Reversed and Remanded and Plurality and Dissenting Opinions filed March
26, 2020.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-18-00302-CR

                          DUKE EDWARD, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 212th District Court
                          Galveston County, Texas
                     Trial Court Cause No. 17-CR-1965

                            DISSENTING OPINION

      This is an uncomplicated case that has been needlessly complicated by a
misapplication of the standard of review.

I.    The evidence is legally sufficient to support the conviction.

      The prosecution had the burden of proving three essential elements:
(1) appellant assaulted the complainant by intentionally, knowingly, or recklessly
causing her bodily injury; (2) appellant and the complainant were involved in a
dating relationship; and (3) appellant had previously been convicted of another
assault against a family member or against a person whom he was dating. See Tex.
Penal Code § 22.01(b)(2)(A).

      The first element was established by the 911 tape, where the complainant
reported that she had just been beaten up, and where she identified appellant by name
as her assailant. Also, the officer’s body cam video and the photographs from the
scene confirmed that the complainant had suffered multiple injuries to her face.
Based on the collective force of this evidence, the jury could have reasonably
concluded that appellant intentionally assaulted the complainant.

      Turning next to the second element, the prosecution had to show that appellant
and the complainant were in a “continuing relationship of a romantic or intimate
nature.” See Tex. Fam. Code § 71.0021(b). The existence of such a dating
relationship must be based on the consideration of (1) the length of the relationship,
(2) the nature of the relationship, and (3) the frequency and type of interaction
between the persons involved in the relationship. Id.

      The record contains ample evidence of a dating relationship. Both the officer
and the paramedic testified that the complainant claimed that she had just been
beaten up by her “boyfriend.” Based on that description, the jury could have
reasonably concluded that the nature of the complainant’s relationship with appellant
was romantic or intimate. See Villarreal v. State, 286 S.W.3d 321, 328 (Tex. Crim.
App. 2009) (upholding a conviction for violation of a protective order where the
evidence showed that the complainant was the defendant’s “girlfriend”).

      There is no direct evidence regarding the length of the complainant’s
relationship with appellant, or of the frequency and types of their interactions, but a
conviction does not require direct evidence. See Clayton v. State, 235 S.W.3d 772,
778 (Tex. Crim. App. 2007). Circumstantial evidence is just as probative as direct
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evidence. Id. And the record here contains circumstantial evidence of these other
considerations. In particular, the record shows that appellant was arrested when he
was sitting on the complainant’s bed. Because the bedroom is one of the most
personal places in the entire home, the jury could have reasonably inferred that the
complainant had permitted appellant in her bedroom because their relationship had
been ongoing and more than just a casual acquaintance.

      As for the final element, the parties stipulated that appellant had a prior
conviction for assaulting a family member. Thus, there is legally sufficient evidence
for each essential element of the offense, and this court should have held that the
prosecution carried its burden of proof beyond a reasonable doubt.

II.   The plurality has failed to examine the evidence in the light most
      favorable to the verdict.

      In reaching the opposite conclusion that the evidence is insufficient to support
the conviction, the plurality asserts that the jury “could do no more than speculate
on the existence of a dating relationship.” This assertion is wrong because
speculation does not occur if the jury is capable of “considering other facts and
deducing a logical consequence from them.” See Hooper v. State, 214 S.W.3d 9, 16
(Tex. Crim. App. 2007). And here, the officer testified that he gave the complainant
a “family violence form” when he left the scene. This testimony—which the
plurality wholly disregards in its sufficiency analysis—bolsters the evidence that the
complainant identified appellant as her “boyfriend” and supports a logical inference
that she informed the officer that she and appellant were involved in a dating
relationship. See Tex. Fam. Code § 71.004(3) (providing that “family violence”
includes the legal definition for “dating violence”).

      The plurality also asserts that the jury was required to disregard the officer’s
initial testimony that the complainant had identified her assailant as her “boyfriend”

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because the officer subsequently admitted that the complainant had made no such
identification on the body cam video. This analysis fails to recognize that the body
cam video did not capture the entire interaction. The video was less than fifteen
minutes in length, and it ended when the officer was still in the complainant’s
apartment, as he was documenting her injuries. The jury could have reasonably
concluded that the complainant identified appellant as her boyfriend after the body
cam had stopped recording.

      In a similar point, the plurality holds that the jury could not credit the
paramedic’s initial testimony that the complainant had identified her assailant as her
“boyfriend” because the paramedic later testified on cross-examination that the
complainant had made no such identification. This reasoning flies in the face of our
standard of review, which provides that when there is a conflict in the evidence, we
must presume that the jury resolved the conflict in favor of the verdict. See Jones v.
State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998) (“The trier of fact is always free
to selectively believe all or part of the testimony proffered and introduced by either
side.”). The plurality has usurped the role of the jury by reaching a different
resolution to this evidentiary conflict.

      Based on the foregoing, I would affirm appellant’s conviction in its entirety.
Because the court does not, I respectfully dissent.




                                           /s/       Tracy Christopher
                                                     Justice

Panel consists of Justices Christopher, Bourliot, and Zimmerer. (Zimmerer, J.,
plurality). (Bourliot, J., concurring without opinion).
Publish — Tex. R. App. P. 47.2(b).

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