      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-13-00490-CR
                                       NO. 03-13-00491-CR
                                       NO. 03-13-00492-CR
                                       NO. 03-13-00493-CR
                                       NO. 03-13-00495-CR



                             Gerald Christopher Zuliani, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
      NOS. D-1-DC-13-900010, D-1-DC-13-900011, D-1-DC-12-100127, D-1-DC-13-900137 &
       D-1-DC-12-900269, HONORABLE P. DAVID WAHLBERG, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found appellant Gerald Christopher Zuliani guilty of assault with family

violence, see Tex. Penal Code § 22.01(b)(2)(A), assault by strangulation, see id. § 22.01(b-1),

aggravated assault with a deadly weapon, see id. § 22.02(a)(2), theft, see id. § 31.03(e)(4)(A), and

aggravated kidnapping, see id. § 20.04. All of the offenses except theft were enhanced by a prior

felony conviction. See id. § 12.42. The trial court rendered judgments on the jury’s verdicts and

assessed punishment at 10 years’ imprisonment for assault with family violence, 40 years for assault

by strangulation, 40 years for aggravated assault with a deadly weapon, 18 months’ confinement in

a state jail for theft, and 40 years’ imprisonment for aggravated kidnapping, with the sentences to

run concurrently. On appeal, Zuliani raises nineteen points of error. We will reverse the trial court’s
judgment of conviction for theft and render a judgment of acquittal. We will affirm the remainder

of the trial court’s judgments.


                                         BACKGROUND

               At trial, complainant Stephanie Running testified to the following facts. Before the

events in question, Running was engaged to Zuliani and he was living with her. On Sunday, October

21, 2012, Zuliani began accusing her of having affairs with other men. When Running denied the

affairs, Zuliani started hitting her face with his fists. Running tried to curl up in a ball and shield

herself with her arm, but Zuliani pulled her arms away and continued hitting her. Zuliani then

grabbed Running’s neck with both hands and pushed. This made it difficult for Running to breathe,

caused her pain, and made her believe that she might pass out.

               After Zuliani released her, Running went into the kitchen. Zuliani continued accusing

her of having affairs, and Running continued denying it. Zuliani then began hitting Running with

a broom handle, causing her to bleed. When Zuliani stopped hitting Running with the broom, she

went into the hall bathroom.

               Next, Zuliani grabbed the shower curtain rod and pulled it down, separating the rod

into two pieces. Zuliani then began hitting Running with half of the shower curtain rod as he

continued to accuse her of having an affair. The rod piece broke, so Zuliani then used the other half

of the rod to continue striking Running. According to Running, after the rod was “no longer viable

as a weapon,” Zuliani began striking her with a metal cane. Around this time, Running began

bleeding from a gash in her leg.




                                                  2
               Zuliani then turned the shower on cold and threw Running into the bathtub. After a

while, Zuliani told Running to get out of the shower. When Running tried to put on dry clothes,

Zuliani would only allow her to put on her underwear. Running testified that she believed she had

to listen to Zuliani because if she did not, he would hit her again. Zuliani did not give Running any

moments to herself, and she did not feel free to leave.

               After Running put on her underwear, Zuliani told her to clean up the house by picking

up broken objects and cleaning up her blood. Zuliani instructed Running to work quickly, and when

Running did not move fast enough, Zuliani grabbed her and threw her into a wall. Eventually,

Zuliani grabbed a two-by-four board from the garage and hit Running with it once or twice on

her back.

               Soon after being struck by the board, Running wrapped herself in a blanket and ran

out the front door while screaming. Zuliani grabbed Running and pulled her back inside. During

the next few days, Zuliani at times seemed concerned for Running and would offer her medicine or

other aid. At other times, he would yell at her or strike her with his hands. Running testified that

although Zuliani left the house for several minutes on Wednesday, she did not attempt to escape or

call for help because she was afraid Zuliani was testing her and that he was actually monitoring her.

               Finally, on the morning of Thursday, October 25, Running awoke to find Zuliani still

sleeping. Running escaped the house by running out the front door. Running eventually presented

at a hospital and was treated for multiple injuries.

               The jury also heard evidence that on the same day Running escaped, Zuliani left her

a text message and voicemail asking if he could deposit a check made payable to Running. Although



                                                  3
Running never responded to those messages, Zuliani deposited the funds into an account he shared

with Running. According to evidence presented at trial, Glennis Richter, Zuliani’s girlfriend,

withdrew the funds from that account beginning about a week after Running’s escape.

                Zuliani was indicted for five separate offenses, and the cases were consolidated for

trial. After a jury found him guilty of all five offenses, Zuliani appealed.1


                                           DISCUSSION

Aggravated kidnapping: sufficiency of the evidence

                In his first two points of error, Zuliani contends that the evidence is insufficient to

support his conviction for aggravated kidnapping.

                The indictment alleged two grounds for finding Zuliani guilty of aggravated

kidnapping: Zuliani abducted Running “by using or threatening to use deadly force,” see Tex. Penal

Code § 20.04(b), and he “did then and there intend to facilitate the commission of a felony, to wit:

Felony Assault Family Violence,” see id. § 20.04(a)(3). As Zuliani points out, the jury found that

he did not abduct Running with the intent to commit assault with family violence. However, the jury

did find Zuliani guilty of aggravated kidnapping and also found that he intentionally or knowingly

abducted Running and used or exhibited a deadly weapon. These findings, if supported by sufficient

evidence, satisfy the elements of aggravated kidnapping. See id. § 20.04(b).

                Zuliani does not challenge the jury’s deadly-weapon finding. Instead, Zuliani argues

that any use or threat of deadly force occurred before he allegedly abducted Running. According to


       1
         For organizational clarity, we will address Zuliani’s points of error in a different order than
he presents them.

                                                   4
Zuliani, the alleged abduction began when Running ran out the front door and Zuliani pulled her

back inside, and he asserts that the State presented no evidence that he used or exhibited a deadly

weapon at any time after he forced her back into the house. In other words, Zuliani asserts that

because he did not use or exhibit a deadly weapon during or after the abduction, he neither abducted

Running “by using or threatening to use deadly force” nor did he “use[] or exhibit[] a deadly weapon

during the commission of the offense.” See id. § 20.04(b).

               In reviewing whether the evidence is sufficient to support a conviction, “an appellate

court must view the evidence in the light most favorable to the verdict and determine whether any

rational trier of fact could have found each essential element of the offense beyond a reasonable

doubt.” Schneider v. State, 440 S.W.3d 839, 841 (Tex. App.—Austin 2013, pet. ref’d) (mem. op.);

see also Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex.

Crim. App. 2010) (plurality op.). We do so by comparing the elements of the crime as defined by a

hypothetically correct jury charge to the evidence produced at trial. Thomas v. State, 444 S.W.3d 4,

8 (Tex. Crim. App. 2014). In addition, “when the indictment alleges a few, but not all, of the

alternative statutory manner and means of committing the offense, the hypothetically correct jury

charge against which the sufficiency of the evidence will be measured is limited to only those

statutory theories alleged.” Delay v. State, 443 S.W.3d 909, 917 n.19 (Tex. Crim. App. 2014) (citing

Curry v. State, 30 S.W.3d 394, 404–05 (Tex. Crim. App. 2000)).

               Upon review of the record, we conclude that the State presented sufficient evidence

that Zuliani’s abduction of Running began even before she ran out the front door and before Zuliani

had ceased to use or exhibit deadly weapons. Running testified that on Sunday Zuliani struck her



                                                 5
with a broom, a shower curtain, a metal cane, and a two-by-four board, each of which the State

alleged to be deadly weapons. During the course of these beatings, Zuliani directed Running’s

actions. He forced Running into a cold shower and then ordered her to go to the bedroom. Zuliani

also prevented her from putting on any clothes except her underwear. Running testified that she did

not feel free to leave and that she felt she had to listen to Zuliani because she was afraid that if she

did not, he would start hitting her again. Therefore, we conclude that the State presented sufficient

evidence that Zuliani “restrained” Running because he “restrict[ed] [her] movements without

consent, so as to interfere substantially with [her] liberty, by moving [her] from one place to another

or by confining [her].” See Tex. Penal Code § 20.01(1) (defining “restrain”). And because Zuliani

restrained Running by periodically striking her with deadly weapons, he abducted her. See id.

§ 20.01(2) (“‘Abduct’ means to restrain a person with intent to prevent his liberation by . . . using

or threatening to use deadly force.”); id. § 1.07(17)(B) (“‘Deadly weapon’ means . . . anything that

in the manner of its use or intended use is capable of causing death or serious bodily injury.”).2

                Accordingly, we conclude that there is sufficient evidence to support Zuliani’s

conviction for aggravated kidnapping. We overrule Zuliani’s first and second points of error.




       2
          The State had originally included hand or hands in the list of deadly weapons alleged to
have been used by Zuliani in the commission of aggravated assault. Zuliani argues that the State
later abandoned that theory because the final jury charge did not include “hand” as a possible deadly
weapon under the aggravated assault indictment. However, we note that “hand” remains listed as
a deadly weapon alternative in the aggravated kidnapping section of the final jury charge. Because
we conclude that there is sufficient evidence that Zuliani used a variety of objects as deadly weapons,
we need not decide whether the jury could have properly considered Zuliani’s hand to be a deadly
weapon in connection with his aggravated kidnapping conviction.

                                                   6
Aggravated kidnapping: jury charge error

               In his twelfth point of error, Zuliani contends that the trial court committed

fundamental jury charge error by incorrectly explaining the elements of aggravated kidnapping in

the jury charge. In his thirteenth point of error, Zuliani challenges the trial court’s denial of his

motion for new trial on this ground.

               As discussed above, the indictment for aggravated kidnapping alleged that Zuliani

intentionally or knowingly abducted Running “by using or threatening to use deadly force,” see id.

§ 20.04(b), and that he “did then and there intend to facilitate the commission of a felony, to wit:

Felony Assault Family Violence,” see id. § 20.04(a)(3). The “Relevant Statutes” section of the jury

charge contained, among other things, the following instructions:


       A person commits aggravated kidnapping if the person intentionally or knowingly
       abducts another person with the intent to:

               1. facilitate the commission of a felony; or
               2. inflict bodily injury on the person; or
               3. terrorize the person.

       Alternatively, a person commits aggravated kidnapping if the person intentionally or
       knowingly abducts another person and uses or exhibits a deadly weapon during the
       commission of the offense.


               The three alternatives listed in the first paragraph correspond to Texas Penal Code

section 20.04(a)(3)–(5), respectively. The second paragraph corresponds to section 20.04(b). As

Zuliani notes, in addition to the two grounds for conviction alleged in the indictment (20.04(a)(3)

and 20.04(b)), the trial court also included in the jury charge instructions for grounds that were not

alleged in the indictment (20.04(a)(4) and (5)).

                                                   7
                Because the three alternatives in the first paragraph followed the phrase, “with the

intent to,” the “Relevant Statutes” portion of the charge correctly explained that

section 20.04(a)(3)–(5) were alternatives requiring a finding of specific intent. See id. § 20.04(a) (“A

person commits an offense if he intentionally or knowingly abducts another person with the intent

to . . . .”) (emphasis added). However, the “Application of Law to Facts” section of the charge

stated, in relevant part:


        You must determine whether the State has proved beyond a reasonable doubt . . . .

        2. Gerald Christopher Zuliani:
               a. acted with the intent to facilitate the commission of a felony,
               specifically assault with family violence; or
               b. did inflict bodily injury; or
               c. did terrorize Stephanie Running; or
               d. did use or exhibit a deadly weapon, to wit: hand, a metal rod or rods, a
               wooden object, or a cane.


                Alternative 2(a) in the above paragraph, which corresponds to section 20.04(a)(3),

correctly explained that this alternative required a finding of specific intent. But alternatives

2(b)–(c), corresponding to section 20.04(a)(4)–(5), incorrectly made it appear that these alternatives

did not require a finding of specific intent, because they omitted the phrase, “with the intent to,”

which is found in alternative (a).

                The verdict form that the trial court submitted to the jury contained several counts of

aggravated kidnapping, each of which alleged a statutory ground for conviction corresponding to

2(a)–(d) of the “Application” portion of the charge, and required the jury to return a verdict on each




                                                   8
count. The jury found Zuliani not guilty of abducting Running with the intent to commit a felony

(section 20.04(a)(3)) but found him guilty on the other counts (section 20.04(a)(4)–(5), (b)).

               Zuliani did not object to this alleged error at trial. Therefore, we will reverse the trial

court’s judgment only if the error caused Zuliani “actual, egregious harm.” Arrington v. State,

451 S.W.3d 834, 840 (Tex. Crim. App. 2015); see Kuhn v. State, 393 S.W.3d 519, 524 (Tex.

App.—Austin 2013, pet. ref’d) (“unobjected-to charge error requires reversal only if it resulted in

‘egregious harm’”). Egregious harm must be based on actual harm, not theoretical harm. Arrington,

451 S.W.3d at 840. Actual harm is established when the error affected the very basis of the case,

deprived the defendant of a valuable right, or vitally affected a defensive theory. Id.

               Even assuming that the trial court erred in its charge, we conclude that any error did

not result in egregious harm to Zuliani. If we disregard the counts of aggravated kidnapping

presenting grounds for conviction not alleged in the indictment, the fact remains that the jury

specifically found Zuliani guilty of aggravated kidnapping by abducting Running and using or

exhibiting a deadly weapon. Zuliani’s complaint that the trial court did not properly instruct the jury

under section 20.04(a) is irrelevant because the jury found Zuliani guilty under section 20.04(b),

which contains no mens rea requirement other than that Zuliani intentionally or knowingly abducted

Running. See Tex. Penal Code § 20.04(b).

               Because we conclude that any error did not result in egregious harm to Zuliani, we

also conclude that the trial court did not abuse its discretion in denying his motion for new trial on

this basis. See Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014) (appellate court




                                                   9
reviews trial court’s denial of motion for new trial for abuse of discretion). Accordingly, we overrule

Zuliani’s twelfth and thirteenth points of error.


Bassett’s testimony

               In his eighth point of error, Zuliani contends that the trial court abused its discretion

in admitting the expert testimony of Margaret Bassett, a victim witness counselor with the Travis

County District Attorney’s Office.

               When the State proffered Bassett’s testimony at trial, Zuliani objected, arguing that

Bassett was not qualified to testify as an expert witness, see Tex. R. Evid. 702, and that her

testimony was not relevant, see id. R. 402. Zuliani further argued that even if Bassett’s testimony

were relevant, it should nevertheless be excluded “because of its confusion of the issues, misleading

of the jury, and undue delay and needless presentation of cumulative evidence.” See id. R. 403.

Outside the presence of the jury, Bassett explained that her testimony would help explain why a

victim of domestic violence may not try to escape an abusive situation for several days. The State

argued that Bassett’s testimony was relevant because it would help the jury understand why Running

did not make another attempt to flee her house after Zuliani dragged her back in on Sunday until

Running eventually escaped on Thursday. The State also contended that Bassett’s testimony would

help the jury understand why a victim may not fight back against her assailant. The trial court

overruled Zuliani’s objections and allowed Bassett to testify.

               If a trial court erroneously admits evidence, the error is non-constitutional and we

must determine whether the error was harmful. See Hankins v. State, 180 S.W.3d 177, 182 (Tex.

App.—Austin 2005, pet. ref’d) (“A violation of the rules of evidence is generally non-constitutional

                                                    10
error.”). Error is reversible under Rule 44.2(b) when the error affected the defendant’s substantial

rights. See Tex. R. App. P. 44.2(b); Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010).

“A substantial right is affected when the error had a substantial and injurious effect or influence in

determining the jury’s verdict.” Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014).

“Substantial rights are not affected by the erroneous admission of evidence if, after examining the

record as a whole, we have fair assurance that the error did not influence the jury, or had but slight

effect.” Campbell v. State, 382 S.W.3d 545, 553 (Tex. App.—Austin 2012, no pet.).

               We need not decide whether the trial court abused its discretion in admitting Bassett’s

testimony. Instead, assuming without deciding that the trial court erroneously admitted Bassett’s

testimony, we conclude that the admission of Bassett’s testimony did not affect Zuliani’s substantial

rights.3 At trial, Zuliani’s counsel mitigated any damage Bassett’s testimony may have done by

subjecting Bassett to a thorough cross-examination in which Bassett admitted that she worked for

the district attorney’s office, that the only case information she had received came from

conversations with the prosecutors and viewing the offense report, and that her testimony was not

scientific. In addition, the sole purpose of Bassett’s testimony was to help the jury understand

Running’s testimony that she did not fight back against Zuliani or attempt to escape for several days.

Even without Bassett’s testimony, the jury was free to believe Running, and Bassett’s testimony

essentially provided the same explanation for Running’s actions that Running herself


       3
         We review a trial court’s ruling on the admissibility of evidence for an abuse of discretion.
Jessop v. State, 368 S.W.3d 653, 666 (Tex. App.—Austin 2012, no pet.). “Such rulings will rarely
be disturbed by an appellate court.” Id. We will uphold the trial court’s decision “unless it lies
outside the zone of reasonable disagreement,” and “[i]f the record supports the trial court’s
decision . . . there is no abuse of discretion.” Id.

                                                 11
provided—Running was afraid that if she tried to escape, Zuliani would resume beating her. The

influential effect of Bassett’s testimony, if any, was likely minimal. Therefore, based on the record

before us, we cannot conclude that the admission of Bassett’s testimony “had a substantial and

injurious effect or influence in determining the jury’s verdict.” See Tex. R. App. P. 44.2(b);

Schmutz, 440 S.W.3d at 39. Because any error the trial court may have committed in admitting

Bassett’s testimony did not affect Zuliani’s substantial rights, we overrule Zuliani’s eighth point

of error.


Elaine Zuliani’s testimony

                In his ninth, tenth, and eleventh points of error, Zuliani contends that the trial court

erred in prohibiting Zuliani from eliciting certain testimony from Zuliani’s mother Elaine. Zuliani

argues that the trial court’s ruling violated his rights under the Sixth and Fourteenth Amendments

to the United States Constitution, article I, sections 10 and 19 of the Texas Constitution, and Texas

Rule of Evidence 613(b). See U.S. Const. amends. VI, XIV; Tex. Const. art. I, §§ 10, 19; Tex. R.

Evid. 613(b). Although the trial court allowed Elaine to testify, it did not allow her to discuss certain

encounters Elaine allegedly had with Running before the events at issue in this case.4

                We begin by considering the State’s argument that Zuliani did not preserve his

constitutional claims. The State argues that this case is similar to Reyna v. State, 168 S.W.3d 173

(Tex. Crim. App. 2005). In Reyna, the defendant sought to elicit testimony from the alleged victim




        4
           During voir dire outside the presence of the jury, Elaine offered testimony that
characterized Running as having drinking problems, being jealous of Zuliani and attempting to
prevent his contact with other women, and being prone to aggression.

                                                   12
that the victim had previously made a false accusation of sexual assault. Id. at 175. The defendant

argued to the trial court that the testimony was relevant to the credibility of the same victim in the

defendant’s case. Id. The State objected, and the trial court sustained the objection. Id. On appeal,

the court of criminal appeals held that the defendant had failed to preserve his constitutional

arguments because he did not clearly articulate them to the trial court. Id. at 179. The court noted

that the defendant “argued to the trial judge that the evidence should be admitted for ‘credibility’”

but “did not cite to any rules of evidence, cases, or constitutional provisions.” Id.

               We conclude that Reyna controls this case and that Zuliani has failed to preserve his

constitutional claims on appeal. Zuliani argued before the trial court that the proffered testimony

“goes to show [Running’s] general temperament when it comes to Mr. Zuliani in this matter and

affects her credibility as well.” Like the defendant in Reyna, Zuliani “did not cite to any rules of

evidence, cases, or constitutional provisions” in support of admission, and he did not clearly

articulate a constitutional argument. See id. That is, Zuliani did not “do everything necessary to

bring to the judge’s attention the evidence rule or statute in question and its precise and proper

application to the evidence in question.” Id. (internal quotation marks and footnote omitted).

Because we will not reverse the trial court’s judgment on a ground he did not present to the trial

court, we will not consider Zuliani’s constitutional arguments. See id. at 180 (“The Court of Appeals

erred in reversing Reyna’s conviction on a ground that he did not present to the trial judge.”).

               We next consider whether the trial court’s decision to exclude certain portions of

Elaine’s testimony violated the Texas Rules of Evidence. We review a trial court’s ruling under the

rules of evidence for an abuse of discretion. Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App.



                                                 13
2009). “We consider the ruling in light of what was before the trial court at the time the ruling was

made and uphold the trial court’s judgment if it lies within the zone of reasonable disagreement.”

Id. If we conclude that the trial court abused its discretion in excluding evidence, we must then

determine whether the trial court’s error affected Zuliani’s substantial rights. See id. at 43; see also

Tex. R. App. P. 44.2(b).

                Assuming without deciding that the trial court abused its discretion in excluding the

testimony, we conclude that any error did not affect Zuliani’s substantial rights. Elaine’s testimony,

if fully believed by the jury, would have shown that Running had, on at least a few occasions,

exhibited jealousy, aggression, and a tendency to drink too much. Some of this testimony would not

have contradicted Running’s own testimony and is therefore cumulative. Campbell, 382 S.W.3d at

553 (considering whether erroneously admitted evidence was cumulative in harm analysis under

Rule 44.2(b)). Running testified at trial, for instance, that shortly before the events in question she

had admitted to Zuliani that she wanted to cut down on her drinking. And although evidence of

jealousy and aggression may have provided some support to the defense’s theory that Running

initiated the confrontation with Zuliani, such evidence would have little value for the defense. The

trial court did not submit a question on self-defense to the jury. In addition, Running’s version of

events was supported by physical evidence of her extensive injuries, many of which Zuliani did not

attempt to explain at trial. We conclude that the State’s case against Zuliani was strong and that the

exclusion of portions of Elaine’s testimony did not have a “substantial and injurious effect or

influence in determining the jury’s verdict.” See Schmutz, 440 S.W.3d at 39.




                                                  14
               Because we determine that any error the trial court may have committed in excluding

certain topics of Elaine’s testimony did not affect Zuliani’s substantial rights, we overrule Zuliani’s

ninth, tenth, and eleventh points of error.


State’s jury argument

               In his eighteenth point of error, Zuliani challenges the trial court’s decision

to overrule his objections that the State’s jury argument “struck at [Zuliani] over his

counsel’s shoulders.”

               During the State’s final closing argument at the guilt/innocence phase of trial, the

prosecutor made the following allegedly improper statements:


       •       The bottom line with a lot of the defense is sort of a magic act, smoke and
               mirrors, red herrings, whatever you want to say—

       •       So what the Defense is doing is using a lot of tricks, smoke and mirrors . . . .

       •       So, again, these are all parts of these smoke and mirrors and these red
               herrings the Defense is sending you on.

       •       It’s the same thing and the reality is the Defense is on sort of a smear
               campaign with Stephanie Running. They’re showing you pictures ostensibly
               to show what she looked like in a ponytail, but she’s flipping off the camera.
               They say, well, this looks like a couch you sat on. This must be—we want
               to introduce this picture and it’s a very unflattering picture of her. Why are
               they doing that? It’s a smear campaign. She’s a drunk, she’s so overweight
               that he could never lift her, and it’s all done to embarrass her, to so distract
               you from what the real evidence in this case is and ask yourself why they’re
               doing that.


               We review a trial court’s ruling on an objection to improper jury argument for an

abuse of discretion. Nzewi v. State, 359 S.W.3d 829, 841 (Tex. App.—Houston [14th Dist.] 2012,

                                                  15
pet. ref’d) (citing Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim. App. 2010)). A trial court abuses

its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules and

principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.1990). “[P]roper jury

argument generally falls within one of four general areas: (1) summation of the evidence;

(2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and

(4) plea for law enforcement.” Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008).

Argument that attacks the defense attorney—that is, strikes at a defendant over the shoulders of

counsel—is improper. Davis, 329 S.W.3d at 821.

                In this case, we need not decide whether the prosecutor’s comments in closing

argument were improper because we conclude that any error the trial court may have made in

overruling Zuliani’s objections was not reversible. When argument is improper because it strikes

over the shoulders of counsel, we consider three factors in determining whether the trial court’s error

affected the defendant’s substantial rights: “(1) severity of the misconduct (prejudicial effect),

(2) curative measures, [and] (3) the certainty of conviction absent the misconduct.” Martinez

v. State, 17 S.W.3d 677, 693 (Tex. Crim. App. 2000) (citing Mosley v. State, 983 S.W.2d 249, 259

(Tex. Crim. App. 1998)).

                We conclude that the third factor weighs against reversal and is dispositive in this

case. The prosecutor’s comments encouraged the jury to disbelieve defense arguments that Running

initiated the confrontation with Zuliani or that she was not telling the truth about certain details—for

example, that she ran out of the house and Zuliani dragged her back inside. However, Running’s

testimony was corroborated with physical evidence, including evidence of her injuries and of the



                                                  16
objects with which Zuliani allegedly struck her. Running had been subjected to cross-examination,

and the jury was free to reach its own conclusions about her reliability. Based on the record before

us, we conclude that there is a high degree of certainty that the jury would have found Zuliani guilty

of the charged offenses even if the prosecutor had not made the allegedly improper comments.

Therefore, the trial court’s decision to overrule Zuliani’s objections to the prosecutor’s arguments

did not substantially affect Zuliani’s rights. Accordingly, we overrule Zuliani’s eighteenth point

of error.


Release in a safe place

               In his nineteenth point of error, Zuliani challenges the trial court’s refusal to reduce

the punishment range for his conviction of aggravated kidnapping pursuant to Texas Penal Code

section 20.04(d). Under that provision, “[a]t the punishment stage of a trial, the defendant may raise

the issue as to whether he voluntarily released the victim in a safe place. If the defendant proves the

issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second

degree.” Tex. Penal Code § 20.04(d). At the punishment phase of the trial, Zuliani asked the trial

court to find that he voluntarily released Running in a safe place. The trial court denied Zuliani’s

request without explanation.

               The determination of whether a location is a “safe place” under section 20.04(d) is

a “fact-specific inquiry made on a case-by-case basis, considering the totality of the circumstances.”

Butcher v. State, 454 S.W.3d 13, 19 (Tex. Crim. App. 2015). Courts may consider seven factors in

determining whether a place was safe: “(1) the remoteness of the location, (2) the proximity of help,

(3) the time of day, (4) the climate, (5) the condition of the complainant, (6) the character of the

                                                  17
location and surrounding neighborhood, and (7) the complainant’s familiarity with the location or

neighborhood.” Id. However, these factors are “merely nonexclusive aids.” Id. (footnote omitted).

               We review the trial court’s ruling on Zuliani’s affirmative defense for both legal and

factual sufficiency. Id. at 20. In legal-sufficiency review, we first determine whether the record

contains a scintilla of evidence favorable to the factfinder’s decision. Id. We then overturn the

factfinder’s decision only if the appellant establishes that the evidence conclusively proves the

affirmative defense. Id. In factual-sufficiency review, we examine the evidence in a neutral light

and overturn the factfinder’s decision only if the decision is so against the great weight of the

evidence as to be manifestly unjust, conscience-shocking, or clearly biased. Id.

               We determine that more than a scintilla of evidence supports the conclusion that

Zuliani did not release Running in a safe place, and we also determine that the trial court’s ruling

was not against the great weight of the evidence. At trial, the jury heard evidence that Zuliani had

assaulted Running in her own home over the course of several days. Running testified that Zuliani

had thwarted her attempt of escape on Sunday, and when Zuliani had briefly left the house on

Wednesday afternoon, Running did not attempt to flee because she was afraid that Zuliani was

testing her. In addition, Running was still suffering from multiple injuries when she finally escaped.

Upon review of the record, we cannot conclude that the evidence is legally or factually insufficient

to support the trial court’s ruling on Zuliani’s defense under section 20.04(d). Accordingly, we

overrule Zuliani’s nineteenth point of error.




                                                 18
Motion for election

                In his fourth point of error, Zuliani challenges the trial court’s denial of his motion

requesting that the State elect which incident it was alleging as aggravated assault. Similarly, in his

fifth point of error, Zuliani challenges the trial court’s denial of his motion requesting that the State

elect which incident it was alleging as aggravated kidnapping. Zuliani argues that the State alleged

multiple criminal acts, any of which could support a conviction for aggravated assault. Zuliani notes

that the State alleged that he struck Running with several different objects at several different times

and in several different locations. Zuliani also argues that the State alleged separate acts, each of

which might support a conviction for aggravated kidnapping.5

                Under certain circumstances, a trial court must order the State to elect which

transactions it will rely on for conviction. See Figueroa v. State, 250 S.W.3d 490, 505 (Tex.

App.—Austin 2008, pet. ref’d). However, an election is not required when the defendant’s criminal

acts were “part and parcel of the same criminal transaction.” Steele v. State, 523 S.W.2d 685, 687

(Tex. Crim. App. 1975); see Herring v. State, 752 S.W.2d 169, 171 (Tex. App.—Houston [1st Dist.]

1988, no pet.) (“Generally, the State is not required to elect between offenses if the evidence shows

that the offenses were committed as part of a single criminal transaction and the defendant is

convicted of only one offense.”) (citation omitted). In Steele, for example, the defendant was




        5
           The State questions whether Zuliani actually requested that the trial court order the State
to elect and whether Zuliani obtained a ruling from the trial court. See Cosio v. State, 353 S.W.3d
766 (Tex. Crim. App. 2011) (“A defendant’s decision to elect is purely strategic and may be waived
or forfeited.”). We assume, without deciding, that Zuliani actually moved for an election regarding
both his aggravated assault and aggravated kidnapping charges and obtained rulings from the
trial court.

                                                   19
convicted of rape by threats. The court of criminal appeals held that multiple acts of sexual

intercourse were part of the same criminal transaction because “the evidence show[ed] that the

several acts of intercourse were committed by one continuous act of force and threats.” Steele,

523 S.W.2d at 687.

               We conclude that the State alleged only one criminal transaction in its aggravated

assault indictment and one criminal transaction in its aggravated kidnapping indictment. Even if

Zuliani is correct that several of the acts he allegedly committed could have supported a conviction

on their own, “‘there may be any number of distinct crimes in a single criminal transaction.’”

Crocker v. State, 573 S.W.2d 190, 198 (Tex. Crim. App. 1978) (quoting Whitford v. State,

24 Tex. Ct. App. 489, 492, 6 S.W. 537, 538 (1887)). All of the alleged actions constituting

aggravated assault occurred on Sunday; there was no clear break in the assault, and “a single guilty

intent ran through and connected” these assaultive acts. See McIntire v. State, 698 S.W.2d 652, 656

(Tex. Crim. App. 1985). In other words, the acts constituting aggravated assault “were committed

by one continuous act of force and threats.” Steele, 523 S.W.2d at 687. Similarly, the jury found

that Zuliani abducted Running by using or exhibiting a deadly weapon. Every use or exhibition of

a deadly weapon occurred on Sunday in a connected sequence of events.

               Because we determine that all of the alleged acts constituting aggravated assault were

part of one criminal transaction and that all of the alleged acts constituting aggravated kidnapping

were part of one criminal transaction, we conclude that the trial court did not err in refusing to order

the state to elect. Accordingly, we overrule Zuliani’s fourth and fifth points of error.




                                                  20
Assault with family violence: jury charge error

                In his sixth point of error, Zuliani contends that the trial court committed fundamental

jury charge error by failing to instruct the jury that it must unanimously agree on a single assault

supporting his conviction of assault with family violence. According to Zuliani, the trial court’s

charge allowed the jury to convict him by finding only that he intentionally or knowingly caused

bodily injury to Running and that he had previously been convicted of family violence. Zuliani

argues that the State presented evidence of multiple assaults and that the jury’s verdict may have

lacked unanimity because “[t]he possible combinations [of assault] are as numerous as the

acts/incidents she claimed he caused bodily injury.” In his seventh point of error, Zuliani contends

that the trial court abused its discretion by denying Zuliani’s motion for new trial on this ground.

                Contrary to Zuliani’s arguments, a jury need only decide unanimously that the

defendant committed each element of a crime—it need not unanimously agree on the underlying

brute facts that make up each element or which of several means the defendant used to commit each

element. See Johnson v. State, 364 S.W.3d 292, 296 (Tex. Crim. App. 2012); see also Stuhler

v. State, 218 S.W.3d 706, 717 (Tex. Crim. App. 2007) (“On facts such as these, the series of acts

constitutes the commission of the offense. It follows that the jury charge should not require the jury

to agree as to any particular act in the series before it can convict.”). Here, the trial court instructed

the jury that in order to find Zuliani guilty it had to unanimously agree on each element of assault

with family violence. We conclude that the trial court was not required to go further and instruct the

jury to unanimously agree on which specific strikes with Zuliani’s hands, for example, caused which

specific injuries. Therefore, we also conclude that the trial court did not abuse its discretion in



                                                   21
denying Zuliani’s motion for new trial on this ground. See Colyer, 428 S.W.3d at 122 (“We review

a trial court’s denial of a motion for new trial for abuse of discretion.”). Accordingly, we overrule

Zuliani’s sixth and seventh points of error.


Assault by strangulation

               In his fourteenth, fifteenth, sixteenth, and seventeenth points of error, Zuliani

challenges his conviction for assault by strangulation.


               Statute, indictment, and jury charge

               A person commits second-degree felony assault by strangulation if the person

“intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s

spouse,” “ the offense is committed against a person whose relationship to or association with the

defendant is described by [certain sections of the family code],” “it is shown on the trial of the

offense that the defendant has been previously convicted of an offense under [certain sections of the

penal code] . . . against a person whose relationship to or association with the defendant is described

by [certain sections of the family code],” and “the offense is committed by intentionally, knowingly,

or recklessly impeding the normal breathing or circulation of the blood of the person by applying

pressure to the person’s throat or neck or by blocking the person’s nose or mouth.” Tex. Penal Code

§ 22.01(a), (b-1).

               The indictment against Zuliani alleged the following:


       [Zuliani] did then and there intentionally, knowingly and recklessly cause bodily
       injury to [Running], a member of the said [Zuliani’s] family and household and with
       whom [Zuliani] has had a dating relationship, by seizing the said [Running] on or

                                                  22
       about the neck with his hand, [and Zuliani] did intentionally, knowingly, and
       recklessly impede the normal breathing and circulation of the blood of [Running], by
       applying pressure to [Running’s] neck with his hand, [and Zuliani] had been
       convicted of an offense against a member of the said [Zuliani’s] family and
       household and against a person with whom [Zuliani] has had a dating
       relationship . . . .


               The “Relevant Statutes” portion of the trial court’s jury charge did not include prior

conviction as an element of the offense. In addition, the charge listed as an element of the offense

that “the defendant acted with intent to impede the normal breathing or circulation of the blood of

another; with knowledge that he would impede the normal breathing or circulation of the blood of

another; or with recklessness concerning whether he would impede the normal breathing or

circulation of the blood of another.” It did not include as an element that the defendant actually did

impede the victim’s breathing or blood circulation.

               Similarly, the “Application of Law to Facts” portion of the trial court’s jury charge

did not mention a prior conviction. That portion stated that the following alternatives comprised the

impediment element of the offense:


       a. [Zuliani] acted with intent to impede the normal breathing or circulation of the
       blood of [Running]; or
       b. [Zuliani] acted with knowledge that he would impede the normal breathing or
       circulation of the blood of [Running]; or
       c. [Zuliani] acted with recklessness concern whether he would impede the normal
       breathing or circulation of the blood of [Running].


The “Application of Law to Facts” portion also instructed the jury that the jurors did not have to

unanimously agree on any of these three options.




                                                 23
                 The jury returned a verdict of guilty for “the offense of felony assault strangulation.”

Zuliani pleaded true to the enhancement paragraph alleged in the indictment, and the trial court

sentenced him for the offense as a first-degree felony. See id. § 12.42(b).


                 Zuliani’s points of error

                 In his fourteenth point of error, Zuliani contends that the trial court’s jury charge on

strangulation does not allow for him to be convicted of a first-degree felony. Zuliani notes that the

charge omitted the prior-conviction element of the offense. Therefore, Zuliani argues, the jury found

only the elements necessary to convict him under Texas Penal Code section 22.01(b)(2)(B), a third-

degree felony.

                 In his fifteenth point of error, Zuliani argues that his conviction should be reformed

to assault with family violence, not strangulation. As Zuliani notes, the trial court’s jury charge

allowed the jury to convict him without finding that he actually impeded Running’s breathing or

blood circulation. According to Zuliani, without a finding on the impediment element, he could have

been convicted, at most, of third-degree assault with family violence under Texas Penal Code

section 22.01(a)(1) and (b)(2)(A).

                 In his sixteenth point of error, Zuliani contends that the trial court committed

fundamental jury charge error by omitting the prior-conviction element and by not requiring the jury

to find beyond a reasonable doubt that Zuliani actually impeded Running’s breathing or blood

circulation. Zuliani argues that without these two elements, he could have been convicted only of

a class-A misdemeanor under Texas Penal Code section 22.01(a). Finally, in his seventeenth point




                                                   24
of error, Zuliani challenges the trial court’s denial of his motion for new trial on the grounds of

fundamental error in the jury charge.


               Analysis

               We conclude that the jury charge contained error because it allowed the jury to find

Zuliani guilty without finding that he actually impeded Running’s normal breathing or circulation

of the blood. See id. § 20.01(b-1)(3) (listing “impeding the normal breathing or circulation of the

blood” of victim as element of second-degree felony assault by strangulation); Murphy v. State,

44 S.W.3d 656, 661 (Tex. App.—Austin 2001, no pet.) (“The trial court is obligated to charge the

jury on the law applicable to the case. This requires that the jury be instructed concerning each

element of the offense or offenses charged.”) (internal quotation marks and citation omitted).

In addition, we assume, without deciding, that it was also error for the charge to omit the

prior-conviction element.6

               Zuliani, however, did not object to these errors at trial. Therefore, we will only

reverse the trial court’s judgment if the error “caused actual, egregious harm” to Zuliani. Arrington,


       6
           The omission of the prior conviction was charge error if the prior conviction was an
essential element of the offense. As the State points out, a split of authority exists among the courts
of appeals as to whether a prior conviction of family violence is an essential element of an offense
under Texas Penal Code section 22.01(b) or a sentence enhancement. See Olivas v. State,
No. 08-11-00081-CR, 2013 WL 1182208, at *3 (Tex. App.—El Paso Mar. 20, 2013, no pet.) (not
designated for publication). This Court has previously declined to resolve the question. See Smith
v. State, No. 03-06-00430-CR, 2007 WL 2066291, at *5 (Tex. App.—Austin July 18, 2007, no pet.)
(mem. op., not designated for publication); Zavala v. State, No. 03-05-00051-CR, 2007 WL 135979,
at *1 n.2 (Tex. App.—Austin Jan. 22, 2007, no pet.) (mem. op., not designated for publication).
Because, as discussed below, we conclude that any error in the strangulation jury charge did not
cause egregious harm to Zuliani, we need not decide whether a prior conviction for family violence
was an essential element of the offense.

                                                  25
451 S.W.3d at 840; see Kuhn, 393 S.W.3d at 524. In determining whether charge error has caused

egregious-harm, we “consider the entirety of the jury charge itself, the evidence, including the

contested issues and weight of the probative evidence, the arguments of counsel, and any

other relevant information revealed by the record of the trial as a whole.” Jourdan v. State,

428 S.W.3d 86, 97–98 (Tex. Crim. App. 2014) (quoting Stuhler, 218 S.W.3d at 719).

                We conclude that neither charge error asserted by Zuliani egregiously harmed him.

First, although the charge did not require the jury to find that Zuliani actually impeded Running’s

breathing or blood circulation, it did require the jury to find that Zuliani “caused bodily injury to

[Running] by applying pressure to [Running’s] neck with his hand.” It also required that Zuliani did

so “with intent to impede” Running’s breathing or blood circulation, with the knowledge that he was

causing such impediment, or with recklessness concerning whether he would cause such

impediment. These findings are not so far removed from a finding that Zuliani actually caused

impediment for us to conclude that Zuliani suffered egregious harm. In addition, Running testified

that Zuliani put his hands around her throat, making it difficult for her to breathe and causing her to

fear she might pass out. Under these circumstances, we believe it is unlikely that the jury would

have convicted Zuliani of the offense as charged but would not have found him guilty if the offense

had been properly charged.

                Second, we conclude that the jury charge’s omission of the prior-conviction element

did not cause Zuliani egregious harm because the jury heard evidence that Zuliani had such a

conviction. Indeed, Zuliani stipulated to the existence of a prior conviction for family violence. It

is true that the jury was instructed that it could only consider that stipulation in connection with the



                                                  26
indictment for assault with family violence. Nevertheless, given that Zuliani stipulated to the

conviction, the error did not affect “the very basis of the case.” See Arrington, 451 S.W.3d at 840

(quoting Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011)). This case was about

strangulation, not about a prior conviction.

                   Because we conclude that any error in the trial court’s jury charge on assault by

strangulation did not cause Zuliani egregious harm, we also conclude that the trial court did not

abuse its discretion in denying Zuliani’s motion for new trial on this ground. See Colyer,

428 S.W.3d at 122 (appellate court reviews trial court’s denial of motion for new trial for abuse of

discretion). Accordingly, we overrule Zuliani’s fourteenth, fifteenth, sixteenth, and seventeenth

points of error.


Theft: sufficiency of the evidence

                   In his third point of error, Zuliani contends that the evidence is insufficient to support

his conviction for theft. Zuliani argues that the fact that he sent Running messages telling her that

he was going to deposit the check, deposited the funds into their joint account to which Running had

full access, and did not withdraw the funds establishes that he did not intend to deprive Running of

the value of the check. In addition, although the State introduced a bank record that it claimed

showed that Zuliani gave Richter access to the account, Zuliani asserts that his signature does not

appear on the form.

                   In reviewing the sufficiency of the evidence, we must determine whether a rational

trier-of-fact could have found each essential element of theft beyond a reasonable doubt. See

Schneider, 440 S.W.3d at 841. A person commits theft “if he unlawfully appropriates property with

                                                      27
intent to deprive the owner of property.” Tex. Penal Code § 31.03(a). “Appropriation of property

is unlawful if . . . it is without the owner’s effective consent.” Id. § 31.03(b)(1).

               The State presented evidence that after Running escaped from Zuliani, Zuliani sent

Running a voicemail and text message asking for permission to deposit a check made out exclusively

to Running. Although Running did not respond to those messages, Zuliani deposited the check into

a joint account to which both he and Running had access. The jury also heard evidence that Zuliani’s

girlfriend Richter withdrew the funds from that account in a series of transactions beginning about

a week later. It is undisputed that Running did not expressly consent to Zuliani’s taking her check

and depositing it into an account to which he had access, and we conclude there is no evidence

suggesting that she gave apparent assent. See id. § 1.07(a)(11) (“‘Consent’ means assent in fact,

whether express or apparent.”); Baird v. State, 398 S.W.3d 220, 229 (Tex. Crim. App. 2013) (“For

‘assent’ ‘in fact’ to occur, therefore, there must be an actual or real agreement after thoughtful

consideration.”). Running did not respond to Zuliani’s requests for permission to deposit the check,

nor did she endorse the check. We therefore conclude that there is sufficient evidence to support the

jury’s determination that Zuliani appropriated Running’s property without effective consent.

               We next consider whether the State presented sufficient evidence that Zuliani

intended to deprive Running of the value of her property when he deposited the check. For the

appropriation of property to constitute theft, the defendant must have intended to deprive the owner

of the value of the property at the time the defendant took the property. Peterson v. State,

645 S.W.2d 807, 811 (Tex. Crim. App. 1983) (“Relevant intent to deprive the owner of property

is the accused’s intent at the time of the taking.”); Hernandez v. State, No. 03-13-00268-CR,



                                                  28
2014 WL 4058828, at *2 (Tex. App.—Austin Aug. 14, 2014, no pet.) (mem. op., not designated for

publication). “The fact finder determines intent to deprive from the words and acts of the accused.”

Winkley v. State, 123 S.W.3d 707, 713 (Tex. App.—Austin 2003, no pet.).

               According to Running’s testimony, Zuliani told Running that he intended to deposit

the check. He then deposited the check into a joint account and did not withdraw the funds.

Although the State presented evidence that Running seldom if ever used the joint account, it was

undisputed that Running knew of the account and had full access to it. We conclude that these facts

do not support the conclusion that Zuliani intended to deprive Running of the value of her property

at the time he deposited the check.

               The State emphasizes that Richter later withdrew all funds from the account and

argues that this is evidence that Zuliani was already intending to withdraw the funds at the time he

deposited the check. At trial, the State called a bank investigator, who testified that on November 1,

about a week after Running escaped and Zuliani was arrested, Zuliani added Richter to the joint

account. The investigator referenced State’s Exhibit 85 and stated that Zuliani’s signature appeared

on the signature card of the form adding Richter. However, we have reviewed this exhibit, and we

agree with Zuliani that Zuliani’s signature does not appear anywhere on the form. Zuliani points out

that his name is written on the form in handwriting that is completely different from his signature

on other forms in the record. We agree, but more importantly, none of the signatures on the form

adding Richter to the account even purport to be Zuliani’s. Instead, it is evident from the face of the

document that Richter herself signed Zuliani’s name and then, in the same signature block, signed

her own name and indicated that she had power of attorney to sign for Zuliani. Richter also signed



                                                  29
her own name in Running’s signature block. Therefore, only Richter’s signature appears on the

form. Because the State did not introduce any evidence that Zuliani had granted Richter power of

attorney or otherwise granted her authority to access funds in the account, there is insufficient

evidence to conclude that Zuliani authorized the addition of Richter to the account.

               Disregarding Richter’s later actions, we determine that no rational trier-of-fact could

have found beyond a reasonable doubt that Zuliani intended to deprive Running of the value of her

property when he deposited the check. Accordingly, we sustain Zuliani’s third point of error and will

reverse Zuliani’s conviction for theft and render a judgment of aquittal.


                                         CONCLUSION

               Having sustained Zuliani’s third point of error, we reverse the trial court’s judgment

of conviction for theft in cause number D-1-DC-13-900137 and render a judgment of acquittal.

Having overruled Zuliani’s remaining points of error, we affirm the trial court’s judgments of

conviction in cause numbers D-1-DC-13-900010, D-1-DC-13-900011, D-1-DC-12-100127, and

D-1-DC-12-900269.




                                                 30
                                           __________________________________________

                                           Scott K. Field, Justice

Before Chief Justice Rose, Justices Goodwin and Field

NO. 03-13-00490-CR          Affirmed

NO. 03-13-00491-CR          Affirmed

NO. 03-13-00492-CR          Affirmed

NO. 03-13-00493-CR          Reversed and Rendered

NO. 03-13-00495-CR          Affirmed

Filed: May 29, 2015

Do Not Publish




                                             31
