      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00519-CR



                                      Gus Barron, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
      NO. D-1-DC-10-302618, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found appellant Gus Barron guilty of two assault offenses arising from the

same altercation with a family member. See Tex. Penal Code § 22.01(b)(2), (b-1). The trial court

derived the two counts of the charge from separate paragraphs of an indictment that made no

reference to counts. Count I of the charge—the standard assault charge—alleged that Barron caused

bodily injury to A.G. by striking, grabbing, and throwing her with his hands. See id. § 22.01(a)(1).

Count II of the charge—the strangulation charge—alleged that Barron impeded A.G.’s normal

breathing by applying pressure to A.G.’s neck and throat with his hands. See id. After finding that

Barron had a previous conviction, the jury assessed punishment at eight years’ confinement for the

assault charge and sixteen years’ confinement for the strangulation charge.

               In six issues on appeal, Barron contends that his convictions violate double-jeopardy

prohibitions, that the trial court erroneously admitted hospital records and expert testimony about

the behavior of victims, that the trial court erroneously let the State amend the indictment after the
trial began, and erroneously failed to instruct the jury on the lesser-included offense of misdemeanor

assault. We will sustain Barron’s double-jeopardy issue in part, reverse and dismiss his conviction

for the standard assault charge, and affirm his conviction for the strangulation charge.


                                         BACKGROUND

               A.G. and Barron lived together—she called him her common-law husband.

According to A.G., this incident arose from her discussion with Barron about the previous

termination of their parental rights to their three children. She testified that she hit Barron first,

then they exchanged punches, and eventually Barron squeezed her neck with his hands hard enough

to leave visible scratches and bruising. A.G. said that the altercation moved outdoors and attracted

the attention of their neighbors. Afterwards, she went with a neighbor to get a towel from the

neighbor’s home.

               The neighbor testified that A.G. knocked on her door, crying and breathing heavily

with a bloodied face. The neighbor took A.G. into her home and called 911. Barron then started

yelling and banging on the neighbor’s window. Barron appeared angry and had a “pretty small” cut

on his bottom lip. A.G. told her neighbor that Barron had hit her with his fist and choked her to the

point that she was still having difficulty breathing. The neighbor said she saw a cut over A.G.’s eye

and marks around her neck.

               When Austin Police Department officers arrived, Barron was gone. A.G. told them

that Barron “assaulted her, hit her multiple times, and then also choked her to the point where she

almost lost consciousness.” The officers called paramedics, who took A.G. to a hospital where she




                                                  2
received stitches for the laceration to her head and pain medication. After A.G. left, the officers

photographed the interior of A.G.’s home.

               Before trial, A.G. filed a signed affidavit of non-prosecution in which she asked

prosecutors to drop the charges arising from the altercation. The State subpoenaed A.G. to secure

her testimony and, when she failed to appear in court, the trial court issued a writ of attachment.

Law enforcement officials brought A.G. to the trial. At trial, A.G. was uncooperative and openly

hostile toward the State. She did testify that she “guessed” she was defending herself every time

she hit Barron. The State introduced the testimony of the witnesses from the scene who testified as

described above and said that, immediately after the assault, A.G. did not mention that the altercation

was mutual combat.

               The State also introduced, over Barron’s objection, A.G.’s medical records showing

that A.G. received sutures for a cut to her head. The State also called Gail Rice, an expert witness

who testified about domestic assault victims’ unwillingness to cooperate with criminal prosecutions.

She explained that victims often call for assistance, but then become ambivalent or resistant about

talking to authorities about their experiences with violence. Barron did not call any witnesses.

               The jury found Barron guilty of both the standard assault charge and the

strangulation charge.


                                           DISCUSSION

               In six issues on appeal, Barron argues that the trial court erred by: (1) punishing him

for two assault offenses based on a single-count indictment; (2) not requiring the State to elect

between the different manner and means of committing assault; (3) admitting hospital records in


                                                  3
violation of his right to confront the witnesses against him; (4) admitting expert testimony regarding

the typical behavior of victims of family violence; (5) allowing the State to amend the indictment

after the trial commenced; and (6) failing to instruct the jury on the lesser-included offense of

misdemeanor assault.


Two convictions for single-count indictment not permitted

               In his first issue, Barron argues that the trial court erred in rendering two judgments

of conviction based on two paragraphs within a single-count indictment. The State concedes error

in the dual convictions and requests that we dismiss the conviction for the standard assault charge

because it carries the lesser sentence. Barron asserts that the conviction for the strangulation charge

should be reversed because it appeared second in the indictment.

               Because one count in an indictment alleges a single offense, an indictment cannot

authorize more convictions than there are counts, and there can be only one conviction per count.

Martinez v. State, 225 S.W.3d 550, 554 (Tex. Crim. App. 2007); see also Tex. Code Crim. Proc.

art. 21.24(a). A trial court errs by rendering multiple judgments of conviction based on separate

paragraphs in a single count. See Sledge v. State, 262 S.W.3d 492, 495 (Tex. App.—Austin 2008,

no pet.). Such error is harmful because it violates a defendant’s constitutional rights to due-process

notice and to a grand jury screening of the charges against him. Martinez, 225 S.W.3d at 555. The

trial court erred by rendering two judgments of conviction based on the single-count indictment.

               When a judgment includes multiple convictions for different paragraphs in a single

indictment, the general remedy is to affirm the conviction for the most serious offense—i.e., the

offense with greatest sentence assessed—and set aside the other convictions. See Ex parte Cavazos,


                                                  4
203 S.W.3d 333, 337 (Tex. Crim. App. 2006). We use the order of allegations in the indictment only

if we cannot tell which is the more serious offense by reference to the punishment.1 Fowler v. State,

240 S.W.3d 277, 282 (Tex. App.—Austin 2007, pet. ref’d). Because the jury assessed a longer

sentence for the strangulation charge, we will affirm it and dismiss Barron’s other conviction for

standard assault.

               We sustain Barron’s first issue in part by dismissing his conviction for the less serious

offense. We affirm Barron’s conviction for the strangulation charge and reverse his conviction for

the standard assault charge. In light of this determination, we will address Barron’s remaining points

of error only with respect to his conviction for the strangulation charge.


State not required to elect manner and means

               In his second issue, Barron asserts that the trial court erred in denying his pretrial

“request for the State to make an election” as to the manner and means by which he committed the

alleged assaults. At trial, Barron filed a motion to sever in which he requested separate trials for

the standard assault charge and the strangulation charge under Tex. Penal Code § 3.04. On appeal,

Barron argues that his motion to sever also constituted a motion for election, and thus the State was

required to elect the manners in which it alleged he committed each assault. He claims that, because

the indictment alleges that he impeded A.G.’s breathing and blood circulation, he was not given

notice of whether the State would prove both methods of the assault or only one. He concedes that

the strangulation jury charge asked only about impeding A.G.’s breathing, but contends that its



       1
         We also note that the jury charge presented the strangulation charge first and the jury
answered the jury questions in that same order.

                                                  5
reference to the indictment—which alleged strangulation by means of impeding breathing and blood

flow—impermissibly allowed the jury to convict him without a unanimous verdict on the means of

strangulation. Barron also asserts that the improper presentation of two different means of assault

created uncertainty how the jury might have sentenced him had there been only one question.

                Assuming without deciding that this issue was properly preserved, we find that the

record reflects that Barron was not entitled to an election. Generally, the State is not required to elect

to proceed on only one means of committing a single offense. See generally Fowler, 240 S.W.3d

at 280. The State nevertheless sought a jury charge on only one means of strangulation—impeding

the breathing—and the trial court did not err by permitting that.

                It is well settled that, although the indictment may allege different methods of

committing the offense in the conjunctive, it is proper for the jury to be charged in the disjunctive.

See Leal v. State, 303 S.W.3d 292, 297 (Tex. Crim. App. 2009). Barron had notice that the jury

could properly convict him for impeding either A.G.’s breathing or blood circulation, despite the fact

that the indictment alleged these methods in the conjunctive. Id.

                Most important, the jury charge did not improperly permit a less-than-unanimous

verdict. The jury instructions included only a description of strangulation by impeding the breathing

and the jury question made it clear that the jury was to decide whether Barron committed the offense

of “Felony Assault Family Violence by Impeding the Breathing, as alleged in the indictment”—not

strangulation by whatever means alleged in the indictment. Even if the jury charge could be read

to permit conviction for strangulation by impeding breathing or blood circulation, the jury need

not unanimously agree on the specific method of committing the offense because they define a



                                                    6
single offense capable of being committed in more than way. Jefferson v. State, 189 S.W.3d 305,

311 (Tex. Crim. App. 2006); See Tex. Penal Code § 22.01(b-1)(3).

               We also find no error in the trial court’s presentation of separate punishment

questions for the separate offenses. Rather than presenting confusion or error, that formulation in the

jury charge made clear what punishment the jury found appropriate for which of the different

means of committing the assault. The sixteen-year sentence was unequivocally prompted by

Barron’s impeding of A.G.’s breathing and stands with that conviction on that evidence.


No harm from admission of medical records

               In his third issue, Barron asserts that the trial court’s admission of A.G.’s hospital

records violated his constitutional right to confront the witnesses against him. See U.S. Const.

amend. VI. At trial, Barron objected to the admission of A.G.’s medical records on grounds that they

contain hearsay statements from medical professionals who he did not confront. Before the State

could respond to Barron’s objection, the trial court stated that it would review the medical records

and “rule at a later time.” When the State later reurged the admission of the medical records, the

trial court overruled Barron’s objection and admitted the records. On appeal, Barron asserts that the

trial court’s admission of the medical records without any showing by the State that they were

admissible violated the Confrontation Clause.

               The Confrontation Clause to the Sixth Amendment provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”

U.S. Const. amend. VI. Generally, courts have construed the Confrontation Clause to prohibit

prosecutors from admitting “testimonial” out-of-court statements against a defendant unless the


                                                  7
defendant has been afforded the opportunity to cross-examine the declarant. See De la Paz v. State,

273 S.W.3d 671, 680 (Tex. Crim. App. 2008) (citing Crawford v. Washington, 541 U.S. 36, 59

(2004)). A statement is testimonial “when the surrounding circumstances objectively indicate that

the primary purpose” for the declarant making the statement was “to establish or prove past events

potentially relevant to later criminal prosecution.” Id. Once the defendant raises a Confrontation-

Clause objection, the burden shifts to the State to prove either (1) that the proposed statement does

not contain testimonial hearsay and thus does not implicate the Confrontation Clause or (2) that the

statement does contain testimonial hearsay but is nevertheless admissible. Id. at 680–81 (citing

Crawford, 541 U.S. at 59).

               Assuming, without deciding, that the trial court erred in admitting the medical

records without requiring the State to prove their admissibility, we will assess whether that error

was harmless. When, as here, the error implicates the Confrontation Clause, a constitutional harm

analysis is appropriate. See Langham v. State, 305 S.W.3d 568, 582 (Tex. Crim. App. 2010). We

must reverse the judgment unless we determine beyond a reasonable doubt that the potential error

did not contribute to Barron’s conviction or punishment. See Tex. R. App. P. 44.2(a); Langham,

305 S.W.3d at 582. The court of criminal appeals has identified the following non-exclusive list of

factors to consider in determining whether violations of the Confrontation Clause are harmless:


       1) how important was the out-of-court statement to the State’s case; 2) whether the
       out-of-court statement was cumulative of other evidence; 3) the presence or absence
       of evidence corroborating or contradicting the out-of-court statement on material
       points; and 4) the overall strength of the prosecution’s case.


Scott v. State, 227 S.W.3d 670, 690–91 (Tex. Crim. App. 2007).


                                                 8
                Barron notes that the medical records indicate that A.G.’s injuries were the result of

an alleged assault.2 Barron asserts that these statements imply that A.G. told the declarants that she

had been assaulted and that the declarants believed that her injuries were consistent with assault.

The medical reports do not state who alleged that the injuries were due to assault, but even if

they did, the allegations of assault in the reports are cumulative of the other testimony admitted

at trial from A.G. herself and persons who saw her immediately afterwards. A.G.’s neighbor, the

officer who first arrived on the scene, and the paramedic who treated A.G. all testified about the

severity of A.G.’s injuries and stated that A.G. told them that her injuries were the result of Barron’s

assault. This testimony was corroborated by the photographs of A.G.’s injuries taken shortly

after the assault. Furthermore, the State only briefly referenced the medical records in its closing

argument, noting that they showed A.G. received sutures and a tetanus shot. Finally, the overall



       2
          The subject of issue three, State’s Exhibit No.10, is a collection of records from the
treating hospital. The triage report and the Emergency Room Nursing Report both state “Chief
Complaint: ALLEGED ASSAULT.” The nursing report goes on to state, “Abuse history: patient
reports physical abuse by significant other against patient.” A separate document entitled Emergency
Room Report states

        Chief Complaint—ALLEGED ASSAULT. Location of injuries----head, face and
        neck. This occurred just prior to arrival.

        The patient sustained multiple moderate blows with a fist. She was allegedly
        pushed (STRUCK HEAD AGAINST FLOOR). She was allegedly choked with
        hands. Occurred at home.

The remainder of the reports discuss observations, treatments, and instructions given to the patient.

        State’s Exhibit No. 10 also includes the EMS report that is State’s Exhibit No. 6 which is
not the subject of this issue. The EMS records state in a section entitled Response Info that the
“nature of call” was “assault.” In the History section, the record states that the cause of injury is
“Assault/Battery.”

                                                   9
strength of the State’s case was substantial. The only evidence that arguably supported Barron’s

defense was A.G.’s testimony that the alleged assault was actually mutual combat that she initiated.

However, A.G. contradicted herself on several occasions, and her testimony was either undermined

or directly contradicted by the remaining witnesses. We conclude beyond a reasonable doubt that

the objected-to characterization of the injuries as assault-related did not contribute to the conviction

or punishment.

                We conclude beyond a reasonable doubt that any error in admitting the medical

records did not contribute to Barron’s conviction or punishment and was harmless. See Tex. R. App.

P. 44.2(a); Langham, 305 S.W.3d at 582.


No harm from admission of expert testimony

                In his fourth issue, Barron asserts that the trial court erred in admitting Gail Rice’s

testimony as an expert concerning the common dynamics between domestic-abuse victims and

law enforcement. Specifically, Barron asserts that Rice’s testimony was unreliable and irrelevant

because Rice did not interview A.G. or review the State’s file before trial, and therefore she could

not testify about the specifics of this case. Barron asserts that Rice’s testimony converted A.G.’s

reluctance to testify from a defense-friendly concession that his offensive conduct was justified by

self-defense to a prosecution-friendly implication that the reluctance was driven by Barron’s guilt.

                For efficiency, we choose to address whether any error in the admission of Rice’s

testimony was harmful to Barron. The erroneous admission of expert testimony is non-constitutional

error. See Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010). We must disregard any

error unless it affected appellant’s substantial rights. See Tex. R. App. P. 44.2(b); King v. State,


                                                  10
953 S.W.2d 266, 271 (Tex. Crim. App. 1997). A substantial right is affected when the error had a

substantial and injurious effect or influence in determining the jury’s verdict. Coble, 330 S.W.3d

at 280 (citing Kotteakos v. United States, 328 U.S. 750, 776 (1946)). If the improperly admitted

evidence did not influence the jury or had but a slight effect on its deliberations, such error is

harmless. Id. We examine the entire trial record and calculate, to the extent possible, the probable

impact of the error on the rest of the evidence. Coble, 330 S.W.3d at 280. Important factors in

considering non-constitutional error are “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.” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). In analyzing the erroneous

admission of expert testimony, we may consider, among other things: (1) the strength of the

evidence of the appellant’s guilt; (2) whether the jury heard the same or substantially similar

admissible evidence through another source; (3) the strength or weakness of an expert’s conclusions,

including whether the expert’s opinion was effectively refuted; and (4) whether the State directed

the jury’s attention to the expert’s testimony during arguments. See Coble, 330 S.W.3d at 286–88.

                Rice testified generally about the dynamics of relationships in which domestic

violence occurs. She talked about the behaviors that often occur in such relationships and how

victims interact with the police. She explained that victims of domestic violence often call 911

during an assault out of immediate fear, but then become reluctant to cooperate in subsequent

criminal prosecutions because they are afraid of retaliation by their assailants or believe that they can

predict and control the degree of abuse in the future. She stated plainly that she had not interviewed

anyone or read the files of the case, and she did not opine anything about A.G. specifically.



                                                   11
                Given the overwhelming evidence that Barron caused A.G.’s injuries, the key dispute

at trial was whether self-defense might have justified his actions. Rice’s testimony did not bear

directly on self-defense, but required the jury to reason that A.G.’s reluctance to testify was driven

by fear or devotion, that her fear or devotion caused her to fabricate her testimony that she initiated

the physical altercation, and that her actions in fact justified Barron’s response. The jury heard

testimony that A.G. struck Barron and that he had a small cut on his lip. The jury also heard

testimony and saw pictures of A.G. after the beating. The jury did not hear other testimony

explaining why A.G. might not want to prosecute or testify against Barron, but it heard testimony

that A.G. did not assert that she started the altercation in its immediate aftermath. The jury also

heard A.G.’s testimony that she was not afraid of Barron. Rice admittedly did not base her testimony

on any facts from this case. Both prosecutors referred to Rice’s testimony in closing. The first

prosecutor to speak stated, “there’s no surprises in this criminal justice system that a victim does not

want to see the person who is accused, who hit her, not prosecuted. It is not a surprise to us.” The

second prosecutor stated that Rice “explained that it is common not only for the victims of assault

family violence to be uncooperative, but it is common for them to lie, shade the truth and lie to help

the defendant.” She then argued that, even if the jury believed that A.G. threw the first punch, they

should conclude that Barron’s response was too disproportionate to qualify as self-defense.

                Even if the trial court erred by admitting Rice’s testimony, we conclude that it did not

affect Barron’s substantial rights. Rice’s testimony was not tied to A.G., was not tied to the elements

of this offense, and related to self-defense at best tenuously by questioning A.G.’s motivation in not

wanting to testify. The weight of the evidence supporting the verdict, including the rejection of self-



                                                  12
defense, overwhelmed any improper effect of Rice’s testimony to such a degree that any error in the

admission of Rice’s testimony was harmless.


No error in alteration of the indictment

               In his fifth issue, Barron asserts that the trial court erred by deleting language from

the indictment after the trial began. Within the enhancement paragraphs, the indictment originally

alleged that Barron had previously been convicted of two offenses involving family violence in

“County Court at Law #4 of Travis County, Texas.” During the trial, prosecutors realized that these

prior convictions actually occurred in County Court at Law #7, not #4. The State requested that the

trial court strike any reference to the court number. Over Barron’s objection, the trial court granted

the State’s request and deleted the words “County Court at Law #4” from the indictment. On appeal,

Barron asserts that this deletion was an impermissible amendment to the indictment in violation of

article 28.10 of the Texas Code of Criminal Procedure.

               Once trial begins, the State may only amend the indictment for matters of

form or substance if the defendant does not object. See Tex. Code Crim. Proc. art. 28.10(b). Not

all alterations to an indictment constitute amendments, however, and certain allegations may be

abandoned by the State without implicating article 28.10. See Eastep v. State, 941 S.W.2d 130,

132–33 (Tex. Crim. App. 1997).3 The court of criminal appeals has recognized three kinds of



       3
           This Court previously noted that the “continuing validity of Eastep’s discussion of the
subject of surplusage in an indictment is open to question in light of the opinion in Gollihar v. State,
46 S.W.3d 243, 257 (Tex. Crim. App. 2001) . . . .” Scoggins v. State, No. 03-04-00555-CR,
2006 Tex. App. LEXIS 3529, at *4 n.2 (Tex. App.—Austin April 27, 2006, pet. ref’d). However,
the court of criminal appeals has since referred to the analysis of surplusage in Eastep with approval,
and thus, we conclude that it remains good law. See Balentine v. State, No. PD-1102-11, 2012 Tex.

                                                  13
language in an indictment that can be abandoned without amounting to an amendment:

(1) allegations of one or more alternative means of committing the alleged offense, (2) allegations

of a greater offense than remains in the indictment, and (3) surplusage. Id. at 133–35.

               In this case, the State asserts that the language identifying the court number was

merely surplusage, and thus its deletion did not constitute an amendment under article 28.10. See

Eastep, 941 S.W.2d at 135. “Surplusage is unnecessary language not legally essential to constitute

the offense alleged in the charging instrument.” Id. Courts have held that, because it is not

necessary to allege enhancement convictions with the same particularity as a charged offense,

language identifying the particular court or date of a defendant’s previous conviction is surplusage.

See Williams v. State, 356 S.W.3d 508, 517 (Tex. App.—Texarkana 2011, pet. ref’d) (concluding

exact date of prior conviction is surplusage); Chavis v. State, 177 S.W.3d 308, 311–12

(Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (concluding exact court number of prior conviction

is surplusage). Thus, the State may abandon surplusage language which misstates specific facts, as

long as the indictment provides adequate notice of the previous conviction that is being alleged. See

Williams, 356 S.W.3d at 517; Chavis, 177 S.W.3d at 312.

               The indictment in this case correctly lists the offenses, cause numbers, and

dates of Barron’s previous convictions for assault involving family violence. Therefore, the

language identifying the court number for these convictions was surplusage, and the State could

properly abandon that language without impermissibly amending the indictment within the

meaning of the criminal code. See Tex. Code Crim. Proc. art. 24.10; Eastep, 941 S.W.2d at 135.


Crim. App. Unpub. LEXIS 899, at *4 n.4 (Tex. Crim. App. Sept. 12, 2012) (not designated for
publication).

                                                 14
The trial court did not err by allowing the State to delete the court number from the enhancement

portion of the indictment.


No error in omission of instruction on lesser-included offense

                In his sixth issue, Barron asserts that the trial court erred in denying his request

to instruct the jury on the lesser-included offense of misdemeanor assault. See Tex. Penal Code

§ 22.01(b) (classifying assault as Class A misdemeanor unless committed against certain victims in

certain circumstances). Barron claims that because the indictment originally alleged the wrong court

number for the previous-offense allegations, the jury could have concluded that the enhancement

paragraphs were “not true” and thus Barron was guilty only of misdemeanor assault. See id.

§ 22.01(b-1)(2) (enhancing assault to second-degree felony when defendant has been previously

convicted of family violence).

                We review a trial court’s ruling on a request for a lesser-included offense instruction

for an abuse of discretion. See Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004).

In order to show that he was entitled to a lesser-included offense instruction, Barron must satisfy the

two-prong Aguilar/Rousseau test. See Hall v. State, 158 S.W.3d 470, 473 (Tex. Crim. App. 2005);

see also Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993); Aguilar v. State,

682 S.W.2d 556, 558 (Tex. Crim. App. 1985). The first prong requires the court to determine

whether the lesser offense actually is a lesser-included offense of the offense charged. Hall,

158 S.W.3d at 473 (citing Tex. Code Crim. Proc. art. 37.09).4 The second prong asks whether the


       4
           An offense is a lesser included offense if:

       (1) it is established by proof of the same or less than all the facts required to establish the
       commission of the offense charged;

                                                  15
record contains some evidence that would permit a rational jury to find that the defendant is guilty

only of the lesser-included offense. Id.

                Misdemeanor assault is a lesser-included offense of assault on a family member,5

but Barron cannot show that there is more than a scintilla of evidence that would support a jury

reasonably convicting him of assault, but finding that the State had failed to prove that he had been

previously convicted of an offense involving family violence. See Goad v. State, 354 S.W.3d 443,

446–47 (Tex. Crim. App. 2011). Barron asserts that the jury could have noticed the variance

between the allegation in the indictment that two of his convictions arose from County Court at Law

#4 and the certified copies of conviction showing that he was convicted in County Court at Law #7

and reasonably could have found that he had not been previously convicted of an offense involving

family violence, and thus he was only guilty of misdemeanor assault. We are not persuaded by his

argument. The State abandoned the surplusage in the indictment before jury deliberations and the

jury instruction did not reference the court numbers of Barron’s previous assault convictions.

Further, the indictment alleged that Barron had been previously convicted of felony assault, and the

court, cause number, and date of that conviction all matched those in the certified copy of judgment.




       (2) it differs from the offense charged only in the respect that a less serious injury or risk of
       injury to the same person, property, or public interest suffices to establish its commission;

       (3) it differs from the offense charged only in the respect that a less culpable mental state
       suffices to establish its commission; or

       (4) it consists of an attempt to commit the offense charged or an otherwise included offense.

Tex. Code Crim. Proc. art. 37.09.
       5
           See Tex. Code Crim. Proc. art. 37.09(1); see also Tex. Penal Code § 22.01(b).

                                                  16
                 The record does not contain more than a scintilla of evidence from which a jury

reasonably could have believed that Barron had not been convicted of a previous offense involving

family violence. Thus, Barron has failed to establish that he was entitled to an instruction on the

lesser-included offense of misdemeanor assault, and the trial court did not abuse its discretion in

denying Barron’s request for a lesser-included-offense instruction. Barron’s sixth issue is overruled.


                                          CONCLUSION

                 Having sustained Barron’s first issue, we reverse and dismiss the judgment of

conviction and the punishment assessed for Count I. We affirm all other aspects of the judgment

of conviction.



                                               __________________________________________

                                               Jeff Rose, Justice

Before Justices Puryear, Henson, and Rose;
  Justice Henson not participating

Affirmed in part; Reversed and Dismissed in part

Filed: July 26, 2013

Do Not Publish




                                                 17
