                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-16-00232-CR
                           ____________________

                          JASON THOMAS, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee

________________________________________________________________________

                   On Appeal from the 252nd District Court
                          Jefferson County, Texas
                         Trial Cause No. 13-17074
________________________________________________________________________

                          MEMORANDUM OPINION

      Jason Thomas (Thomas or Appellant) appeals his conviction for felony

assault-family violence/choking. See Tex. Penal Code Ann. § 22.01(a)(1), (b)(2)(B)

(West Supp. 2017).1 Thomas waived his right to a jury trial. After a bench trial, the

trial court found Thomas guilty and assessed his punishment at imprisonment for




      1
        We cite to the current version of the statute, as subsequent amendments do
not affect the disposition of this appeal.
                                         1
seven years. Thomas timely appealed. In two appellate issues, Thomas challenges

the legal sufficiency of the evidence supporting his conviction and he asserts that

there is a fatal variance between the allegations in the indictment and the proof at

trial. We affirm.

                                   The Indictment

      The State charged Thomas by indictment with assault-family violence as

follows:

      . . . Jason Brian Thomas, hereafter styled the Defendant, on or about the
      26TH day of April, TWO THOUSAND AND THIRTEEN, and
      anterior to the presentment of this indictment, in the County of
      Jefferson and State of Texas, did then and there intentionally,
      knowingly, and recklessly cause bodily injury to [S.W.2], hereafter
      styled the Complainant, by applying pressure to Complainant’s throat
      and neck and by blocking the Complainant’s nose and mouth, impeding
      the normal breathing and circulation of the blood of the Complainant,
      and at the time of commission of the offense, the Defendant and
      Complainant were family members[.]

                                  Evidence at Trial

      S.W. testified that she was married to Thomas for twenty years until they were

divorced in 2014. She testified that on April 26, 2013, while they were still married,

she went into a bedroom at their home and asked Thomas for money to buy their son


      2
        We use initials to refer to the alleged victim and family members. See Tex.
Const. art. I, § 30 (granting crime victims “the right to be treated with fairness and
with respect for the victim’s dignity and privacy throughout the criminal justice
process”).
                                          2
some items for an upcoming school field trip. S.W. testified that at that time their

daughter was fifteen or sixteen years old and their son was about thirteen or fourteen

years old. S.W. testified that she was nervous to ask for the money because Thomas

“was very controlling with money.” According to S.W., she and Thomas had a

discussion about the money and Thomas approached her in an aggressive manner.

S.W. testified that she was afraid he was going to physically harm her, so she left

the bedroom and closed the door. She heard their son tell her to run, and when she

ran and looked back, she saw Thomas coming out of the room and running behind

her. According to S.W., Thomas pushed her down to the floor, choked her, and told

her that he was going to kill her. S.W. testified that she felt pain when she hit her

head and when he pushed her to the floor. She also testified that she felt pain and

“could not breathe[]” when he put his hands around her neck, squeezed and applied

pressure to her neck, and “had his body pinned on top of [her].” According to S.W.,

she was afraid for her life and, as she was trying to remove his hands from around

her neck, she was not strong enough and “[e]verything went black[.]”

      She testified that the next thing she remembers was feeling woozy on the

couch, and her son and daughter were looking at her head and neck and discussing

whether to call 9-1-1. S.W. explained at trial that she did not want the children to

call 9-1-1 or EMS, and she did not report the incident that night because Thomas

                                          3
had threatened her, she was afraid of him, and he was still in the house. According

to S.W., she reported the incident “a few weeks later[]” when the Sheriff’s

Department arrived at her house and served Thomas with a “restraining order of

some kind from his former employer.” She asked law enforcement to leave the house

because she was worried that Thomas would come home and see the police there

and think that she had called them because of the choking incident. S.W. testified

that law enforcement later served Thomas with the papers, and Thomas began

behaving erratically and threatening to kill S.W., their kids, and Thomas’s former

employer. S.W. testified that she filled out an application for a mental health warrant,

and the Sheriff’s Department served the mental health warrant on Thomas around

June 6th or 7th, 2013. S.W. explained that she reported the prior incident and gave

a handwritten statement to the officer at the scene where Thomas was apprehended

on the mental health warrant, and she gave another statement at the police station.

According to S.W., she waited until Thomas was apprehended on the mental health

warrant to report the prior incident because of “what he would have done to my

kids.” S.W. testified that Thomas never denied choking her and that, during their

divorce proceeding, Thomas testified and admitted that he had choked her during

that April incident.




                                           4
      J.T., Thomas’s and S.W.’s sixteen-year-old son, testified that on April 26,

2013, his mother had asked his father about getting some things for the field trip and

his mother and father began arguing. According to J.T., he heard them arguing, and

he saw his mother come out of his parents’ bedroom and shut the bedroom door on

Thomas. J.T. testified that Thomas punched through the bedroom door and ran after

his mother. J.T. explained that he was scared for his mother and J.T. told her to look

behind her. J.T. testified that he saw Thomas push and knock his mother down, get

on top of her, and choke her. According to J.T., his mother was struggling to breathe,

looked like she was in pain, lost consciousness, and was not moving for six or seven

seconds. J.T. testified that he and his sister helped his mother get up and that his

mother was struggling to breathe and complaining that her head hurt. J.T. testified

that his mother did not call anyone, and he and his sister did not call anyone either

because he “guess[ed] [his] mom wanted to try to work things out[]” with his father

and because J.T. “wasn’t brave enough[]” to suggest that she call someone. J.T.

explained at trial that he was scared of his father and that his father would have

moments where he would abuse his mother. J.T. acknowledged that his statement to

law enforcement regarding the incident did not mention the choking, and he testified

that he did not know the charges were going to specifically allege choking, but he

remembered seeing his father choking his mother on the day of the incident.

                                          5
      E.T., S.W.’s and Thomas’s nineteen-year-old daughter, testified that she was

sixteen years old on April 26, 2013. According to E.T., that day she was in her room

and her parents were arguing because her father did not want to give her mother

money to buy her brother things for a field trip. E.T. testified she heard her father go

“crashing through the door[,]” and when E.T. came out of her room, E.T. heard her

brother tell their mother to “watch out[,]” and she saw her father chase her mother

while threatening to hurt her mother, and then Thomas pushed her mother to the

ground. E.T. testified that she and her brother were scared and that her mother was

trying to run away from her father because her mother was scared. According to

E.T., after Thomas pushed her mother to the ground, Thomas got on top of her

mother and started choking her, and E.T. saw Thomas “squeezing” his hands around

her mother’s neck and then “kinda letting go.” E.T. testified that she and her brother

asked Thomas to get off their mother, and that E.T. believed that her father was

going to kill her mother when he had his hands around her mother’s neck. E.T.

testified that during the incident her mother’s head hit the concrete, that her mother

was struggling to breathe, and then lost consciousness “for a little bit.” E.T. testified

she and her brother helped their mother onto the couch. According to E.T., their

mother did not want them to call the police because their mother was scared of

Thomas and did not want the police involved at that point. E.T. testified that on

                                           6
occasions Thomas threatened to kill her mother and E.T. believed he would carry

out the threats.

      Detective Powell with the Jefferson County Sheriff’s Department testified that

he was a patrol deputy on May 31, 2013, when he served a criminal trespass warrant

from Drainage District 6 on Thomas. He testified he also assisted in serving a mental

health warrant on Thomas on June 7, 2013. Detective Powell testified that the mental

health warrant was based on Thomas’s paranoid schizophrenic diagnosis.

      Detective Powell explained at trial that, because he had dealings with Thomas

a week prior and that he was concerned for the safety of S.W. and her children,

Detective Powell suggested that the officers serve Thomas with the mental health

warrant prior to Thomas getting home. According to Detective Powell, once the

mental health warrant had been served and Thomas was taken into custody, S.W.

arrived at the scene and she was crying and appeared relieved and thanked the

detective. Thomas was transported to Fannin Behavioral Center. Detective Powell

testified that S.W. then told him that in April Thomas choked her, that she thought

during that incident that he was going to kill her, and that she was too scared to report

it when it happened. Detective Powell testified that he believed her and that he felt

that he had enough evidence to charge Thomas with assault-family violence.




                                           7
      Detective Elizabeth Foshee with the Jefferson County Sheriff’s Office

testified that she was a peace officer in June 2013, and she was called to investigate

an alleged assault-family violence/choking incident involving S.W. and Thomas.

According to Detective Foshee, S.W. and S.W.’s children, E.T. and J.T., came to

Foshee’s office and gave statements regarding the incident in question. Detective

Foshee took E.T.’s statement and another officer took J.T.’s statement. Detective

Foshee testified that S.W. was “[d]eathly afraid[]” of Thomas, and that with S.W.’s

and the children’s statements, Detective Foshee believed she had enough evidence

to charge Thomas with assault-family violence/choking. Detective Foshee testified

that S.W. reported that Thomas had an extensive amount of weapons and

ammunition at their home and that S.W. wanted the police to remove the weapons

and ammunition. According to Detective Foshee, S.W. felt threatened by Thomas

and thought that he would carry out his death threats. S.W. allowed the Detective to

retrieve many weapons and some ammunition from the home so that law

enforcement could hold them temporarily for safekeeping.

      A court reporter from Thomas and S.W.’s divorce proceeding testified that

she transcribed Thomas’s testimony at the proceeding, and the transcript was

admitted into evidence. According to Thomas’s sworn testimony from the divorce

proceeding, Thomas admitted to “wringing the crap out” of S.W.’s neck, and

                                          8
Thomas stated that when he realized that S.W. “looked like a puppy” and realized

what he was doing, he stopped.

      Thomas testified at trial that at the time of the incident he was deprived of

sleep. According to Thomas, S.W. woke him up, she was screaming and using a

broom to sweep things off a dresser towards him, she told him she was tired of him

embarrassing her, and she started to beat him with the broom. Thomas testified that

he grabbed her by the neck without putting pressure on her neck and “picked her up

where she was on her tippy toes.” He testified that although he put his hands on her

neck, he did not apply pressure to cut off airflow. Thomas testified that after about

seven seconds he “c[a]me to [his] senses,” thought she looked like a puppy, let her

go, and then hugged her. Thomas denied that he banged her head on the concrete,

that he got on top of her, that she passed out, or that he choked her. Thomas explained

that after he was treated at a hospital, he was then transported to the Jefferson County

Jail. Thomas testified that he told the truth in the divorce proceeding and that his

wife had never been scared of him. According to Thomas, his children and wife were

mixing two different incidents together. Thomas testified that there was a different

incident where he was sitting on the toilet and S.W. “plucked a lit cigarette in [his]

eye” and he busted through a door and chased her and pushed her. Thomas agreed




                                           9
that he had a previous diagnosis of delusional disorder and that, in 2006, S.W. had a

protective order against him in Harris County.

      M.T., Thomas’s sister, testified that she lives in the Houston area and that

when she had talked to her brother, including in telephone conversations around

April 2013, “he always seem[ed] normal,” but that when she talked to S.W., S.W.

described Thomas in a way that M.T. testified she had not seen. M.T. also testified

that she had never known of a time when Thomas lied to her. According to M.T.,

she had conversations with S.W. in 2012, she had never observed any abusive

behavior by Thomas towards S.W., and S.W. did not tell M.T. that S.W. was afraid

of Thomas. M.T. acknowledged that she had not been in contact with the children

since 2005.

                                      Analysis

      In his first issue, Thomas challenges the legal sufficiency of the evidence

supporting his conviction. Thomas does not dispute that S.W. was a member of his

family at the time of the incident. Instead, Thomas argues that “[g]laringly absent is

any evidence [that he committed the act alleged in the indictment], other than mere

speculation[,]” and that the “witnesses to the alleged offense admitted in their

testimony that the statements they provided to law enforcement several weeks after

the offense did not make any mention of Appellant having choked the complainant.”

                                         10
In his second issue, Thomas argues there is a fatal variance between the allegations

in the indictment and the proof at trial. Specifically, Thomas asserts that the

indictment alleged that he committed the offense by choking the complainant but

“[t]he evidence, however, clearly establishes the complainant suffered injury by

striking her head against the floor.” Because fatal variance claims are treated as a

claim regarding the legal sufficiency of the evidence, we address both issues

together. See Gollihar v. State, 46 S.W.3d 243, 247 n.6 (Tex. Crim. App. 2001).

      In reviewing the legal sufficiency of the evidence, we view the evidence in

the light most favorable to the verdict to determine whether any rational factfinder

could have found the essential elements of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Byrd v. State, 336 S.W.3d 242,

246 (Tex. Crim. App. 2011). In a bench trial, the trial judge is the sole trier of fact

and judge of the credibility of the witnesses, and the trial court may choose to believe

or not to believe some or all of the witnesses who testify at trial. See Johnson v.

State, 571 S.W.2d 170, 173 (Tex. Crim. App. 1978). The applicable standard of

review requires us to resolve any evidentiary inconsistencies in favor of the verdict,

keeping in mind that the factfinder is the exclusive judge of the facts, the credibility

of the witnesses, and shall determine the weight to give their testimony. Brooks v.

State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). On appeal, our role is only to

                                          11
ensure the factfinder reached a rational verdict; we do not reevaluate the weight and

credibility of the evidence produced at trial and we do not substitute our judgment

for that of the fact finder. See King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App.

2000). When the record supports conflicting inferences, we presume that the

factfinder resolved the conflicts in favor of the verdict and defer to that

determination. See Merritt v. State, 368 S.W.3d 516, 525-26 (Tex. Crim. App. 2012).

       “A ‘variance’ occurs when there is a discrepancy between the allegations in

the charging instrument and the proof at trial. In a variance situation, the State has

proven the defendant guilty of a crime, but has proven its commission in a manner

that varies from the allegations in the charging instrument.” Gollihar, 46 S.W.3d at

246 (citing 42 George E. Dix & Robert O. Dawson, Texas Practice: Criminal

Practice and Procedure § 31.81 at 178 (1995)). Generally, a variance that is not

prejudicial to a defendant’s substantial rights is immaterial. See id. at 247-48.

Whether a defendant’s substantial rights have been prejudiced by a variance between

the indictment and the evidence at trial typically depends upon the answers to two

inquiries: (1) whether the indictment, as written, informed the defendant of the

charge against him sufficiently to allow him to prepare an adequate defense at trial,

and (2) whether prosecution under the deficient indictment would subject the

defendant to the risk of being prosecuted later for the same crime. See id. at 248. A

                                         12
“material variance” (also known as a “fatal variance”) is not shown unless it might

mislead the defense, or might expose the defendant to the danger of being put twice

in jeopardy for the same offense. See id. at 249, 257 n.23. When arguing variance,

the burden of demonstrating surprise or prejudice rests with the defendant. Santana

v. State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001).

      Ordinarily, assault occurs when one “‘intentionally, knowingly, or recklessly

causes bodily injury to another, including the person’s spouse.’” Marshall v. State,

479 S.W.3d 840, 844 (Tex. Crim. App. 2016) (quoting Tex. Penal Code Ann.

§ 22.01). But assault may be enhanced to a third degree felony if committed against

a family member ‘“by intentionally, knowingly, or recklessly impeding the normal

breathing or circulation of the blood of the person by applying pressure to the

person’s throat or neck or by blocking the person’s nose or mouth.”’ Id. (quoting

Tex. Penal Code Ann. § 22.01(b)(2)(B)).

      S.W. testified that she did not initially report the choking incident, and J.T.

testified that initially he did not include in his statements to law enforcement that

Thomas had choked S.W. on the day of the incident. However, S.W., J.T., and E.T.,

testified at trial that on the day of the incident they personally witnessed Thomas

choke S.W. and that S.W. was in pain, struggled to breathe, and lost consciousness.

Thomas admitted putting his hands on S.W.’s neck but denied putting pressure on

                                         13
her neck or restricting airflow. The trial court, as factfinder, was free to believe or

disbelieve any part or all of the witnesses’ testimony and reconcile inconsistencies.

See Brooks, 323 S.W.3d at 899; Johnson, 571 S.W.2d at 173. Here, the verdict

suggests that the trial court chose to believe S.W.’s, E.T.’s, and J.T.’s testimony over

Thomas’s testimony, and we defer to that determination. See Merritt, 368 S.W.3d at

525-26. Viewing all the evidence in the light most favorable to the verdict, we

conclude that a rational factfinder could have reasonably concluded beyond a

reasonable doubt that Appellant committed the offense of assault-family

violence/choking. See Jackson, 443 U.S. at 318-19; Byrd, 336 S.W.3d at 246.

Accordingly, the evidence is legally sufficient to support the conviction.

      Thomas also argues the State’s evidence at trial of the manner and means of

the offense did not match the manner and means alleged in the indictment. Based

upon the record before us, we disagree. Nevertheless, Thomas does not contend that

the indictment language led to an inability to defend against the charge, nor does he

indicate how this alleged variance could subject him to the risk of later being

prosecuted for the same offense. See Gollihar, 46 S.W.3d at 248. On this record,

assuming without deciding that there was any variance between the pleadings and

the proof at trial, we conclude that any alleged variance was not prejudicial to




                                          14
Thomas’s substantial rights and was, therefore, immaterial. See id. at 247-48. We

overrule issues one and two and affirm the trial court’s judgment.

      AFFIRMED.




                                                   _________________________
                                                      LEANNE JOHNSON
                                                            Justice


Submitted on January 4, 2018
Opinion Delivered February 14, 2018
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




                                        15
