                             Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION
                                       No. 04-14-00058-CR

                                     Arthur Curtis THOMAS,
                                            Appellant

                                                v.
                                               The
                                       The STATE of Texas,
                                             Appellee

                    From the 437th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2012CR5822
                          Honorable Lori I. Valenzuela, Judge Presiding

Opinion by:      Rebeca C. Martinez, Justice

Sitting:         Rebeca C. Martinez, Justice
                 Patricia O. Alvarez, Justice
                 Luz Elena D. Chapa, Justice

Delivered and Filed: February 4, 2015

AFFIRMED

           Arthur Thomas was found guilty by a jury of continuous family violence. On appeal,

Thomas raises four issues asserting: (1) the evidence is insufficient to support the jury’s verdict;

(2) a juror overheard the prosecutor talking to a witness in the hallway thereby enabling the jury

to consider outside evidence; (3) character evidence was improperly admitted; and (4) hearsay

evidence was improperly admitted. We overrule Thomas’s issues and affirm the trial court’s

judgment.
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                                               BACKGROUND

        On November 19, 2011 an argument ensued between Thomas and Laura Gusman. 1 The

argument escalated and ended with Thomas striking Gusman across the face twice, causing

Gusman to suffer broken blood vessels in her eye and a swollen face. After staying with her sister

for a few days, Gusman returned home on November 23, 2011. When Gusman arrived home,

Thomas was outside in the garage with Jonathan Mathis. Gusman entered the garage to retrieve

some personal items from the car. While Gusman was sitting in the driver’s seat gathering her

things, Thomas opened the passenger door, grabbed Gusman by the hair, pulled her out of the car

through the passenger side, and dropped her on the ground. Gusman suffered an injury to her

elbow and bruises on other parts of her body.

        Thomas was charged by indictment with continuous family violence against Gusman to

which he pled not guilty. The indictment also contained an enhancement allegation. Thomas was

convicted and sentenced to twenty-five years’ confinement. Thomas appeals.

                                    SUFFICIENCY OF THE EVIDENCE

        Thomas asserts the evidence is factually insufficient to support the jury’s verdict.

Specifically, Thomas contends that the great weight of the evidence was against the jury’s finding

that two or more assaults occurred within a twelve month period.

A.      Standard of Review

        Although Thomas’s brief refers to factual insufficiency, the Texas Court of Criminal

Appeals has held that the legal sufficiency standard is the only standard that a reviewing court

should apply in determining whether the evidence is sufficient to support the elements of a criminal




1
 Laura Gusman’s family name is actually “Guzman,” but her name is spelled “Gusman” on her birth certificate and
on the indictment.

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offense. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Therefore, we apply the

legal sufficiency standard in reviewing this issue.

       In reviewing the sufficiency of the evidence, a reviewing court must consider all evidence

in a “light most favorable to the verdict” to determine whether the jury, based on the evidence, was

rationally justified in finding guilt. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012)

(citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). A reviewing court may consider all the

evidence in the record of the trial, whether it was admissible or inadmissible. Winfrey v. State,

393 S.W.3d 763, 767 (Tex. Crim. App. 2013).

       The jury has the exclusive responsibility to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from the proven facts. TEX. CODE CRIM. PROC. ANN.

art. 38.04 (West 2013); Merritt, 368 S.W.3d at 525 (stating that the jury is the sole judge of

credibility and weight to be attached to witness testimony). “A jury may believe or disbelieve all

or any part of a witness’s testimony, even though the witness’s testimony has been contradicted.”

Dorsey v. State, 24 S.W.3d 921, 924 (Tex. App.—Beaumont 2000, no pet.) (citing Sharp v. State,

707 S.W.2d 611, 614 (Tex. Crim. App. 1986)).

B.     Discussion

       At trial, the State introduced the following into evidence: (1) Gusman’s 911 call; (2) the

testimony of several witnesses; and (3) photographic evidence of Gusman’s injuries. Gusman

testified to the events that took place on November 19th and November 23rd. She described how

Thomas slapped her twice during the first event causing her face to swell and broken blood vessels

in her eye. She also described the second event where Thomas grabbed her by the hair, dragged

her out of the car, and dropped her on the ground, causing a laceration on her elbow and several

bruises on her body.



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       Trinity Guzman, Gusman’s sister, testified that Gusman called her after the first event upset

and crying. Guzman testified that when she went to pick Gusman up, Gusman was very emotional

and was shaking. Guzman testified Gusman’s face was swollen and her eye was red from a broken

blood vessel. The State also introduced into evidence the tape of the 911 call Gusman made after

the November 23rd event. Additionally, photographs of Gusman’s injuries were admitted into

evidence.

       In support of his defense, Thomas presented testimony from Jonathan Mathis, his friend,

and Audrey Edwards, a next door neighbor. Mathis testified that he was with Thomas on both

November 19th and November 23rd. Mathis testified that he did not witness either of the alleged

assaults. Likewise, Edwards testified that she did not hear any screams or any noise coming from

the home where Gusman and Thomas lived on November 23rd.

       The testimony of Mathis and Edwards conflicts with the testimony of Gusman that

describes the events on November 19th and November 23rd. The eye witness testimony of

Gusman alone constitutes sufficient evidence to support a conviction. Aguilar v. State, 468 S.W.2d

75, 77 (Tex. Crim. App. 1971). Inconsistent or contradictory testimony does not render the

evidence insufficient; it simply creates an issue of fact for the jury to resolve. Shah v. State, 414

S.W.3d 808, 814 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d). As the sole judge of the weight

and credibility of witness testimony, it was within the province of the jury to resolve any such

inconsistencies or conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from the facts. Merritt, 368 S.W.3d at 525. Viewing all the evidence in a light most

favorable to the verdict, we conclude that a rational jury could have found that Thomas committed

two assaults in a twelve month period. Id. Thomas’s first issue is overruled.




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                                        OUTSIDE EVIDENCE

        In his second issue, Thomas contends the jury was allowed to consider outside evidence.

As a result of the jury considering outside evidence, Thomas asserts that he did not receive a fair

and impartial trial, and he should be granted a new trial. Thomas’s argument is without merit.

        When a jury receives evidence other than the evidence presented at trial and considers such

evidence during deliberations, it constitutes jury misconduct. TEX. R. APP. P. 21.3(f), (g). To

prove jury misconduct, Thomas had to show that the misconduct occurred, and the misconduct

resulted in harm to him. Noland v. State, 264 S.W.3d 144, 153 (Tex. App.—Houston [1st Dist.]

2007, pet. ref’d).

        In this case, after the jury was selected but before the jury was sworn in and the trial began,

the prosecutor was talking with one of the State’s witnesses in the hallway when two of the jurors

walked by. When the prosecutor saw the jurors, she stopped talking with the witness until the

jurors had left the hallway. Upon returning to the courtroom, the prosecutor told the judge on the

record about the incident before the jury was sworn in. The judge questioned each of the two

jurors about what, if anything, they overheard. One juror stated that he did not hear anything and

the other juror stated that he only overheard the witness say “she was crying.” The judge asked

the second juror whether he was now biased one way or the other based on what he heard. The

juror stated he was not biased and that he could render a verdict based on the law and the evidence.

After the juror was excused, the judge stated that “if [the witness] takes the stand and she is sworn

in, and [the juror] gets a reiteration of what he heard under oath and it’s evidence and he considers

it,” then there would not be an issue since the juror would consider evidence presented at trial even

though he had overheard it earlier. Thomas stated he would have no issues if the State presented

this witness during its case in chief and the witness testified to what the juror overheard. The

witness did testify during the State’s case in chief that Gusman was crying. Because Thomas has
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not established there was any jury misconduct or that any jury misconduct caused him harm, his

second issue is overruled.

                                     CHARACTER EVIDENCE

       In this third issue, Thomas contends that the admission of inadmissible character evidence

prejudiced him. During Gusman’s testimony, the State asked Gusman if she remembered whether

Thomas was working at the time of the first event, and Gusman stated that Thomas was not

working. Thomas objected to the relevancy of the character evidence under Rule 401. TEX. R.

EVID. 401. Thomas did not object on the basis of either Rule 403 or 404(b) upon which his

complaint on appeal is based. TEX. R. EVID. 403, 404(b). To preserve error for appellate review,

Thomas must have made a timely objection at trial, and his complaint on appeal must comport

with the objection made at trial. TEX. R. APP. P. 33.1(a)(1); Henson v. State, 407 S.W.3d 764, 767

(Tex. Crim. App. 2013). “An objection stating one legal theory may not be used to support a

different legal theory on appeal.” Dixon v. State, 2 S.W.3d 263, 271 (Tex. Crim. App. 1998)

(quoting Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995)). Because Thomas’s

relevancy objection to the evidence that he was not working does not comport with the complaint

he raises on appeal, Thomas has not preserved his third issue for our review, and the matter is not

properly before this court.

                                            HEARSAY

       In Thomas’s last issue, he contends that hearsay was improperly admitted at trial. Thomas

asserts the 911 tape and Trinity Guzman’s testimony about the conversations she had with Gusman

should not have been admitted. The trial court admitted the 911 tape and Guzman’s testimony

about the conversations under the excited utterance hearsay exception.




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A.     Standard of Review

       A trial court’s decision to admit evidence over an objection is reviewed under an abuse of

discretion standard and will not be reversed absent a clear abuse of discretion. McCarty v. State,

257 S.W.3d 238, 239 (Tex. Crim. App. 2008). The trial court’s decision will not be reversed unless

the decision was so clearly wrong that it lies outside the zone within which reasonable persons

might disagree. Id.

       Hearsay statements are not admissible unless they fall under a recognized exception to the

hearsay rule. TEX. R. EVID. 802. The excited utterance exception is one of the recognized

exceptions under Rule 803. The excited utterance exception applies to “[a] statement relating to a

startling event or condition made while the declarant was under the stress of excitement caused by

the event or condition.” TEX. R. EVID. 803(2).

B.     Discussion

       Thomas contends the excited utterance exception does not apply in this case because the

State did not establish that an exciting event occurred. However, independent evidence of an

exciting event is not required before a trial court may admit statements relating to the event. Coble

v. State, 330 S.W.3d 253, 294 (Tex. Crim. App. 2010). The trial judge decides whether there is

sufficient evidence to prove an exciting event, and may consider the statement itself when making

the determination. Id. “The critical determination is ‘whether the declarant was still dominated

by the emotions, excitement, fear, or pain of the event’ or condition at the time of the statement.”

Zuliani v. State, 97 S.W.3d 589, 596 (Tex. Crim. App. 2003) (quoting McFarland v. State, 845

S.W.2d 824, 846 (Tex. Crim. App. 1992)).

       The trial court heard the 911 tape in which Gusman describes being pulled out of the car

and the injuries she received from the second assault. The tape establishes that Gusman was upset

and crying throughout the phone conversation with the 911 operator as she tried to give
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information on her location and Thomas’s location so the police could assist her. Gusman was

clearly distraught and dominated by the excitement, fear and pain of the event; therefore, the 911

tape was properly admitted under the excited utterance exception.

       The trial court also heard Guzman describe the phone call she received from Gusman

shortly after the first assault on November 19th. Guzman testified that Gusman could hardly talk

because she was upset and crying. Guzman testified that Gusman asked her to pick her up from

her friend’s house and that when she got there Gusman was very emotional. For a statement to be

considered an excited utterance, the statement must be made while the declarant is still emotionally

dominated by the startling event or condition. Martinez v. State, 178 S.W.3d 806, 814–15 (Tex.

Crim. App. 2005). Guzman’s testimony supports a finding that Gusman was still under the stress

of having been assaulted; therefore, the trial court did not abuse its discretion in admitting

Guzman’s testimony.

                                          CONCLUSION

       Based on the foregoing reasons, the trial court’s judgment is affirmed.

                                                 Rebeca C. Martinez, Justice

DO NOT PUBLISH




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