                                   NO. 07-06-0367-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL C

                                  MARCH 28, 2007
                          ______________________________

                                 BYRON DALE GREEN,

                                                                Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

                FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                    NO. B16,818-0606; HON. ED SELF, PRESIDING
                        _______________________________

                               Memorandum Opinion
                         _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

       Byron Dale Green was convicted of aggravated assault with a deadly weapon. In

seeking to overturn the conviction, he complains that 1) the evidence was factually

insufficient to sustain it, and 2) he received ineffective assistance of counsel. We affirm

the judgment.

       Issue 1 - Factual Sufficiency

       Based on written allegations made by his girlfriend Ruby, appellant was charged

with assault by choking while using or exhibiting a knife. However, Ruby recanted her

accusations at trial. She testified that although she and appellant argued, he did not 1) put
his hand over her mouth and try to suffocate her, 2) threaten to kill her or her children, or

3) threaten her with a knife. In contradiction to her written statement, she also denied that

1) she bit appellant on the arm despite the presence of teeth marks on it, 2) appellant

forced his way into the house though he entered through the window, 3) appellant held a

knife to her throat though a knife matching the description given by Ruby was discovered,

and 4) appellant forced her to have sex. Instead, she purportedly called the police simply

because the two had a fight and she was mad. Given this, appellant believes there is

factually insufficient evidence to illustrate that he choked her as alleged in the indictment.

We disagree.

       The standard by which we review the issue is set forth in Watson v. State, 204

S.W.3d 404 (Tex. Crim. App. 2006). The parties are referred to that opinion.

       Next, Ruby admitted having written in her statement to police that appellant had put

his hands over her mouth thereby “suffocating” her. So too did she describe, in her written

statement given to police, how appellant said that 1) he was “going to break [her] neck,”

2) he was “. . . just going to finish it, and got up and got a knife,” 3) he was going to “. . .

start with you and then your two kids,” and 4) he was “. . . not leaving the house with [her]

alive because [she would] put him in prison.” Additionally, Dana Wong, a nurse at

Covenant Hospital in Plainview, testified that Ruby told her appellant had placed his hands

over her mouth and his arm around her neck to choke her and that she had bitten

appellant’s arm.1




       1
           At trial, Ru by testified she did no t kno w who N urse W ong was and did no t rem em ber s aying that.

                                                         2
       Though defense counsel objected to both Ruby’s written statement and Wong’s

testimony as hearsay, the trial court overruled the complaint. Furthermore, appellant

attacks neither ruling on appeal. Thus, that evidence may be considered for all purposes

in assessing the sufficiency of the evidence. See Barnum v. State, 7 S.W.3d 782, 788

(Tex. App.–Amarillo 1999, pet. ref’d).

       Moreover, we note that though the word choking was mentioned in the indictment

and Ruby described appellant’s actions as placing his hands over her mouth and

“suffocating” her, the words “choke” and “suffocate” are synonyms at least for this case.

W EBSTER ’S NEW W ORLD THESAURUS 64 (1987); R. SOULE , A DICTION ARY OF ENGLISH

SYNONYMS 518 (1959). Both connote the obstruction of air passages resulting in an

inability to breath, and the evidence indicates that appellant’s conduct evinced effort to gain

that result. Thus, Ruby’s written description of being suffocated can reasonably be

interpreted as equating effort by appellant to choke her. This coupled with Ruby’s allusion

to being suffocated, Wong’s reiteration that Ruby said appellant “choked” her, the

discovery of a knife as described by Ruby, the presence of teeth marks on appellant’s arm,

and her appearance as being “very scared” and “distraught” (not mad) when the police

arrived, provide ample basis for the jury to conclude not only that appellant did choke her

but also that her written statement held the truth. See Chambers v. State, 805 S.W.2d

459, 461 (Tex. Crim. App. 1991) (recognizing that the jury could disbelieve a witness’

recantation); see also Fernandez v. State, 805 S.W.2d 451, 456 (Tex. Crim. App. 1991)

(holding the evidence legally sufficient even though the conviction was based on hearsay

offered after the complainant’s recantation); accord Jackson v. State, 110 S.W.3d 626, 631



                                              3
(Tex. App.–Houston [1st Dist.] 2003, pet. ref’d) (holding that a conviction may rest on

hearsay even though the victim recants). Finally, because that conclusion would neither

be founded on weak evidence nor be overwhelmed by the other evidence, we overrule

appellant’s first issue.

       Issue 2 - Ineffective Assistance of Counsel

       Next, appellant claims his counsel was ineffective for failing to proffer a hearsay

objection to the use of Ruby’s written statement, request a limiting instruction regarding

that evidence, and request a limiting instruction to the purported hearsay of Dana Wong.

We overrule the issue.

       Regarding Ruby’s written statement, the record reflects that defense counsel

uttered numerous objections, one of which was: “Judge, again I’m going to object to

improper impeachment and hearsay.” (Emphasis added). Given that he actually objected

on the basis of hearsay, we cannot say that counsel was deficient because he supposedly

did not.

       We further note that when the police arrived at the abode after being called by

Ruby, she appeared to be “distraught” and “very scared.” That same day, the investigator

who spoke with Ruby and took her statement described her as “nervous,” “disheveled,” “a

little nervous,” “a little shaky,” and “scared” at the time. So, because it was given soon

after the assault occurred and while Ruby continued to experience the emotional effects

of the attack, the written statement (which Ruby tried to recant at trial) can reasonably be

viewed as an excited utterance. See TEX . R. EVID . 803(2) (defining an excited utterance

as a statement relating to a startling event or condition made while the declarant was under

the stress of the excitement caused by the event or condition); Salley v. State, 25 S.W.3d

                                             4
878, 880-81 (Tex. App.–Houston [14th Dist.] 2000, no pet.) (holding that the statement, if

made while still in the grip of emotion, excitement, fear or pain, is admissible even after an

appreciable time had elapsed between the exciting event and the utterance). Being an

excited utterance, it was admissible free of any limiting instruction despite its supposed

hearsay nature. TEX . R. EVID . 803(2). This is of import because its content, especially that

pertaining to appellant’s attempt at suffocation, was redundant of Wong’s comment about

choking. The two terms being synonymous under the circumstances before us (as we

concluded above), we cannot say that defense counsel’s failure to request an instruction

directing the jury to consider Wong’s comments solely for impeachment purposes harmed

appellant. In other words, the circumstances of record do not create a reasonable

probability that but for the purported error the result would have differed. See Bone v.

State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) (so defining the prejudice needed to

support a claim of ineffective assistance).

       Having overruled each issue, we affirm the judgment of the trial court.



                                                  Brian Quinn
                                                  Chief Justice



Do not publish.




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