Affirmed and Memorandum Opinion filed March 1, 2012.




                                         In The

                        Fourteenth Court of Appeals

                                 NO. 14-11-00553-CR


                        WILLIAM EDWARD WRITZ, Appellant

                                           V.

                          THE STATE OF TEXAS, Appellee


                        On Appeal from the 185th District Court
                                 Harris County, Texas
                            Trial Court Cause No. 1273276


                  MEMORANDUM                        OPINION

      Appellant William Edward Writz was indicted on two separate counts of
aggravated assault of a family member, and the two cases were consolidated for a single
trial. The jury acquitted appellant of one charge and convicted him of the other. The jury
assessed a punishment of five years of confinement and a $5,000 fine. Appellant argues
on appeal that the trial court committed reversible error during the punishment phase of
the trial by allowing testimony regarding the charge for which appellant had been
acquitted. We affirm.
                                      BACKGROUND

       Appellant and his wife Lisa Writz share an apartment next door to Lisa‟s family‟s
bar. Lisa was working at the bar on the evening of August 5, 2010, when appellant called
to let her know he was bringing dinner home. Appellant testified that he brought Lisa her
dinner at the bar at about 10:00 p.m. and returned to the apartment. He testified that
about 15 or 20 minutes later, he heard his “dogs in the back barking,” so he retrieved his
9-millimeter firearm and “put a round in the chamber” to investigate. Concerned about
recent burglaries and vandalism in the neighborhood, appellant looked around behind the
apartment, then returned to the bedroom. He continued looking out the window while
sitting on the bed with his pistol next to him in the center of the bed. He testified that at
that moment, Lisa returned home from the bar intoxicated and became angry that
appellant was sitting on her side of the bed. Appellant went to his side of the bed and
was preparing to lie down when Lisa picked up the pistol. Appellant testified:

               I don‟t know if she‟s going to throw it across the bed or she was just
       mad or what. . . . I told her, Whoa, whoa, it‟s loaded. . . . [I]t looked like
       she was either going to throw it across the bed or get it out of the way or
       something but it was loaded. . . . . It scared me. . . . So, I grabbed the
       pistol. . . . [It] just went off. . . . I only heard it go off one time. I just
       heard it go off the one time and she let it go and was standing there. She
       called me a stupid MF. I laid the pistol down. I seen she was hurt.

Appellant went to retrieve a towel for Lisa while she sat on the corner of the bed, and
when he returned, she had the pistol in her hand again. He took the pistol from her and
tried to call for help on his cell phone, but he testified that he had no reception. With his
pistol in-hand, he “ran down [to] the bar” to “see if I could get somebody to call 911 for
me.”

       Lisa testified as to a different version of events. She stated that after she came
home from the bar, she discovered appellant sitting on the bed looking in the mirror. She
testified: “[H]e stood up, turned around and just shot me.” After she realized she was
shot in the stomach, she grabbed herself and said, “What are you doing?” She stated that
she “started yelling at him, telling him he better get . . . some help.” She denied that she

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tried to grab the pistol and testified that she did not even see it in appellant‟s hands until
he fired it. She testified that she “started tasting sulphur” and could not remember
anything after that point. She stated that although she was intoxicated that evening, her
memory was clear about the events she recounted for the jury.

       Appellant was charged with the crime of aggravated assault of a family member
based on Lisa‟s allegations, but the jury found appellant not guilty.

       During appellant‟s trial of the alleged aggravated assault on Lisa, appellant was
also tried for committing aggravated assault of a family member against Lisa‟s brother,
Carl St. Cyr., which occurred just after Lisa had been shot. Carl, who had been working
at the bar that night, narrated as the jury viewed a video taken from the security cameras
in the bar:

              That‟s [appellant] walking up the sidewalk currently. He enters the
       bar in this frame. He‟s drawing a gun out already. That‟s me getting up.
       And he sticks the gun in my face and it jammed and he‟s backing up trying
       to reload. That‟s when my mother ran around, hit him and knocked him out
       the door and then he went back to his house . . . .

Carl testified that appellant entered the bar with a blank stare and never said a word. Carl
heard the gun click while appellant had it pointed at Carl‟s head; then Carl dove for the
door. Lisa‟s mother testified that she saw appellant enter the bar, point a gun at Carl‟s
head, then try to “reload or something” as she “got [appellant] out of the bar and locked
the door.” She testified that they called 911, but still “didn‟t know [Lisa] was shot” at
that time. A bartender working that night and a bar patron both testified to the same
version of events.1

       The jury convicted appellant of the crime of aggravated assault on Carl, and
appellant elected to have the jury assess his punishment.

       During the punishment phase of the trial, Lisa testified that on a previous
occasion, appellant became angry and purposely pushed Lisa, who then hit her head on
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         Appellant testified that he went into the bar asking for someone to call 911, but that Lisa‟s
mother and brother yelled at appellant to get out of the bar, and he left.

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the corner of the bed frame, and then punched Lisa in the face. Lisa‟s head injury
required 13 staples. She testified that she recanted the truth of her allegations to the
police about that incident because appellant told her he would have to go to jail for three
to five years. The police officer who responded to the 911 call regarding that incident
also testified.2

        The State also introduced the testimony of Carl, who described the emotional and
physical ailments he has suffered since the incident on August 5, 2010. He also testified
about numerous occasions on which appellant threatened other patrons at the bar. Carl
testified: “He‟s told me he‟s going to shoot them and blow them away.”3

        The jury assessed a punishment of five years of confinement and a $5,000 fine for
appellant‟s aggravated assault of Carl. Appellant‟s sole issue on appeal relates to part of
Lisa‟s punishment phase testimony regarding the injury caused by the incident on August
5, 2010:

        Q. Ma‟am, let‟s talk a little bit about the incident that happened on August
        5th. How many surgeries did you have to go through due to this incident?
        [COUNSEL]: Objection, Your Honor, this isn‟t relevant to punishment.
        THE COURT: Overruled.
        Q. (BY [THE STATE]) How many surgeries did you have to go through
        due to this incident?
        A. I was told approximately—
        [COUNSEL]: Objection, hearsay, Your Honor.
        THE COURT: Sustained.
        Q. (BY [THE STATE]) Besides being told, what have—how has being shot
        affected you since this happened?
        A. I had to have reconstructive surgery on my urethra.
        [COUNSEL]: Excuse me, Your Honor. May I have a running objection to

        2
        Appellant testified that Lisa pushed him down, and then she fell back and hit her head on the
bed. He denied telling Lisa that he would have to go to jail for three to five years unless she changed her
story.
        3
            Appellant denied ever threatening to shoot anyone in the bar.

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       any evidence about the injury from August 5th, 2010?
       THE COURT: Sure.
       [COUNSEL]: Thank you.
       Q. (BY [THE STATE]) Go ahead, ma‟am.
       A. One of the—I mean, a bullet serrated [sic] my urethra; and so, I had
       a proxy bag. And I had surgery where they repaired the urethra so I
       didn’t have to wear the bag anymore. That was my last surgery.

The State asked no further questions regarding the injuries Lisa sustained on August 5,
2010, and introduced no evidence pertaining to the cause of those injuries.

       Appellant argues that the trial court committed reversible error by allowing the
State to introduce this testimony because it constitutes impermissible relitigation of
appellant‟s guilt or innocence for the alleged aggravated assault on Lisa.

                                        ANALYSIS

       An appellate court may not disturb a trial court‟s evidentiary ruling absent an
abuse of discretion. McGee v. State, 233 S.W.3d 315, 318 (Tex. Crim. App. 2007) (citing
Rivera v. State, 808 S.W.2d 80, 96 (Tex. Crim. App. 1991)). A trial court abuses its
discretion when it acts outside the zone of reasonable disagreement.             Id. (citing
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh‟g)).

       Generally, for a case in which there is an acquittal on one of the charges and a
conviction on another, “the State cannot relitigate the acquittal at the punishment phase
hearing by introducing testimony that is relevant only to the charge on which the
defendant was acquitted.” McGee v. State, 197 S.W.3d 802, 805 (Tex. App.—Houston
[1st Dist.] 2006), aff’d, 233 S.W.3d at 318. We do not agree with appellant that the
State‟s introduction of Lisa‟s testimony as excerpted above constitutes relitigation of
appellant‟s criminal responsibility for causing such injuries.      The testimony is not
relevant to show the cause of such injuries, and the trial court properly could have
determined that the testimony was being offered not for the purpose of relitigating
appellant‟s guilt or innocence, but for the purpose of showing that appellant left Lisa in a


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severely injured state when he walked next door to commit an aggravated assault on Carl.
See TEX. CODE CRIM. PROC. art 37.07, § 3(a)(1) (West 2006) (during punishment phase,
“evidence may be offered by the state and the defendant as to any matter the court deems
relevant to sentencing,” including but not limited to “the circumstances of the offense for
which he is being tried” and “other evidence of an extraneous crime or bad act”); see also
McGee, 197 S.W.3d at 805 (trial court properly could have concluded that punishment
phase testimony contradicting appellant‟s guilt-innocence testimony regarding alleged
assault, for which appellant was acquitted, was relevant to sentencing as evidence of
extraneous offense of perjury committed by appellant).

       However, even assuming for the sake of argument that Lisa‟s testimony
constitutes impermissible relitigation, appellant concedes on appeal that such an asserted
error would be reviewed for non-constitutional harm under Texas Rule of Appellate
Procedure 44.2(b). See TEX. R. APP. P. 44.2(b); Turner v. State, 252 S.W.3d 571, 585
(Tex. App.—Houston [14th Dist.] 2008, pet. ref‟d) (“The erroneous admission of
evidence is not constitutional error.”). Any error other than a constitutional error that
does not affect appellant‟s substantial rights must be disregarded.      TEX. R. APP. P.
44.2(b); Turner, 252 S.W.3d at 585. Substantial rights are not affected “„if the appellate
court, after examining the record as a whole, has fair assurance that the error did not
influence the jury, or had but a slight effect.‟” Turner, 252 S.W.3d at 585 (quoting
Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)). “In assessing the
likelihood that the jury‟s decision was adversely affected by the error, we consider
everything in the record, including any testimony or physical evidence admitted for the
jury‟s consideration, the nature of the evidence supporting the verdict, the character of
the alleged error, and how it might be considered in connection with other evidence in the
case.” Id. We may also consider the jury instruction given by the trial judge, the State‟s
theory and any defensive theories, closing arguments, and even voir dire, if material to
appellant‟s claim. Id.




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        We first note that the jury already had received Lisa‟s medical records during the
guilt-innocence phase of the trial, and those records document the severity of her injuries
caused by the incident on August 5, 2010, as well as the extensive medical treatment she
received because of those injuries. Lisa‟s punishment-phase testimony regarding her
need for reconstructive surgery was brief; the majority of her testimony concerned the
other instance of alleged assault by appellant. The State also presented testimony from
two other witnesses who gave testimony regarding the other instance and the aggravated
assault on Carl for which appellant was found criminally responsible. The State did not
emphasize or even mention the objectionable testimony during closing arguments after
the punishment phase. After examining the record as a whole, we have a fair assurance
that the error did not influence the jury, or had but a slight effect. See Turner, 252
S.W.3d at 585. We overrule appellant‟s issue.

                                      CONCLUSION

        Having overruled appellant‟s only issue on appeal, we affirm the judgment of the
trial court.


                                          /s/       Sharon McCally
                                                    Justice



Panel consists of Chief Justice Hedges and Justices Jamison and McCally.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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