                             PD-1142-15
                           CASE NO 05-14-00441-cr

                                    IN THE

              COURT OF CRIMINAL APPEALS OF TEXAS

                                  IN AUSTIN

__________________________________________________________________

CHRISTOPHER MICHAEL DUNLOP                                     PETITIONER

                                       VS.

THE STATE OF TEXAS                                 RESPONDENT
__________________________________________________________________


               PETITION FOR DISCRETIONARY REVIEW

__________________________________________________________________

On Petition for Discretionary Review from the Fifth District Court of Appeals in

Cause No. 05-14-00441-CR in Affirming Conviction in cause No. 296-82462-

2012 from the 296th District Court of Collins County, Texas.

__________________________________________________________________



                                                         Christopher M. Dunlop

                                                         435 Merrimac court
                November 18, 2015
                                                         Roselle, IL 60172

                                                         Pro se PETITIONER



ORAL ARGUMENTS REQUESTED


                                                                                   1
                       Identity of Parties and Counsel
______________________________________________________________________________


JUSTICES:                     Before Justices Bridges, Fancis, and Lang
                              Opinion by Justice Lang

TRIAL JUDGE:                  Honorable John Roach, Jr.

APPELLANT–PETITIONER:         Christopher M. Dunlop

ATTORNEY FOR THE PETITIONER AT TRIAL:

                              William H. Underwood

                              1413 Harroun Avenue
                              McKinney, TX 75069

ATTORNETY FOR PETITIONER ON APPLEAL:

                              William H. Underwood

                              1413 Harroun Avenue
                              McKinney, TX 75069

APPELLEE-RESPONDANT:          The State of Texas

ATTORNEY AT TRIAL FOR THE STATE:

                              Wes Wynne

                              Collin County District Attorney's Office

                              2100 Bloomdale Road, Ste 100
                              McKinney, TX 75071


ATTORNEY ON APPEAL FOR THE STATE:

                              John Rolater

                              Collin County District Attorney’s Office

                              2100 Bloomdale Road, Ste 100
                              McKinney, TX 75071

                                                                             2
                                         TABLE OF CONTENTS

Cover Page………………………………………………………….…………..…….…1

Identity of Justices, Judge, Parties, and Counsel..……………………….…………..….2

Table of Contents…………………………………………………………………..…....3

Statement Regarding Oral Argument..………………………………………,………....4

Statement of the Case……………………………………………………………….…..4

Statement of Procedural History……………………………………………………….…….5

Ground for Review……………………………………………………………...…........5

Statement of the Facts………………………………………………………….……….6

GROUND FOR REVIEW ONE………………………………………………...…….14
The appeals court erred in finding that the evidence was legally sufficient to sustain a
conviction where there was no physical evidence that anyone was injured but the
defendant himself. The suspicion of guilt was due to the defendant inflicting harm
upon himself, but the complaining witness testified that she had drugged him. The
appeals court erred because they only took into account the police offices
testimony that both the complaining witness and the 911 callers written statements
were consistent and therefore factual when the appeals court did not compare the
original 911 call with the 911 callers written statement which is completely
different. If they would have done that and considered all of the evidence they
would have seen that the complaining witnesses testimony of how they were left
alone for over an hour before they were even spoken to by the Plano police
department then they would have known that the complaining witnesses falsified
the police report as she stated on the stand.

GROUND FOR REVIEW TWO……………………………………………………...14
The trial appeals court erred in not taking into account all of the evidence as stated
in GROUND FOR REVIEW ONE and noting that the defendant wordlessly cut
his own throat in front of the Plano officers because he had been involuntarily
drugged and not in his right mind as the complaining witness testified to drugging
him during the trial.

Prayer of Relief…………….................………………………….…….……………....14

Certificate of Compliance..........................................................................................15



                                                                                                                   3
             STATEMENT REGARDING ORAL ARGUMENT


Because this case presents novel issues this Court has not previously addressed,

oral argument would be helpful. Argument would assist the Court because

resolution of the grounds for review depends upon a detailed exploration of the

facts of the cases. Further, oral argument would provide this Court with an

opportunity to question the parties regarding their positions.


                          STATEMENT OF THE CASE

Appellant, Christopher M. Dunlop, was charged by indictment with the felony

offense of assault family violence by impeding the normal breathing or circulation

of blood of Laura Free by applying pressure to Laura Free's throat or neck. 1 After

a jury trial, Mr. Dunlop was acquitted of the 3rd degree felony offense of Assault

by Impeding, but was convicted of the lesser-included Class A offense of Assault

Causing Bodily Injury to a Family Member. 2 Mr, Dunlop was sentenced to 1

year incarceration in the county jail, but the sentence was suspended and Mr.

Dunlop was placed on community supervision for 2 years. 3 This is a direct appeal

from that conviction and sentence.




______________________
1 (Clerk's Rat 11)
2 (Clerk's Rat 77)
3 (Clerk's Rat 78-80)



                                                                                      4
               STATEMENT OF PROCEDURAL HISTORY

      The judgment of Petitioner's conviction was entered on March 18, 20

I 4. Petitioner's notice of appeal was timely filed on April 10, 20 I 4 , the Fifth

District Court of Appeals its affirmation of conviction on July 31, 2015.

Motion for rehearing was not filed in time due to appellant not being notified

until 2 weeks after the verdict and was unware of his rights that he could

have still requested a hearing Pro se 15 days after his counsels notification of

the verdict.

                          GROUND FOR REVIEW

The Fifth Court of Appeals affirmed the conviction in this case despite the

lack of any physical evidence of wrongdoing and not considering the actual

testimony of the complaining witness herself stating the charges were

falsified because the complaining witness thought she and her daughter had

killed the defendant by drugging him. The Fifth Court of Appeals did not

discharge its duty of review to conscientiously and impartially apply the law

of Jackson v. Virginia, 443 U.S.319 (1979) and Brooki v. State, 323 S.W.3d

893 (Tex. Crim. App. 20!0), to a fair consideration of all the evidence. See

Arcila v. State, 834 S.W.2d 357, 360-61 (Tex. Crim. App. 1992).




                                                                                      5
                                STATEMENT OF FACTS

In the early morning hours of July 11, 2012, Officers David Thornsby and Kevin

Gendron of the Plano Police Department responded to a domestic disturbance call

from a residence located at 3829 Carrizo Drive in Plano, Texas. 4 Upon arrival at

the location, officers made contact with the 911 caller, Kirstin Reigelsperger, who

allowed them entry into the home. 5 As soon as the officers entered the residence,

they observed the suspect, Christopher M. Dunlop, wordlessly pick up a large

kitchen knife, place the knife to his own throat, and make a deep incision in his

neck. 6 Mr. Dunlop then went into a bedroom and shut and locked the bedroom 7

door. Officer Thomsby immediately ordered both of the females (Laura Free, the

complaining witness, and Kirsten Reigelsperger, the 911 caller) to exit the house

and go across the street to a neighbor's yard. 8 Eventually, the officers gained

entry into the bedroom and medical treatment was started by Emergency Medical

Technicians on Mr. Dunlop. 9



________________
4 (Rep.'s R. vol 3 at 128: 13-15); (Rep.'s R. vol 3 at 131: 6-10)

5(Rep.'s R. vol 3 at 136: 15-19); (Rep.'s R. vol 3 at 177: 23-178: 4)

6(Rep.'s R. vol 3 at 139: 2-10); (Rep.'s R. vol 3at 181: 21-23)

7(Rep.'s R. vol 3 at 139: 22-25)

8(Rep.'s R. vol 3 at 142: 3-4); (Rep.'s R. vol 3 at 169: 10-19); (Rep's R. vol 3at 186: 4-18)

9(Rep.'s R. vol 3 at 143: 19-144: 4)

                                                                                                6
During the estimated 30 minutes to an hour that Officers Thonsby and Gendron

were attempting to gain entry into the bedroom and tend to Mr. Dunlop's injury,

no contact was made with either Laura Free or Kirsten Reigelsperger by anyone

from law enforcement. 10 In fact. Officer Gendron had no contact or interaction

whatsoever with the complaining witness, Laura Free. 11 Once Mr. Dunlop had

been stabilized and loaded onto a gurney for transport to the hospital, Officer

Thomsby resumed contact with Laura Free and Kirsten Reigelsperger. 12 Officer

Thomsby testified that Laura Free claimed that Mr. Dunlop had pulled her hair to

the point that a chunk of her hair had come out of the backside of her scalp, and

that she had been choked. 13 Officer Thomsby also stated that Laura Free had

complained of pain in her head and neck area. 14 In his observations of Laura

Free, Officer Thomsby stated that he observed no bruising or redness or scratches

on her person the night of the incident. 15




________________
10 (Rep.'s R. vol 3 at 157: 5-15); (Rep.'s R. vol 3 at 181:6-14) "

11(Rep.'s R. vol 3 at 186: 1-9)

12 (Rep.'s R. vol 3 at 144: 14-22)

13 (Rep.'sR.vol3 at l62: 2-8)

14 (Rep.'s R. vol 3 at 145: 18-22)

15 (Rep.'s R. vol 3 at 156: 1-4)


                                                                                    7
As part of his investigation, Officer Thornsby also had Ms. Free fill out a

Voluntary Witness Statement (State's Exhibit 57) 16, an Assault Supplement

Packet (State's Exhibit 57) 17, and a page detailing "background information"

contained within the Assault Supplement Packet (State's Exhibit 59) 18..

When Laura Free appeared before the court, she stated her intention to assert her

Fifth Amendment privilege. 19 The state's prosecutor, Wes Wynne, offered Ms.

Free testimonial (use) immunity. 20 Judge John Roach, Jr. appointed counsel to

advise Ms. Free in regard to her 5th Amendment rights and the Grant of Use

Immunity offered to her by the prosecution. 21 Ultimately, Ms. Free accepted the

Grant of Use Immunity and opted to testify. 22




_________________
16(Rep.'s R, vol 3 at 146: 10-19)

17 (Rep.'s R. vol 3 at 142: 21-25)

18 (Rep.'s R. vol 3 at 148: 25-149:10)

19 (Rep.'s R. vol 3 at 201: 13-16)

20 (Rep.'s R. vol 3 at 203: 24-204: 19);(Clerk's R. at 65-66)

21(Rep.'s R. vol 3 at 205: 8-14); (Rep/s R. vol 3 at 206: 1-15)

22 (Rep.'s R. vol 3 at 228: 13-23); (Clerk's R. at 67)


                                                                                    8
Prior to the trial, Ms. Free had also filled out an Affidavit of Non-Prosecution, and

she flatly stated that she did not want to see Mr. Dunlop prosecuted for this

offense as he did nothing wrong and she was afraid for having drugged him. 23

Ms. Free's trial testimony was contradictory to the and verbal statements she had

provided to the police on July 11, 2012. In regard to written hair-pulling, Ms. Free

testified that the hair-pulling in question was done in a playful, sexual manner and

denied that it caused any pain, or if it caused pain, she stated it was the type of

pain she had encouraged and wanted. 24 When pressed about the "chunk ofhair"

that had reportedly been ripped out, she stated that only 4-5 strands of hair may

have been pulled out, but that they also may have just fallen out on their own. 25

Ms. Free admitted that she had drugged Mr. Dunlop that night, without his

knowledge, by pouring Hydrocodone cough syrup initially into a Four Loko, then

later into a pot of coffee Mr. Dunlop was drinking. 26 She stated that she and her

daughter, Kristen, decided to pour the rest of the bottle of hydrocodone cough

syrup into Mr.




_________________
23(Rep.'s R. vol 4 at 21: 9-14)

24 (Rep.'s R. vol 4 at 32: 17-33:9); (Rep.'s R. vol 4 at 84: 3-20)

25 (Rep.'s R. vol 4 at 33: 10-24) (Rep.'s R. vol 4 at 34: 23-35: 24)



                                                                                        9
Dunlop's coffee because the first attempt at drugging him had no effect. 27 Ms.

Free claimed to have fabricated the story about Mr. Dunlop assaulting her because

she believed Mr. Dunlop had actually died from his injuries, 28 and because she

was worried that she would now be forced to pay all the bills at the residence. 29

Ms. Free testified that not only had she fabricated the details of her written

voluntary Witness Statement, she had also lied about her description of the night's

events when she was verbally questioned by the police on July 11, 2012. 30

In regard to the allegation of hair pulling, in her written statement Ms. Free wrote

that Mr. Dunlop "grabbed me by the back of the hair and yanked my head

backward ripping out a fistful of my hair. 31 During her trial testimony, however,

she denied that Mr. Dunlop ripped out a fistful of her hair,but she confirmed that

Mr. Dunlop had yanked her hair and yanked her head backwards,and that she felt

pain when he ripped her hair out. 33

_______________________
27(Rep.'s R. vol 4at37: 25-39: 24)

28(Rep.'s R. vol 4 at 49: 18-24)

29(Rep.'s R. vol 4 at 50: 3-22)

30 (Rep.'s R. vol 4 at 51: 4-52: 14)

31State's Exhibit 58, Voluntary Witness Statement, page 3)

32(Rep.'s R. vol 4 at 64: 16-25)

33(Rep.'s R. vol 4 at 72: 17-18); (Rep.'s R. vol 4 at 73: 3-5)



                                                                                       10
In regard to the allegation of assault by strangulation, in her voluntary statement

Ms. Free wrote, "he put his hands around my neck and squeezed; but I could still

breathe, it was just a bit harder." 34 In her trial testimony, Ms. Free initially stated

that Mr. Dunlop never put his hands on her neck. 35 Later, she clarified that Mr.

Dunlop had put his hands on her clavicle area, trying to calm her down, but all she

felt was the "heat from hands near my neck, but I could not state with certainty

there was ahand on my neck.” 36 When specifically asked whether her breathing

was impeded, Ms. Free again stated that Mr. Dunlop did not have his hands

around her neck. 37 "They were near my neck, and he never squeezed and

impeded my air flow." 38 When the prosecutor questioned Ms. Free about the

Assault Supplement Report she had filled out on the night of the incident, 39 Ms.

Free again denied that Mr. Dunlop put his hands around her neck, and she further

denied any pain associated with her neck or neck area." 40



_________________
34(State's Exhibit 58, Voluntary Witness Statement,page 3)

35 (Rep.'s R. vol 4 at 65: 3-4)

36(Rep.'s R. vol 4 at 66: 1-10)

37(Rep.'s R. vol 4at66; 25-67: 7)

38(Rep.'s R. vol 4 at 66: 18-20)

39(State's Exhibit 59,Assault SupplementReport)

40(Rep.'s R. vol 4 at 72: 17-73:24); (Rep.'s R. vol 4 at 86: 14-24

                                                                                       11
On cross-examination, Ms. Free stated that she had lied to the police about the

assault allegations concerning Mr. Dunlop because she and her daughter had

drugged Mr. Dunlop, because they believed he was deceased or about to die, and

because she feared she would be stuck in a lease she could not afford on her own."

41 She also stated that she had lied in the Victim's Assistance portion of the

Assault Supplement Packet in order to qualify for victim's assistance money, and

to allow her to terminate the lease." 43 Ms. Free stated that she concocted her

fabricated story during the time period of"at least an hour" when she and Kirsten

Reigelsperger were left unattended by the police." 44

Ms. Free was shown all the photographs of her neck and body that were taken by

the police the night ofthe incident." 45 Ms. Free confirmed that there was no

discoloration or bruising depicted in any of the photographs." 46




_________________________
41 (Rep.'s R. vol 4 at 79: 24-81:20); (Rep.'s R. vol 4 at 94: 19-95:5).

42 (State's Exhibit 59, Assault Supplement Report)

43(Rep.'s R. vol 4 at 81: 12-82: 10)

44(Rep.'sR.vol4at82: 11-23)

45 (State's Exhibits 2-4, 6-8,12 and 13)

46(Rep.'s R. vol 4 at 89: 19-92: 18)



                                                                                    12
Ms. Free stated that she lied about Mr. Dunlop assaulting her because of the"fear

factor" of getting into trouble herself due to having drugged him." 47 She also

stated that when she gets angry or upset, she tends to embellish and lie about the

facts." 48

Christopher Dunlop elected not to testify during the case in chief." 49

After closing arguments and deliberation the jury returned a verdict of Guilty on

the lesser-included offense of misdemeanor assault. 50 However, the Charge of

the Court submitted to the jury required a finding as to the manner and means of

the misdemeanor assault, specifically, "by applying pressure to Laura Free's throat

and neck." 51 Punishment was assessed by the court at 1 year in county jail

probated for 2 years; completion of a batterer's intervention prevention program;

completion of a psychological exam; no consumption of alcohol: no contact with

Laura Free or her children; 100 hours of community service; and 30 days term and

condition time with authorization for off-work hours. The court also made an

affirmative finding of family violence. 52

________________________
47(Rep.'s R. vol 4 at 87: 1-5)

48(Rep.'s R. vol 4 at 108:11-14)

49(Rep.'s R. vol 4 at 97: 13-21)

50(Rep.'s R. vol 4 at 147: 15-19)

51 (Clerk”s R.at 74)

52 (Rep.'s R. vol 4 at 158: 5-17)
                                                                                     13
GROUND FOR REVIEW NO. 1. RESTATED

THE APPELLATE COURT ERRED IN FINDING THAT THE EVIDENCE
IS LEGALLY SUFFICIENT TO JUSTIFY A FINDING OF GUILTY OF THE
OFFENSE OF ASSAULT FAMILY VIOLENCE.

GROUND FOR REVIEW NO. 2. RESTATED

COMPLAINING WITNESS TESTIFIED OF FALSIFYING POLICE REPORT
BECAUSE HER AND HER DAUGHTER DRUGGED THE DEFENDANT
AND THOUGHT THEY KILLED HIM.



                               PRAYER FOR RELIEF

      For the reasons stated, the Petitioner was denied a fair trial in Cause No. 296-82462-

2012. Therefore, Appellant prays that this Court grant his petition for discretionary

review and upon reviewing the judgment entered below, reverse this Cause and dismiss

the prosecution or remand it for a new trial.


Very Respectfully submitted,

Chris Dunlop
435 Merrimac ct
Roselle, IL 60172
Pro se




                                                                                          14
                      CERTIFICATE OF COMPLIANCE

I, Chris Dunlop, Appellant, hereby certify that this document contains 2,837

Words, exclusive of the content excepted by Tex. R. App. Pro. 9.4(i)(3). This is a

computer-generated document, and I have relied on the word count of the

computer program used to prepare this document.




                                                                                     15
AFFIRMED; and Opinion Filed July 31, 2015.




                                               In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-14-00441-CR

                           CHRISTOPHER M. DUNLOP, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                       On Appeal from the 296th Judicial District Court
                                    Collin County, Texas
                           Trial Court Cause No. 296-82462-2012

                               MEMORANDUM OPINION
                            Before Justices Bridges, Francis, and Lang
                                     Opinion by Justice Lang
       Christopher M. Dunlop appeals his conviction for misdemeanor assault involving family

violence. See TEX. PENAL CODE ANN. § 22.01(a)(1) (West 2011); TEX. CODE CRIM. PROC. ANN.

art. 42.013 (West 2006). After a jury found Dunlop guilty, the trial court made an affirmative

finding of family violence, assessed punishment at one year confinement, suspended

confinement, and placed Dunlop on community supervision for two years. In two issues, Dunlop

argues (1) a fatal variance exists between the manner and means alleged in the indictment and

the injury proved at trial, and (2) because this fatal variance exists, the evidence is insufficient to

support the conviction of misdemeanor assault involving family violence. We decide against

Dunlop on both issues. We affirm the trial court’s judgment.
                        I. FACTUAL AND PROCEDURAL BACKGROUND

       Dunlop was charged by indictment with the third-degree felony offense of assault

involving family violence. See TEX. PENAL CODE ANN. § 22.01(b)(2)(B). The indictment states

that on or about July 11, 2012, Dunlop did

       then and there intentionally, knowingly, and recklessly cause bodily injury to
       Laura Free, a member of the defendant’s family, member of the defendant’s
       household, and person with who defendant had and has had a dating relationship,
       by intentionally, knowingly, and recklessly impeding the normal breathing and
       circulation of the blood of the said Laura Free by applying pressure to the throat
       and neck of said Laura Free.

       According to the record, at approximately 3:00 a.m. on July 11, 2012, Officers David

Thornsby and Kevin Gendron, of the Plano Police Department, were dispatched to the home of

Dunlop and Laura Free, Dunlop’s girlfriend, in response to a 911 call placed by Free’s daughter.

After the officers arrived, Thornsby spoke with Free and her daughter. He testified that they

seemed “very frightened,” “very, very upset,” “very scared,” and “were crying.” Both women

described to Thornsby what had happened and voluntarily gave written witness statements.

Thornsby testified that the statements made by Free and her daughter “were matching.” He also

stated that Free complained of pain to her “head and neck area.” According to Free’s witness

statement from July 11, 2012, which was admitted into evidence, after she refused to go to bed at

Dunlop’s request, Dunlop “grabbed [her] by the back of the hair and yanked [her] head backward

ripping out a fistful of [her] hair. He put his hands around [her] neck and squeezed but [she]

could still breathe it was just a bit harder. He then told [her] he should just snap [her] neck.”

       At trial, Free recanted and stated that she had lied to the police on July 11, 2012. She

testified that she had been the aggressor and Dunlop had never placed his hands on her throat or

neck. Free stated that Dunlop did pull her hair, but he did so in a “sexual way,” and “if it hurt, it

was a pain that [she] wanted.”



                                                 –2–
       Following a plea of not guilty, the jury found Dunlop guilty of the lesser included offense

of misdemeanor assault. The trial court made an affirmative finding of family violence, assessed

punishment at one year confinement, suspended confinement, and placed Dunlop on community

supervision for two years.

                         II. LEGAL SUFFICIENCY & FATAL VARIANCE

       In two issues, Dunlop argues that the evidence adduced at trial supports a conviction for

misdemeanor assault only by means of pulling Free’s hair, whereas the indictment alleges assault

by means of “applying pressure to the throat and neck of [Free].” Therefore, Dunlop argues a

fatal variance exists and renders the evidence insufficient to support the verdict. The State

responds that no variance exists because the evidence is sufficient to support “the lesser injury

alleged in the indictment, specifically, injury to the victim’s neck.”

                                           A. Standard of Review

       In determining the sufficiency of the evidence, we view all 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 offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

318–19 (1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). “Circumstantial

evidence is as probative as direct evidence in establishing the guilt of the actor, and

circumstantial evidence alone may be sufficient to establish guilt.” Dobbs, 434 S.W.3d at 170

(citing Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013). The jury is the sole

judge of credibility and weight to be attached to the testimony of witnesses. Id. As such, the

jury “can choose to believe all, some, or none of the testimony presented by the parties.”

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). “When the record supports

conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict, and

we defer to that determination.” Dobbs, 434 S.W.3d at 170.

                                                 –3–
       A “variance” occurs when there is a discrepancy between the allegations in the

indictment and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001).

When reviewing a variance claim, the “‘sufficiency of the evidence should be measured by the

elements of the offense as defined by the hypothetically correct jury charge for the case.’” Id. at

253 (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). This charge “‘would

be 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. at 253

(emphasis omitted) (quoting Malik, 953 S.W.2d at 240). To render the evidence insufficient to

support the verdict, the variance must be “fatal,” meaning “it is material and prejudices [the

defendant’s] substantial rights.” Id. at 256–57.

                                            B. Applicable Law

       A person commits assault if he “intentionally, knowingly, or recklessly causes bodily

injury to another.” TEX. PENAL CODE ANN. § 22.01(a)(1). “‘Bodily injury’ means physical pain,

illness, or any impairment of physical condition.” Id. § 1.07(a)(8); see also Lane v. State, 763

S.W.2d 785, 786 (Tex. Crim. App. 1989) (“This definition [of bodily injury] appears to be

purposefully broad and seems to encompass even relatively minor physical contacts so long as

they constitute more than mere offensive touching.”).

                                  C. Application of the Law to the Facts

       Dunlop argues that because “the only uncontroverted testimony regarding an assault” was

that Dunlop pulled Free’s hair, the evidence is insufficient to support his conviction for assault

by the means alleged in the indictment, “applying pressure to the throat and neck of [Free].”

However, the testimony concerning pulling Free’s hair was not the only evidence offered at trial.




                                                –4–
       According to Free’s witness statement from July 11, 2012, which was admitted into

evidence without objection, Dunlop “put his hands around [her] neck and squeezed but [she]

could still breathe it was just a bit harder. He then told [her] he should just snap [her] neck.”

Thornsby testified that he spoke with Free and her daughter after the incident, and that both

women gave “matching” accounts of the events that day. He also stated that both women

seemed “frightened,” “upset,” and “scared” and that Free had complained of pain to her “head

and neck area.” See Lane, 763 S.W.2d at 786; York v. State, 833 S.W.2d 734, 736 (Tex. App.—

Fort Worth 1992, no pet.) (concluding evidence was sufficient to support assault conviction

when the record showed appellant “choked” complainant, which restricted her breathing and

“scared [her] to death,” and no evidence suggested appellant’s actions were accidental or

involuntary).

       Although Free recanted at trial and stated she had lied to the police on July 11, 2012, the

jury observed Free’s demeanor and was entitled not only to reconcile any conflicts, but also to

disbelieve her recantation. See Chambers, 805 S.W.2d at 461; Michael v. State, No. 05-12-

00895-CR, 2013 WL 1729280, at *1–2 (Tex. App.—Dallas Apr. 22, 2013, no pet.) (mem. op.,

not designated for publication) (concluding evidence was sufficient to support appellant’s

conviction for assault of his wife when wife’s recantation at trial conflicted with officer’s

testimony and wife’s statements immediately following the assault).        Contrary to Dunlop’s

argument on appeal, the evidence need not be uncontroverted to support his conviction. In fact,

when the record supports conflicting inferences, we are required to presume that the jury

resolved the conflicts in favor of the verdict and defer to that determination. See Dobbs, 434

S.W.3d at 170; Chambers, 805 S.W.2d at 461.

       Viewing the evidence in the light most favorable to the jury’s verdict of guilty, we

conclude any rational trier of fact could have found beyond a reasonable doubt that Dunlop

                                              –5–
“intentionally, knowingly, or recklessly cause[d] bodily injury” to Free “by applying pressure to

[her] throat and neck,” as alleged in the indictment. See TEX. PENAL CODE ANN. § 22.01(a)(1);

Chambers, 805 S.W.2d at 461; Michael, 2013 WL 1729280, at *1–2; York, 833 S.W.2d at 736.

Because we have concluded the evidence adduced at trial was sufficient to support Dunlop’s

conviction for misdemeanor assault family violence based on the manner and means alleged in

the indictment, we also conclude there is no variance between the facts alleged in the indictment

and the proof offered at trial. See Gollihar, 46 S.W.3d at 246; Mitchell v. State, No. 05-12-

00211-CR, 2013 WL 3771374, at *5–7 (Tex. App.—Dallas July 16, 2013, pet. ref’d) (not

designated for publication) (concluding the evidence was sufficient to support the jury’s finding

of sexual assault as alleged in the indictment, so there was no variance, despite the fact that the

State’s evidence also related to another means by which appellant may have assaulted the

complainant). We decide against Dunlop on both issues.

                                          III. CONCLUSION

       We affirm the trial court’s judgment.




                                                     /Douglas S. Lang/
                                                     DOUGLAS S. LANG
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47
140441F.U05




                                               –6–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

CHRISTOPHER M. DUNLOP, Appellant                      On Appeal from the 296th Judicial District
                                                      Court, Collin County, Texas
No. 05-14-00441-CR         V.                         Trial Court Cause No. 296-82462-2012.
                                                      Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee                          Bridges and Francis participating.

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


Judgment entered this 31st day of July, 2015.




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