                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-15-00041-CR
                            NO. 02-15-00042-CR
                            NO. 02-15-00043-CR
                            NO. 02-15-00044-CR


RAUL MIRABAL                                                      APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


                                   ----------

       FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
      TRIAL COURT NOS. 1309930D, 1309990D, 1310195D, 1310196D

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                       MEMORANDUM OPINION1

                                   ----------

                              I. INTRODUCTION

     Appellant Raul Mirabal appeals his convictions for aggravated assault with

a deadly weapon, unlawful restraint, and aggravated sexual assault and three

convictions for violations of a protective order. Mirabal raises five issues

     1
      See Tex. R. App. P. 47.4.
challenging the sufficiency of the evidence, the exclusion of a text message from

evidence, and the propriety of the jury charges given. We will affirm.

                            II. FACTUAL BACKGROUND

      The complainant met Mirabal when she was six years old; her father

married Mirabal’s sister Lourdes. The complainant and Mirabal started dating in

1997 when she was fifteen years old; they married in 2004, and their son M.M.

was born in 2009. By April 2012, the complainant had moved out of the marital

residence, but she was still married to Mirabal.

      On April 28, 2012, Mirabal kept M.M. while the complainant attended a

coworker’s wedding. When the complainant went to pick up M.M. from Mirabal,

Mirabal was upset and pushed the complainant to the ground, scratched her face

with his hand, and hit the back of her head.2          Mirabal then followed the

complainant to Lourdes’s house, where the complainant was living at the time.

The complainant reported the incident to the police.

      Shortly after the April incident, the complainant filed for divorce and a

protective order.   The complainant testified that she felt the need to file for

divorce and a protective order to protect herself and M.M. because Mirabal’s

anger was escalating.     The complainant testified that she did not follow the

protective order “to a T.” The protective order allowed Mirabal to see M.M. on


      2
       The complainant suffered internal bleeding in her right eye, bruising and
scratch marks on the side of her face, and bruising on her ear. Photos of the
complainant’s injuries were admitted into evidence.


                                         2
Thursdays after school until 8:00 or 8:30 p.m., but the complainant allowed

Mirabal access to M.M. “pretty much anytime he requested” when Mirabal did not

seem to be in an agitated mood. The protective order required M.M. to be picked

up and dropped off at McDonald’s, but the exchanges happened at Mirabal’s

home because Mirabal refused to go to McDonald’s.

      On January 4, 2013, while Lourdes was watching M.M. for the complainant

before she arrived home from work, Mirabal took M.M. from Lourdes’s home.

The complainant testified that she was not comfortable with Mirabal having M.M.

with him on that day; she had talked to Mirabal earlier in the day, and he was

very upset because he had learned that the complainant was in a relationship

with another man. The complainant called Mirabal, but he was not agreeable to

meeting at McDonald’s to allow her to pick up M.M.        The complainant told

Mirabal that she would pick up M.M. the following morning at 9:00 a.m.

      The next morning, Mirabal called the complainant around 7:45 a.m. and

told her that she could come and pick up M.M.       The complainant arrived at

Mirabal’s home in Hurst around 8:00 a.m. The complainant did not plan to go

inside, but Mirabal told her that M.M. was eating in the kitchen, that she should

come inside, and that she “had nothing to worry about.”

      Once the complainant entered Mirabal’s home, he started yelling at her,

telling her that she had ruined their family and was a whore. She told him that

she was sorry, that she did not want to talk to him about her relationship with

another man, and that she wanted to leave. Mirabal pushed her into a chair and


                                       3
told her that they were going to talk. The complainant got M.M. ready to leave,

grabbed M.M.’s belongings, and headed to the front door.           Mirabal told the

complainant to sit down, so she did.         Mirabal talked about going away

somewhere but was vague and did not have a plan.

      The complainant tried to leave again but realized that the door had been

locked. When she tried to unlock the door, Mirabal grabbed her from behind,

threw her into a corner, and repeatedly punched her in both eyes.              The

complainant testified that she felt severe pain. M.M. was standing nearby and

picked up rocks from a potted plant and threw them at Mirabal. The complainant

testified that M.M. screamed, “Daddy, please stop, please stop hitting [M]ommy.”

      Mirabal said that he wanted to bring her into the bedroom, that he had a

gun in there, and that he wanted to kill her in the bedroom. Mirabal started

dragging the complainant by her clothes toward the bedroom; she wiggled away,

ripping her tank top and bra, and tried to grab a cell phone to call 9-1-1, but she

was unable to unlock the phone to make the call. Mirabal threatened her saying

that he would break her phone and that she would not call 9-1-1.

      Mirabal grabbed the complainant by the hair so that she could not get

away, threw her into the hallway wall, and then dragged her by her hair into the

bedroom. Mirabal pulled a large handgun from underneath the mattress, held it

near the complainant’s head, and said that he was going to kill her and that “this

is it.” The complainant begged and pleaded with Mirabal to not kill her because

she was M.M.’s mother; the complainant testified that she was very afraid that


                                        4
Mirabal would hit her with the gun and then shoot her. Mirabal said that she was

right about being M.M.’s mother and that he was going to put a bullet through

M.M.’s head first and make her watch because that would hurt her more. The

complainant ran toward M.M. to try to cover him in any way that she could, but

Mirabal grabbed her, threw her into another corner, and again repeatedly

punched her face.

      When Mirabal got up and walked toward M.M., the complainant got up.

Mirabal turned around, put his hands on her neck, placed her over a table, and

screamed that he did not need a gun to kill her; the complainant believed that

Mirabal was implying that he could choke her to death. Mirabal then became

sick and vomited.3 He told her that he wanted to go lie down and that she was

going to come with him. The complainant realized that she was not fast enough

or strong enough to get away, that he had a gun, and that he was “a very good

shot,” so she went into the bedroom with him. The gun was on the bed, and she

picked it up and threw it into the corner where there was a pile of clothes. She

then sat next to Mirabal on the bed; rubbed his back; and told him that they could

forgive each other, that they could make this work, and that he did not need to

worry about the injuries to her face because she worked from home.

      Ultimately, the complainant convinced Mirabal that she needed to go to her

apartment in Grapevine because she did not have a shirt and bra and needed to

      3
      The complainant testified that Mirabal is diabetic and had previously
thrown up because of fluctuations in his blood-sugar levels.


                                        5
shower to wash the blood out of her hair and to change so that they could go

away somewhere like he wanted. Mirabal agreed, and he left with her and M.M.

The complainant testified that while they were in the car, she was afraid that

Mirabal might have the gun4 with him and therefore did not feel like she could

stop for help.

        When they arrived at the complainant’s apartment, she took a shower to

wash the blood out of her hair. After the complainant showered, Mirabal decided

to shower and asked her to shower with him and to perform oral sex on him. He

put his penis into her mouth, and she complied.        She testified that the only

reason she complied with Mirabal’s demand was that she feared for her life and

for M.M.’s life and that she believed Mirabal would further hurt her or hurt M.M. if

she did not comply. The complainant testified that she did not feel free to leave

her apartment because Mirabal was stronger and faster than her—due to the fact

that she would be running with M.M. in her arms—and because Mirabal had a

gun.5

        After the shower, Mirabal said that he wanted to lie down and that the

complainant was to lie down with him. She lay down; as she drifted in and out of

consciousness, she listened to Mirabal’s breathing to see if he was falling asleep.

        4
       She testified that she believed that he could have concealed the gun
under the sweatshirt he was wearing.
        5
       The complainant testified on cross-examination that while they were at her
apartment, she did not see the firearm that Mirabal had previously used to
threaten her while they were at his house.


                                         6
When he fell asleep, she was able to get to her phone in the living area and sent

a text message to Lourdes asking for help.6

      Immediately after the complainant sent the text, Mirabal came out to the

living area and began berating the complainant and saying nasty things about

her, her family, and her friends. The complainant testified that Mirabal “was just

talking crazy” and mentioned other ways that he had considered killing her, such

as sitting in the field in front of her apartment and shooting her through the

window. M.M. asked Mirabal why he had hit his mom and said that “[M]ommy

doesn’t look pretty this way.” Mirabal again brought up his idea of going away

somewhere and said that he needed to go back to his home. The complainant

offered him the keys, but he said that she had to go with him.

      The complainant drove the three of them back to Mirabal’s home.

Because M.M. had fallen asleep, the complainant stayed in the car with him while

Mirabal went inside his home to pack for the trip.       The complainant texted

Lourdes again. The complainant also texted her friend Severine a picture of her

face7 and told her that Mirabal “did this to me”; the complainant testified that if


      6
        Lourdes testified that around noon on January 5, 2013, she received a
text from the complainant stating that she and Mirabal were resting and that she
was trying to make things right.
      7
       Severine Williams testified that when she received the complainant’s text,
she was scared for the complainant. Severine called her husband and told him
that they “had to do something because it was not going to go well.” Severine
said that when she saw the picture, she thought that she would not see the
complainant again because the complainant would probably die.


                                        7
she died that day, she wanted someone to know who had injured her.              The

complainant also called Severine’s home because she knew her husband would

be at home. The complainant told the jury that she was “really terrified that

[Mirabal] was going to come out [and] see [her] on the phone” and that she did

not want to call the police and have to provide a lot of information. Mirabal came

out to check on her five minutes after he went inside to pack. The complainant

testified that she did not feel safe to flee in her car because she was worried that

Mirabal would get in his car and hit them or gun them down; she testified that she

“just did not feel like [she] was going to get away.”

      Eventually, they headed back to the complainant’s apartment for the

complainant to pack for the trip. The complainant testified that Mirabal had a

backpack with him and that she assumed that he had the gun. On the way back

to the complainant’s apartment, her friend Severine called, and Mirabal allowed

the complainant to answer the phone.          The complainant spoke casually with

Severine and told her that she and M.M. were headed to the complainant’s

apartment. The complainant testified that Severine was upset because she had

seen the picture that the complainant had texted to her.8

      When Mirabal, the complainant, and M.M. arrived at the complainant’s

apartment, she carried M.M. from the car to her bed because he was still asleep.

Around 5:30 p.m., the Grapevine Police called the complainant and asked her to


      8
       Severine’s husband ultimately called 9-1-1.


                                          8
come outside with M.M.; she said that she could not. The police said that they

would knock on the door and that if she did not answer, they would kick down the

door; the complainant said, “[O]kay,” and the conversation ended.             The

complainant told Mirabal that someone was at the door and that she did not want

to answer the door because he would not want people to see her with her injured

face.   The complainant then went and laid down next to M.M., and Mirabal

answered the door.

        Detective Christopher Taylor with the Grapevine Police Department

testified that when Mirabal opened the door, he was very calm. Detective Taylor

asked if the complainant was inside the apartment, and Mirabal said no.

Detective Taylor testified that he already knew the complainant was inside the

apartment based on the phone call to her, so he performed a protective sweep of

the apartment. Detective Taylor found a female lying in bed, cradling a child; the

female identified herself as the complainant, and Detective Taylor immediately

saw that she had two very swollen black eyes.          When asked if Mirabal had

inflicted her injuries, the complainant said that he had.

        After learning that Mirabal had been arrested, the complainant opened his

backpack to give the police his diabetes medicine and pulled out the gun that

Mirabal had used to threaten her. The complainant asked if the gun was loaded,

and one of the officers told her that it was fully loaded with one bullet in the

chamber.




                                          9
      Detective Taylor testified that the complainant’s injuries “were major [and]

looked serious” and that he immediately called for medical help. An ambulance

took the complainant to the emergency room.         Detective Taylor went to the

hospital and interviewed her. Detective Taylor testified that the complainant told

him that when Mirabal asked her to perform oral sex on him, she “did it to calm

the situation down because she felt that he would get upset and shoot her and

[M.M.]” Detective Taylor said that the oral sex was not consensual.

      The complainant was diagnosed with an orbital floor fracture or blowout;

the bone around her eye socket was depressed five millimeters into her face.9

She also had marks on her neck from Mirabal’s choking her, bruising on her arm

from his grabbing and holding her while he was hitting her face, and bruising and

blood on the top of her head. Photographs of her injuries were admitted into

evidence.    It took three months for the complainant’s face to heal from the

injuries inflicted by Mirabal.

      The complainant testified that she was scared for her life and for M.M.’s life

the entire day on January 5, 2013, and did not think that she and M.M. were

going to survive. The complainant said that she had fled town the day after the

incident.


      9
         Dr. James Alan Dennington, who treated the complainant in the
emergency room, testified that substantial force is necessary to cause an orbital
floor fracture or blowout. Dr. Dennington said that he referred the complainant to
an ophthalmologist to evaluate her eye in case she required surgery and to an
ear, nose, and throat doctor to manage the fracture.


                                        10
      Investigator Duane Stubblefield with the Grapevine Police Department

interviewed Mirabal at 10:50 p.m. on the day of the incident. The interview was

admitted into evidence and played for the jury. Throughout the interview, Mirabal

mentions that he had an inability to control his anger, that “stupid little things” set

him off, and that he was “losing control” during the fight with the complainant.

Mirabal initiated the interview because he disagreed with the sexual assault

charge. Mirabal believed that the oral sex the complainant performed on him

was consensual. Mirabal admitted that he had hit the complainant and that the

complainant had “swell[ed] up” as a result of the injuries she had sustained but

downplayed his role, saying that he kept “blacking out,” that there was only “ten

seconds of fighting,” and that they were both swinging. Mirabal also said that he

never carried a gun but admitted that he had it that day for “intimidation.”

      After hearing the above testimony and reviewing the evidence, the jury

found Mirabal guilty of the following: aggravated assault with a deadly weapon,

to-wit: a firearm and unlawful restraint with risk of serious bodily injury in trial

court case number 1309930D; violation of a protective order—assault (of the

complainant) and violation of a protective order—assault (of M.M.) in trial court

case number 1309990D; violation of a protective order—assault (for the

aggravated sexual assault of the complainant) in trial court case number

1310195D; and aggravated sexual assault by threats and placing in fear in trial

court case number 1310196D. The trial court assessed Mirabal’s punishment

and sentenced him to twenty years’, ten years’, ten years’, ten years’, ten years’,


                                          11
and forty-five years’ confinement, respectively. Mirabal perfected these appeals

from his convictions.

                         III. SUFFICIENCY OF THE EVIDENCE

      In his first issue, Mirabal argues that the evidence is insufficient to support

the lack-of-consent element of his conviction for aggravated sexual assault. In

his fifth issue, Mirabal asserts that the evidence is insufficient to support his

convictions for violation of a protective order because the State failed to prove

that the protective order was issued pursuant to chapter 85 of the family code as

alleged in the indictment.

                             A. Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170

(Tex. Crim. App. 2014). This standard gives full play to the responsibility of the

trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.

      We measure the sufficiency of the evidence by the elements of the offense

as defined by the hypothetically correct jury charge for the case, not the charge

actually given. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing


                                         12
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)); see Crabtree v.

State, 389 S.W.3d 820, 824 (Tex. Crim. App. 2012) (“The essential elements of

the crime are determined by state law.”). Such a charge is one that accurately

sets out the law, is authorized by the indictment, does not unnecessarily restrict

the State’s theories of liability, and adequately describes the particular offense for

which the defendant was tried. Byrd, 336 S.W.3d at 246.

            B. Sufficiency Analysis––Aggravated Sexual Assault

      Aggravated sexual assault is defined as intentionally or knowingly causing

the penetration of the mouth of another person by the sexual organ of the actor,

without that person’s consent and by acts or words placing the victim in fear that

death or serious bodily injury will be imminently inflicted on any person or by acts

or words occurring in the presence of the victim threatening to cause death or

serious bodily injury of any person. Tex. Penal Code Ann. § 22.021(a)(1)(A)(ii),

(2)(A)(ii)–(iii) (West Supp. 2015). Two of the statutory ways in which lack of

consent may be alleged and proved are (1) when the actor compels the other

person to submit or participate by the use of physical force or (2) when the actor

threatens to use force or violence against the other person and if the other

person believes that the actor has the present ability to execute the threat. Id.

§ 22.011(b)(1)–(2) (West 2011).

      The indictment here alleged both of the statutory lack-of-consent

circumstances set forth above; it alleged that the sexual assault occurred without

the complainant’s consent because Mirabal compelled her to submit or


                                         13
participate by the use of physical force or violence or by threatening to use force

or violence against her and because she believed that he had the present ability

to execute said threat. See Tinker v. State, 148 S.W.3d 666, 671 (Tex. App.—

Houston [14th Dist.] 2004, no pet.) (defining circumstances constituting lack of

consent).

      Under a hypothetically correct jury charge, as authorized by the indictment

in this case, in order to convict Mirabal of aggravated sexual assault, the State

must have proven beyond a reasonable doubt that Mirabal intentionally or

knowingly caused penetration of the complainant’s mouth by his sexual organ

without the complainant’s consent and an aggravating element. See Tex. Penal

Code Ann. § 22.021(a)(1)(A)(ii), (2)(A)(ii)–(iii).

      Mirabal challenges the sufficiency of the evidence to establish the lack-of-

consent element of the offense. He argues that “[i]t is undisputed that no overt

threat occurred at the complainant’s apartment. If the sexual act had occurred at

[Mirabal’s] house at or near the time that the complainant was being threatened

and injured, the lack of consent would have been clear.”

      No requirement exists, however, that an actor’s threat of physical force or

violence be explicit, be made immediately prior to the sexual assault, or be made

in the same location as the sexual assault in order to establish that the victim

was compelled to submit or to participate in the assault based on the threat. See

Edwards v. State, 97 S.W.3d 279, 291 (Tex. App.––Houston [14th Dist.] 2003,

pet. ref’d) (holding evidence sufficient to support lack-of-consent element in


                                           14
absence of explicit threat); Garcia v. State, 750 S.W.2d 922, 923 (Tex. App.—

Corpus Christi 1988, no pet.) (holding evidence sufficient to support lack-of-

consent element because prior instances of choking victim to attain compliance

constituted implicit threat of violence for lack of compliance on subsequent

occasion); see also Avila v. State, Nos. 05-08-01629-CR, 05-08-01630-CR, 2010

WL 779351, at *6–7 (Tex. App.—Dallas Mar. 9, 2010, no pet.) (not designated for

publication) (holding evidence sufficient to support lack-of-consent element

based on victim’s testimony that she feared for her life even though beating,

threats, and burns took place at one location and sexual assault took place at

different location).   Instead, the factfinder considers the totality of the factual

circumstances in determining whether the victim consented. Brown v. State, 576

S.W.2d 820, 823 (Tex. Crim. App. [Panel Op.] 1978). In a sexual assault case,

the uncorroborated testimony of the victim alone is sufficient to support a

conviction if the victim informed any person, other than the defendant, of the

alleged offense within one year of the date of the offense. Tex. Code Crim. Proc.

Ann. art. 38.07 (West Supp. 2015); Villalon v. State, 791 S.W.2d 130, 133 (Tex.

Crim. App. 1990).

      Here, the complainant told Detective Taylor immediately after the offense

that she did not resist the sexual assault “because she felt that [Mirabal] would

get upset and shoot her and [M.M.],” and Detective Taylor said that the oral sex

was not consensual. The totality of the circumstances, viewed in the light most

favorable to the verdict, establish that prior to the sexual assault, Mirabal beat the


                                         15
complainant’s face, causing black eyes and fracturing her orbital socket;

displayed a gun while threatening to kill the complainant; and threatened to kill

M.M.    Viewing the evidence in the light most favorable to the verdict and

resolving all conflicts in the same light, the jury could rationally have concluded

beyond a reasonable doubt from the totality of the factual circumstances that the

complainant was compelled to submit to, or participate in, oral sex with Mirabal

by his use of physical force or violence or by his threatening to use force or

violence against her and that she believed he had the present ability to execute

the threat.   See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Edwards, 97

S.W.3d at 291. We overrule Mirabal’s first issue.

           C. Sufficiency Analysis––Violations of Protective Order

       One of the necessary elements of the offense of violation of a protective

order under a hypothetically correct jury charge for that offense is proof of the

statutory provision under which the order was granted. See Tex. Penal Code

Ann. § 25.07(a)(1) (West Supp. 2015); Villarreal v. State, 286 S.W.3d 321, 327

(Tex. Crim. App.), cert. denied, 558 U.S. 992 (2009).         Mirabal’s violation-of-

protective-order indictments each allege that the protective order was issued

“under authority of the Texas Family Code Chapter 85.” Mirabal stipulated that

“there was, in fact, a protective order in place” but asserts that the State failed to

offer proof that the protective order was issued under the authority of Texas

Family Code chapter 85 as alleged in the indictment.




                                         16
      Although there is no direct testimony that the protective order was issued

under the authority of chapter 85 of the family code, the protective order itself

was admitted into evidence without objection. An examination of the protective

order shows that it was issued under Texas Family Code chapter 85. First, the

protective order stated that “family violence has occurred and is likely to occur in

the future,” as required by Texas Family Code section 85.001(a). See Tex. Fam.

Code Ann. § 85.001(a) (West 2014). And, in accordance with Texas Family

Code section 85.022(b), the protective order prohibited Mirabal from, among

other things, committing family violence; communicating directly with the

complainant or M.M. in a threatening or harassing manner; communicating a

threat through any person to the complainant or M.M.; communicating in any

manner with the complainant except through her attorney save and except

communicating with the complainant regarding issues of health, welfare, and

safety of M.M.; engaging in conduct directed specifically toward the complainant

or M.M., including following the complainant or M.M., that was reasonably likely

to harass, annoy, alarm, abuse, torment, or embarrass the complainant or M.M.;

going to or near the residences or places of employment or business of the

complainant; going to or near the residences, child-care facilities, or schools

M.M. normally attends or in which M.M. normally resides; and possessing a

firearm or ammunition.     See id. § 85.022(b)(1)–(6) (West Supp. 2015).       The

protective order stated that it was effective for two years, as required by Texas

Family Code section 85.025.      See id. § 85.025(a) (West Supp. 2015).         The


                                        17
protective order included the warnings required by Texas Family Code section

85.026. See id. § 85.026 (West Supp. 2015). The protective order also required

that a copy of the order be delivered to the sheriff, the “appropriate constable” of

Dallas County, the Highland Park Police Department, and the Dallas Police

Department, in accordance with Texas Family Code section 85.042.            See id.

§ 85.042(a)(1)–(2) (West 2014).

      Viewing the evidence in the light most favorable to the verdict in trial court

case numbers 1309990D and 1310195D and resolving all conflicts in the same

light, the jury could rationally have concluded beyond a reasonable doubt that the

protective order Mirabal was charged with violating, which was admitted into

evidence, was issued under Texas Family Code chapter 85. See Gaw v. State,

No. 05-08-00463-CR, 2009 WL 5193931, at *6 (Tex. App.—Dallas Dec. 17,

2009, no pet.) (not designated for publication) (holding evidence sufficiently

established protective order had been issued under Texas Family Code chapter

85 based on “a comparison of the protective order to the applicable provisions of

chapter 85”). We overrule Mirabal’s fifth issue.

                           IV. EXCLUSION OF EVIDENCE

      In his second issue, Mirabal argues that the trial court erroneously

excluded testimony about a text message the complainant sent to Mirabal’s sister

Lourdes. Mirabal contends that the text message was relevant to the issue of the

complainant’s consent to the sexual assault.




                                        18
      On direct examination, the complainant testified that when Mirabal drifted

off to sleep after the two showered, she sent a text message to Lourdes asking

for help. On cross-examination of the complainant, the defense asked about the

content of the text––implying that the text said that she and Mirabal were resting

and were trying to work things out. The trial court sustained the State’s hearsay

objections. But during Mirabal’s case in chief, he called Lourdes to testify and

asked her, “[Y]ou recall getting a text from [the complainant] that day telling you

that they were resting and she was trying to make things right. Do you recall

that?” Lourdes answered, “Yes.”

      For purposes of our analysis, we assume without deciding that the trial

court’s rulings—sustaining the State’s hearsay objections to the questions posed

to the complainant by defense counsel about the text message to Lourdes—were

erroneous. Because any error in excluding this evidence is not constitutional,

rule 44.2(b) applies. Tex. R. App. P. 44.2(b); see Walters v. State, 247 S.W.3d

204, 222 (Tex. Crim. App. 2007) (determining that exclusion of evidence

supporting defendant’s defensive theory was nonconstitutional error). Under rule

44.2(b), we must disregard an error unless a defendant’s substantial rights are

affected. Id. A substantial right is affected when the error had a substantial and

injurious effect or influence in determining the jury’s verdict. King v. State, 953

S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328

U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an error does not

affect a substantial right if we have “fair assurance that the error did not influence


                                         19
the jury, or had but a slight effect.” Solomon v. State, 49 S.W.3d 356, 365 (Tex.

Crim. App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.

1998).

      In making this determination, we review the record as a whole, including

any testimony or physical evidence admitted for the jury’s consideration, the

nature of the evidence supporting the verdict, and the character of the alleged

error and how it might be considered in connection with other evidence in the

case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also

consider the jury instructions, the State’s theory and any defensive theories,

whether the State emphasized the error, closing arguments, and even voir dire, if

applicable. Id. at 355–56.

      As set forth above, the testimony that Mirabal argues was wrongly

excluded was later admitted without objection during the defense’s direct

examination of Lourdes; this mitigates against the harmfulness of any error in

excluding the content of the text during the complainant’s testimony. See Mosley

v. State, 983 S.W.2d 249, 258 (Tex. Crim. App. 1998) (op. on reh’g) (explaining

that harm from the erroneous exclusion of evidence may be mitigated by the

admission of similar evidence), cert. denied, 526 U.S. 1070 (1999); Womble v.

State, 618 S.W.2d 59, 62 (Tex. Crim. App. [Panel Op.] 1981) (same). Moreover,

Mirabal’s defensive theory that he and the complainant were trying to work things

out in their marriage and that any sexual contact between them was consensual

was controverted by the complainant’s testimony that she felt trapped and was


                                       20
fearful of losing her life, his admission that he had displayed the .50-caliber

handgun to intimidate her, and his admission that he had inflicted her injuries––

including the orbital floor fracture and multiple contusions on her face, head, and

neck. Viewing the record as a whole, the character of the alleged error, the

State’s theory, Mirabal’s defensive theory of consent, the jury charges, whether

the State emphasized the alleged error, and closing arguments, we have fair

assurance that any error stemming from the exclusion of the complaint’s

testimony about the content of one text message did not influence the jury or had

but a slight effect. See Tex. R. App. P. 44.2(b); Solomon, 49 S.W.3d at 365; see

also Motilla, 78 S.W.3d at 355 (setting forth scope of harm analysis).         We

overrule Mirabal’s second issue.10

                        V. ALLEGED JURY CHARGE ERROR

      The trial court charged the jury on Mirabal’s six offenses in four separate

jury charges.   In his third issue, Mirabal contends that he was prejudiced

because the court’s charge in the aggravated sexual assault case (our cause 02-

15-00044-CR) provided a different definition of aggravated sexual assault than


      10
         To the extent Mirabal’s complaint may be construed as an improper-
limitation-of-cross-examination argument, this objection was not made in the trial
court and is not preserved. See Tex. R. App. P. 33.1(a)(1); Everitt v. State, 407
S.W.3d 259, 262–63 (Tex. Crim. App. 2013); Wright v. State, 28 S.W.3d 526,
536 (Tex. Crim. App. 2000) (holding that an objection at trial is required to
preserve error on Confrontation Clause grounds), superseded on other grounds
by statute, cert. denied, 531 U.S. 1128 (2001); see also Ford v. State, 305
S.W.3d 530, 532 (Tex. Crim. App. 2009) (holding that reviewing court should not
address the merits of an issue not preserved for appeal).


                                        21
the charge in the violation of protective order case (our cause 02-15-00043-CR).

Mirabal concedes that he did not object to the jury charge in either case, and he

does not claim that either of these individual jury charges is erroneous. Instead,

Mirabal argues that because the respective abstract paragraphs of these two

charges contain different manners of committing the same statutory offense, if

taken together, they could have caused the jury to “have [been] confus[ed]” and

to have convicted him on a theory not indicted.

      The indictment in the aggravated sexual assault case alleged as the

aggravating element that Mirabal by acts or words placed the complainant in fear

that death or serious bodily injury would be imminently inflicted on her or that by

acts or words occurring in her presence he threatened to cause death or serious

bodily injury to any person. See Tex. Penal Code Ann. § 22.021(a)(1)(A)(ii),

(2)(A)(ii), (iii). The indictment did not allege as the aggravating element that a

deadly weapon was used or exhibited. Consequently, in the aggravated sexual

assault case, the jury was not charged on the use or exhibition of a deadly

weapon as the aggravating element. In the violation of protective order case,

Mirabal was indicted for violating the protective order by committing aggravated

sexual assault, and the indictment included a paragraph alleging that a deadly

weapon was used or exhibited in the commission of the offense. The jury was

charged in the abstract portion of the charge in the violation of a protective order

case that aggravated sexual assault is committed “if the person intentionally or

knowingly causes the penetration of the mouth of another person by the sexual


                                        22
organ of the actor, without that person’s consent, and the person uses or exhibits

a deadly weapon in the course of the same criminal episode.”

      Mirabal argues that error is shown because the evidence demonstrated

that he used or exhibited a firearm earlier in the day before the sexual assault

and because if the jury considered the protective order charge first, “they would

have decided the aggravated sexual assault issue without considering the actual

aggravated sexual assault jury charge.” Mirabal asserts that this amounts to a

conviction not authorized by the aggravated sexual assault indictment.

      “[A]ll alleged jury-charge error must be considered on appellate review

regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645,

649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine

whether error occurred; if error did not occur, our analysis ends. Id. If error

occurred, whether it was preserved determines the degree of harm required for

reversal. Id. Unpreserved charge error warrants reversal only when the error

resulted in egregious harm. Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim.

App. 2013); Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011);

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g);

see Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006).

      Mirabal does not allege that any error exists in the individual jury charges

given by the trial court in the aggravated sexual assault case and the violation of

the protective order case.    Both charges were authorized by the respective

indictments in those cases; Mirabal does not argue otherwise. Mirabal cites no


                                        23
authority, and we have located none, for the proposition that two proper jury

charges authorized by the indictment in each case may become erroneous if

given together. Moreover, as pointed out by the State, we must presume that the

jury followed the instructions in each of the charges, authorizing them to find

Mirabal guilty based only on the definitions and instruction given in that particular

charge. See, e.g., Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005).

Because Mirabal has alleged no error existing in the individual jury charges and

because no error exists in the individual charges given in tandem, our analysis

ends. See Kirsch, 357 S.W.3d at 649 (if charge error did not occur, our analysis

ends). We overrule Mirabal’s third issue.

      In his fourth issue, Mirabal argues that the trial court erred by submitting

both the aggravated assault case and the unlawful restraint case disjunctively,

thereby permitting a non-unanimous verdict in each case.          Jury unanimity is

required in all criminal cases in Texas. Cosio v. State, 353 S.W.3d 766, 771

(Tex. Crim. App. 2011); Landrian v. State, 268 S.W.3d 532, 535 (Tex. Crim. App.

2008); Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005); see also Tex.

Const. art. V, § 13. Every juror must agree that “the defendant committed the

same, single, specific criminal act.” Ngo, 175 S.W.3d at 745. But this does not

mean that the “jury must unanimously find that the defendant committed that

crime in one specific way.” Landrian, 268 S.W.3d at 535. In other words, “[t]he

unanimity requirement is not violated by instructing the jury on alternative

theories of committing the same offense, in contrast to instructing the jury on two


                                         24
separate offenses involving separate incidents.” Martinez v. State, 129 S.W.3d

101, 103 (Tex. Crim. App. 2004).         A trial court may not submit “separate

offenses” to the jury in the disjunctive, but a trial court may submit a disjunctive

jury charge and obtain a general verdict when alternate theories or “manner and

means” involve the commission of the “same offense.” Clement v. State, 248

S.W.3d 791, 800 (Tex. App.—Fort Worth 2008, no pet.); see also Ngo, 175

S.W.3d at 745 (stating that the phrase “manner and means” describes how the

defendant committed the specific statutory criminal act).

      Addressing Mirabal’s complaint that the unlawful restraint offense was

charged disjunctively, we begin by recognizing that Texas Penal Code section

20.02 sets forth the offense of unlawful restraint.         Tex. Penal Code Ann.

§ 20.02(a), (c)(2)(A) (West 2011). It provides that “[a] person commits an offense

if he intentionally or knowingly restrains another person” and that the offense is a

third-degree felony if “the actor recklessly exposes the victim to a substantial risk

of serious bodily injury.” Id. The jury charge for the unlawful restraint charge

provided in part:

            If you find from the evidence beyond a reasonable doubt that
      on or about the 5th day of January, 2013, in Tarrant County, Texas,
      the defendant, Raul Mirabal, did then and there intentionally or
      knowingly by force, intimidation and deception, restrain [the
      complainant] without her consent by restricting the movements of
      [the complainant] and the defendant, Raul Mirabal, did then and
      there recklessly expose [the complainant] to a substantial risk of
      serious bodily injury by striking her with his hand or hands, choking
      her, or threatening her with a firearm, [] then you will find the
      Defendant guilty of felony unlawful restraint. [Emphasis added.]



                                         25
Mirabal argues that the “or” in the charge permitted the jury to find him guilty if it

found that the complainant was exposed to a substantial risk of serious bodily

injury by (a) being struck with his hands, (b) being choked, or (c) being

threatened with a firearm. The charge required the jury to unanimously find that

Mirabal recklessly exposed the complainant to a substantial risk of serious bodily

injury but set forth alternative factual means by which such exposure occurred.

Because charging the jury disjunctively on alternative theories or manner and

means of committing the same offense does not violate the unanimity

requirement, we hold that the trial court did not err by instructing the jury in the

unlawful restraint case. See Martinez, 129 S.W.3d at 103; Davila v. State, 346

S.W.3d 587, 591 (Tex. App.—El Paso 2009, no pet.) (holding unanimity

requirement was not violated by jury charge that gave jury the opportunity to

consider alternative means or methods by which appellant committed the core of

the offense). We overrule the portion of Mirabal’s fourth issue complaining of a

disjunctive submission in his unlawful restraint conviction.

      Addressing Mirabal’s complaint that the aggravated assault offense was

charged disjunctively, we begin by recognizing that Texas Penal Code section

22.01 provides that “[a] person commits an offense if the person:                  (1)

intentionally, knowingly, or recklessly causes bodily injury to another, including

the person’s spouse; [or] (2) intentionally or knowingly threatens another with

imminent bodily injury, including the person’s spouse.” Tex. Penal Code Ann.

§ 22.01(a)(1), (2) (West Supp. 2015). Texas Penal Code section 22.02 provides


                                         26
that “[a] person commits an offense if the person commits an assault as defined

in § 22.01 and the person: . . . (2) uses or exhibits a deadly weapon during the

commission of the assault.” Id. § 22.02(a)(2) (West 2011). Thus, aggravated

bodily injury assault and aggravated assault by threat are different statutory

offenses, not just two methods of committing the single offense of aggravated

assault. Marinos v. State, 186 S.W.3d 167, 175 (Tex. App.—Austin 2006, pet.

ref’d). The jury charge for the aggravated assault charge provided in part:

              Now, if you find from the evidence beyond a reasonable doubt
       that on or about the 5th day of January, 2013, in Tarrant County,
       Texas, the defendant, Raul Mirabal, did intentionally or knowingly
       cause bodily injury to [the complainant] by striking, pushing,
       grabbing, or choking her with his hand and the Defendant did use or
       exhibit a deadly weapon during the commission of the assault, to-wit:
       a firearm; or if you find from the evidence beyond a reasonable
       doubt that on or about the 5th day of January, 2013, in Tarrant
       County, Texas, the defendant, Raul Mirabal, did then and there
       intentionally or knowingly threaten imminent bodily injury to [the
       complainant] and the Defendant did use or exhibit a deadly weapon
       during the commission of the assault, to-wit: a firearm, then you will
       find the Defendant guilty of aggravated assault. [Emphasis added.]

       The State concedes here that the trial court erred by instructing the jury in

the disjunctive in the aggravated assault jury charge. See id. Because Mirabal

did not object to the charge, we evaluate this error for egregious harm. See, e.g.,

Cosio, 353 S.W.3d at 776–77 (holding appellant forfeited any constitution-based

jury charge claim by not objecting that charge allowed for non-unanimous

verdict).

       In making an egregious harm determination, “the actual degree of harm

must be assayed in light of the entire jury charge, the state of the evidence,


                                         27
including the contested issues and weight of probative evidence, the argument of

counsel[,] and any other relevant information revealed by the record of the trial as

a whole.” Almanza, 686 S.W.2d at 171. See generally Gelinas, 398 S.W.3d at

708–10 (applying Almanza). Errors that result in egregious harm are those “that

affect the very basis of the case, deprive the defendant of a valuable right, vitally

affect the defensive theory, or make a case for conviction clearly and significantly

more persuasive.” Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at

172). The purpose of this review is to illuminate the actual, not just theoretical,

harm to the accused. Almanza, 686 S.W.2d at 174.

      Performing an egregious harm analysis, we note that the jury charge in the

aggravated assault case contained a general unanimity instruction. In reviewing

the state of the evidence, the record shows that the jury believed the evidence

put on by the State—which included the complainant’s testimony of the brutality

inflicted on her by Mirabal and of the threats that Mirabal made while he exhibited

the gun, numerous photographs of the complainant’s injuries and medical

testimony about the force necessary to cause them, and Mirabal’s statement to

the police admitting that he had caused the complainant’s injuries—and that the

jury disbelieved Mirabal’s defensive evidence. During their arguments, neither

the State nor Mirabal told the jurors that they must be unanimous, nor were they

told that they need not be unanimous. Mirabal’s counsel stated during closing

argument,




                                         28
             There was an assault, there was bodily injury. We said it day
      one, first thing out of our mouth, we’re saying it again now. We’ve
      never maintained otherwise. Okay.

             ....

           . . . There is no doubt in my mind that you are going to find
      him guilty of any and every single charge that causes bodily injury.
      No doubt whatsoever.

      Looking to the actual degree of harm Mirabal suffered from the disjunctive

aggravated assault charge after reviewing the entire jury charge; the state of the

evidence, including the contested issues and weight of probative evidence; and

the argument of counsel, we hold that charge error did not result in harm to

Mirabal that affected the very basis of the case, deprived him of a valuable right,

vitally affected his defensive theory, or made a case for conviction clearly and

significantly more persuasive. See, e.g., Arrington v. State, 451 S.W.3d 834, 845

(Tex. Crim. App. 2015) (holding no egregious harm shown from charge

instructions permitting non-unanimous jury verdict when State’s and defense’s

theory of case were diametrically opposed and jury’s verdicts signified its belief in

the credibility of the State’s evidence and its disbelief in the defendant’s

evidence); see also Cosio, 353 S.W.3d at 777–78; Almanza, 686 S.W.2d at 171.

We overrule the remainder of Mirabal’s fourth issue.




                                         29
                             VI. CONCLUSION

      Having overruled Mirabal’s five issues, we affirm the trial court’s

judgments.

                                              /s/ Sue Walker
                                              SUE WALKER
                                              JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 25, 2015




                                   30
