
NO. 07-06-0367-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

MARCH 28, 2007
______________________________

BYRON DALE GREEN, 

									Appellant

v.

THE STATE OF TEXAS, 

									Appellee
_________________________________

FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

NO. B16,818-0606; HON. ED SELF, PRESIDING
_______________________________

Memorandum Opinion
_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
	Byron Dale Green was convicted of aggravated assault with a deadly weapon.  In
seeking to overturn the conviction, he complains that 1) the evidence was factually
insufficient to sustain it, and 2) he received ineffective assistance of counsel.  We affirm
the judgment.
 Issue 1 - Factual Sufficiency
 Based on written allegations made by his girlfriend Ruby, appellant was charged
with assault by choking while using or exhibiting a knife.  However, Ruby recanted her
accusations at trial.  She testified that although she and appellant argued, he did not 1) put
his hand over her mouth and try to suffocate her, 2) threaten to kill her or her children, or
3) threaten her with a knife.  In contradiction to her written statement, she also denied that
1) she bit appellant on the arm despite the presence of teeth marks on it, 2) appellant
forced his way into the house though he entered through the window, 3) appellant held a
knife to her throat though a knife matching the description given by Ruby was discovered,
and 4) appellant forced her to have sex.  Instead, she purportedly called the police simply
because the two had a fight and she was mad.  Given this, appellant believes there is
factually insufficient evidence to illustrate that he choked her as alleged in the indictment. 
We disagree.
	The standard by which we review the issue is set forth in Watson v. State, 204
S.W.3d 404 (Tex. Crim. App. 2006).  The parties are referred to that opinion.  
	Next, Ruby admitted having written in her statement to police that appellant had put
his hands over her mouth thereby "suffocating" her.  So too did she describe, in her written
statement given to police, how appellant said that 1) he was "going to break [her] neck,"
2) he was ". . . just going to finish it, and got up and got a knife," 3) he was going to ". . .
start with you and then your two kids," and  4) he was ". . . not leaving the house with [her]
alive because [she would] put him in prison."  Additionally, Dana Wong, a nurse at
Covenant Hospital in Plainview, testified that Ruby told her appellant had placed his hands
over her mouth and his arm around her neck to choke her and that she had bitten
appellant's arm. (1) 
	Though defense counsel objected to both Ruby's written statement and Wong's
testimony as hearsay, the trial court overruled the complaint.  Furthermore, appellant
attacks neither ruling on appeal.  Thus, that evidence may be considered for all purposes
in assessing the sufficiency of the evidence.  See Barnum v. State, 7 S.W.3d 782, 788
(Tex. App.-Amarillo 1999, pet. ref'd).  
	Moreover, we note that though the word choking was mentioned in the indictment
and Ruby described appellant's actions as placing his hands over her mouth and
"suffocating" her, the words "choke" and "suffocate" are synonyms at least for this case. 
Webster's New World Thesaurus 64 (1987); R. Soule, A Dictionary Of English
Synonyms 518 (1959).  Both connote the obstruction of air passages resulting in an
inability to breath, and the evidence indicates that appellant's conduct evinced effort to gain
that result.  Thus, Ruby's written description of being suffocated can reasonably be
interpreted as equating effort by appellant to choke her.  This coupled with Ruby's allusion
to being suffocated, Wong's reiteration that Ruby said appellant "choked" her, the
discovery of a knife as described by Ruby, the presence of teeth marks on appellant's arm,
and her appearance as being "very scared" and "distraught" (not mad) when the police
arrived, provide ample basis for the jury to conclude not only that appellant did choke her
but also that her written statement held the truth.  See Chambers v. State, 805 S.W.2d
459, 461 (Tex. Crim. App. 1991) (recognizing that the jury could disbelieve a witness'
recantation); see also Fernandez v. State, 805 S.W.2d 451, 456 (Tex. Crim. App. 1991)
(holding the evidence legally sufficient even though the conviction was based on hearsay
offered after the complainant's recantation); accord Jackson v. State, 110 S.W.3d 626, 631
(Tex. App.-Houston [1st Dist.] 2003, pet. ref'd) (holding that a conviction may rest on
hearsay even though the victim recants).  Finally, because that conclusion would neither
be founded on weak evidence nor be overwhelmed by the other evidence, we overrule
appellant's first issue.
 Issue 2 - Ineffective Assistance of Counsel
	Next, appellant claims his counsel was ineffective for failing to proffer a hearsay
objection to the use of Ruby's written statement, request a limiting instruction regarding
that evidence, and request a limiting instruction to the purported hearsay of Dana Wong. 
We overrule the issue.
	Regarding Ruby's written statement, the record reflects that defense counsel 
uttered numerous objections, one of which was:  "Judge, again I'm going to object to
improper impeachment and hearsay."  (Emphasis added).  Given that he actually objected
on the basis of hearsay, we cannot say that counsel was deficient because he supposedly
did not.  
	We further note that when the police arrived at the abode after being called by
Ruby, she appeared to be "distraught" and "very scared."  That same day, the investigator
who spoke with Ruby and took her statement described her as "nervous," "disheveled," "a
little nervous," "a little shaky," and "scared" at the time.  So, because it was given soon
after the assault occurred and while Ruby continued to experience the emotional effects
of the attack, the written statement (which Ruby tried to recant at trial) can reasonably be
viewed as an excited utterance.  See Tex. R. Evid. 803(2) (defining an excited utterance
as a statement relating to a startling event or condition made while the declarant was under
the stress of the excitement caused by the event or condition); Salley v. State, 25 S.W.3d
878, 880-81 (Tex. App.-Houston [14th Dist.] 2000, no pet.) (holding that the statement, if
made while still in the grip of emotion, excitement, fear or pain, is admissible even after an
appreciable time had elapsed between the exciting event and the utterance).  Being an
excited utterance, it was admissible free of any limiting instruction despite its supposed
hearsay nature.  Tex. R. Evid.  803(2).  This is of import because its content, especially that
pertaining to appellant's attempt at suffocation, was redundant of Wong's comment about
choking.  The two terms being synonymous under the circumstances before us (as we
concluded above), we cannot say that defense counsel's failure to request an instruction
directing the jury to consider Wong's comments solely for impeachment purposes harmed
appellant.  In other words, the circumstances of record do not create a reasonable
probability that but for the purported error the result would have differed.  See Bone v.
State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) (so defining the prejudice needed to
support a claim of ineffective assistance).  
	Having overruled each issue, we affirm the judgment of the trial court.

							Brian Quinn 
						          Chief Justice
 
Do not publish.
1. At trial, Ruby testified she did not know who Nurse Wong was and did not remember saying that.  

