                            NUMBER 13-12-00175-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

LAKIM MINTRELL GUILD,                                                     Appellant,


                                          v.


THE STATE OF TEXAS,                                                       Appellee.


                    On appeal from the 24th District Court
                         of Jackson County, Texas.


        SUPPLEMENTAL MEMORANDUM OPINION ON
               MOTION FOR REHEARING
     Before Chief Justice Valdez and Justices Garza and Longoria
     Supplemental Memorandum Opinion on Motion for Rehearing
                          by Justice Longoria

      On February 28, 2013, the Court issued a memorandum opinion affirming

appellant’s conviction for assault-family violence. See Guild v. State, No. 13-12-00175-
CR, 2013 Tex. App. LEXIS 1984 (Tex. App.—Corpus Christi Feb. 28, 2013, no pet. h.)

(mem. op., not designated for publication).      Appellant has now filed a motion for

rehearing, arguing in three points that we erred in upholding his conviction for assault-

family violence. See TEX. PENAL CODE ANN. § 22.01(b)(2) (West 2011). In his first two

points, appellant challenges the sufficiency of the evidence to prove his prior conviction

in Louisiana for domestic abuse battery, which was used for purposes of enhancement.

First, appellant argues that there is no evidence that the victim of the Louisiana offense

was living with appellant at the time of the offense. Second, appellant argues that there

was no evidence that the Louisiana offense involved bodily injury to the victim. In a

third point, appellant argues that the Court reached an erroneous conclusion regarding

his Batson challenge. See Batson v. Kentucky, 476 U.S. 79, 85 (1986). We issue this

supplemental opinion to address these three points and to clarify the basis for our

decision.

      First, appellant is incorrect in asserting that the State was required to prove that

the victim of the Louisiana offense was living with appellant at the time of the Louisiana

offense.    The State’s burden was to prove that appellant committed the Louisiana

offense against a person “whose relationship to or association with [appellant] is

described by section 71.0021(b), 71.003, or 71.005 of the Texas Family Code.” TEX.

PENAL CODE ANN. § 22.01(b)(2)(A). As we noted in our original opinion, the State’s

evidence established that appellant committed the Louisiana offense of domestic abuse

battery against “the person of another household member.” See Guild, 2013 Tex. App.

LEXIS 1984, at *18. Appellant argues that, under Louisiana law, a “household member”

is defined to mean “any person of the opposite sex presently living in the same



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residence or living in the same residence within five years of the occurrence of the

domestic abuse battery with the defendant as a spouse, whether married or not.” LA.

REV. STAT. ANN. 35.3B(2). Appellant argues that Texas law is different because, under

Texas law, the household relationship “requires living together at the time of the

occurrence.” We disagree.

       Section 71.006 of the Texas Family Code specifically states that a “[m]ember of a

household . . . includes a person who previously lived in a household.” TEX. FAM. CODE

ANN. § 71.006 (West 2008).        Thus, contrary to what appellant argues, the Texas

definition is broader than the Louisiana definition.     Moreover, the State’s evidence

proved beyond a reasonable doubt that appellant committed the Louisiana offense

against a person who was a member of his household under both Texas and Louisiana

law. Accordingly, we overrule appellant’s first point.

       Second, appellant is incorrect in asserting that the State was required to prove

that the Louisiana offense involved bodily injury. In our original opinion, we addressed

the State’s burden to prove a previous conviction for purposes of enhancing the offense

of assault to the third-degree felony offense of assault-family violence. See Guild, 2013

Tex. App. LEXIS 1984, at *18 (citing TEX. PENAL CODE ANN. § 22.01(b)(2)(A)). We

explained that the State’s burden was to prove that the Louisiana conviction was for an

offense that was “substantially similar” to an offense under Chapter 22, Chapter 19, or

Section 20.03, 20.04, 21.11, or 25.11 of the Texas Penal Code. Id. at *18–19 (citing

TEX. PENAL CODE ANN. § 22.01(b)(2)(A), (f)(2)). In our analysis, we explained how the

offense of battery under Louisiana law is substantially similar to assault under Texas

law involving “intentionally or knowingly caus[ing] physical contact with another when



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the person knows or should reasonably believe that the other will regard the contact as

offensive or provocative.” Id. at *19–20 (citing TEX. PENAL CODE ANN. § 22.01(a)(3)).

This type of assault does not necessarily involve bodily injury. See TEX. PENAL CODE

ANN. § 22.01(a)(3). On this basis, we concluded that the offenses were “substantially

similar.” See Guild, 2013 Tex. App. LEXIS 1984, at *20 (citing TEX. PENAL CODE ANN. §

22.01(f)(2)). In his motion for rehearing, appellant argues that we erred in our analysis

because, at trial, the State argued that it had the burden to prove that the Louisiana

offense involved bodily injury to the victim. Again, we disagree.

      The Texas Court of Criminal Appeals has explained that “the sufficiency of the

evidence in this context should be measured by the elements of the hypothetically

correct jury charge for the enhancement, as defined by statute.” Young v. State, 14

S.W.3d 748, 750 (Tex. Crim. App. 2000). A hypothetically correct jury charge is one

that “accurately sets out the law.” Johnson v. State, 364 S.W.3d 292, 294 (Tex. Crim.

App. 2012). As set forth above, Texas law recognizes a form of assault that does not

necessarily involve bodily injury. See TEX. PENAL CODE ANN. § 22.01(a)(3). Appellant

has not cited any precedent nor made any argument for deviating from the

hypothetically correct jury charge based on the prosecution’s erroneous statement of

the law at trial. See TEX. R. APP. P. 38.1(i). Accordingly, we rely on the hypothetically

correct jury charge that “accurately sets out the law.” Johnson, 364 S.W.3d at 294.

Appellant’s second point is overruled.

      In his third point, appellant argues that the Court reached an erroneous

conclusion regarding his Batson challenge. See Batson v. Kentucky, 476 U.S. 79, 85

(1986).   However, appellant’s argument is premised on a misrepresentation of our



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opinion. According to appellant, we concluded that the “second step [of the Batson

challenge process] was not satisfied.” However, in actuality, we held that the second

step was satisfied because the prosecution gave a legitimate explanation for the strike

and “no discriminatory intent was inherent in the explanation given for the strike.” Guild,

2013 Tex. App. LEXIS 1984, at *6. Thereafter, we proceeded to the third step of the

Batson challenge process, in which we concluded that, under the circumstances

presented in this case, it was appropriate to defer to the trial court’s determination of the

“ultimate plausibility” of the State’s race-neutral explanation.      Id. at *13.    Appellant

argues that we “excused” the third step, but obviously, we did not.                 Rather, we

examined the entire record and determined that assessment of “the genuineness of the

prosecutor’s race-neutral explanation rested entirely on the credibility of the prosecutor,

who was not cross-examined by appellant’s trial counsel during the Batson challenge.”

Id. We explained that “[i]t was the trial court’s role to assess the credibility of the

prosecutor” and that “[w]e cannot substitute our judgment for that of the trial court.” Id.

Accordingly, there is no merit to appellant’s third point, and it is therefore overruled.

       For the foregoing reasons, appellant’s motion for rehearing is denied.


                                                  _______________________
                                                  NORA L. LONGORIA
                                                  Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
13th day of June, 2013.




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