Opinion issued October 4, 2016




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-15-00848-CR
                           ———————————
                      CHRISTOPHER JACK, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 183rd District Court
                           Harris County, Texas
                       Trial Court Case No. 1283618


                         MEMORANDUM OPINION

      Christopher Jack was charged with aggravated assault. A jury convicted him

and set his punishment at three years’ confinement, probated for five years. On

appeal, Jack contends that (1) legally insufficient evidence exists to support the
judgment, (2) he suffered egregious harm as a result of jury charge error, and

(3) the trial court erroneously allowed inadmissible testimony. We affirm.

                                 BACKGROUND

      In October 2012, Ernest Dunn was grilling an evening meal with his family

when a white car pulled up near Dunn’s house. According to Dunn, Jack got out

of the car, walked behind it, and began to beat on a light pole with a tire iron. Jack

then struck the white car with the tire iron. The tire iron ricocheted off of the car

and landed in Dunn’s flower bed.

      To retrieve the tire iron, Jack came within 25 feet of Dunn. Dunn’s stepson,

Marvin Dickens, was standing nearby. Jack asked, “What the fuck are you looking

at?” Jack then returned to the passenger side of the car. As the driver pulled away,

Jack leaned out of the passenger-side window and said, “I’ll be back to kill all you

sons of bitches.”

      About 30 minutes later, Jack returned, waving two tire irons over his head.

He yelled, “I’m going to kill all you sons of bitches.” Jack approached the gate in

Dunn’s yard, holding the tire irons with both of his arms raised. Dunn opened the

gate, knocked Jack backwards and tackled him. Jack “was flailing” the tire irons as

he and Dunn fell to the ground. Dunn received an injury to his head, which was

bleeding.




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      Dunn did not recall when he had been hit during the exchange, but testified

that he believed that Jack struck him with a tire iron and that he did not otherwise

hit his head during the altercation. Dunn testified that a tire iron is a dangerous

weapon that could severely hurt someone.

      Marvin Dickins testified that when he approached Dunn, Dunn was bleeding

on one side of his head above his ear. Dickens stated that Dunn told him: “Get

him. He hit me in the head.”

      Harris County Deputy Salazar testified that Dunn’s head injury was

consistent with being struck by a metal item and that a tire iron is a deadly weapon.

Furthermore, Deputy Salazar testified that an aggressive movement with a tire iron

is capable of causing serious bodily injury.

      Jack and his girlfriend, Shelby Meeks, offered an alternative version of

events. Meeks testified that Jack never hit anything with the tire irons, but merely

retrieved the tire irons after he had thrown them into the flower bed. Jack admitted

to striking the street light with the tire irons, but maintained that he never struck

Dunn or threatened Dunn’s family.




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                                     DISCUSSION

I.    Legal Sufficiency

      A. Standard of Review and Applicable Law

      The Jackson standard of review for legal sufficiency is whether, after

viewing evidence in a light most favorable to the prosecution, 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). The

Jackson standard is the only standard that should be applied in determining

whether there is sufficient evidence to support each element of a criminal offense

that the State is required to prove beyond a reasonable doubt. Brooks v. State, 323

S.W.3d 893, 895 (Tex. Crim. App. 2010). The jury is the exclusive judge of the

credibility of witnesses and of the weight to be given to their testimony. Jones v.

State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). Similarly, the reconciliation

of conflicts in the evidence is within the exclusive province of the jury. Id. In

conducting a review for legal sufficiency, we do not reevaluate the weight and

credibility of the evidence, but act only to ensure that the jury reached a rational

decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).

      Jack argues that there was legally insufficient evidence of any voluntary act,

required for an assault. A person commits an offense only if the person voluntarily

engages in the conduct. TEX. PENAL CODE ANN. § 6.01 (West 2011). Criminal



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responsibility for harm must include some act that is voluntary. Rogers v. State,

105 S.W.3d 630, 638 (Tex. Crim. App. 2003).

      B. Analysis

      Dunn testified that Jack approached Dunn’s house while waving two tire

irons and yelling that he was going to kill Dunn’s family. Dunn and Dickens

testified that Jack used the tire iron to strike Dunn. The credibility of Dunn’s

testimony is within the exclusive province of the jury. Accordingly, we hold that

the evidence supports a finding that Jack voluntarily wielded a tire iron in

assaulting Dunn. See id. at 638.

      Jack further argues that there was legally insufficient evidence to show the

requisite mens rea for aggravated assault. Aggravated assault requires a mental

state of intentional, knowing, or reckless conduct.      TEX. PENAL CODE ANN.

§§ 22.01, 22.02 (West 2009). Ernest Dunn testified that Jack yelled that he was

going to kill Dunn’s family while approaching Dunn with the tire irons raised

above his head. Thus, the evidence supports the jury’s finding that Jack intended

to cause serious bodily injury to Dunn.

      Finally, Jack contends that legally insufficient evidence supports a finding

that Jack used the tire iron as a deadly weapon or to facilitate the commission of

any felony. A deadly weapon is a firearm or anything manifestly designed for the

purpose of inflicting death or serious bodily injury, or anything that in the manner



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of its use or intended use is capable of causing death or serious bodily injury. TEX.

PENAL CODE ANN. § 1.07(a)(17) (West 2011). Both Deputy Salazar and Dunn

testified that a tire iron is capable of causing serious bodily injury. Dunn testified

that Jack approached him while waving the irons overhead. Thus, the evidence

supports the jury’s finding that Jack used the tire iron as a deadly weapon.

II.   Jury Charge Error

      Next, Jack argues that egregious harm was caused by the part of the charge

that stated “Jack, did then and there unlawfully, intentionally or knowingly cause

bodily injury. . . .” He suggests that this portion of the charge gave the jury the

impression that they could convict for conduct that was “unlawful” but not

intentional or knowing. Additionally, Jack contends he suffered egregious harm

from an improper definition of deadly weapon.

      A. Standard of Review

      Jack did not raise either of these complaints at trial. We review jury charge

errors without any objection raised in the trial court for egregious harm. Ngo v.

State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005). Errors resulting in egregious

harm are those errors that affect “the very basis of the case”, “deprive the

defendant of a valuable right”, or “vitally affect a defensive theory.” Id.




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      B. Analysis

      The Texas Court of Criminal Appeals has held that a jury charge was not

fundamentally defective for including the phrase “appellant did unlawfully,

knowingly or intentionally abduct another person” where the charge defined

kidnapping as intentionally or knowingly abducting another person and did not

define unlawfully. Huddleston v. State, 661 S.W.2d 111, 113 (Tex. Crim. App.

1983). Similarly, in this case, the abstract portion of the jury charge defines

aggravated assault as intentionally or knowingly causing bodily injury to another

while using or exhibiting a deadly weapon. The jury charge defines knowingly

and intentionally but does not define unlawfully. Following Huddleston, we hold

that in light of the charge as a whole, there is no egregious harm caused by

including the word “unlawfully.”

      Jack contends that the charge erroneously defined deadly weapon as

“anything that in the manner of its use or intended use is capable of causing death

or serious bodily injury,” because the evidence conclusively showed that his intent

was either nonexistent or negated. The definition of deadly weapon correctly

tracks the statutory language of section 1.07(a)(17)(B). See TEX. PENAL CODE

ANN. § 1.07(a)(17)(B) (West 2011). The record reveals that Jack yelled that he

was about to kill Dunn’s family while waving the tire irons overhead. Evidence in




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the record thus supports the submission of “intended use” of a tire iron as a deadly

weapon.

III.   Evidentiary Ruling

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

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

trial court abuses its discretion only if its decision is “so clearly wrong as to lie

outside the zone within which reasonable people might disagree.” Taylor v. State,

268 S.W.3d 571, 579 (Tex. Crim. App. 2008). A trial court does not abuse its

discretion if some evidence supports its decision. Osbourn v. State, 92 S.W.3d

531, 538 (Tex. Crim. App. 2002).

       Jack objected in the trial court to Dunn’s testimony that the tire iron could

severely hurt someone on the grounds that the testimony was speculative, but on

appeal, he complains that the testimony was irrelevant. If an objection made in the

trial court differs from the complaint made on appeal, however, a defendant has not

preserved any error for review. Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim.

App. 1986).    Because Jack’s complaint on appeal does not comport with his

objection below, he has not preserved it for review. See id. In addition, the same

evidence was admitted through Deputy Salazar without objection: he testified that

a tire iron as used in this case was capable of causing serious bodily injury. This




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renders harmless any improper admission of evidence. See Leday v. State, 983

S.W.2d 713, 717–18 (Tex. Crim. App. 1998).

      Jack further argues that the court erred in permitting Dickens to testify that

Dunn said, “Get him. He hit me in the head” under the excited utterance exception

to the hearsay rule. Jack claims that Dunn did not immediately state it and no

independent evidence of the occurrence exists.

      An excited utterance is a statement relating to a startling event or condition,

made while the declarant was under the stress of excitement that caused it. TEX. R.

EVID. 803(2). The excited utterance exception renders admissible testimony that

would otherwise be excluded by the rule against hearsay regardless of whether the

declarant is available. Id.

      Time is a factor in determining whether a statement is an excited utterance,

and the critical determination is “whether the declarant was still dominated by the

emotions, excitement, fear, or pain of the event.” Zuliani v. State, 97 S.W.3d 589,

596 (Tex. Crim. App. 2003). In Zuliani, a statement made twenty hours after an

altercation with the defendant was still an excited utterance, where the victim was

still dominated by the emotions, excitement, fear, or pain of the event. Id.

      In this case, Dickens testified that Dunn made the statement while Dunn was

holding Jack down with Dunn’s arm around Jack’s neck and while Jack was trying




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to escape. We hold that the trial court reasonably could have concluded that Dunn

was dominated by the emotions of the event when he made the statement.

      Jack’s complaint concerning the lack of independent evidence is also

unavailing.    Although the common-law res gestae rule required independent

evidence, Rule 803(2) modified the common-law rule to eliminate that

requirement.       Coble v. State, 330 S.W.3d 253, 294 (Tex. Crim. App. 2010).

Instead, the trial judge decides whether there is sufficient evidence to prove an

exciting event. Id.

      Dickens testified that the moment of the declaration was stressful for Dunn

because Dunn was holding Jack down by the neck, Jack was trying to escape, and

Dunn’s head was bleeding. This evidence is sufficient to support a finding of a

startling event.

      Jack also argues that the admission of the excited utterance violates the

Confrontation Clause.      At trial, Jack objected to the excited utterance on the

ground of hearsay, but did not object based on the Confrontation Clause. An

objection on the basis of hearsay does not preserve error as to any violation of the

Confrontation Clause. Reyna v. State, 168 S.W.3d 173, 179-80 (Tex. Crim. App.

2005). Accordingly, we hold that Jack has waived any Confrontation Clause

argument.




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                                   Conclusion

       We hold that legally sufficient evidence supports the judgment. We further

hold that Jack has not demonstrated reversible error based on his challenges to the

jury charge and the admission of evidence. We therefore affirm the judgment of

the trial court.




                                                Jane Bland
                                                Justice

Panel consists of Justices Bland, Massengale, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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