testimony and wife’s statements immediately following the assault). Contrary to Dunlop’s
argument on appeal, the evidence need not be uncontroverted to support his conviction. In fact,
when the record supports conflicting inferences, we are required to presume that the jury
resolved the conflicts in favor of the verdict and defer to that determination. See Dobbs, 434
S.W.3d at 170; Chambers, 805 S.W.2d at 461.
Viewing the evidence in the light most favorable to the jury’s verdict of guilty, we
conclude any rational trier of fact could have found beyond a reasonable doubt that Dunlop
–5–
“intentionally, knowingly, or recklessly cause[d] bodily injury” to Free “by applying pressure to
[her] throat and neck,” as alleged in the indictment. See TEX. PENAL CODE ANN. § 22.01(a)(1);
Chambers, 805 S.W.2d at 461; Michael, 2013 WL 1729280, at *1–2; York, 833 S.W.2d at 736.
Because we have concluded the evidence adduced at trial was sufficient to support Dunlop’s
conviction for misdemeanor assault family violence based on the manner and means alleged in
the indictment, we also conclude there is no variance between the facts alleged in the indictment
and the proof offered at trial. See Gollihar, 46 S.W.3d at 246; Mitchell v. State, No. 05-12-
00211-CR, 2013 WL 3771374, at *5–7 (Tex. App.—Dallas July 16, 2013, pet. ref’d) (not
designated for publication) (concluding the evidence was sufficient to support the jury’s finding
of sexual assault as alleged in the indictment, so there was no variance, despite the fact that the
State’s evidence also related to another means by which appellant may have assaulted the
complainant). We decide against Dunlop on both issues.
III. CONCLUSION
We affirm the trial court’s judgment.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
140441F.U05
–6–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CHRISTOPHER M. DUNLOP, Appellant On Appeal from the 296th Judicial District
Court, Collin County, Texas
No. 05-14-00441-CR V. Trial Court Cause No. 296-82462-2012.
Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee Bridges and Francis participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 31st day of July, 2015.
–7–