Affirmed and Memorandum Opinion filed February 21, 2013.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-11-01019-CR



                   GREGORY LONGORIA, JR., Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 185th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1295949


                      MEMORANDUM OPINION

      A jury convicted appellant Gregory Longoria, Jr. of aggravated assault of a
family member and assessed punishment at 30 years‘ confinement. We affirm.

                               BACKGROUND

      The appellant and the complainant dated for several years. On February 16,
2011, the complainant spent the night at the appellant‘s apartment. The appellant
hit the complainant with a belt and used a cigarette lighter to inflict burns on the
complainant‘s breasts and vagina during the night. The complainant went to the
emergency room at Kingwood Medical Center on the morning of February 17,
2011 and was treated for her injuries; these included second-degree burns on her
vagina. At 10:00 p.m., she was transferred to the burn unit at the University of
Texas Medical Center in Galveston. She was discharged from the burn unit on
February 18.

       The complainant initially told a friend and medical personnel that she was
afraid of appellant; according to the hospital admission papers, the complainant
stated that her reason for being there was ―assault‖ by her baby‘s father.1 She told
Nidia Cantu, a social worker at the Harris County District Attorney‘s office, that
the appellant had threatened to harm or kill the complainant or her parents if she
told police about the assault.

       The appellant was arrested on February 17, 2011, and indicted for
―Aggravated Assault- Family Member‖ for ―unlawfully intentionally and
knowingly caus[ing] serious2 bodily injury to [the complainant], a member of [the
appellant‘s] family as hereinafter styled the Complainant, by BURNING THE
COMPLAINANT‘S VAGINA with a deadly weapon, namely, FIRE.‖ On March


       1
          The appellant and the complainant had a daughter together; she was about 18-months
old at the time of the assault.
       2
         The word ―serious‖ was included in the original complaint but was marked out by hand
on the indictment. Both the State and the appellant made statements in the trial court indicating
that the appellant was charged under section 22.02(b)(1) of the Texas Penal Code, and the
judgment recites the crime as ―[A]GGRAVATED ASSAULT – FAMILY MEMBER SB.‖
       Given the interlineations on the indictment, our analysis is based on the conclusion that
the appellant was indicted and tried under section 22.02(a)(2) of the Texas Penal Code, which
does not require a finding of serious bodily injury.


                                               2
19, the complainant and the appellant began writing letters to each other. Shortly
thereafter, the complainant began describing the episode as consensual.

      Several photographs of the complainant‘s injuries were admitted into
evidence at trial. State‘s exhibits 1 and 2 show bruises and abrasions on the
complainant‘s neck, left arm, and left side of her torso. State‘s exhibits 8 and 37
show bruises and abrasions on the complainant‘s left thigh, and State‘s exhibit 9
shows bruises on both of the complainant‘s knees. State‘s exhibits 3 and 4 show
burns and skin discoloration on the complainant‘s breasts and nipples. State‘s
exhibits 33, 34, 35, and 36 are close-up photographs of the injuries to the
complainant‘s breasts and left nipple — witnesses described it as ―melted.‖ State‘s
exhibits 5, 6, 7, 38, 39, 40, 41, and 42 show burn injuries to the complainant‘s
vagina.

      Harris County Sherriff‘s Deputy Aneshia Keller testified that she was called
to the Kingwood Medical Center for a ―sexual assault scene, family violence.‖
Keller observed that the complainant‘s ―private areas had been burned and were
melted‖ and testified on direct examination that the complainant‘s vagina appeared
to be severely burned. After interviewing the complainant and observing her
injuries, Keller determined that ―[s]he had been tortured.‖

      Keller testified on cross-examination about her initial report, which she
reviewed with the complainant. Keller testified that the complainant had been
reluctant to accompany the appellant to his apartment on February 16, 2011, but
she did so because she was afraid the appellant ―was going to hurt her parents‖ if
she refused.




                                          3
Cross-examination continued:

Q. (Defense counsel) And then he took a lighter and hair spray to left
nipple.
A. (Keller) Yes.
Q. And began to burn until it melted.
A. Yes.
                *                   *                  *
Q. And then burned the vaginal area, correct?
A. Yes.
Q. And [the complainant] begged him to stop?
A. Uh-huh.
Q. Is that correct?
A. Yes.
Q. And he hit her in the right jaw, leaving a bruise?
A. Uh-huh.
Q. Correct?
A. Yes.
                *                   *                  *
Q. And then he, according to — when he beat her, she told you that he
beat her with a metal belt buckle all over her chest. All over her
chest, her back, her arms and legs? Remember that?
A. Right here. Got it.
Q. Okay. And then she‘s screaming through all this, right?
A. Yep. That‘s what it says right here.
Q. And the pain was great?
A. The pain was great.
Q. And then after he did all of this is when he put a rag in her mouth,
correct?
A. Yes.
Q. And once the rag was in his (sic) mouth, then he burned her inside
of her vagina again?
A. Okay.
Q. Am I correct?
A. You‘re correct.
Q. And he slapped her face.
A. Yes.
Q. And then he put a belt around her neck.
A. Okay.
                                   4
      Q. Is that correct?
      A. That‘s correct.
      Q. And pulled that belt around her neck so tight that he almost passed
      out — she almost passed out.
      A. Yes.

Keller testified that the appellant then put a pillow over the complainant‘s face
until she passed out; at some point, the appellant told the complainant he ―wanted
her to feel the pain that he felt‖ when she left him.

      The complainant called her friend Leticia Hernandez shortly after the
assault. Hernandez testified that the complainant was crying as she told Hernandez
that the appellant had burned her breasts and vagina.       The complainant told
Hernandez that the appellant tied her hands and feet and put a pillow over her face
before he hit her with a belt and burned her with a lighter and hairspray; she said
―she couldn‘t breathe and she was asking God for him to let her go.‖           The
complainant also told Hernandez that it hurt when she went to the bathroom. After
this conversation, the complainant drove to Hernandez‘s house; Hernandez
testified that when she arrived, the complainant was walking unusually with her
legs wide apart and her arms away from her body. The complainant‘s mother also
testified that the complainant was walking unusually, ―with her legs open.‖

      Tami Gustafson is a registered nurse and was working in the emergency
room at Kingwood Medical Center when the complainant arrived on February 17,
2011. Gustafson testified that the complainant told her the appellant tied her to a
bed and stuffed a rag in her mouth before burning her breasts and vagina with a
lighter and beating her with a belt. Gustafson testified that the complainant‘s
injuries were consistent with the complainant‘s statements and that, if left
untreated, burns like the complainant‘s could lead to an infection she ―would be
concerned about.‖
                                           5
       Dr. Uribe-Torres is a physician who specializes in obstetrics and gynecology
and who was on-call at Kingwood Medical Center when the complainant arrived.
At trial, she testified:

       [The complainant] said that her ex-boyfriend tied her up to a bed from
       12:00 AM to 4:00 AM and he inflicted multiple burns with a cigarette
       lighter and also used hair spray, burned her in her nipple, both nipples
       and genital area and whipped her with a belt on the buckle side of the
       belt.

Dr. Uribe-Torres determined that the complainant‘s injuries were consistent with
that statement.

       The complainant testified at trial that she voluntarily accompanied the
appellant to his apartment on February 16, 2011 with the intention of engaging in
sexual intercourse with him. She told the jury that she and the appellant regularly
engaged in ―rough sex,‖ and that the hitting and burning that occurred while she
was at the appellant‘s apartment was consensual. The complainant testified that
she consented to having her feet tied to the bedposts with extension cords and her
hands tied together with a cloth band. She further testified that the appellant (1) hit
her three times with a belt and then stopped hitting her after she asked him to do
so; and (2) applied the open flame from a cigarette lighter to her vagina and then
removed the flame when the heat became too intense and she asked him to stop.
The appellant contends on appeal that the burning occurred as part of consensual
sexual ―fireplay.‖

       The jury charge contained an instruction on the issue of consent. The
instruction erroneously placed the burden of proof with respect to consent on the
appellant.



                                           6
      The jury returned a guilty verdict on the offense of aggravated assault and
sentenced the appellant to 30 years‘ confinement. This appeal followed.

      The appellant raises five issues on appeal: (1) The trial court committed
fundamental error by misplacing the burden of proof on the consent issue; (2) the
trial court erred in admitting into evidence hearsay testimony from complainant‘s
friend, Leticia Hernandez; (3) the trial court erred in admitting into evidence
hearsay testimony from the complainant‘s treating physician, Dr. Brenda Uribe-
Torres; (4) the trial court erred in admitting into evidence hearsay evidence within
hospital admission records; and (5) insufficient evidence supports findings that fire
was a deadly weapon as used in this case, and that the complainant did not consent.

                                    ANALYSIS

I.    Sufficiency of the Evidence

      We must address sufficiency challenges regardless of our disposition of the
other issues in a case. See Graham v. State, 643 S.W.2d 920, 924 (Tex. Crim.
App. 1981); Banks v. State, 158 S.W.3d 649, 650 n.1 (Tex. App.—Houston [14th
Dist.] 2005, pet. ref‘d). This is because a successful challenge to the sufficiency of
the evidence bars retrial and requires the entry of a judgment of acquittal.
Graham, 643 S.W.2d at 924; Banks, 158 S.W.3d at 650 n.1. Accordingly, we
begin by discussing appellant‘s fifth issue.

      When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict and determine whether, based on that
evidence and any reasonable inferences from it, any rational fact finder could have
found the elements of the offense beyond a reasonable doubt. Gear v. State, 340
S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307,
318-19 (1979)); see also Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App.
                                          7
2010). The jury is the exclusive judge of the credibility of witnesses and the
weight of the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010). Thus, we defer to the jury‘s responsibility to fairly resolve conflicts in the
evidence, and we draw all reasonable inferences from the evidence in favor of the
verdict. Id.

        To obtain a conviction for aggravated assault, the State must prove beyond a
reasonable doubt that the accused intentionally, knowingly, or recklessly caused
bodily injury to another while using or exhibiting a deadly weapon.3 See Tex.
Penal Code Ann. § 22.01(1)(1) (Vernon 2011) (Assault); Tex. Penal Code Ann. §
22.02(a)(2) (Vernon 2011) (Aggravated Assault). A deadly weapon is ―anything
that in manner of its use or intended use is capable of causing death or serious
bodily injury.‖ Tex. Penal Code Ann. § 1.07(a)(17)(B) (Vernon 2011). Serious
bodily injury is ―bodily injury that creates a substantial risk of death or that causes
death, serious permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ.‖ Id. § 1.07(a)(46) (Vernon 2011).

        Fire is capable of causing death or serious bodily injury, so it can be a
deadly weapon under the statutory definition. Mims v. State, 335 S.W.3d 247, 250
(Tex. App.—Houston [1st Dist.] 2010, pet. filed). Whether fire is a deadly weapon
in a particular case depends on the facts. See id.




        3
          When aggravated assault is prosecuted as a first-degree felony offense against a family member,
the State must prove that the accused actually (1) used a deadly weapon and (2) caused serious bodily
injury. Tex. Penal Code Ann. § 22.02(b)(1) (Vernon 2011). When aggravated assault is prosecuted as a
second-degree felony, the State need not prove actual use of the deadly weapon or actual serious bodily
injury. See Tex. Penal Code Ann. § 22.02(b) (Vernon 2011).
                                                   8
      The jury charge instructed as follows.

      A person commits the offense of assault if the person intentionally or
      knowingly causes bodily injury to another, including the person‘s
      spouse.

      A person commits the offense of aggravated assault if the person
      commits assault, as hereinbefore defined, and the person uses or
      exhibits a deadly weapon during the commission of the assault.
                      *                    *                  *
      ―Deadly weapon‖ means anything that in the manner of its use or
      intended use is capable of or [sic] serious bodily injury.

      ―Bodily injury‖ means physical pain, illness, or any impairment of
      physical condition.
                       *                *                  *
      Now, if you find from the evidence beyond a reasonable doubt that on
      or about the 17th day of February, 2011, in Harris County, Texas, [the
      appellant] did then and there unlawfully, intentionally or knowingly
      cause bodily injury to [the complainant], a member of [the
      appellant‘s] family, by burning [the complainant‘s] vagina with a
      deadly weapon, namely, fire, then you will find [the appellant] guilty
      of aggravated assault of a family member, as charged in the
      indictment.
                       *                *                  *
      It is a defense to prosecution that [the complainant] effectively
      consented to [the appellant‘s] conduct if the conduct did not threaten
      or inflict serious bodily injury.

      ―Consent‖ means assent in fact, whether expressed or apparent.

The charge additionally defines ―serious bodily injury‖ as ―a bodily injury that
creates a substantial risk of death or that causes death, serious permanent
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.‖



                                         9
      The appellant identifies his fifth issue on appeal as follows: ―Whether the
evidence was sufficient to show that fire as used in this case was a deadly weapon
or that the complainant did not consent.‖            In connection with this issue, the
appellant argues that ―[t]he complainant‘s injuries did not meet the definition of
‗serious bodily injury‘‖ under section 1.07(a)(46) because the evidence shows that
these injuries ―healed without scarring and there was no prolonged loss.‖ The
appellant further argues that, ―while fire can be a deadly weapon, there is nothing
but speculation that it was under the facts of this case.‖

      According to the appellant, fire ―is a deadly weapon if it causes serious
bodily injury or death. Conversely, it should not be a deadly weapon based on the
manner of its use or intended use in the absence of a serious bodily injury.‖ He
concedes that the complainant‘s injuries meet the statutory definition of ―bodily
injury‖4 but argues that those injuries do not rise to the level of ―serious bodily
injury‖5 because

      [t]he complainant was not required to undergo surgery. She was
      given pain medication — some of which she did not use — and given
      antibiotics. There is no evidence that the injury, even if untreated,
      would have led to death, substantial risk of death, serious permanent
      disfigurement or protracted loss or impairment of the function of any
      bodily member or organ.

The appellant further contends that ―[t]here is no evidence that fire as used in this
case was capable of causing serious bodily injury or death.‖             We reject the
appellant‘s contentions. In the context of a deadly weapon finding, the State is not
required to establish that the use or intended use caused death or serious bodily
injury; the State must establish that the use or intended use is capable of causing

      4
          Tex. Penal Code Ann. § 1.07(a)(8).
      5
          Tex. Penal Code Ann. § 1.07(a)(46).
                                                10
death or serious bodily injury. Tucker v. State, 274 S.W.3d 688, 691 (Tex. Crim.
App. 2008). The jury charge instructed the jury in conformity with this precept.

       The jury saw at least 19 photographs of the complainant‘s injuries, which
depict blackened flesh on the complainant‘s vagina. Deputy Keller observed that
the complainant‘s ―private areas had all been burned and were melted‖ and
determined that the complainant ―had been tortured.‖ Dr. Uribe-Torres and nurse
Gustafson both testified regarding the threat of infection.                      Dr. Uribe-Torres
described the complainant‘s injuries in detail to the jury.

       The complainant‘s pelvic area ―show[ed] signs of burning, swelling,
       redness, charring, blistering, denuding6 of the skin.‖

       The complainant suffered second-degree burns and showed ―obvious
       swelling.‖

        One burn on the complainant‘s vagina emitted a ―yellowish
       secretion.‖

       The complainant was given morphine intravenously for her pain;
       morphine is used in cases where ―there‘s a severe degree of pain.‖

       The high bacterial count in the genital area put the complainant at risk
       of an infection that could spread to other areas of her body.

       The complainant‘s burns were too severe to be properly cared for in
       the emergency room, and the complainant was transferred to a
       specialized burn unit.



       6
          Asked for clarification by the State, Dr. Uribe-Torres responded, ―Denuding of the skin. Skin
peeling off.‖
                                                  11
The determination of whether an object alleged to be a deadly weapon is capable
of causing ―serious bodily injury‖ rests with the jury. See Miller v. State, 312
S.W.3d 209, 213 (Tex. App.—Houston [14th Dist.] 2010, pet. ref‘d).               The
evidence is sufficient if, based on the evidence itself and any reasonable inferences
from it, a rational fact finder could have found beyond a reasonable doubt that the
object as used in the case was capable of creating a substantial risk of death or
causing death, serious permanent disfigurement, or protracted loss or impairment
of the function of any bodily member or organ. See Tex. Penal Code Ann. §
1.07(a)(17), (46); Gear, 340 S.W.3d at 746; see also Brooks, 323 S.W.3d at 895.

      We hold that the photographs and the testimony provided sufficient evidence
to establish that fire as used in this case was a deadly weapon for purposes of
section 1.07(a)(17)(B). The evidence also is sufficient to establish that consent is
not an available defense to the prosecution because the use of fire at issue
threatened or inflicted serious bodily injury.

      We overrule the appellant‘s fifth issue.

II.   Charge Error on Consent

      In his first issue, the appellant argues that he was egregiously harmed by an
error in the jury charge and that the jury charge constitutes structural error that is
not subject to harmless-error analysis. The State concedes that the jury charge
contained an erroneous charge with respect to consent but insists that the error was
harmless.

      We review claims of charge error under a two-pronged test. Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh‘g); Rolle v. State,
367 S.W.3d 746, 757 (Tex. App.—Houston [14th Dist.] 2012, pet. ref‘d). We first
determine whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim.
                                          12
App. 2005); Rolle, 367 S.W.3d at 757. If error exists, we then evaluate the harm
caused by that error. Ngo, 175 S.W.3d at 743; Rolle, 367 S.W.3d at 757. The
degree of harm required for reversal depends on whether the error was preserved in
the trial court. When error is preserved in the trial court by timely objection, the
record must show only ―some harm.‖ Rolle, 367 S.W.3d at 757. If the error was
not objected to, then it must be ―fundamental error‖ and requires reversal only if it
was so egregious and created such harm that the defendant has not had a fair and
impartial trial. Id.

       The jury instruction at issue reads:

       It is a defense to prosecution that the victim effectively consented to
       the defendant‘s conduct if the conduct did not threaten or inflict
       serious bodily injury.

       ―Consent‖ means assent in fact, whether expressed or apparent.

       ―Serious bodily injury‖ means a bodily injury that creates a substantial
       risk of death or that causes death, serious permanent disfigurement, or
       protracted loss or impairment of the function of any bodily member or
       organ.

       Therefore, if you find from the evidence beyond a reasonable doubt
       that [complainant] effectively consented to the [appellant‘s] conduct,
       to-wit: burning her vagina with fire, and that the conduct did not
       threaten or inflict serious bodily injury, then you will acquit the
       [appellant] and say by your verdict ―Not Guilty.‖

The appellant contends that this portion of the charge is erroneous because it
improperly placed the burden of proof on him. The appellant takes no issue with
the remainder of the jury charge, which instructs the jury that a deadly weapon is
anything ―capable of causing death or serious bodily injury‖ and that:


                                          13
      [I]f you find from the evidence beyond a reasonable doubt that on or
      about the 17th day of February, 2011, in Harris County, Texas, [the
      appellant] did then and there unlawfully, intentionally or knowingly
      cause bodily injury to [the complainant], a member of [the
      appellant‘s] family, by burning [the complainant‘s] vagina with a
      deadly weapon, namely, fire, then you will find [the appellant] guilty
      of aggravated assault of a family member, as charged in the
      indictment.

The appellant has not challenged the presumption on appeal that the jury
understood and followed this part of the trial court‘s jury charge. See Hutch v.
State, 922 S.W.2d 168, 172 (Tex. Crim. App. 1996).

      The appellant did not object to the misstatement of the burden of proof
below. Therefore, we apply the egregious harm standard. See Rolle, 367 S.W.3d
at 757. The appellant contends he was egregiously harmed because consent was
the only contested issue at trial.

      We conclude that the appellant was not egregiously harmed because the
defense of consent was unavailable to him.          See Tex. Penal Code Ann. §
22.06(a)(1); Miller, 312 S.W.3d at 213.

      Because the jury found the appellant guilty of aggravated assault, it
necessarily found that, as used by the appellant, fire was ―capable of causing death
or serious bodily injury.‖ See id.; see also Sarmiento v. State, 93 S.W.3d 566, 570
(Tex. App.—Houston [14th Dist.] 2002, pet. ref‘d) (―By its verdict, the jury
necessarily made the factual finding to support the entry of an affirmative finding
of the use or exhibition of a deadly weapon upon the judgment.‖). As discussed
above, the evidence is sufficient to support a finding that fire as used in this case
was capable of causing serious bodily injury.



                                          14
       Consent is not an available defense for a defendant whose conduct threatens
or inflicts serious bodily injury. See Tex. Penal Code Ann. § 22.06(a)(1); Miller,
312 S.W.3d at 213. Accordingly, this defense was not available to the appellant.
Because the appellant was not entitled to an instruction on consent, any error in
placing the burden of proof in a consent instruction to which the appellant was not
entitled falls short of establishing egregious harm. See Rolle, 367 S.W.3d at 757
(Egregious harm is ―such harm that the defendant has not had a fair and impartial
trial.‖).

       Likewise, we must consider the trial record as a whole. Allen v. State, 253
S.W.3d 260, 267-68 (Tex. Crim. App. 2008); Almanza, 686 S.W.2d at 171. In
doing so, we note that (1) elsewhere in the charge, the jury was told, ―The
prosecution has the burden of proving the defendant guilty and it must do so by
proving each and every element of the offense charged beyond a reasonable doubt
and if it fails to do so, you must acquit the defendant;‖ (2) the State argued in its
closing argument that the appellant‘s conduct exceeded the scope of the
complainant‘s consent and threatened serious bodily injury, which cannot be
consented to; and (3) the defense argued without objection during its closing that,
―The State of Texas bears the burden to you to not throw anything at the wall and
see what sticks but to prove to each and every one of you beyond a reasonable
doubt that that isn‘t exactly what happened, that [the complainant] didn‘t consent
to every single thing that went on that night.‖ The record must demonstrate that
the appellant has suffered actual, not just theoretical, harm from the erroneous jury
instruction. Allen, 253 S.W.3d at 268; Almanza, 686 S.W.2d at 171. Because the
reasonable doubt standard was properly stated elsewhere in the charge and in
defense counsel‘s final argument and because the State argued the appellant‘s


                                         15
conduct exceeded the scope of any consent, we do not believe that the appellant
has suffered any actual egregious harm.

       A charge error is structural error immune from harm analysis only when it
completely misdefines or fails to instruct on the reasonable doubt standard. See
Olivas v. State, 202 S.W.3d 137, 142-43 (Tex. Crim. App. 2006) (citing Sullivan v.
Louisiana, 508 U.S. 275, 281-82 (1993)). The charge error at issue here is not
structural error because the consent instruction was the only portion of the charge
to misdefine the reasonable doubt standard. See id. at 143. The rest of the charge
properly defined the standard and placed the burden on the State.

       We overrule the appellant‘s first issue.

III.   Hearsay

       In his second, third, and fourth issues, the appellant argues that the trial court
erred by admitting inadmissible hearsay into evidence over his objections. The
State responds with three arguments: (1) The appellant‘s trial objection was too
vague to preserve any hearsay issue for review; (2) the statements at issue were
admissible exceptions to the hearsay rule as excited utterances or statements made
for purposes of medical treatment; and (3) the admission of the statements did not
harm the appellant. We resolve this issue based upon the third proposition.

       Excited utterances and statements made for purposes of medical diagnosis or
treatment are allowed as exceptions to the general hearsay rule. Tex. R. Evid.
803(2), (4). Whether an out-of-court statement fits within one of these exceptions
is a matter within the trial court‘s discretion. See Coffin v. State, 885 S.W.2d 140,
149 (Tex. Crim. App. 1994); Trevino v. State, 218 S.W.3d 234, 239 (Tex. App.—
Houston [14th Dist.] 2007, no pet.). As a reviewing court, our role is limited to


                                           16
determining whether the record supports the trial court‘s ruling.       Coffin, 885
S.W.2d at 149; Trevino, 218 S.W.3d at 239.

      If we determine that the trial court erred by admitting hearsay testimony, we
apply the harm analysis for non-constitutional error to determine whether the trial
court‘s error is reversible. Tex. R. App. P. 44.2(b); Lacaze v. State, 346 S.W.3d
113, 122 (Tex. App.—Houston [14th Dist.] 2011, pet. ref‘d). Such error does not
affect a substantial right — and therefore is not reversible error — if, after
examining the record as a whole, we are reasonably assured that the error did not
influence the verdict or had but a slight effect. Lacaze, 346 S.W.3d at 122. The
improper admission of evidence is not reversible error if the same or similar
evidence is admitted without objection at another point in the trial. Id.; see Brooks
v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999).

      We need not address preservation or admissibility because we conclude that
the appellant was not harmed by admission of the challenged evidence.

      In his second issue, the appellant contends that the court erred in admitting
Hernandez‘s testimony that the complainant told her the appellant used a bottle of
flammable hairspray to augment the lighter‘s flame so that ―it would burn more.‖
Based on our analysis above of sufficiency of the evidence, any asserted error in
admitting this testimony is harmless. The State offered sufficient evidence to
prove that, as used by the appellant, fire was capable of causing serious bodily
injury to the complainant. See Tex. Penal Code Ann. § 22.02(b)(1) (Vernon 2011).
This determination rests on evidence concerning the effect of the fire that was
applied to the complainant; it does not depend on whether the flame that was
applied to the complainant emanated solely from the lighter itself or emanated
from the lighter and was then enhanced using an aerosol accelerant. Because the

                                         17
State proffered sufficient evidence to establish that, as used in this case, fire was
capable of causing serious bodily injury, we hold that hearsay testimony regarding
hairspray was not harmful.

      In his third and fourth issue, the appellant contends that the trial court erred
in admitting testimony from Dr. Uribe-Torres and hospital admission records.
According to the appellant, the trial court should not have admitted hearsay
indicating that the appellant committed the assault that resulted in the
complainant‘s injuries. Dr. Uribe-Torres testified that the complainant told her that
she was at the hospital because ―her ex-boyfriend tied her up to a bed from 12:00
AM to 4:00 AM and he inflicted multiple burns with a cigarette lighter and also
used hair spray, burned her in the nipple, both nipples and genital area and
whipped her with a belt on the buckle side of the belt.‖ In a section titled ―I came
to the Emergency Department today because:‖ the hospital admission records
contain a handwritten response by the complainant: ―Assault by my baby‘s father.‖

      The appellant argues that the admission of this evidence was erroneous
because the perpetrator‘s identity was not relevant for purposes of medical
treatment. According to the appellant: ―It makes no difference whether it was done
by [the appellant], the complainant‘s sister[,] or green men from Mars.‖ However,
the appellant does not contend that anyone else actually inflicted these injuries on
the complainant. In his brief, the appellant contends that ―[c]onsent was the only
contested issue‖ at trial. Because identity was not an issue at trial, we hold that the
appellant was not harmed by the admission of hearsay testimony naming him as
the perpetrator.

      Further, defense counsel elicited testimony about both the hairspray and the
appellant‘s identity as the perpetrator during cross-examination of Keller.

                                          18
Therefore, the appellant was not harmed by admission of similar testimony at other
points in the trial. See Lacaze, 346 S.W.3d at 122; Brooks, 990 S.W.2d at 287.

      We overrule the appellant‘s second, third, and fourth issues.

                                       CONCLUSION

      Having overruled all of the appellant‘s issues on appeal, we affirm the
judgment of the trial court.



                                             /s/    William J. Boyce
                                                    Justice

Panel consists of Justices Boyce and McCally and Senior Justice Mirabal.7
Do Not Publish — Tex. R. App. P. 47.2(b).




      7
          Senior Justice Margaret Garner Mirabal sitting by assignment.
                                               19
