                                  NO. 07-07-0482-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL C

                                 NOVEMBER 13, 2008

                         ______________________________


                      JAMES E. MATTHEWS JR., APPELLANT

                                            v.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

       FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;

                NO. 2006-497,902; HON. RUSTY LADD, PRESIDING

                        _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.



                              MEMORANDUM OPINION



      Appellant, James E. Matthews, Jr., was convicted by a jury of the offense of assault.

The same jury assessed his punishment at confinement in the Lubbock County jail for a

period of 365 days. This appeal followed. We affirm.
                            Factual and Procedural Background


       On January 27, 2006, a 911 call was sent to the Lubbock Police Department

regarding a domestic assault. Officer Stevens responded to the call at the residence of

Gloria Mitchell, the victim of the alleged assault. As a result of the 911 call, Lubbock EMS

was also dispatched to the scene. Officer Stevens interviewed the victim and filed a police

report. The EMS attendant evaluated the victim and prepared a written report. The victim

refused further treatment and declined to be taken to a hospital for further evaluation. On

February 9, 2006, an information was filed in the County Court at Law No. 1 of Lubbock

County alleging that appellant had committed the offense of assault against the victim.


       The trial was conducted on September 5, 2007. At trial, Stevens, who had retired

from the Lubbock Police Department, testified that he had no independent recollection of

the events in question. Stevens identified a police report and acknowledged that he had

apparently written the report; however, after reading the report, he testified that it did not

refresh his memory about the events in question. After the trial court sustained an

objection to having Stevens read from the report, he was excused as a witness. Next, the

custodian of records for EMS testified to her duties and responsibilities as custodian of

records and identified a report prepared by the EMS attendant regarding this incident.

Over trial counsel’s objection, the report was admitted into evidence and published to the

jury as State’s Exhibit 1. State’s Exhibit 1 contained the name of Gloria Mitchell as the

patient’s name and further stated that, “[t]he cause of injury is an assault, an unarmed fight

or brawl, and the . . . site of the injury is referred to as the left anterior shoulder, and the

type of injury as pain without swelling or bruising.” The report further revealed that the

                                               2
“patient states she was assaulted by her boyfriend.” As to how the injury occurred, the

report reflected “he grabbed her around her ribs with both arms and squeezed her.”

Further, the report indicated that the victim said she was having shoulder pain. Upon

cross-examination, the custodian of records admitted that the report contained no mention

that the victim’s arm was twisted or that she was grabbed by the throat. The State then

introduced the 911 tape as State’s Exhibit 2. The parties stipulated as to the authenticity

of the tape. Trial counsel objected to the admission of the tape on two grounds. First,

appellant’s counsel objected to the admission on the grounds of a denial of appellant’s

right of confrontation, denominated as a Crawford objection.1 Second, counsel objected

to the tape’s admission on the basis that the tape contained statements made by appellant

in response to questions posed by the 911 operator. The trial court overruled both

objections and the tape was played for the jury. The final witness was the victim, Gloria

Mitchell. Mitchell stated she could not remember any of the particulars about the incident,

although she did remember calling 911. She stated that with the passage of time and due

to health reasons she had no clear recollection about what transpired. Further, Mitchell did

advise that she did not want the prosecution to go forward and continued to live with

appellant. Specifically, Mitchell had no recollection of appellant twisting her arm behind her

back nor did she remember appellant placing his hands around her throat. After listening

to the 911 tape, Mitchell did identify her own voice and admitted that she and appellant had

been arguing on the night in question. However, she had no recollection of being injured

on the night in question.



       1
           See Crawford v. Washington, 541 U.S. 36, 124 S.Ct 1354, 158 L.Ed.2d 177 (2004).

                                              3
       At the conclusion of the testimony, the jury retired to deliberate and returned a

verdict of guilty. After the presentment of evidence during the punishment phase, the jury

sentenced appellant to 365 days in the county jail. This appeal followed.


       Through three issues appellant contends that 1) the evidence is legally insufficient

to sustain the finding of guilt, 2) the evidence is factually insufficient to sustain the finding

of guilt, and 3) the trial court abused its discretion in admitting the testimony of the EMS

records custodian and State’s Exhibit 1.


                                       Legal Sufficiency


       By his first issue, appellant contends that the evidence is legally insufficient to

support a finding of guilt by the jury.2 In assessing the legal sufficiency of the evidence, we

review all 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 offense beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). In conducting a legal

sufficiency review, an appellate court may not sit as a thirteenth juror, but rather must

uphold the jury’s verdict unless it is irrational or unsupported by more than a mere

modicum of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). We




       2
        Appellant challenges both legal and factual sufficiency. Therefore, we are required
to conduct an analysis of the legal sufficiency of the evidence first and then, only if we find
the evidence to be legally sufficient, do we analyze the factual sufficiency of the evidence.
See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996).

                                               4
measure the legal sufficiency of the evidence against a hypothetically correct jury charge.

See Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997).


       Appellant was charged with the offense of assault.         The offense as charged is

defined as,


                “(a) A person commits an offense if the person:
                       (1) intentionally, knowingly, or recklessly causes
                 bodily injury to another, including the person’s spouse;”


See TEX . PENAL CODE ANN . § 22.01(a)(1) (Vernon Supp. 2008).3 The information filed

against appellant alleged that on January 27, 2006, appellant intentionally, knowingly, and

recklessly caused bodily injury to Gloria Mitchell by grabbing her arm and twisting the arm

and grabbing her by the throat. It is the evidence supporting the factual manner that the

bodily injury occurred that is the primary focus of appellant’s contention.


       Appellant posits that because the State alleged the assault occurred by twisting the

victim’s arm behind her back and by grabbing the victim by the throat, the evidence at trial

must comport to that exact method of committing assault or that evidence is legally

insufficient. The record reveals that the only evidence of bodily injury came from State’s

Exhibit 1, the EMS report. All that the exhibit referred to was shoulder pain with no swelling

or bruising.     The nature of the assaultive conduct, as reported in the exhibit, was

appellant’s grabbing the victim around the ribs while holding her arms down and squeezing

very tightly.


       3
           Further reference to the Texas Penal Code will be by “§ ___.”

                                               5
       Appellant’s issue posits that the proof at trial was at variance with the factual

allegations contained in the information and, therefore, the evidence was legally

insufficient. The issue of variance between the allegation in a charging instrument and the

proof at trial, in a legal sufficiency challenge, has been the subject of two persuasive

opinions of the Texas Court of Criminal Appeals. See Fuller v. State, 73 S.W.3d 250, 253

(Tex.Crim.App. 2002), (citing Gollihar v. State, 46 S.W.3d 243, 257 (Tex.Crim.App. 2001).

These cases stand for the proposition that, the only time the variance between the

allegation in the indictment or information and the proof of trial results in legally insufficient

evidence is when the variance is a “material” variance. Fuller, 73 S.W.3d at 253, Gollihar,

46 S.W.3d at 257. A variance will be construed to be a “material” variance when the

variance deprives the appellant of notice of the charges or when the variance subjects the

appellant to the risk of later being prosecuted for the same offense. Fuller, 73 S.W.3d at

253, Gollihar, 46 S.W.3d at 257. In Fuller ,the variance was that the victim’s name, as set

forth in the indictment, was Olen M. Fuller, while at trial the victim was identified as Mr.

Fuller or Buddy. Id. at 251. In Gollihar, the variance was that the indictment alleged the

model number of the go-cart stolen as 136202 whereas the proof at trial was that it was

model number 136203. Gollihar, 46 S.W.3d at 244. In each case the court found that the

variance was not a “material” variance because each defendant had proper notice of the

prohibited conduct they were accused of violating and neither could be subjected to a

second trial for the same conduct. Fuller, 73 S.W.3d at 254, Gollihar, 46 S.W.3d at 258.


       In determining whether the variance at issue in the matter before us is material we

are directed to consider the substantive elements of the criminal offense as defined by


                                                6
state law. Fuller, 73 S.W.3d at 252-53. The elements of an offense are defined as the

forbidden conduct with the required culpability. § 1.07(a)(22)(A) & (B). In our case the

elements are that appellant intentionally, knowingly or recklessly caused bodily injury to

another. § 22.01(a)(1). Also, bodily injury means physical pain, illness, or any impairment

of physical condition. § 1.07(a)(8). Therefore, proof that appellant caused bodily injury to

the victim intentionally, knowingly or recklessly is sufficient proof to meet the legal

sufficiency standard.


       When these standards are applied to the case before us, we find that the proof

before the jury was that the victim said she was in pain and that appellant had caused the

pain by his conduct. The fact that the State alleged a factual method of appellant’s

causing the pain that was at odds with the proof at trial does not create a material variance.

The culpable conduct was alleged in a manner to give appellant notice of the crime he was

called upon to defend, an assault of the named victim on the alleged date in question.

Further, appellant has never claimed that he did not know that he was defending himself

against a charge of assault nor has he ever claimed surprise at the proof or allegations.

Finally, since the entire record is reviewed in the case of a claim of double jeopardy, in the

event of subsequent prosecution, appellant is not endangered of subsequent prosecution

for the same culpable conduct. See United States v. Apodaca, 843 F.2d 421, 430 n.3 (10th

Cir.), cert. denied, 488 U.S. 932 (1988). Accordingly, we overrule appellant’s first issue.




                                              7
                                    Factual Sufficiency


       When an appellant challenges the factual sufficiency of the evidence supporting

his conviction, the reviewing court must determine whether, considering all the evidence

in a neutral light, the jury was rationally justified in finding the appellant guilty beyond a

reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In

performing a factual sufficiency review, we must give deference to the fact finder’s

determinations if supported by evidence and may not order a new trial simply because we

may disagree with the verdict. See id. at 417. As an appellate court, we are not justified

in ordering a new trial unless there is some objective basis in the record demonstrating

that the great weight and preponderance of the evidence contradicts the jury’s verdict.

See id. Additionally, an appellate opinion addressing factual sufficiency must include a

discussion of the most important evidence that appellant claims undermines the jury’s

verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). The Court of Criminal

Appeals has recently declared that when reviewing the evidence for factual sufficiency,

the reviewing court should measure the evidence in a neutral manner “against a

hypothetically correct” jury charge. Vega v. State, No. PD-1615-06, 2008 Tex. Crim. App.

LEXIS 1179, at *7 (Tex.Crim.App. Oct. 1, 2008), citing Wooley v. State, No. PD-0861-07,

2008 LEXIS 762, at *1-*2 (Tex.Crim.App. June 25, 2008).


       Appellant contends that the most important evidence that leads to the conclusion

that the evidence was factually insufficient is the lack of testimony that appellant

committed assault by twisting the victim’s arm behind her back or grabbing the victim by

the throat. There is, however, no dispute that the evidence produced at trial indicates that

                                              8
the appellant grabbed the victim around the waist and squeezed her, while her arms were

at her side.     Further, there is no dispute that the evidence proved that the victim

complained of pain in her shoulder following the assault. It is the fact that the evidence

varied from the factual manner and means of committing the assault that appellant

contends is fatal in a factual sufficiency review.


          Because the evidence must be weighed against a hypothetically correct jury

charge, we are compelled to review this evidence as instructed in Fuller and Gollihar.

Fuller, 73 S.W.3d at 253, Gollihar, 46 S.W.3d at 257.4 Thus, we are again faced with the

issue of whether the evidence produced at trial is at variance with the charge that is

“hypothetically correct.” As stated in the section of this opinion dealing with the legal

sufficiency of the evidence, a variance in the proof is only material when the appellant was

denied notice of the charges that he is called upon to defend or it subjects the appellant

to the risk of subsequent prosecution for the same offense. Fuller, 73 S.W.3d at 253,

Gollihar, 46 S.W.3d at 257. For the same reasons set forth above, we determine that the

variance is not a “material” variance. With this concept in mind, our review of the

evidence leads to the conclusion that the jury was rationally justified in finding appellant

guilty beyond a reasonable doubt. Watson, 204 S.W.3d at 415. Therefore, we overrule

appellant’s second issue.




      4
        We are not the first Court of Appeals to so hold. See Mantooth v. State, No. 06-07-
00094-CR, 2008 Tex. App. LEXIS 7259, at *16-*18 (Tex. App.–Texarkana Sept. 30, 2008,
no pet. h.).

                                             9
                           Records Custodian and State’s Exhibit 1


          Appellant’s third issue concerns the decision of the trial court to allow the testimony

of the EMS Custodian of Records and the subsequent admission into evidence of State’s

Exhibit 1. Appellant contends that the exhibit was not admissible as a statement made

for purposes of medical diagnosis or treatment. See TEX . R. EVID . 803(4).


          The admissibility of evidence is within the discretion of the trial court and will not

be reversed absent an abuse of discretion. Osbourn v. State, 92 S.W.3d 531, 537

(Tex.Crim.App. 2002). If there is evidence supporting the trial court's decision to admit

evidence, there is no abuse and the appellate court must defer to that decision. Id. at

538. Even when the trial judge gives the wrong reason for his decision, if the decision is

correct on any theory of law applicable to the case it will be sustained. Id.


          Our review of the record reveals that, when State’s Exhibit 1 was offered, appellant

made a general objection based upon hearsay and, further, objected that the exhibit

violated his right to confrontation.5 In his brief before this Court, appellant contends that

the State did not produce evidence sufficient to demonstrate that the hearsay statements

at issue were made for purposes of medical diagnosis or treatment. However, the record

demonstrates that the State established the admissibility of the documents as a record

of a regularly conducted activity, pursuant to Rule 803(6), Texas Rules of Evidence. As

the exhibit was admissible under this exception to the hearsay rule, the fact that appellant



      5
       Appellant has not brought forward his objection based on the right of confrontation
and that issue is, therefore, not before us.

                                                10
might be correct about the applicability of the medical diagnosis or treatment exception

is not conclusive of the issue. The trial court was correct in admitting the evidence as a

record of a regularly conducted activity and therefore, could not have abused its

discretion. Id.


                                       Conclusion


       Having overruled appellant’s issues, we affirm the judgment of the trial court.




                                  Mackey K. Hancock
                                       Justice

Do not publish.




                                           11
