                               Fourth Court of Appeals
                                     San Antonio, Texas
                                                OPINION

                                        No. 04-18-00707-CR

                                   Burdane Maurice GRANGER,
                                            Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 198th Judicial District Court, Kerr County, Texas
                                     Trial Court No. B17780
                             Honorable Rex Emerson, Judge Presiding

Opinion by:      Patricia O. Alvarez, Justice

Sitting:         Patricia O. Alvarez, Justice
                 Luz Elena D. Chapa, Justice
                 Irene Rios, Justice

Delivered and Filed: July 24, 2019

AFFIRMED

           On June 5, 2018, a Bexar County jury found Appellant Burdane Maurice Granger guilty

of felony assault—family violence, enhanced by prior felonies as a habitual offender. The trial

court subsequently assessed punishment at forty years’ confinement in the Institutional Division

of the Texas Department of Criminal Justice. On appeal, Granger contends (1) the trial court erred

in failing to include the definition of “dating relationship” in the court’s charge and (2) the evidence

is legally insufficient to support the jury’s finding of a dating relationship between Granger and

the victim, Carrie Guerrero.
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        Because we conclude the evidence is legally sufficient to support the jury’s finding that a

dating relationship existed between Granger and Guerrero, and Granger failed to show egregious

harm, we affirm the trial court’s judgment.

                           FACTUAL AND PROCEDURAL BACKGROUND

        On August 1, 2017, after several witnesses saw Granger pull his ex-girlfriend, Carrie

Guerrero, by the hair and place her in a headlock, Granger was arrested for assault. The events

were recorded on a security system owned by Francis Galvan Jr., a neighbor across the street.

Granger fled the scene after a second neighbor, Phillip Lowry, drew a knife and demanded Granger

release Guerrero. Kerrville Police Officer Ed Holloway located and arrested Granger shortly

thereafter.

        On November 13, 2017, Granger was indicted on felony assault—family violence,

enhanced with a prior family violence assault conviction. Granger’s indictment also included two

prior felony convictions for sentencing enhancement purposes.

        On July 5, 2018, a Kerrville County jury found Granger guilty of felony assault—family

violence. The trial court subsequently sentenced Granger to forty years’ confinement in the

Institutional Division of the Texas Department of Criminal Justice. This appeal ensued.

        On appeal, Granger contends (1) the trial court erred in failing to include the definition of

“dating relationship” in the court’s charge and (2) the evidence is legally insufficient to support

the jury’s finding of a dating relationship between Granger and Guerrero.

                                      DATING RELATIONSHIP

        We first address whether the evidence is legally sufficient to support a dating relationship

between Granger and Guerrero.




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A.     Sufficiency of the Evidence

       1.      Standard of Review

       In reviewing the sufficiency of the evidence, “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.” Adames v. State, 353 S.W.3d 854,

860 (Tex. Crim. App. 2011); accord Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011).

“This standard recognizes the trier of fact’s role as the sole judge of the weight and credibility of

the evidence . . . .” Adames, 353 S.W.3d at 860; accord Gear, 340 S.W.3d at 746. The reviewing

court must also give deference to the jury’s ability “to draw reasonable inferences from basic facts

to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979)). “Each fact need not point directly and independently to the

guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is

sufficient to support the conviction.” Id. (citing Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim.

App. 1993)).

       We may not substitute our judgment for that of the jury by reevaluating the weight and

credibility of the evidence. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). We defer

to the jury’s responsibility to resolve any conflicts in the evidence fairly, weigh the evidence, and

draw reasonable inferences. See Hooper, 214 S.W.3d at 13; King, 29 S.W.3d at 562. The jury

alone decides whether to believe eyewitness testimony, and it is solely responsible for resolving

any conflicts in the evidence. See Hooper, 214 S.W.3d at 15; Young v. State, 358 S.W.3d 790,

801 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). In conducting a sufficiency review, “[w]e

do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure

that the jury reached a rational decision.” Young, 358 S.W.3d at 801.




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       An appellate court “measures whether the evidence presented at trial was sufficient to

support a conviction by comparing the evidence to ‘the elements of the offense as defined by the

hypothetically correct jury charge for the case.’” Hernandez v. State, 556 S.W.3d 308, 312 (Tex.

Crim. App. 2017) (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).

       A hypothetically correct jury charge is one that “accurately sets out the law, is
       authorized by the indictment, does not unnecessarily increase the State’s burden of
       proof or unnecessarily restrict the State’s theories of liability, and adequately
       describes the particular offense for which the defendant was tried.”

Id. (quoting Malik, 953 S.W.2d at 240).

       2.      Arguments of the Parties

       Granger contends conclusory statements are the only evidence of an alleged dating

relationship between himself and Guerrero. Granger argues the record contains no evidence

concerning the nature of their relationship, the length of their relationship, or the frequency and

type of interactions between the parties.

       The State counters that several witnesses testified regarding Granger and Guerrero’s

relationship. Notably, Guerrero’s testimony that she and Granger “had had” a dating relationship

was uncontested. The jury could have reasonably relied on any or all of the witnesses to support

its finding that Granger and Guerrero were in a dating relationship.

       3.      Dating Relationship

       Based on the hypothetically correct jury charge, the State was required to prove the

following:

               [O]n or about AUGUST 1, 2017, in Kerr County, Texas, [Granger] did
       intentionally, knowingly or recklessly cause bodily injury to Carrie Guerrero, a
       person with whom [Granger] had or had had a dating relationship, as described in
       Section 71.0021B Family Code, by pulling her hair and putting her in a head-lock.

See TEX. PENAL CODE ANN. § 22.01.




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       4.      Evidence Presented at Trial

               a.      Francisco Galvan Jr.

       Francisco Galvan works for the Kerrville Police Department as a public safety

communication manager. Galvan lives near Guerrero’s mother, the home where the incident

occurred. His residence is equipped with an exterior security recording system that recorded the

events of August 1, 2017. The security camera recorded Guerrero running across the street, with

Granger pulling her hair and trapping her in a head-lock. The video shows Guerrero’s head “bob

back” when Granger grabbed her hair, indicating Guerrero was struck. The footage also captured

Philip Lowry approach Granger with a knife and presumably demand Granger release Guerrero.

The video was admitted at trial without objection.

       When questioned regarding the nature of Guerrero and Granger’s relationship, Galvan

testified Granger was at the residence “all the time . . . [Guerrero] lived there and [Granger] was

there all the time. I don’t know the status.”

               b.      Phillip Lowry

       Phillip Lowry, another of Guerrero and her mother’s neighbors, was working on his

property when he heard yelling across the street. He ran across the street and saw Granger, a large

man, “dragging Guerrero by her head.” Lowry pulled out his knife and demanded Granger release

Guerrero. Granger ran back into the house before the police arrived. Lowry testified he knew

both Guerrero and Granger as acquaintances.

       When asked whether he knew if Granger and Guerrero were in a dating relationship, Lowry

responded, “as far as I could tell, they were, yes.”




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               c.      Kerrville Police Officer Ed Holloway

       Kerrville Patrol Officer Ed Holloway, the first officer to respond, removed Granger from

the residence at gunpoint. Granger reported he was upset by a transaction between another man

and “his girlfriend.” Officer Holloway also testified Granger identified Guerrero as his girlfriend.

               d.      Carrie Guerrero

       On August 1, 2017, Granger burst, uninvited, into the home where Guerrero lived with her

mother. Granger saw Guerrero sitting in the living room with another man. Fearing Granger’s

anger, Guerrero fled the house hoping for witnesses and possible assistance.

       I didn’t want to be inside the home if there was any kind of confrontation, so I
       didn’t feel intimidated . . . there would be other people outside that could possibly
       help the situation.

Granger followed Guerrero, grabbed her by the hair, pulled her toward the street, and placed her

in a headlock. When she fell to the ground, Granger picked her up off the ground by her hair;

Guerrero begged Granger to let her go. Guerrero testified that when Lowry approached with a

knife, Granger finally released her.

       Guerrero further testified that she and Granger were in an “on and off” dating relationship

and they had previously lived together.

       4.      Analysis

       The crux of Granger’s sufficiency challenge hinges on whether the State sufficiently

established a dating relationship between Granger and Guerrero. “A dating relationship is a

relationship between individuals who have or have had a continuing relationship of a romantic or

intimate nature.” Sanchez v. State, 499 S.W.3d 438, 441 (Tex. Crim. App. 2016) (quoting TEX.

FAM. CODE ANN. § 71.0021(b)) (citations omitted); see Leach v. State, No. 03-13-00784-CR, 2015

WL 8607060, at *2 (Tex. App.—Austin Dec. 9, 2015, no pet.). An appellate court considers three

factors in determining the existence of a dating relationship: “(1) the length of the relationship; (2)


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the nature of the relationship; and (3) the frequency and type of interaction between the persons

involved in the relationship.” Herrera v. State, 526 S.W.3d 800, 810 (Tex. Crim. App. 2017)

(quoting TEX. FAM. CODE ANN. § 71.0021(b)). A “casual acquaintanceship” is not sufficient to

support the necessary requirements. See id.

        We find the Fourteenth Court of Appeals’ analysis in Hill v. State instructive. No. 01-10-

00926-CR, 2012 WL 983338, at *3 (Tex. App.—Houston [1st Dist.] Mar. 22, 2012, no pet.) (mem.

op., not designated for publication). In evaluating the length and nature of the appellant’s and

victim’s relationship, the court considered, inter alia, the victim’s reference to the appellant as her

“boyfriend” and “ex-boyfriend,” the victim reporting to the officer that she and appellant “had

previously been together ‘relationally,’” appellant admitting that he and the victim had previously

lived together, and appellant’s statement “that it had been ‘probably about a month’ since their

break up.” Id. The court concluded (1) the statute did not require the relationship to be ongoing

at the time of the assault; and (2) the evidence was sufficient for a rational jury to find the existence

of a dating relationship. See id. at *3–4; see also Sanchez, 499 S.W.3d at 442 (concluding “‘has

had’ phrase allows the dating relationship to have ended prior to the assault”); Villarreal v. State,

286 S.W.3d 321, 324 (Tex. Crim. App. 2009).

        The State presented several witnesses, including the victim, supporting the existence of a

prior dating relationship between Granger and Guerrero. See Villarreal, 286 S.W.3d at 324

(concluding evidence sufficient to show dating relationship where defendant and complainant

spent night at each other’s residences and had dated only about one month). The evidence was

undisputed. In fact, even Granger referred to Guerrero as “my girlfriend” when questioned by

Officer Holloway. Herrera, 526 S.W.3d at 804 (considering defendant’s statements to officer that

he and victim had been dating for three weeks); Hill v. State, 2012 WL 983338, at *3.




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       The defense presented no contrary evidence to dispute the assertions made by the State’s

witnesses. Deferring to the jury’s “responsibility to fairly resolve conflicts in testimony, to weigh

the evidence, and draw reasonable inferences from basic facts to ultimate facts,” we conclude the

evidence is legally sufficient to support the jury’s findings that a dating relationship existed

between Granger and Guerrero. Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016)

(quoting Hooper, 214 S.W.3d at 13)).

       Having found sufficient evidence to support the existence of a dating relationship, we turn

to whether the trial court erred in failing to include a definition of “dating relationship” in the

charge of the court.

B.     Jury Charge Error

       1.      Standard of Review

       Jury charge error is subject to a harmless-error analysis. See Barron v. State, 353 S.W.3d

879, 883 (Tex. Crim. App. 2011). The two-step analysis determines first, whether error exists; if

so, whether sufficient harm flowed from the error to warrant reversal. See id. (citing Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g)); see also Price v. State, 457

S.W.3d 437, 440 (Tex. Crim. App. 2015). Whether the error was preserved in the trial court

determines the degree of harm required for reversal on appeal. See Villarreal v. State, 453 S.W.3d

429, 433 (Tex. Crim. App. 2015) (citing Almanza, 686 S.W.2d at 171). If error was preserved by

objection at trial, reversal requires a showing of “some harm.” Vega v. State, 394 S.W.3d 514,

519 (Tex. Crim. App. 2013). If, however, error was not preserved by objection at trial, reversal

requires proof of fundamental harm “so egregious that the defendant was deprived of a fair and

impartial trial.” Villarreal, 453 S.W.3d at 433.




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       2.      Arguments of the Parties

       The State concedes the trial court erred in failing to include the definition of “dating

relationship,” but argues Granger failed to show egregious harm. To the contrary, the State

contends Granger and Guerrero’s relationship was undisputed by the evidence presented at trial.

       Granger contends the trial court’s inclusion of definitions such as “spouse,” “family,”

“family violence,” and “household,” but not “dating relationship,” was confusing to the jury.

Granger further argues the trial court’s omission caused him to suffer egregious harm. The State,

however, contends defense counsel’s failure to object to the trial court’s omitting the definition of

“dating relationship” was not an accident but trial strategy. During the State’s closing argument,

defense counsel objected when the prosecutor told the jury that “prov[ing] [Guerrero] is a family

member of a household” is sufficient to prove a dating relationship.

       We, therefore, presume error and turn to whether Granger was egregiously harmed by the

trial court’s failure to include the statutory definition of “dating relationship.” See Villarreal, 453

S.W.3d 433; Almanza, 686 S.W.2d at 171.

       3.      Egregious Harm Analysis

       Egregious harm affects the very basis of the case, deprives the defendant of a valuable

right, or vitally affects a defensive theory. See Villarreal, 453 S.W.3d 433; Almanza, 686 S.W.2d

at 171. It is a high standard and requires review of the entire trial record. See Villarreal, 453

S.W.3d 433; Almanza, 686 S.W.2d at 171. The appellant must suffer “actual rather than theoretical

harm” to warrant reversal. See Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011). An

appellate court considers (1) the entirety of the jury charge; (2) the state of the evidence, including

the contested issues and weight of probative evidence; (3) the arguments of counsel; and (4) any

other relevant information revealed by the trial record as a whole to determine whether egregious

harm has resulted. See Villarreal, 453 S.W.3d at 433; Almanza, 686 S.W.2d at 171.


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       Here, although the court’s charge did not define “dating relationship,” the application

paragraph specifically required the jury to find that Granger and Guerrero “had or had had a dating

relationship,” as defined by the offense and the applicable elements. “Our courts have held that

when a statutory definition is not included in the jury charge, ‘it is assumed the jury would consider

the commonly understood meaning in its deliberations.’” Lovings v. State, 376 S.W.3d 328, 338

(Tex. App.—Houston [14th Dist.] 2012, no pet.) (quoting Olveda v. State, 650 S.W.2d 408, 409

(Tex. Crim. App. 1983)).

       “Dating Relationship” is statutorily defined as “a relationship between individuals who

have or have had a continuing relationship of a romantic or intimate nature.” See TEX. FAM. CODE

ANN. § 71.0021(b). In Leach v. State, the Austin Court of Appeals explained, “the combined

dictionary meanings of the terms ‘date’ and ‘relationship’ reflect a commonly understood meaning

of the phrase ‘dating relationship’ that closely resembles the [Texas Family Code section

71.0021(b)] statutory definition of ‘dating relationship.’”       No. 03-13-00784-CR, 2015 WL

8607060, at *5 (Tex. App.—Austin Dec. 9, 2015, no pet.) (mem. op., not designated for

publication).

       Here, the jury heard four witnesses testify that Granger and Guerrero were in a dating

relationship. Galvan and Lowry both witnessed Granger at the residence. Guerrero testified she

“had had” a dating relationship with Granger; and Granger even referred to Guerrero as his

girlfriend. The defense offered no contrary evidence.

       Questions raised by both the State and defense counsel and arguments made throughout

trial indicate that establishing a dating relationship was essential to convicting Granger of the

charged offense. During opening statements, the State opined, “Mr. Granger had previously been

in a dating relationship with Carrie Guerrero. They had maybe even lived together on and off a

little bit and had a dating relationship.” Defense counsel further reminded the jury that Granger


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and Guerrero dated in the past. Like Moreno v. State, when the definition of “dating relationship”

was erroneously omitted from the charge, “[t]here is nothing in [this] record to indicate that the

jury was misled or left ignorant of how the term ‘dating relationship’ was to be applied in

evaluating the evidence.” No. 04-17-00442-CR, 2018 WL 3129451, at *3 (Tex. App.—San

Antonio June 27, 2018, no pet.) (mem. op., not designated for publication).

       We conclude the jury could reasonably determine, based on the common meaning of

“dating relationship,” that Granger and Guerrero were in a dating relationship as defined by Texas

Family Code section 71.0021(b). See Hooper, 214 S.W.3d at 15–16 (explaining inference is “a

conclusion reached by considering other facts and deducing a logical consequence from them”);

TEX. FAM. CODE ANN. § 71.0021(b); see also Leach, 2015 WL 8607060, at *5. We further

conclude the jury could reasonably determine that based on (1) Granger previously staying at

Guerrero’s mother’s house and referring to Guerrero as his girlfriend, (2) Guerrero testifying they

had previously been dating, and (3) both neighbors thinking Granger and Guerrero were in a dating

relationship, the jury could reasonably infer the dating relationship about which the State and

defense counsel were referring was “a continuing relationship of a romantic or intimate nature.”

See Leach, 2015 WL 8607060, at *5 (“[N]othing in the record indicates the jury’s verdict was

based on facts that would not constitute a “dating relationship” under the statutory definition of

section 71.0021(b).”); see also TEX. FAM. CODE ANN. § 71.0021(b).

       Based on a review of the entire jury charge, the weight of the evidence, the arguments of

counsel made during opening arguments and throughout trial, the statements of both Granger and

Guerrero, and the common meaning of “dating relationship,” we conclude the record does not

support a showing of egregious harm.




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                                            CONCLUSION

       Having found the evidence sufficient to support the jury’s finding that Granger and

Guerrero “had had” a dating relationship and that Granger did not suffer egregious harm by the

trial court’s failure to include the statutory definition of “dating relationship” in the charge of the

court, we affirm the trial court’s judgment.

                                                    Patricia O. Alvarez, Justice

PUBLISH




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