                                        In The

                                 Court of Appeals

                     Ninth District of Texas at Beaumont

                            ____________________
                                NO. 09-17-00374-CR
                            ____________________

                  CAMERON RAPHAEL YOUNG, Appellant

                                          V.

                        THE STATE OF TEXAS, Appellee
________________________________________________________________________

                      On Appeal from the 9th District Court
                          Montgomery County, Texas
                        Trial Cause No. 16-10-11886-CR
________________________________________________________________________

                           MEMORANDUM OPINION

      A jury found Cameron Raphael Young guilty of assault family violence by

strangulation. See Tex. Penal Code Ann. § 22.01(b)(2)(B) (West 2019). The trial

court found habitual offender enhancement allegations to be true and imposed a

sixty-year sentence. See Tex. Penal Code Ann. § 12.42(d) (West 2019). In seven

issues, Young contends the trial court erred: (1) by denying Young’s motion to

suppress the digital contents of his cell phone; (2) by allowing a witness to testify as

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an expert on domestic violence; (3) by excluding two prior written statements of the

complaining witness; (4) by excluding a recorded interview of the complaining

witness; (5) by admitting charts depicting trial testimony on a timeline; (6) by

imposing a sentence for a felony offense upon conviction for misdemeanor assault;

and (7) by enlarging the indictment in the charge to the jury. We affirm the trial

court’s judgment.

                                Motion to Suppress

      In his first issue, Young contends the trial court erred by overruling Young’s

motion to suppress the digital contents of his cell phone and admitting that evidence.

The State obtained a search warrant before searching the phone, which had been

impounded with his personal effects at the time of his arrest, but Young argues the

evidence obtained through the warrant must be excluded because the State

unlawfully seized the cell phone before obtaining the warrant.

      Young was taken into custody in Brazos County pursuant to an arrest warrant

and transported to Montgomery County. The cell phone was among the personal

effects in Young’s possession at the time of his arrest. The investigating officer

requested the search warrant because he had information that Young had contacted

the complaining witness before and after the incident and a forensic examination of

the cell phone would provide corroborating evidence. In the suppression hearing, the

                                          2
State conceded that a law enforcement official put the cell phone in evidence

collection upon Young’s arrival in Montgomery County and obtained a warrant the

following morning.

      We review the trial court’s ruling on a motion to suppress under a bifurcated

standard of review. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

We give almost total deference to a trial court’s rulings on questions of historical

fact and when the application of law to fact turns on an evaluation of credibility and

demeanor, but we review de novo questions of law and the trial court’s application

of the law to the facts of the case as to questions that do not turn on credibility and

demeanor. Id. When there are no explicit fact findings, we imply the necessary fact

findings that would support the trial court’s ruling if the evidence, viewed in the light

most favorable to the trial court’s ruling, supports those findings. State v. Garcia-

Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). We will sustain the trial court’s

ruling if the record reasonably supports that ruling and is correct on any theory of

law applicable to the case. Cole v. State, 490 S.W.3d 918, 922 (Tex. Crim. App.

2016). Whether a particular detention was reasonable under the Fourth Amendment

is a question of the application of law reviewed de novo. Kothe v. State, 152 S.W.3d

54, 62–63 (Tex. Crim. App. 2004).



                                           3
      Generally, when a law enforcement authority has probable cause to believe

that a container holds evidence of a crime, the Fourth Amendment permits seizure

of the property pending issuance of a warrant to examine its contents, if the

exigencies of the circumstances demand it or another exception to the warrant

requirement is present. U.S. v. Place, 462 U.S. 696, 701 (1983). A seizure based on

less than probable cause may be supported when the nature of the intrusion is

minimally invasive of the individual’s Fourth Amendment interests. Id. at 703. An

investigative detention of personalty on reasonable suspicion that it contains

evidence of a crime must be temporary and last no longer than necessary to

effectuate the purpose of the intrusion. Davis v. State, 947 S.W.2d 240, 243 (Tex.

Crim. App. 1997).

      A person does not lose his reasonable expectation of privacy in the contents

of a cell phone merely because it is being stored in a jail property room. State v.

Granville, 423 S.W.3d 399, 417 (Tex. Crim. App. 2014). But “the police may

legitimately ‘seize’ the property and hold it while they seek a search warrant.” Id. at

412. Here, the State had a strong interest in seizing the cell phone because the

investigating officer had reason to believe it contained evidence that Young used the

cell phone to communicate with the victim of the assault, and there was no evidence

that the State actually interfered with Young’s possessory interest in the cell phone

                                          4
while he was in jail. The officer obtained a warrant the following day before any

search of the cell phone occurred. Under these circumstances, the State’s seizure of

the cell phone was not unreasonable under the Fourth Amendment. See id. We

overrule issue one.

                       Domestic Violence Expert Testimony

      In his second issue, Young complains that the trial court allowed testimony

from Vicki Zarate, a therapist holding a master’s degree in social work and employed

as an intern supervisor for the Montgomery County Women’s Center. Young argues

Zarate’s general testimony about the cycle of violence was neither relevant nor

probative. Referring to Zarate’s testimony that a person who engages in domestic

abuse will threaten harm to the partner’s family and pets, Young argues Zarate

invited the jury to speculate and improperly infer that Young committed uncharged

extraneous offenses, in violation of Texas Rule of Evidence 403. See generally Tex.

R. Evid. 403. However, in his trial, Young did not object to the particular testimony

that he complains about in his appeal. Young’s Rule 403 objections occurred at

earlier points in Zarate’s testimony, on a question about her professional experience

before she started working at the Montgomery County Women’s Center, when the

State offered her resume in evidence and when she was asked a hypothetical question

about abusers belittling their victims.

                                          5
      The contemporaneous objection rule requires that a party object each time

inadmissible evidence is offered. Ethington v. State, 819 S.W.2d 854, 858 (Tex.

Crim. App. 1991). Two exceptions to the contemporaneous objection rule allow a

party to obtain a running objection or obtain a ruling outside the jury’s presence. Id.

at 858–59; see also Tex. R. Evid. 103(b). The record shows that Young made his

objections while the jury was present in the courtroom. He never requested a running

objection. Young did not preserve the complaint in his brief for appellate review.

See Tex. R. App. P. 33.1.

      Assuming without deciding that the trial court understood Young’s objections

to challenge the admissibility of Zarate’s testimony under Rule 702, we conclude

that allowing Zarate to testify as an expert was within the zone of reasonable

disagreement. An expert may testify regarding a general subject matter that would

aid the jury in understanding the evidence. Tillman v. State, 354 S.W.3d 425, 440–

441 (Tex. Crim. App. 2011). Zarate’s testimony concerning the cycle of violence

helped explain to the jury the evidence previously before it regarding text messages

between Young and the complaining witness, in which Young apologized for his

violent actions and the complaining witness expressed forgiveness and a desire to

maintain their relationship and drop the criminal charges. We overrule issue two.



                                          6
                           Prior Inconsistent Statements

      In issues three and four, Young argues that the trial court abused its discretion

by excluding two written statements and a recorded statement made by the

complaining witness during the investigation of the charged offense. In each case,

the exhibit was offered as a prior inconsistent statement.

      We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A

trial court abuses its discretion when its decision lies outside the zone of reasonable

disagreement. Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008). An

evidentiary ruling will be upheld if it was correct on any theory of law applicable to

the case. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). We review

the trial court’s ruling in light of what was before the trial court when it ruled.

Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).

      When examining a witness about the witness’s prior inconsistent statement, a

party must first tell the witness (1) the contents of the statement, (2) the time and

place of the statement, and (3) the person to whom the witness made the statement.

Tex. R. Evid. 613(a)(1). The witness must be given the opportunity to explain or

deny the prior inconsistent statement. Id. 613(a)(3). “Extrinsic evidence of a

witness’s prior inconsistent statement is not admissible unless the witness is first

                                          7
examined about the statement and fails to unequivocally admit making the

statement.” Id. 613(a)(4).

      In this case, the witness unequivocally admitted to making each of the three

statements. She admitted each of the statements was inconsistent with her other

statements and with her trial testimony. When the witness unequivocally admits

making the statement, the instrument itself is not admissible because the witness has

impeached herself. McGary v. State, 750 S.W.2d 782, 787 (Tex. Crim. App. 1988).

The witness could not recall making some specific statements in her recorded

interview, but Young offered the entire statement without isolating the parts of the

recorded statement where the witness may have equivocated. “The fact that a

statement contains portions which might impeach a witness will not furnish the

proper predicate for the admission of the entire statement.” Id.

      In his appellate brief, Young argues the complaining witness’s written

statements were admissible to show her bias or interest. See generally Tex. R. Evid.

613(b); see also U.S. Const. Amend VI (“[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses against him[.]”). Young

did not invoke the Confrontation Clause or Rule 613(b) when he offered the exhibits

in the trial. These complaints were not preserved for appellate review. See Tex. R.

App. P. 33.1. We overrule issues three and four.

                                          8
                                 Timeline Exhibits

      In his fifth issue, Young argues the trial court abused its discretion by

admitting into evidence charts depicting timelines that the prosecutor created during

the trial based upon statements made by witnesses during the trial. In the trial, Young

objected that the exhibits were “bolstering” and “duplicative” of the witnesses’

testimony. The trial court may, in its discretion, allow the use of visual aids to

illustrate witnesses’ testimony that is already before the jury. Clay v. State, 592

S.W.2d 609, 613 (Tex. Crim. App. [Panel Op.] 1980). In this case, the exhibits were

a visual aid to help the jury understand the sequence of events for testimony that was

already before the jury. A visual aid that accurately depicts previous testimony is not

improper bolstering. See Marras v. State, 741 S.W.2d 395, 404–05 (Tex. Crim. App.

1987), overruled on other grounds by Garrett v. State, 851 S.W.2d 853, 860 (Tex.

Crim. App. 1993). We overrule issue five.

                             Level of Offense Charged

      In his sixth issue, Young argues the indictment alleged a misdemeanor offense

because it failed to state that the offense was committed by “intentionally,

knowingly, or recklessly” impeding the normal breathing of T.F. The application

paragraph included the mental state with which Young impeded the normal

breathing of T.F., but Young argues the jury’s finding that he is guilty “as charged

                                          9
in the Indictment” means he has been convicted of a misdemeanor offense. He

requests a remand for reformation of the judgment to reflect a conviction for a Class

A misdemeanor and a new punishment hearing. In its reply brief, the State contends

Young’s complaint concerns indictment error that he failed to preserve for appellate

review by filing a motion to quash the indictment. See Studer v. State, 799 S.W.2d

263, 267–68 (Tex. Crim. App. 1990).

      Where the indictment properly charges a misdemeanor and lacks an element

necessary to charge a felony, but the felony offense exists, the indictment’s return in

a felony court puts the defendant on notice that the State intends to charge a felony

offense. Kirkpatrick v. State, 279 S.W.3d 324, 328 (Tex. Crim. App. 2009). The

defendant must object to the defective indictment before the day of trial or waive

error. Id.; see also Teal v. State, 230 S.W.3d 172, 175 (Tex. Crim. App. 2007). When

the question is the particular offense for which the defendant was tried before the

jury, we use evidence from the entire record including the indictment and its

headings, to determine the particular offense for which the defendant was tried.

Miles v. State, 357 S.W.3d 628, 637 n.31 (Tex. Crim. App. 2011).

      The indictment alleged that Young

      did intentionally, knowingly or recklessly cause bodily injury to [T.F.],
      a member of the defendant’s family or a member of the defendant’s
      household or a person with whom the defendant has or has had a dating
      relationship, . . . by impeding the normal breathing or circulation of the
                                           10
      blood of [T.F.] by applying pressure to [T.F.’s] throat or neck or by
      blocking [T.F.’s] nose or mouth[.]

The indictment tracked the language of section 22.01(a)(1) and (b)(2)(B). See Tex.

Penal Code Ann. § 22.01(a)(1), (b)(2)(B). This language, together with the fact that

Young was charged by an indictment filed in district court, notified Young that he

was charged with committing a third-degree felony assault. See id. Because the jury

found Young guilty of “Assault Family Violence Strangulation, as charged in the

Indictment[,]” and not for a lesser included offense, we overrule issue six.

                                   Charge Error

      In his seventh and final issue, Young complains that the application paragraph

in the jury charge impermissibly enlarged the offense charged in the indictment by

adding “intentionally, knowingly, or recklessly” to “impeding the normal breathing

or circulation of the blood of [T.F.] by applying pressure to [T.F.’s] throat or neck,

or by blocking [T.F.’s] nose or mouth.” Additionally, Young complains that the trial

court erroneously included a “nature of his conduct” definition for the mental state

of “knowingly” in the abstract portion of the charge.

      The jury charge included in the abstract a definition of “knowingly” as “[a]

person acts knowingly, or with knowledge, with respect to the nature of his conduct

or to circumstances surrounding his conduct when he is aware of the nature of his

conduct or that the circumstances exist.” In an offense charged under section
                                     11
22.01(b)(2)(B), the culpable mental state applies only to the result of impeding

normal breathing or circulation of the blood. Price v. State, 457 S.W.3d 437, 443

(Tex. Crim. App. 2015); Tex. Penal Code Ann. § 22.01(b)(2)(B). The trial court errs

if it fails to tailor the abstract portion of the charge to the applicable conduct element

of the offense. Price, 457 S.W.3d at 441.

      Young did not object to the charge. Therefore, we may reverse the judgment

only upon a showing of harm so egregious as to deprive the defendant of a fair and

impartial trial. Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016).

“Jury-charge error is egregiously harmful if it affects the very basis of the case,

deprives the defendant of a valuable right, or vitally affects a defensive theory.” Id.

We consider the entire charge, the state of the evidence, the arguments of counsel

and any other relevant information revealed by the entire record. Id.

      Where the application paragraph correctly instructs the jury that the culpable

mental state applies to the result of the defendant’s conduct, any error in the abstract

instruction is not egregious. Medina v. State, 7 S.W.3d 633, 639 (Tex. Crim. App.

1999). The jury charge in this case applied the intent element to the result of Young’s

conduct. The error in the abstract definition of “knowingly” did not egregiously

harm Young. See id.



                                           12
      Furthermore, “[w]here the indictment does not facially allege a complete

offense . . . , the State may attempt to prove (and the defendant is deemed to be on

notice of) any theory of the offense that is consistent with the incomplete indictment

and the controlling penal provision examined together.” Fisher v. State, 887 S.W.2d

49, 57 (Tex. Crim. App. 1994), overruled on other grounds by Malik v. State, 953

S.W.2d 234, 239 (Tex. Crim. App. 1997). “Accordingly, the instruction may

broaden the State’s theory as set forth in the incomplete indictment so long as the

instruction remains consistent with the allegations that are contained in the

indictment and with the controlling penal provision.” Id. 887 S.W.2d at 57–58. The

jury charge in this case correctly instructed the jury on the statutory elements of the

controlling penal statute, assault family violence by strangulation. See Tex. Penal

Code Ann. § 22.01(a)(1), (b)(2)(B). We overrule issue seven and affirm the trial

court’s judgment.

      AFFIRMED.


                                               ________________________________
                                                       CHARLES KREGER
                                                             Justice

Submitted on February 13, 2019
Opinion Delivered April 17, 2019
Do Not Publish

Before McKeithen, C.J., Kreger, and Johnson, JJ.
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