AFFIRM and Opinion Filed this 17th day of May, 2013.




                                           S
                                           In The
                                     Court of Appeals
                              Fifth District of Texas at Dallas

                                     No. 05-11-01529-CR

                               GREGORY REED, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the 401st Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 401-80642-2011

                                           OPINION

                        Before Justices FitzGerald, Fillmore, and Evans
                                Opinion by Justice FitzGerald

       Appellant Gregory Reed was convicted of assaulting his live-in girlfriend. He raises one

point of error on appeal, contending the jury charge was erroneous because it contained a means

of committing the assault that was supported by insufficient evidence. We affirm.

                                      I.   BACKGROUND

       The evidence at trial supported the following facts. The complaining witness was Kelli

Hipp. She and appellant started dating in or about 2009. They moved in together at the end of

2009, renting a room from a woman named Debra Lewis. At some point, Hipp decided that she

wanted to move out because she and appellant were not getting along. On February 22, 2010,

Hipp had her things packed up and called some friends to come pick her up. Appellant wanted

to talk to Hipp about it, so she went into the bedroom where he was and sat down in a chair.
Appellant went to the restroom. When he returned to the bedroom, he shut the door and grabbed

Hipp’s neck with both hands and squeezed her neck until she had a hard time breathing.

Appellant dragged her out of the chair and onto the floor, where he continued to choke her. Hipp

suffered injuries during the attack. She testified that she bit through her lip, and she testified that

she believed she was bleeding from her nose as well. The assault stopped when Lewis came into

the room. Appellant told Lewis to leave, and she did. Appellant then told Hipp to take a shower,

and he stayed in the bathroom with her while she did so. Appellant stayed in the bedroom with

Hipp the rest of that day and all the next day. On February 24, appellant went to work, and Hipp

had a friend come pick her up. They went to the hospital, where Hipp found out she had a

broken nose and a broken “eye orbit or something to that effect.”

       About two weeks later, Hipp’s nose was still swollen, and she was having trouble

breathing. She went to Parkland Hospital, where she was diagnosed with and treated for a septal

hematoma. She then reported the crime to the police. The police took photographs of her

injuries, which were still visible despite the passage of time. Appellant was eventually arrested

and charged with assault of a family or household member.

       Appellant pleaded not guilty, and his case was tried to a jury. This appeal concerns the

following part of the jury charge:

              NOW, if you find from the evidence beyond a reasonable doubt that on or
       about the 22nd day of February, 2010, in Collin County, Texas, the defendant,
       GREGORY REED, did then and there intentionally, knowingly, or recklessly
       cause bodily injury to Kelli Hipp, by grabbing the neck of Kelli Hipp with his
       hands, by squeezing the neck of Kelli Hipp with his hands, or by kicking Kelli
       Hipp with his foot . . . then you will find the defendant guilty . . . .

During deliberations, the jury sent a note to the trial judge, which read as follows:




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In response, the judge referred the jury to the jury charge, and particularly to the paragraph of the

jury charge quoted above. The jury subsequently found appellant guilty and sentenced him to

nineteen years in prison.

       Appellant timely appealed.

                                          II.   ANALYSIS

       In his sole point of error, appellant argues that the trial judge erred by charging the jury

that it could convict appellant by finding that he kicked Hipp because there was no evidence to

support this allegation. He did not object to the jury charge in the trial court on this basis.

Accordingly, in this appeal we determine first whether the jury charge was erroneous. Barrios v.

State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). If it was, we reverse only if the error was

so egregious and created such harm that it denied appellant a fair and impartial trial. See id. We

note that appellant’s specifically limits his argument on appeal to charge error, disclaiming any

argument that he was denied his constitutional right to a unanimous verdict.



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       The trial judge should not charge the jury on a manner or means of committing an offense

that is not supported by any evidence. See Sanchez v. State, 376 S.W.3d 767, 774 (Tex. Crim.

App. 2012); Ashby v. State, 646 S.W.2d 641, 644 (Tex. App.—Fort Worth 1983, pet. ref’d). But

in this case, there was some evidence to support the State’s theory that appellant kicked Hipp.

At trial, Hipp testified that appellant began choking her while she was sitting in a chair, then

dragged her from the chair onto the floor. The State asked Hipp if she remembered whether

appellant kicked her, and she replied, “At this point I really don’t know. I don’t recall.” Then

Hipp reviewed a written statement she had given to a detective, and this exchange occurred:

       Q.      Having read that statement and refreshing your memory, can you now say
               whether or not at the time you believed you were kicked by this
               Defendant?

       A.      Yes, ma’am.

       Q.      And obviously, when somebody kicks you they’re kicking you with their
               foot?

       A.      Yes, ma’am.

Appellant argues that, taken literally, the first question quoted above was only whether Hipp

remembered whether she previously believed that appellant kicked her, so her “Yes” answer

establishes only her memory, not the fact that he kicked her. But taken in context, we conclude

that Hipp’s answer can reasonably be interpreted as confirmation that appellant did in fact kick

her. Plainly the prosecutor understood Hipp’s answer that way, because she immediately moved

on to confirm that Hipp understood “kicking” to meaning kicking someone with one’s foot.

Accordingly, there was some evidence to support the inclusion of the phrase “or by kicking Kelli

Hipp with his foot” in the jury charge as an alternative manner or means of committing the

offense, and the trial judge did not err by including it.

       We overrule appellant’s sole point of error.



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                                      III. DISPOSITION

       We affirm the trial court’s judgment.




                                                     /Kerry P. FitzGerald/
                                                     KERRY P. FITZGERALD
                                                     JUSTICE



Do Not Publish
TEX. R. APP. P. 47
111529F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

GREGORY REED, Appellant                              On Appeal from the 401st Judicial District
                                                     Court, Collin County, Texas
No. 05-11-01529-CR        V.                         Trial Court Cause No. 401-80642-2011.
                                                     Opinion delivered by Justice FitzGerald.
THE STATE OF TEXAS, Appellee                         Justices Fillmore and Evans participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 17th day of May, 2013.




                                                     /Kerry P. FitzGerald/
                                                     KERRY P. FITZGERALD
                                                     JUSTICE




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