                                                                            PD-0272-15
                                                           COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                        Transmitted 4/13/2015 11:09:13 AM
                                                           Accepted 4/15/2015 4:35:10 PM
                                                                             ABEL ACOSTA
                              No. PD-0272-15                                         CLERK


                                  IN THE
   TEXAS COURT OF CRIMINAL APPEALS
                          AUSTIN, TEXAS
__________________________________________________________________

                      GARY VISE, APPELLANT/PETITIONER

                                    V.

                STATE OF TEXAS, APPELLEE/RESPONDENT.


ON APPELLEE’S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT
                 OF APPEALS CAUSE NO. 04-14-00077-CR


    TRIED IN THE 186TH JUDICIAL DISTRICT COURT, BEXAR COUNTY, TEXAS
                      TRIAL CAUSE NO. 2012-CR-9391
__________________________________________________________________

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
__________________________________________________________________


                                  DAYNA L. JONES
                                  Bar No. 24049450
                                  LAW OFFICE OF DAYNA L. JONES
                                  1800 McCullough Avenue
                                  San Antonio, Texas 78212
     April 15, 2015
                                  (210) 255-8525
                                  (210) 223-3248 – FAX
                                  DAYNAJ33@GMAIL.COM


                                  ORAL ARGUMENT REQUESTED




                                     i
                   IDENTITY OF PARTIES AND COUNSEL

TRIAL JUDGE:
Honorable Maria Teresa Herr, 186th District Court

FOR THE STATE OF TEXAS:
Karl Alexander – Counsel at trial
Bar No. 24036122
Jennifer McDaniel – Counsel at trial
Bar No. 24073196
Laura Durbin – Counsel on Appeal
Bar No. 24068556
Assistant District Attorneys
101 W. Nueva, 7th floor
San Antonio, Texas 78205
PHONE: 210-335-2311

APPELLANT/PETITIONER’S COUNSEL:

Kristin Dow – Counsel at Trial
Bar No. 24012548
214 Dwyer, Suite 302
San Antonio, TX 78204

Robert Porter – Counsel at Trial
Bar No. 24073196
115 E. Travis Street, Suite 746
San Antonio, Texas 78205

Dayna L. Jones – Counsel on appeal
Bar No. 24049450
LAW OFFICE OF DAYNA L. JONES
206 E. Locust Street
San Antonio, Texas 78212
PHONE: 210-255-8525
Daynaj33@gmail.com

FOURTH COURT OF APPEALS PANEL:
Justice Marialyn Barnard – Authored the opinion


                                       i
Chief Justice Sandee Bryan Marion
Justice Luz Elena D. Chapa
                                          TABLE OF CONTENTS


Parties to the Case .......................................................................................................i

Table of Authorities ..................................................................................................iv

Request for Oral Argument ........................................................................................ 1

Statement of the Case................................................................................................. 1

Statement of Procedural History ................................................................................ 2

Grounds for Review ................................................................................................... 2

Argument and Authorities.......................................................................................... 3

Prayer for Relief ....................................................................................................... 13

Certificate of Service ............................................................................................... 13

Certificate of Compliance ........................................................................................ 14

Appendix ..................................................................................................................15




                                                             iii
                                        TABLE OF AUTHORITIES
Cases:
Boykin v. State, 818 S.W.2d 782 ................................................................................ 3
Butcher v. State, -- SW.3d--. 2015 WL 359087 (Tex.Crim.App.2015) ................ 3,6
Carrasco v. State, 2012 WL 1174742 (Tex.App.-Amarillo, 2012) .................... 5, 11
Everhart v. State, --S.W.3d--, 2012 WL 2928581 (Tex. App.—Houston, 2012) .... 9
Frizzell v. State, --S.W.3d--, 2012 WL 5504009 (Tex. App.—Dallas 2012) ........... 9
Harrison v. State, --S.W.3d --, 2012 WL 1813519 (Tex. App.—Texarkana, 2012) 8
Patrick Marshall v. State, PD-0509-14 and PD-0510-14 (PDR granted on Sept. 24,
2014) ......................................................................................................................... 8
Pratt v. State, --S.W.3d--, 2013 WL 5675118 (Tex. App.—Ft. Worth, 2013) ........ 8
Price v. State, --S.W.3d—2014 WL 813808 (Tex. App.—Waco, 2014) ................. 8
Ramos, 303 S.W.3d at 307 ......................................................................................... 3
Shipp v. State, 331 S.W.3d 433 (Tex.Crim.App., 2011) ........................................... 3
Vise v. State, No. 04-14-00077-CR (Tex. App. –San Antonio, Feb. 11, 2015) .... 2, 5


Rules:
Texas House Bill 2066 ............................................................................................... 6
Texas Penal Code §22.01 ........................................................................................... 1
Texas Penal Code § 22.01 (a)(1) ........................................................................... 1-3
Texas Penal Code §22.01(b)(2)(B) ......................................................... 1- 3, 7-8, 10
TEX. GOV'T CODE ANN. § 311.011 ...................................................................... 3
Texas Rules of Appellate Procedure 68.4(d) ............................................................ 1
Texas Rule of Appellate Procedure 9.3(i)(1) and (3) ............................................. 14




                                                               iv
              STATEMENT REGARDING ORAL ARGUMENT

      Because the issue raised in this brief presents a novel issue that has not been

decided by this Court and because it involves interpretation of a Texas Penal Code

§22.01, oral argument will be helpful and is requested pursuant to Rule 68.4(d) of

the Texas Rules of Appellate Procedure.

                          STATEMENT OF THE CASE

      Petitioner was tried and convicted of the felony offense of Assault Family

Violence by Strangulation in the 186th Judicial District Court in Bexar County,

Texas. The jury assessed punishment at three (3) years probation. A Motion for New

Trial was filed on November 22, 2013, but was denied. Appellant filed Notice of

Appeal on January 31, 2014 and his conviction was affirmed on February 11, 2015.

Petitioner complained on appeal that the evidence that the complainant, who

screamed, talked and was able to breath with just a little difficulty during the entire

incident, was insufficient to satisfy the elements of Texas Penal Code § 22.01 (a)(1)

and (b)(2)(B) “impeding” the normal breathing or circulation of blood. In two other

grounds, Petitioner complained that the trial court erred in instructing the jury on the

doctrine of provocation because the evidence was insufficient and that Petitioner

was entitled to a new trial because portions of the reporter’s record was missing.




                                           1
      This petition challenges the appellate courts definition of the term “impede”,

its failure to address the legislative intent being this section of the penal code, as well

as the sufficiency of the evidence.

                  STATEMENT OF PROCEDURAL HISTORY

      On February 11, 2015 the court of appeals affirmed the conviction in an

unpublished opinion attached in the Appendix. Vise v. State, No. 04-14-00077-CR

(Tex. App. –San Antonio, Feb. 11, 2015). The appellate court found that the

evidence was sufficient to support the conviction and denied his other points of error

as well. Petitioner did not request rehearing from the Fourth Court of Appeals.

                             GROUNDS FOR REVIEW

ISSUE ONE: The Court of Appeals erred in finding the evidence was sufficient to
support a conviction for family violence assault by strangulation because the
evidence failed to show that Petitioner “impeded” the complainant’s normal
breathing.

ISSUE TWO: In defining the word “impede”, the Court of Appeals decided an
important issue concerning state law that has not, but should be, settled by the Court
of Criminal Appeals.

ISSUE THREE: Because the term “impede” is subject to differing definitions, the
Court of Appeals erred by not addressing the legislature’s intent in passing Texas
Penal Code § 22.01 (a)(1) and (b)(2)(B) when defining the word “impede” in
Petitioner’s case.

ISSUE FOUR: The Court of Appeals misconstrued the Legislature’s intent of §
22.01 (a)(1) and (b)(2)(B) of the Texas Penal Code.

ISSUE FIVE: The Court of Appeals’ conclusion that “a rational jury could
reasonably infer Vise applied enough pressure to make it difficult for Cherry to
breathe normally” is not supported by the evidence.

                                            2
                      ARGUMENT AND AUTHORITIES
                    (Issues One – Five are Briefed Together)

      The offense of family violence assault by strangulation required the state to

prove that Petitioner “intentionally, knowingly or recklessly caused bodily

injury…by intentionally, knowingly or recklessly impeding the normal breathing or

circulation of the blood of [Donna Cherry] by applying pressure to [her] throat or

neck…” Tex. Penal Code §22.01(a)(1) and (b)(2)(B); 4RR20.

      The word “impeding” is not defined in the penal code and therefore its plain

meaning or common understanding is used. See Shipp v. State, 331 S.W.3d 433,

441 (Tex.Crim.App.,2011) [“When a statutory term is not defined, we attempt

to give effect to its plain meaning or common understanding. Ramos, 303 S.W.3d at

307; Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). The term is

generally construed in context as the rules of grammar and common usage allow and

utilizing the rules of statutory construction, unless it has acquired a technical or

specialized meaning. TEX. GOV'T CODE ANN. § 311.011; Boykin, 818 S.W.2d at

785 n. 3.”].

      However, as this Court recently held, when a word is not specifically defined

by statute and is susceptible to different meanings, “we must look to

the   legislative   history   and   extra-textual   sources   to   determine    the

legislative intent behind the” word. Butcher v. State, -- SW.3d--. 2015 WL 359087,

10 (Tex.Crim.App.2015)[“The term ‘safe place’ is not defined in the statute.

                                         3
Because the term is not defined and because it is susceptible to different meanings,

we must look to the legislative history and extra-textual sources to determine the

legislative intent behind the safe-release affirmative defense.”]

      Varying dictionary sources define the term impede differently. For example,

Black’s Law Dictionary defines “impede” as “to obstruct; hinder; check; delay.”

Black’s Law Dictionary 753 (6th ed. 1990). Black’s also defines “obstruct” as “to

hinder or prevent from progress, check, stop, also to retard the progress of, make

accomplishment of difficult and slow…To block up; to interpose obstacles; to render

impassable; to fill with barriers or impediments, as to obstruct a road or way. To

impede; to interpose impediments to the hindrance or frustration of some act or

service, as to obstruct an officer in the execution of his duty.” Black’s Law

Dictionary 1077 (6th ed. 1990).

       But, according to Merriam-Webster’s Online Dictionary, impede is “to slow

the movement, progress, or action of (someone or something)” or “to interfere with

or slow the progress of.” See Merriam-Webster Online Dictionary, available at

http://www.merriam-webster.com/dictionary/impede?show=0&t=1400520920 (last

visited May 19, 2014).

      Also, according to the Oxford Desk Dictionary and Thesaurus, impede is to

“retard by obstructing; hinder.” Oxford Desk Dictionary and Thesaurus, 390 (Amer.

ed. 1997). Synonyms used in the Oxford Desk Dictionary and Thesaurus for impede



                                          4
are “obstruct, bar, block, thwart, check, hinder, balk.” Id. All of the dictionary

definitions and synonyms from various sources for the word “impede” explain that

there is some sort of stop, block or obstruction that, at a minimum, slows the progress

of a particular action.1

       The Court of Appeals relied solely on one dictionary definition of impede and

held that the “verb impede suggests performing an act that interferes with or hinders

something. See MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 623 (11th ed.

2003).” Vise v. State, No. 04-14-00077-CR, Op. at p. 5. The Court of Appeals even

noted that “[w]hen used in this context, the verb impede suggests applying pressure

to a person’s throat or neck or blocking a person’s nose or mouth to such an extent

it interferes or hinders his or her ability to breathe or circulate blood normally.” Id.

The Court of Appeals relied on this definition from Carrasco v. State, 2012 WL

1174742, 3 (Tex.App.-Amarillo,2012). [“The idea of impeding connotes

interference    or    hindrance.     See    MERRIAM–WEBSTER'S                 COLLEGIATE

DICTIONARYY 623 (11th ed.2003) (so defining the word).”]

       However, in Carrasco, the court relied on the complainant’s “statement that

she was able to breath for a ‘majority’ of the time” as “some evidence that the




1
 During closing, the Sate argued impede required that air or blood was restricted: “What he has
to do is put enough pressure on her throat to restrict her air flow, to restrict the blood flow.”
5RR101.


                                               5
pressure applied by appellant to her throat obstructed or hindered her breathing at

one point, though not throughout the choking episode.” Carrasco at *3.

       Because the differing definitions of impede range from obstruction, stop or

block to interference or hinder, the term is susceptible to differing meanings and the

Court of Appeals was required to turn to the “legislative history and extra-textual

sources to determine the legislative intent behind the” word. Butcher at *10.

                       Legislative History and Extra-Judicial Sources

       Texas House Bill 2066 amended Texas Penal Code §22.01 to add the felony

offense of assault family violence by strangulation2. Analyzing the Legislature’s

intent behind passing HB 2066, it is clear that the legislature intended to increase the

penalties for domestic violence cases involving “strangulation or suffocation.” See

H.B. 2066, 2009 81st Leg., R.S. (Tx. 2009); See also House Comm. On Criminal

Jurisprudence Report, Bill Analysis, Tex. H.B. 2066, 81 st Leg., R.S.. (2009); See

also Senate Comm. On Criminal Justice, Bill Analysis, Tex,. C.S.H.B. 2066, 81 st

Leg., R.S.. (2009). Throughout the analysis of H.B. 2066, the Legislature repeatedly

referred to the need of this bill to make cases of “strangulation or suffocation” a




2
 An article on the Texas District and County Attorney’s Association website explains the clinical
definition of “strangulation”: “… strangulation is clinically defined as a lack of oxygen
characterized by closure of the blood vessels and/or air passages of the neck as a result of
external pressure on the neck.” Wilbanks, Shelly, “The police report says he choked her—how
do I prove it?” available at http://www.tdcaa.com/node/5749 (last visited May 27, 2014). Thus,
according to this article, strangulation cases require a lack of oxygen.


                                               6
felony offense. Id. The acts of strangling and suffocating entail either killing

someone by blocking their air or depriving someone of air. See Merriam-Webster

Online          Dictionary,          available          at          http://www.merriam-

webster.com/dictionary/suffocate (last visited May 12, 2014) [“Suffocate: a (1) : to

stop the respiration of (as by strangling or asphyxiation) (2) : to deprive of oxygen

b : to make uncomfortable by want of fresh air”]; See also Merriam-Webster Online

Dictionary, available at http://www.merriam-webster.com/dictionary/strangle (last

visited May 12, 2014) [“Strangle: a : to choke to death by compressing the throat

with something (as a hand or rope) : b : to obstruct seriously or fatally the normal

breathing of.”].

       Looking at the Texas Legislature’s intent behind Texas Penal Code

§22.01(b)(2)(B), it is clear that the legislature was seeking to criminalize

“strangulation” or “suffocation” under this section, thus in determining how the term

“impede” should be used in this Penal Code section, there must be some sort of

stopping, serious obstruction or deprivation of oxygen. Thus, when a complainant

states that it was just a “little bit” difficult to breath, the testimony is not sufficient

to support the legislature’s intent when drafting this section of the penal code. By

the Court of Appeals analysis and holding, any slight amount of pressure, even a

finger (which placed over someone’s throat makes it uncomfortable to breath




                                             7
normal), can alter someone’s normal breathing and would constitute felony

strangulation.

       Few courts throughout Texas have discussed the issue of what constitutes

“impeding normal breathing or circulation of the blood”. Currently pending before

this Court is Patrick Marshall v. State, PD-0509-14 and PD-0510-14 (PDR granted

on Sept. 24, 2014). One issue in that case asks this Court to determine whether the

evidence was sufficient to support impeding the normal breathing where the

Petitioner put a pillow over the complainant’s face an she had difficulty taking deep

breaths. Thus, it is clear that there is little guidance on this issue from appellate courts

and this Court must provide guidance for lower courts on how to interpret the term

impede.

       The majority of Appellate Courts that have reviewed cases involving Texas

Penal Code §22.01(b)(2)(B) all centered around the victim not being able to breath.

See Harrison v. State, --S.W.3d --, 2012 WL 1813519 (Tex. App.—Texarkana,

2012)[Complainant testified that Appellant “put his hands around her neck and that

she could not breathe.”]; Price v. State, --S.W.3d—2014 WL 813808 (Tex. App.—

Waco, 2014)[Complainant testified that Appellant “grabbed her by the throat so that

she could not breathe.”]; Pratt v. State, --S.W.3d--, 2013 WL 5675118 (Tex. App.—

Ft. Worth, 2013)[The victim was observed to have redness and abrasions around her

face and neck and victim testified that Appellant put his hands around her neck,



                                             8
started to squeeze her throat and that she could not breathe. Complainant was able

to get free but then he choked her again, she could not breathe for 15-20 seconds,

and she could not speak during this time. He then choked her a third time but she

was able to break free to call for help.”]; Frizzell v. State, --S.W.3d--, 2012 WL

5504009 (Tex. App.—Dallas 2012)[Victim was strangled until she lost

consciousness, she then regained consciousness and Frizzell strangled her again.

The complainant had red marks around her neck and broken blood vessels around

her eyes.”]; Everhart v. State, --S.W.3d--, 2012 WL 2928581 (Tex. App.—Houston,

2012)[Everhart lifted the complainant up off the ground by her throat and choked

her until she lost consciousness. Officers witnessed her neck, eyes, head and lips

were bruised and swollen].

                  Normal Breathing Was Not Impeded in this Case

       Donna Cherry testified that Appellant was applying pressure to her neck, but

when asked “Was it difficult to breathe?” she responded “Little – a little bit, yes.”

4RR43. When asked whether she was able to scream to her full volume, she

responded “No…Because his hands were impeding that process.” Id. However,

Donna testified that she did yell loud enough to wake up the neighbor.3 4RR43-44.


3
 No medical testimony was presented during the case, however, it is important to note that in
order to talk or scream, air passing through a person’s airway is necessary. ”Air is crucial to voice
production. It is the flow of air through the various constrictions in the vocal tract that generates
sound, and air is also the medium which transmits that sound to our ears.” See “Lung Pressure
and         Power:          a         Potpourri        of        Topics”,         available        at


                                                 9
She also was able to speak and communicate to Appellant during the incident.

4RR44. Donna, at all times, was able to breath throughout the incident, had minimal

redness on her neck that was only noticeable in a lot of light, and she was able to

scream and talk throughout the incident. It is important to emphasize that the only

thing she stated was impeded was her ability to scream at full volume. 4RR43.

       Furthermore, on cross-examination, Officer Martinez was asked whether it

made sense “if someone can’t breathe, they can still scream?” and he replied: “If

they can’t breathe they can’t scream, no, sir.” 5RR28.

       There is no evidence in Petitioner’s case that Donna’s normal breathing was

ever hindered, obstructed, restricted or impeded in any way that satisfies the Texas

§22.01(b)(2)(B) or the Legislature’s intent behind this law. Donna was able to

breathe normally throughout the entire incident with, according to her, only a little

bit of difficulty. This testimony does not amount to her normal breathing being

interfered with or hindered as required by the Penal Code’s term of “impeding.” The

incident also does not rise to level of “strangulation” or “suffocation” as the

Legislature intended when passing this bill.




http://www.ncvs.org/ncvs/tutorials/voiceprod/tutorial/lung.html, last visited May 20, 2014.
(www.nvcs.org is the website for the National Center for Voice and Speech. According the site’s
homepage, “The NCVS is a multi-site research and teaching organization dedicated to studying
the characteristics, limitations and enhancements of human voice and speech.” Id.)


                                              10
      Finally, Donna’s testimony that she could not scream to her full potential

because Appellant’s hands were “impeding” does not satisfy an element of the

offense. 4RR43. Impeding someone’s ability to scream is not relevant to impeding

someone’s normal breathing.

      Viewing the evidence in the light most favorable to the verdict, the evidence

was insufficient to support Petitioner’s conviction for impeding the normal

breathing. There was no evidence that Donna was ever without oxygen and she was

to take normal breaths, with only minimal difficulty, throughout the entire incident.

                 Normal Circulation of Blood Was Not Impeded

      Furthermore, there was no testimony or evidence that the normal circulation

of her blood was impeded nor was there any medical testimony, like there was in

Carrasco, to explain that any blood circulation was impeded. Culp testified that

Donna had a little bit of redness on her neck but you could not see it without a lot of

light. 4RR106. There was no bruising around her neck. Culp checked her airway

with a pen light to see if there was anything cut or swollen, but her throat was fine

and there was no obstructions or permanent damage or anything. 4RR108. Donna

did not have any trouble breathing. 4RR106-107. Culp also testified that she was

not feeling dizzy or lightheaded either. 4RR107. Culp reiterated that there was just

a little bit of redness. Id. Donna did complain of feeling pain like she had been




                                          11
intubated, however, there was no evidence presented that this feeling resulted from

her normal breathing or blood circulation being impeded.

      Culp recommended that she go see a doctor or go to the emergency room, but

Donna declined. 4RR108. There were no issues with her airway or with her

circulation. 4RR112-113. There were no issues with her trachea. 4RR118. Aside

from very light redness, her throat had no signs of trauma and there was no swelling.

4RR119.

      There was no testimony that any redness around her throat was a result of her

normal blood circulation being impeded. In fact, there was no testimony regarding

Donna’s blood circulation being impeded at all due to Appellant’s hands applying

pressure on her neck. In fact, Culp testified that he checked her circulation which

did not present any issues. 4RR113.

      There was no evidence that Appellant impeded to the normal circulation of

Donna Cherry’s blood and therefore the evidence is insufficient to support the

conviction.

                                 CONCLUSION

      It is necessary for this Court to provide guidance and direction to lower courts

and attorneys in Texas to ensure that the legislature’s intent behind the family

violence by strangulation statute is being applied consistently throughout Texas.




                                         12
Guidance by this Court will also ensure that Texas is not convicting men and women

of felonies when the evidence does not support it.

                                 PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, the Petitioner prays this Court

grant this Petition for Discretionary Review, reverse the Fourth Court of Appeals’

opinion affirming the conviction and remand Petitioner’s case for a new trial or

reverse and enter a judgment of acquittal because the evidence was legally

insufficient to support his conviction.

                                          Respectfully submitted:

                                          __/s/Dayna L. Jones_______
                                          Dayna L. Jones
                                          Bar No. 24049450
                                          LAW OFFICE OF DAYNA L. JONES
                                          1800 McCullough Avenue
                                          San Antonio, Texas 78212
                                          (210)-255-8525– office
                                          (210)-223-3248—fax
                                          Daynaj33@gmail.com

                         CERTIFICATE OF SERVICE
      I hereby certify that a true and correct copy of the foregoing document was

sent via U.S. Mail to the Bexar County District Attorney’s Office located at 101 W.

Nueva, San Antonio, TX 78205 and to the State Prosecuting attorney located at P.O.

Box 13046 Austin, Texas 78711-3046 on April 12, 2015.

                                          __/s/Dayna L. Jones_____
                                          DAYNA L. JONES


                                            13
                     CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.3(i)(1) and (3), I certify

that, according to Microsoft Word’s word count, this document contains 3,070

words.

                                      __/s/Dayna L. Jones_____
                                      DAYNA L. JONES




                                        14
APPENDIX




   15
                              Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION
                                        No. 04-14-00077-CR

                                             Gary VISE,
                                              Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the 186th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012-CR-9391
                           Honorable Maria Teresa Herr, Judge Presiding

Opinion by:      Marialyn Barnard, Justice

Sitting:         Sandee Bryan Marion, Chief Justice
                 Marialyn Barnard, Justice
                 Luz Elena D. Chapa, Justice

Delivered and Filed: February 11, 2015

AFFIRMED

           A jury found appellant Gary Vise guilty of the offense of assault–family violence by

strangulation. Based on the jury’s recommendation, the trial court sentenced Vise to three years’

confinement, but probated the sentence and placed Vise on community supervision for three years.

On appeal, Vise contends: (1) the evidence is insufficient to support his conviction; (2) the trial

court erred by instructing the jury on the doctrine of provocation because the evidence is

insufficient to support it; and (3) he is entitled to a new trial because portions of the reporter’s

record are missing. We affirm.
                                                                                      04-14-00077-CR


                                          BACKGROUND

       Vise was indicted for assault–family violence by choking or strangulation on November

14, 2012. At trial, Officer Hale Poloa testified he responded to a family disturbance call that led

him to the home of Vise and Donna Cherry. Officer Poloa stated that when he arrived, Vise was

standing in the front yard. The officer placed Vise in handcuffs to detain him. Shortly thereafter,

Sergeant Gilberto Martinez arrived. At trial, Sergeant Martinez testified he spoke to Cherry and

observed redness on her neck as if someone grabbed it and held it long enough to leave a skin

burn. He testified that after he observed Cherry’s injuries, an EMT technician, Colin Culp, from

the Converse Fire Department examined Cherry. According to Culp, Cherry’s throat did not

sustain any permanent injury, but there were red marks on her neck. Culp testified he advised

Cherry to seek medical attention if she continued to have breathing problems.

       Cherry testified she and Vise were living together as boyfriend and girlfriend. One

evening, after doing yard work all day, they, along with her son, sat down together for dinner.

Cherry testified Vise seemed moody and snapped at her son after he spilled milk during dinner.

Cherry testified that after dinner, she cleared the table and took her son to the spare room to watch

movies. Cherry stated she and Vise began drinking alcohol, but she stopped after sensing tension

from Vise. She testified she repeatedly asked him what was wrong, but her questions seemed to

make him more agitated. At that point, Cherry checked on her son and told him to turn up the

volume and not to open the door for anyone except her or the police.

       According to Cherry, when she returned from checking on her son, Vise was outside the

house. She went outside and asked him why he was upset. Cherry testified their discussion

became heated and she felt threatened by Vise. She stated she told Vise to stop threatening her

and then “popped” a glass bottle at him. The bottle broke against his chest, and Vise reacted by

throwing his beer bottle on the ground, lifting Cherry up by her arms, and throwing her to the
                                                -2-
                                                                                       04-14-00077-CR


ground. Cherry stated that once she was on the ground, Vise “straddled” her and placed his hands

around her throat. Cherry testified Vise applied pressure to her neck and made it “a little bit”

difficult to breathe. Unable to move, she screamed but was unable to achieve full volume because

Vise’s hands were around her throat. At that moment, a neighbor’s back light came on, and Vise

released Cherry. Cherry testified he left the house and she called a friend and 911.

       At the close of trial, defense counsel requested an instruction on self-defense, and the State

requested an instruction on provocation. The trial court granted both requests. Ultimately, a jury

found Vise guilty of the felony offense of assault–family violence by strangulation. Vise was

sentenced to three years’ confinement, probated. Thereafter, Vise perfected this appeal.

                                             ANALYSIS

       As noted above, Vise raises three complaints on appeal. First, he contends the evidence is

insufficient to support his conviction. He also asserts the trial court erred when it instructed the

jury on the doctrine of provocation because according to Vise, the evidence is insufficient to

support a provocation instruction. Finally, Vise claims he is entitled to a new trial because portions

of the reporter’s record are missing.

                                         Legal Sufficiency

       In his first issue, Vise claims the evidence is insufficient to prove he committed the offense

of assault–family violence by strangulation.       Specifically, Vise argues Cherry’s testimony

regarding her ability to breathe, combined with her admission that she could scream for help,

rendered the evidence insufficient to prove her normal breathing or blood circulation was impeded

during their confrontation.

                                        Standard of Review

       In reviewing a challenge to the sufficiency of the evidence to support a criminal conviction,

we use the standard set out by the Supreme Court in Jackson v. Virginia. Brooks v. State, 323
                                                 -3-
                                                                                   04-14-00077-CR


S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979));

Mayberry v. State, 351 S.W.3d 507, 509 (Tex. App.—San Antonio 2011, pet. ref’d). Under this

standard, we examine all the evidence in the light most favorable to the verdict to determine

whether any rational jury could have found the essential elements of the offense beyond a

reasonable doubt. Orellana v. State, 381 S.W.3d 645, 652–53 (Tex. App.—San Antonio 2012,

pet. ref’d) (quoting Mayberry, 351 S.W.3d at 509). Under this standard, the jury maintains full

responsibility of resolving conflicts in the testimony, weighing the evidence, and drawing

reasonable inferences from basic facts to ultimate facts. Orellana, 381 S.W.3d at 653 (quoting

Jackson, 443 U.S. at 319).

       Accordingly, we must defer to the jury’s weighing of the evidence, resolution of conflicts

in the testimony, and assessment of credibility. Brooks, 323 S.W.3d at 899; Orellana, 381 S.W.3d

at 653 (citing Jackson, 443 U.S. at 319). We must resolve any inconsistencies in favor of the

verdict. Gonzales v. State, 330 S.W.3d 691, 694 (Tex. App.—San Antonio 2010, no pet.) (citing

Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)). We must also remain mindful that

we cannot reweigh the evidence or substitute our judgment for that of the jury. Orellana, 381

S.W.3d at 653 (citing King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000)). The jury is the

exclusive judge of the credibility of witnesses and the weight to be given to their testimony, and

the jury may accept or reject all or any portion of a witness’s testimony. Orellana, 381 S.W.3d at

653 (citing Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008)).

                                           Application

       As noted, the jury convicted Vise of the felony offense of assault–family violence by

strangulation. To obtain a conviction for this offense, the State must prove beyond a reasonable

doubt that the accused “intentionally, knowingly, or recklessly caused bodily injury . . . by

intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood
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of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose

or mouth.” TEX. PENAL CODE ANN. § 22.01(b)(2)(B) (West 2011) (emphasis added). The verb

“impede” is not defined in the Penal Code, and therefore, we must determine its plain meaning

under the statute. Clinton v. State, 354 S.W.3d 795, 800 (Tex. Crim. App. 2011) (“When analyzing

the sufficiency of the evidence, undefined statutory terms ‘are to be understood as ordinary usage

allows, and jurors may thus freely read statutory language to have any meaning which is acceptable

in common parlance.’”); see Shipp v. State, 331 S.W.3d 433, 441 (Tex. Crim. App. 2011). When

determining the meaning of an undefined term in a statute, we may consult standard dictionaries.

Clinton, 354 S.W.3d at 800.

       The verb impede suggests performing an act that interferes with or hinders something. See

MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 623 (11th ed. 2003). When used in this context,

the verb impede suggests applying pressure to a person’s throat or neck or blocking a person’s

nose or mouth to such an extent it interferes or hinders his or her ability to breathe or circulate

blood normally. See TEX. PENAL CODE ANN. § 22.01(b)(2)(B). Now, we must look to the evidence

to see whether any rational jury could have found Vise applied pressure to Cherry’s throat such

that he interfered with or hindered her ability to breathe normally. See Orellana, 381 S.W.3d at

652–53.

       According to Vise, the evidence is insufficient to prove he impeded Cherry’s ability to

breathe normally because she testified she had little difficulty breathing and could scream loud

enough to call for help.      Vise’s argument, however, implies Cherry’s breathing had to be

completely cut off for it to be “impeded” under the statute. We disagree based on the plain meaning

of the term. The statute does not require a victim to be completely unable to breathe. Rather, a

victim’s breath or blood circulation need only be hindered or interfered with. Here, Cherry

testified both of Vise’s hands were applying pressure around her neck, and it was “a little bit”
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difficult for her to breathe and she could not scream fully because “his hands were impeding that

process.” On cross examination, Cherry added that Vise wrapped his hands around her neck long

enough to hurt her. Accordingly, we hold Cherry’s testimony is some evidence that the pressure

applied by Vise to her throat interfered with or hindered her normal breathing.

       In addition to Cherry’s testimony, the jury heard testimony from Culp, the EMT technician,

who testified Cherry exhibited redness around her throat. Moreover, Sergeant Martinez testified

the front of Cherry’s neck was red and you could tell someone grabbed her and held her neck long

enough to leave a skin burn. Accordingly, we hold a rational jury could reasonably infer Vise

applied enough pressure to make it difficult for Cherry to breathe normally. When viewed in the

light most favorable to the verdict, we hold the cumulative force of all the evidence is sufficient to

support the conviction.

                                            Jury Charge

       In his next issue on appeal, Vise contends the trial court reversibly erred by instructing the

jury on the doctrine of provocation. According to Vise, the evidence is insufficient to support the

instruction because there was no evidence Vise did any act or used any words that provoked an

attack by Cherry.

                                        Standard of Review

       We follow a two-step process when analyzing jury charge issues on appeal. Ngo v. State,

175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Cornett v. State, 405 S.W.3d 752, 757 (Tex. App.—

Houston [1st Dist.] 2013, pet. ref’d.). First, we must determine whether error exists, and second,

if we determine error exists, then we must determine whether the error caused sufficient harm to

warrant a reversal. Ngo, 175 S.W.3d at 743; Cornett, 405 S.W.3d at 757. The amount of harm

necessary to warrant a reversal depends on whether the appellant objected to the jury charge. Ngo,

175 S.W.3d at 743 (“Preservation of charge error does not become an issue until we assess harm.”).
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Under the well-recognized Almanza standard, if the appellant objected to the complained of

portion of the jury charge, then he need only show he suffered some harm as a result of the error

to obtain a reversal. Ngo, 175 S.W.3d at 743 (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1984)). On the other hand, if the appellant failed to object to the complained of portion

of the charge, then he must show he suffered egregious harm to be entitled to a reversal. Id.

Accordingly, we will first address whether any error in the charge existed.

                                                   Application

        A jury instruction on the doctrine of provocation restricts a defendant’s right to claim self-

defense. 1 Smith v. State, 965 S.W.2d 509, 512 (Tex. Crim. App. 1998); Kennedy v. State, 193

S.W.3d 645, 654 (Tex. App.—Fort Worth 2006, pet. ref’d.). The instruction is required when: (1)

the evidence is sufficient to show the defendant performed some act or said some words that

provoked the attack on him, (2) the act or words were reasonably calculated to provoke the attack,

and (3) the act was performed or the words were said for the purpose and with the intent that the

defendant would have a pretext for inflicting harm on the other person. Smith, 965 S.W.2d at 513;

Harrod v. State, 203 S.W.3d 622, 628 (Tex. App.—Dallas 2006, no pet.). Each of these required

elements are questions of fact and may be proved by circumstantial evidence. Smith, 965 S.W.2d

at 513; Harrod, 203 S.W.3d at 628; Fink v. State, 97 S.W.3d 739, 742 (Tex. App.—Austin 2003,

pet. ref’d.). Under this analysis, we must determine whether, viewing the evidence in the light

most favorable to giving the instruction, there was sufficient evidence from which a rational jury

could have found each element of provocation beyond a reasonable doubt. Smith, 965 S.W.2d at

514; Harrod, 203 S.W.3d at 628; Fink, 97 S.W.3d at 742.




1
 However, in this case, the trial court made a Solomon-like decision, giving the jury both a provocation and a self-
defense instruction.

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                                                                                      04-14-00077-CR


       Here, Cherry testified Vise was irritable throughout dinner and appeared to become more

upset after she asked him what was wrong. She testified that when she went outside to talk to

Vise, he said something about her or her son that she could not remember, but it made her feel

threatened. Cherry testified he also told her if she hit him like a man, then he would hit her back

like one. Cherry stated that at that point, she “popped” a bottle at him. Based on this evidence,

we hold the first element of the provocation doctrine is met. The evidence establishes Cherry felt

threatened by Vise’s irritability and Vise used words that Cherry found threatening and ultimately

caused her to attack him. Cherry’s testimony permits a jury to infer beyond a reasonable doubt

that Cherry threw a bottle at Vise after he goaded her with words.

       With regard to the second element of the provocation doctrine, Vise’s words were leveled

directly at Cherry and her son, and we hold a rational jury could find that such words were

reasonably calculated to provoke Cherry. See Smith, 965 S.W.2d at 514 (highlighting acts or words

directed at victim or third party can be found to provoke difficulty). Although Vise highlights the

fact that Cherry did not remember everything that was said verbatim, the evidence is not required

to establish exactly what words or act caused the provocation. Rather, the jury must merely be

able to find that some provoking words or act exist. Id. at 515.

       Finally, a rational jury could find that Vise’s threat to hit Cherry like a man if she hit him

first was said as a pretext to allow Vise to harm Cherry, thereby establishing intent. Id. at 513.

Intent is a question of fact that can be determined from circumstantial evidence, and the jury could

have found beyond a reasonable double that Vise’s words were purposely used to provoke an

attack by Cherry, giving him an excuse to attack her. See id. at 517.

       Based on the foregoing evidence, we hold the evidence is sufficient to show Vise provoked

the attack by Cherry, his acts or words were reasonably calculated to provoke the attack, and he



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did what he did and said what he said with the intent that she attack him so he would have a pretext

for inflicting harm on her. Id. at 513.

       Because sufficient evidence exists on each element of provocation, we hold the trial court

did not err by giving the provocation instruction. Accordingly, we need not conduct a harm

analysis. We overrule this issue.

                                    Reporter’s Record Missing

       Finally, Vise asserts he is entitled to a new trial because a portion of the reporter’s record

is missing. Vise argues the missing portion of the record is significant and necessary to his appeal

because that part of the record may contain an objection to the jury charge. Vise points out that

whether an objection to the jury charge on provocation was made is important to this appeal

because it determines what type of harm analysis must be applied.

                                          Standard of Review

       Under Rule 34.6(f) of the Texas Rules of Appellate Procedure, an appellant is entitled to a

new trial if: (1) he timely requested a reporter’s record; (2) a significant exhibit or portion of the

court reporter’s notes and records have been lost or destroyed through no fault of his own; (3) the

missing portion of the reporter’s record or exhibit is necessary to the resolution of the appeal; and

(4) the missing portion of the reporter’s record or exhibit cannot be replaced by agreement of the

parties. TEX. R. APP. P. 34.6(f); Routier v. State, 112 S.W.3d 554, 570 (Tex. Crim. App. 2003).

To determine whether the rule’s requirements are met, we must view the circumstances from the

appellant’s point of view and resolve any reasonable doubt in favor of the appellant. Routier, 112

S.W.3d at 570.

                                             Application

       Here, the record reflects the trial court excused the jury for lunch and then heard arguments

regarding the self-defense charge, which were transcribed. The court then adjourned for lunch,
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and when it reconvened, the trial court stated the evidence raised both a provocation and self-

defense issue. The trial court advised the parties they could argue if they wished, but it had

reviewed the law and made a decision. The trial court then asked if there was anything else the

parties wanted to raise before the jury was seated. When the trial court confirmed no other issues

regarding the charge were going to be raised, the court reporter interjected, stating, “Judge, just,

their arguments for the charge were on the record and I didn’t get –.” The trial judge then stated,

“What I’m saying is I’m granting the request for the self-defense charge and I’m granting the

State’s request for the provoking the difficulty charge. And is there anything else we need to take

up before I seat the jury?” Neither side objected.

       After reviewing the record, we hold that if any part of the reporter’s record is lost or

destroyed, it was not without the fault of Vise’s counsel. Here, the record reflects the arguments

regarding the self-defense charge were transcribed, but the arguments regarding the doctrine of

provocation were not. When the court reporter informed the trial court and the parties that she was

unable to transcribe all of the arguments, the trial court gave both parties an opportunity to put any

missing argument on the record. Instead of restating the argument or repeating an objection, Vise’s

counsel did not put the complained of missing information on the record. In fact, Vise was given

several opportunities to confirm any objection made to the jury charge was on the record; first,

when the court reporter told the trial judge she missed some information before the proceedings

continued, and again, when the trial judge asked for any objections before the charge was

submitted to the jury. Accordingly, Vise failed to show how the reporter’s record was lost through

no fault of his own.

       Furthermore, the missing portion of the reporter’s record is not necessary to the resolution

of the appeal because whether an objection to the provocation charge was made is irrelevant. Vise

argues the missing portion of the record could have contained an objection to the jury charge and
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whether an objection was made is significant because it determines what type of harm analysis to

apply when determining whether the trial court correctly instructed the jury. However, as stated

above, we need not conduct a harm analysis because the trial court did not err when instructing the

jury on the doctrine of provocation. Therefore, determining what type of harm analysis to apply

is irrelevant. Accordingly, we overrule Vise’s last issue on appeal.

                                          CONCLUSION

       Based on the foregoing, we overrule Vise’s issues and affirm the trial court’s judgment.


                                                  Marialyn Barnard, Justice

Do Not Publish




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