                                 NUMBER 13-12-00060-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG

MIRRO VONDAE MCZEAL,                                                                    Appellant,

                                                  v.

THE STATE OF TEXAS,                                                                      Appellee.


                      On appeal from the 258th District Court
                             of Polk County, Texas.


                           MEMORANDUM OPINION
   Before Chief Justice Valdez and Justices Benavides and Longoria
             Memorandum Opinion by Justice Benavides

       By one issue, appellant, Mirro Vondae McZeal, contends that the evidence is

insufficient to support his conviction of assault on a family or household member.                 See

TEX. PENAL CODE ANN. § 22.01(b)(2)(A) (West 2011). We affirm.1


       1
         This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. §
                                       I.         BACKGROUND2

        A Polk County grand jury indicted McZeal for assault on a family or household

member, a third-degree felony.              Id.   In the indictment, the State alleged that McZeal

had two prior felony charges:               the first, a 2001 assault with bodily injury against a

member of McZeal’s family or household; and the second, a felony possession of a

controlled substance, penalty group one.

        The State presented the following evidence during its case-in-chief at McZeal’s

jury trial.    On July 26, 2011, Leshida Harrell and McZeal visited Harrell’s cousin’s

home in a housing project on the west end of Livingston, Texas.                         During the visit,

Harrell and McZeal engaged in an argument. Harrell testified that during the argument

she “shut [herself] in the bathroom” for about “five or six minutes,” before McZeal entered

the bathroom and punched Harrell in the mouth with his closed fist. Harrell testified that

the punch hurt enough that she thought that she was going to faint.                     Soon thereafter,

McZeal left the house, while Harrell was taken to the Livingston police station by her

cousin and mother, who had arrived at the house a short time later. Livingston police

officer Kevin Ward testified that Harrell told him that:             (1) she was McZeal’s girlfriend;

(2) the two lived together; and (3) McZeal punched her in the mouth at her cousin’s

house.

        Harrell testified at trial that she was “in a relationship” with McZeal at the time of

the incident in question and that their relationship began in 2009.                        Harrell further


73.001 (West 2005).
        2
          As this is a memorandum opinion and because all issues of law presented by this case are well
settled and the parties are familiar with the facts, we will not recite the law and the facts in this opinion
except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R.
APP. P. 47.4.

                                                      2
testified that she began living with McZeal in a house in Shepherd beginning in 2010.

Harrell stated, however, that she and McZeal were not married nor did they have

children together.

       The jury found McZeal guilty of the offense as alleged in the indictment.

McZeal’s conviction was enhanced to a second-degree felony after McZeal pleaded true

to the enhancement paragraph of his indictment.     See id. § 12.42(a) (West Supp. 2011).

The jury assessed McZeal’s punishment at twenty years’ imprisonment with the Texas

Department of Criminal Justice, Institutional Division.   This appeal ensued.

                           II.    SUFFICIENCY CHALLENGE

       By one issue, McZeal asserts that the evidence adduced at trial was insufficient to

support his conviction for assault on a family or household member.

       A. Standard of Review

       When reviewing a defendant’s sufficiency challenge, we view 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 crime beyond a reasonable doubt.”

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012) (citing Brooks v.

State, 323 S.W.3d 893, 902 (plurality op.)); see Jackson v. Virginia, 443 U.S. 307, 319

(1979). The jury is the sole judge of the credibility of witnesses and the weight to be

given to their testimonies, and the reviewing court must not usurp this role by substituting

its own judgment for that of the jury.   Montgomery, 369 S.W.3d at 192. Thus, our duty

is “simply to ensure that the evidence presented supports the jury's verdict and that the

State has presented a legally sufficient case of the offense charged.”          Id. (internal

citations omitted). When faced with a record supporting contradicting inferences, we


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must presume that the jury resolved such conflicts in favor of the verdict, even if not

explicitly stated in the record.       Id. (citing Brooks, 323 S.W.3d at 899 n.13).

         The elements of the offense are measured as defined by a hypothetically correct

jury charge.      Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).                      Such a charge [is] 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.

         B. Discussion

         McZeal was indicted for assault on a family or household member. Under a

hypothetically correct jury charge, McZeal is guilty of this offense if he (1) intentionally,

knowingly, or recklessly (2) caused bodily injury (3) to Harrell, and (4) Harrell is a

member of McZeal’s (a) family or (b) household.                        See TEX. PENAL CODE ANN. §

22.01(b)(2) (referencing TEX. FAM. CODE ANN. §§ 71.003; .005 (West 2008)).3

         McZeal’s sole argument is that the evidence was insufficient to support the jury’s

finding that Harrell was a member of McZeal’s family or his household. We agree, in

part, and disagree, in part. In the context of penal code section 22.01(b)(2), “family” is

defined as:

         individuals related by consanguinity or affinity, as determined under

         3
          The State’s indictment against McZeal did not reference Texas Family Code section 71.0021
(Dating Violence) as applied to the offense alleged. See TEX. FAM. CODE ANN. § 71.0021 (West Supp.
2011). Accordingly, we will not consider that definition in our sufficiency analysis. See Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997) (en banc) (defining a hypothetically correct jury charge as one that
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.”) (emphasis added).

                                                       4
       Sections 573.022 and 573.024, Government Code, individuals who are
       former spouses of each other, individuals who are the parents of the same
       child, without regard to marriage, and a foster child and foster parent,
       without regard to whether those individuals reside together.

See TEX. FAM. CODE ANN. § 71.003; see also TEX. GOV’T CODE ANN. §§ 573.022; .024

(West 2004).

       The State presented no evidence to support a finding that Harrell was a member

of McZeal’s “family” as defined by section 71.003 of the family code. Therefore, we turn

our analysis to the “member of the household” element of the alleged offense.

       McZeal argues that no evidence supports a finding that Harrell was a member of

his household because she did not:    (1) change the address on her Texas identification;

(2) receive mail at his residence; (3) change her mailing address to reflect that she was

residing at his residence; (4) change her mailing address to reflect that she no longer

resided at McZeal’s residence; (5) pay any costs related to living with McZeal—i.e., rent,

utilities, cable television, or food. We decline to adopt such a rigid formula to determine

whether sufficient evidence supports a “member of the household” finding.

       In the context of penal code section 22.01(b)(2), “household” is defined as:

       a unit composed of persons living together in the same dwelling, without
       regard to whether they are related to each other.

See TEX. FAM. CODE ANN. § 71.005. This definition may also include a person who

previously lived in a household.     See id. § 71.006 (West 2008).       Furthermore, our

sister courts have recognized a flexible approach as to whether someone is a member of

a household in terms of the family code.     See generally Teel v. Shifflet, 309 S.W.3d

597, 604 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (finding sufficient evidence

of household membership between a former boyfriend and girlfriend despite testimony


                                            5
that showed intermittent cohabitation due to the parties’ occasional disagreements

during the relationship); Dixon v. State, No. 05-09-00901-CR, 2010 WL 2180371, at *4

(Tex. App.—Dallas June 2, 2010, no pet.) (not designated for publication) (finding

sufficient evidence of household membership because defendant and complainant, who

were both homeless, lived together in a shed at an abandoned car wash at the time of

the assault); Manuel v. State, No. 01-04-00282-CR, 2005 WL 1111247, at *3–*4 (Tex.

App.—Houston [1st Dist.] May 5, 2005, pet. ref’d) (mem. op., not designated for

publication) (holding that sufficient evidence supported a household membership finding

despite conflicting testimony from witnesses that defendant and complainant did not live

together in the complainant’s townhouse).

       Here, Harrell testified that she and McZeal lived together in a house in Shepherd

from 2010 until the time of the assault.   Officer Ward also testified that Harrell told him

during her interview that she lived with McZeal. Finally, Harrell’s mother, Marietta, also

testified that her daughter lived with McZeal for “about a year or so,” but admitted that

there were times when Harrell would leave for a “week or so” then head right back to

living with him. We recognize, however, that McZeal’s sister, Ysheka, and mother,

Vernia, provided contrary testimony that Harrell and McZeal did not live together.

Despite this testimony, we presume that the jury resolved such conflicts in the evidence

in favor of the verdict.   See Montgomery, 369 S.W.3d at 192.

       Therefore, after viewing the evidence in the light most favorable to the verdict, we

conclude that any rational trier of fact could have found that McZeal assaulted Harrell,

who was a member of his household, beyond a reasonable doubt. McZeal’s sole issue

is overruled.


                                             6
                                  III.   CONCLUSION

       We affirm the trial court’s judgment.


                                                   __________________________
                                                   GINA M. BENAVIDES,
                                                   Justice


Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
18th day of April, 2013.




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