Affirmed and Memorandum Opinion filed March 5, 2019.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-17-00837-CR

                     KOLE KEATON BATISTE, Appellant
                                          V.
                        THE STATE OF TEXAS, Appellee

           On Appeal from County Court at Law No. 2 & Probate Ct
                           Brazoria County, Texas
                        Trial Court Cause No. 222458

                           MEMORANDUM OPINION


      A jury convicted appellant Kole Keaton Batiste of assault - family violence,
sentenced him to sixty days in jail, and assessed a $2,000 fine. Appellant timely filed
this appeal. In a single issue, appellant claims the evidence is insufficient to support
his conviction. We affirm.
                                  THE EVIDENCE

      The record reflects appellant and Johnson were in a sexual, but not exclusive,
relationship in the spring of 2014 through that summer. In May 2015, they again
began communicating. In June 2015, the relationship turned sexual again, although
not exclusive. In December, appellant said he just wanted to “be friends.” In January
of 2016, they began meeting at area hotels for the weekend. They met twice before
the weekend of the alleged assault, which occurred the last weekend in January.

      That weekend, Johnson and appellant were at a hotel in Pearland, Texas.
Officer Scott Thornley of the Pearland Police Department testified the hotel is in
Brazoria County, Texas. Johnson testified that in the hotel room appellant slapped
her across the face. Appellant claimed that Johnson slapped him when he tried to
leave the hotel. They left the hotel and Johnson was driving. According to Johnson,
while they were in the car, appellant reached across and punched her in the face,
near the jawline. Johnson said she hit appellant while trying to block his punches.
Appellant testified Johnson punched him in the nose. At the time, they were on
Highway 288. Thornley testified that Johnson estimated her location was by Airport
Boulevard, which is in Harris County. Appellant admitted to the assault on Johnson
while they were traveling down Highway 288 and testified it occurred in Harris
County.

      According to Johnson, while returning to the hotel in Pearland she performed
oral sex on appellant while he was driving the car. Appellant became upset at her
performance and began hitting her “in the head area” and the side of her face.
Johnson stated that lasted about ten minutes. After they reached the hotel parking lot
appellant hit her around her head and face. Appellant pulled her hair, pulled her head
down into his lap, and repeatedly started hitting her around the face and in the head.



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When appellant let her up, Johnson’s nose was bleeding. Her face felt swollen and
really hurt. Her jaw felt tight and hurt.

      Appellant denied the oral sex occurred and disputed that he hit Johnson, either
while in the car or the parking lot. Appellant testified that Johnson again hit him on
the nose.

      Johnson called 911 and a police officer met her in the hotel lobby, took her
statement and photographed her facial injuries. Photographs of Johnson’s face were
admitted into evidence. Johnson testified the left side of her face was swollen and
her eye was almost shut. The swelling and pain lasted a week. Thornley testified
there were abrasions and swelling around Johnson’s eyes and nose, she was crying,
and she appeared scared and nervous. According to Thornley, Johnson’s injuries
were consistent with her version of events. Thornley testified that Johnson’s written
statement was consistent with her initial verbal statement.

      Johnson knew appellant was not exclusively dating her and was not interested
in being her boyfriend. Appellant testified the relationship was not “romantic,”
although he admitted it was “intimate.” Appellant described their relationship as
friends that “had sex.” According to appellant, the relationship was “on and off”
rather than continuous. Appellant testified that he and Johnson maintained contact
after the alleged assault at the hotel and continued having sex until he was arrested
in April of 2016. Although Johnson had testified that she did not have contact with
appellant after the assault, she then admitted that she had and even continued to have
sex with him.

                           SUFFICIENCY OF THE EVIDENCE

      Appellant asserts the evidence that he assaulted Johnson in Brazoria County
is insufficient because Johnson “is a liar,” the relationship continued after the assault
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at the hotel,1 and he denied assaulting Johnson that night, except for when he struck
her in the car as they drove on Highway 288. Further, appellant claims there was
insufficient evidence that he and Johnson were in a dating relationship. Based on
these claims, we will determine whether the evidence was sufficient for a rational
trier of fact to find beyond a reasonable doubt that appellant assaulted Johnson and
appellant and Johnson were in a dating relationship. Further, we will consider the
question of venue.

       We apply a legal-sufficiency standard of review in determining whether the
evidence supports each element of a criminal offense that the State is required to
prove beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.
Ct. 2781, 61 L.Ed.2d 560 (1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim.
App. 2013); see Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). Under
this standard, we examine all the evidence adduced at trial in the light most favorable
to the verdict to determine whether a jury was rationally justified in finding guilt
beyond a reasonable doubt. Temple, 390 S.W.3d at 360; Criff v. State, 438 S.W.3d
134, 136–37 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). We consider all
evidence in the record, whether admissible or inadmissible. Winfrey v. State, 393
S.W.3d 763, 767 (Tex. Crim. App. 2013). We also consider both direct and
circumstantial evidence, as well as any reasonable inferences that may be drawn
from the evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007). We will uphold the jury’s verdict unless a rational factfinder must have had
a reasonable doubt as to any essential element. Laster v. State, 275 S.W.3d 512, 518




       1
        We are aware of no reason, and appellant provides none, that evidence the relationship
continued is relevant. We therefore do not address it.

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(Tex. Crim. App. 2009); West v. State, 406 S.W.3d 748, 756 (Tex. App.—Houston
[14th Dist.] 2013, pet. ref’d).

      We consider all evidence presented at trial, but we do not re-evaluate the
weight and credibility of the evidence or substitute our judgment for that of the fact
finder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Because
the jury is the sole judge of the witness’s credibility and the weight given their
testimony, we resolve any evidentiary conflicts or inconsistencies in favor of the
verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).

1.    Was there legally sufficient evidence of the assault?

      Johnson testified that appellant assaulted her twice at the hotel in Brazoria
County. In addition to Johnson’s testimony, the jury heard Thornley’s account of
Johnson’s appearance and saw the photographs of her face. Appellant denied those
assaults but admitted to the assault in Harris County. Appellant claimed to have been
assaulted by Johnson.

      The credibility of appellant and Johnson, the weight to be given their
testimony, and the resolution of their conflicting testimony was a matter for the jury.
From the evidence presented, a rational juror could have found beyond a reasonable
doubt that appellant intentionally, knowingly or recklessly caused bodily injury to
Johnson. See Tex. Penal Code § 22.01(a)(1)).

2.    Was there legally sufficient evidence of a dating relationship?

      Appellant further challenges whether the State proved, beyond a reasonable
doubt, that he and Johnson had a dating relationship. Tex. Fam. Code § 71.0021
provides, in pertinent part:



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      (b) For purposes of this title, “dating relationship” means a relationship
      between individuals who have or have had a continuing relationship of
      a romantic or intimate nature. The existence of such a relationship shall
      be determined based on 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.
      Appellant claims the record does not support the jury’s finding that he and
Johnson had a dating relationship because it was “one-sided” and “casual.” Given
the testimony concerning the length and nature of the relationship, including the fact
that it had been sexually intimate in the weeks immediately preceding the assault,
was sexually intimate on the day of the assault, and continued to be sexually intimate
for several more months, a rational juror could reasonably conclude there was
sufficient evidence to find that appellant and Johnson had a continuing relationship
of an intimate nature. See Tex. Fam. Code § 71.0021(b); see, e.g., Villareal v. State,
286 S.W.3d 321, 324 (Tex. Crim. App. 2009) (concluding evidence was sufficient
to show dating relationship where defendant and complainant spent night at each
other’s residences and had dated only about one month). Considering the evidence
in the light most favorable to the verdict, a rational juror could have found beyond a
reasonable doubt that Johnson and appellant were in a “dating relationship” when
the assault occurred.

3.    Was the presumption of proper venue rebutted?

      Appellant also challenges whether the evidence shows the offense was
committed in Brazoria County. The State bears the burden of proving venue by a
preponderance of the evidence. Tex. Crim. Proc. § 13.17; Minton v. State, 485
S.W.3d 655, 661 (Tex. App.—Amarillo 2016, pet. ref’d). However, unless disputed


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in the trial court, or unless the record affirmatively shows the contrary, we must
presume that venue was proven in the trial court. Tex. R. App. P. 44.2(c)(1); Schmutz
v. State, 440 S.W.3d 29, 35 (Tex. Crim. App. App. 2014). Our review is limited to
determining whether the issue of venue was raised in trial court, and, if the venue
issue was not brought to trial court’s attention, whether it affirmatively appears from
the record that the presumption of proper venue is inapplicable. Schmutz, 440
S.W.3d at 35. For appellant to successfully overcome the presumption that venue
was proved at trial, he must show that “the record affirmatively negates whatever
proof was made by the State on the matter of venue.” Holdridge v. State, 707 S.W.2d
18, 21–22 (Tex. Crim. App. 1986).

      The record does not reflect, and appellant does not contend, the issue of venue
was brought to the trial court’s attention. Accordingly, we review the record to
determine if the record affirmatively negates the State’s evidence that the offense
occurred in Brazoria County.

      Johnson testified that appellant assaulted her twice at the hotel in Brazoria
County. Appellant denied the assaults, not the fact that the hotel was in Brazoria
County. Johnson’s credibility was a matter for the jury. From her testimony a
rational juror could have found, by a preponderance of the evidence, that the offense
was committed in Brazoria County, Texas. Because appellant failed to raise the issue
of venue at trial, and the record does not affirmatively and conclusively show
Brazoria County was an improper venue, appellant failed to rebut the presumption
of proper venue.

                                    CONCLUSION

      We have reviewed the evidence and conclude the evidence is sufficient for a
rational trier of fact to have found beyond a reasonable doubt that appellant assaulted
Johnson and they had a continuing relationship of an intimate nature. Further,
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appellant failed to rebut the presumption venue was proper in Brazoria County,
Texas. Accordingly, we overrule appellant’s issue and affirm the trial court’s
judgment.




                                                /s/ Margaret “Meg” Poissant
                                                    Justice


Panel consists of Justices Wise, Jewell and Poissant.
Do Not Publish — Tex. R. App. P. 47.2(b).




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