Opinion issued October 2, 2014.




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                          ————————————
                            NO. 01-14-00164-CR
                         ———————————
                  JUAN GENARO VAZQUEZ, Appellant
                                     V.
                      THE STATE OF TEXAS, Appellee


                  On Appeal from the 338th District Court
                          Harris County, Texas
                      Trial Court Case No. 1374714




                        MEMORANDUM OPINION

     A jury found Juan Genaro Vazquez guilty of assault of a family member by

impeding breathing.   The trial court assessed his punishment at two years’

confinement.   On appeal, Vazquez contends that (1) the trial court erred in

admitting certain photographs, because their admission violated Texas Rule of
Evidence 403 and the Confrontation Clause of the Sixth Amendment; and

(2) legally insufficient evidence supports his conviction. Finding no error, we

affirm.

                                   Background

        In May 2012, Ofelia Aguirre filed a petition to divorce Vazquez. In January

2013, Vazquez knocked on Aguirre’s front door and asked her to open the door.

At the time, Vazquez and Aguirre were married but living separately. Vazquez

told Aguirre that he was there to resolve an issue with their income taxes. Vazquez

insisted that she open the door. Aguirre then unlocked her front door. Vazquez

pushed the door open and entered. He threatened that he would hire someone to

kill Aguirre if she did not stop the divorce proceeding. Vazquez then began to beat

Aguirre’s face and body with his fist. Vazquez next grabbed Aguirre’s neck with

both hands, impeding her ability to breathe. Vazquez then placed his arm around

Aguirre’s neck, causing her to lose consciousness. When Aguirre regained her

consciousness, Vazquez was gone.

        The following day, Officer Jesus Robles took three photographs of Aguirre’s

neck and face. A few days after the assault, a coworker of Aguirre took several

more photographs of her neck and face. One week after the assault, an employee

of a district attorney’s office also took several photographs of Aguirre’s neck and

face.


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      Course of Proceedings

      The trial court admitted, without objection, the photographs taken by Officer

Robles and the photographs taken at the district attorney’s office. Over Vazquez’s

objection, the trial court also admitted the photographs taken by Aguirre’s

coworker. The jury found Vazquez guilty of assault of a family member by

impeding breathing.     The trial court assessed his punishment at two years’

confinement.

                                    Discussion

I.    Admission of evidence

      Standard of Review

      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. See Osbourn v. State, 92 S.W.3d

531, 538 (Tex. Crim. App. 2002). We uphold a trial court’s evidentiary ruling if it

was correct on any theory of law applicable to the case. See De La Paz v. State,

279 S.W.3d 336, 344 (Tex. Crim. App. 2009).




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      Texas Rule of Evidence 403

      Vazquez contends that the trial court erred in admitting the set of

photographs taken by Aguirre’s coworker, because these photographs are

inadmissible under Texas Rule of Evidence 403. See TEX. R. EVID. 403. Vazquez

asserts that the photographs misled the jury because they do not accurately depict

Aguirre’s injuries.

      A trial court should exclude evidence “if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, or needless presentation

of cumulative evidence.” Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App.

2007); TEX. R. EVID. 403. “Unfair prejudice” stems from evidence that motivates a

decision “on an improper basis, commonly, though not necessarily, an emotional

one.” Casey, 215 S.W.3d at 879 (citing Gigliobianco v. State, 210 S.W.3d 637,

641 (Tex. Crim. App. 2006)). “Misleading the jury” refers to “a tendency of an

item of evidence to be given undue weight by the jury on other than emotional

grounds.” Id. at 880 (citing Gigliobianco, 210 S.W.3d at 641).

      To admit a photograph into evidence, a party must show that the photograph

accurately depicts the subject at a given time. Delacerda v. State, 425 S.W.3d 367,

393 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Huffman v. State, 746

S.W.2d 212, 222 (Tex. Crim. App. 1988)); see also TEX. R. EVID. 901(a). “[T]he


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only identification or authentication required is that the offered evidence properly

represent the person, object, or scene in question. Quinonez–Saa v. State, 860

S.W.2d 704, 706 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d), quoted in

Delacerda, 425 S.W.3d at 393. Any witness who knows the facts may meet this

requirement, “even though the witness did not take the photograph or see it taken.”

Delacerda, 425 S.W.3d at 393 (quoting Quinonez–Saa, 860 S.W.2d at 706) (citing

Hughes v. State, 878 S.W.2d 142, 155 (Tex. Crim. App. 1992)).

      Aguirre’s testimony meets this authentication standard. She testified that her

coworker took the photographs of her a few days after the assault, and that the

pictures fairly and accurately depicted her injuries and had not been altered in any

way. Vazquez offered no evidence to rebut Aguirre’s testimony as to the accuracy

of the photographs. The State thus properly authenticated the photographs. See

Delacerda, 425 S.W.3d at 393.          Because the photographs were properly

authenticated, they did not mislead the jury and thus were not unduly prejudicial.

See Casey, 215 S.W.3d at 879–80; TEX. R. EVID. 403.

      Confrontation Clause

      Vazquez next contends that the Sixth Amendment’s Confrontation Clause

bars the photographs’ admission. The Sixth Amendment’s Confrontation Clause

bars the admission of out–of–court statements by a declarant whom the criminal

defendant has been unable to confront. Gonzalez v. State, 195 S.W.3d 114, 116


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(Tex. Crim. App. 2006). A photograph is not an out–of–court statement and thus

its admission cannot violate the Confrontation Clause. Wood v. State, 299 S.W.3d

200, 214–15 (Tex. App.—Austin 2009, pet. ref’d); see also TEX. R. EVID. 801(a)

(“A ‘statement’ is (1) an oral or written verbal expression or (2) nonverbal conduct

of a person, if it is intended by the person as a substitute for verbal expression.”).

Because the photographs are not out–of–court statements, the Confrontation

Clause does not bar their admission.          See Wood, 299 S.W.3d at 214–15.

Accordingly, we hold that the trial court did not err in admitting the photographs

taken by Aguirre’s coworker.

II.   Sufficiency of the evidence

      Finally, Vazquez contends that the evidence is legally insufficient to support

his conviction for assault of a family member by impeding breathing. See TEX.

PENAL CODE ANN. § 22.01(b)(2)(B) (West 2011).

      Standard of review

      In reviewing the sufficiency of the evidence to support a conviction, we

consider all of the record evidence in a light most favorable to the verdict, and

determine whether no rational fact–finder could have found that each essential

element of the charged offense was proven beyond a reasonable doubt.              See

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); In re

Winship, 397 U.S. 358, 361–64 , 90 S. Ct. 1068, 1071–73 (1970); Laster v. State,


                                          6
275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742,

750 (Tex. Crim. App. 2007). We consider the “combined and cumulative force of

all the evidence” to determine whether the necessary inferences have a reasonable

basis in the evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007) (quoting Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007)).

“Circumstantial evidence is as probative as direct evidence in establishing the guilt

of an actor, and circumstantial evidence alone can be sufficient to establish guilt.”

Id. (quoting Hooper, 214 S.W.3d at 13). We presume that the fact–finder resolved

any conflicting inferences in favor of the verdict, and we defer to that resolution.

See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.

      Analysis

      A person commits an assault if the person intentionally, knowingly, or

recklessly causes bodily injury to another. TEX. PENAL CODE ANN. § 22.01(a)

(West 2011). A person commits an assault of a family member by impeding

breathing if the person commits an assault against a family member by

“intentionally, knowingly, or recklessly impeding the normal breathing or

circulation of the blood of the person by applying pressure to the person’s throat or

neck or by blocking the person’s nose or mouth.” Id. § 22.01(b)(2)(B).

      Aguirre testified that her husband, Vazquez, beat her and choked her neck.

Aguirre testified that his grip on her neck was “really tight” and that she could not


                                         7
breathe at the time. Aguirre further testified that she lost consciousness. The State

proffered a set of photographs taken by Officer Robles the day following the

assault. These photographs show bruises on Aguirre’s neck and face. The State

also proffered a set of photographs taken by Aguirre’s coworker a few days after

the assault. These photographs also show bruises on Aguirre’s neck and face.

      Vazquez contends that legally insufficient evidence supports his conviction

because Officer Robles and Aguirre both lacked credibility. Vazquez notes that

Officer Robles did not obtain a statement from Vazquez during his investigation

and did not investigate the scene before referring the case to the district attorney.

We presume, however, that the jury resolved any conflicting inferences in favor of

the verdict and defer to that resolution. See Clayton, 235 S.W.3d at 778. Aguirre’s

testimony and the photographs depicting Aguirre’s injuries alone are legally

sufficient to support Vazquez’s conviction.

      Vazquez responds that the photographic evidence is inconclusive, because

the photographs taken at the district attorney’s office one week after the assault do

not show bruises on Aguirre’s neck or face. This argument is unavailing, because

the State introduced other types of evidence, including Aguirre’s testimony and

several other photographs depicting Aguirre’s injuries, which were taken within a

few days of the assault. Viewed in a light favorable to the jury’s verdict, we hold

that sufficient evidence supports Vazquez’s conviction for assault of a family


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member by impeding breathing. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793;

Clayton, 235 S.W.3d at 778.

                                   Conclusion

      We hold that the trial court did not err in admitting the challenged

photographs. We further hold that legally sufficient evidence supports Vazquez’s

conviction. Accordingly, we affirm the judgment of the trial court.




                                               Jane Bland
                                               Justice

Panel consists of Justices Higley, Bland, and Sharp.

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




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