                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-14-00018-CR
                              NO. 09-14-00019-CR
                           ____________________

                     RUDY TRUJILLO DIMAS, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee
_______________________________________________________            ______________

                    On Appeal from the 258th District Court
                              Polk County, Texas
                     Trial Cause No. 22483 (Count 1 and 2)
________________________________________________________             _____________

                          MEMORANDUM OPINION

      Rudy Trujillo Dimas appeals from a jury trial that resulted in his conviction

of a third-degree felony and a Class A misdemeanor for assaulting A.W., 1 a

member of his family. See Tex. Penal Code Ann. § 22.01 (West Supp. 2014).

Under the felony count, count one, the jury found that on or about May 8, 2012,
      1
        To protect the privacy of the witnesses that testified to Dimas’s assault,
they are identified with their initials. 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”).

                                         1
Dimas assaulted A.W. by impeding her normal breathing. See id. § 22.01(b)(2)(B).

Under the misdemeanor count, count two, the jury found that on or about the same

date, Dimas assaulted A.W. by kicking, biting, or punching her, or by pulling her

hair. See id. § 22.01(b). Dimas elected to have the trial court assess punishment.

The trial court sentenced Dimas to ten years on the felony conviction and to one

year in jail on the misdemeanor.

      In three issues, Dimas asserts that the State failed to sufficiently prove that

A.W. was a member of his family or his household, that the trial court abused its

discretion by allowing a witness to testify about an extraneous offense without

conducting the balancing test required by Rule 403 of the Texas Rules of

Evidence, and that the Double Jeopardy Clause of the Fifth Amendment to the

United States Constitution prevents his being punished for both assaults. We hold

that Dimas’s issues are without merit, and we affirm the trial court’s judgment.

            Sufficiency of the Evidence: Family or Household Member

      In reviewing a challenge to the sufficiency of the evidence, the evidence is

assessed in the light most favorable to the prosecution to determine whether any

rational trier of fact could find the essential elements of the crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Brooks v.

State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010). Because it is the jury’s

                                         2
responsibility to resolve conflicting testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts, a jury verdict will be

upheld “unless a reasonable juror must have had a reasonable doubt as to at least

one of the elements of the offense.” Runningwolf v. State, 360 S.W.3d 490, 494

(Tex. Crim. App. 2012).

      In this case, Dimas’s convictions are based on different subsections of the

assault statute, section 22.01 of the Penal Code. Tex. Penal Code Ann. § 22.01.

According to the testimony introduced during Dimas’s trial, Dimas had his first

altercation with A.W. in her bedroom when she rebuffed his request for sex.

Following the altercation that ensued in the house, Dimas went into the living

room after A.W. told him that she was going to go to the bathroom. When A.W.

heard Dimas fall, she fled the house. As she was running away, she called the

police. However, Dimas caught her, and in the ensuing altercation, Dimas and

A.W. fought, rolled on the ground, and he choked her.

      A person commits the offense of assault if the person “intentionally,

knowingly, or recklessly causes bodily injury to another, including the person’s

spouse[.]” Id. § 22.01(a)(1). An assault under section 22.01(a)(1) of the Texas

Penal Code is elevated to a third degree felony if the victim is “a person whose

relationship to or association with the defendant is described by Section

                                        3
71.0021(b), 71.003, or 71.005, Family Code,” and “the offense is committed 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. § 22.01(b)(2)(B).

      The Family Code sections referenced in section 22.01(b)(2) of the Penal

Code describe relationships that include a “family” relationship or a relationship

that exists based on the victim’s status as a member of the defendant’s

“household.” See Tex. Fam. Code Ann. §§ 71.0021(b), 71.003, 71.005 (West

2014). Dimas contends the evidence in his case fails to show that A.W. was a

member of his “family” or a member of his “household.” Under the Family Code,

the term “‘[f]amily’ includes individuals related by consanguinity or affinity, as

determined under Sections 573.022 and 573.024, Government Code, individuals

who are former spouses of each other, individuals who are the parents of the same

child, without regard to marriage, and a foster child and foster parent, without

regard to whether those individuals reside together.” Id. § 71.003; see also Tex.

Gov’t Code Ann. §§ 573.022, 573.024 (West 2012). The method for determining

consanguinity, which applies to relationships that are within the third degree,

provides that two individuals are related to each other if one is a descendant of the




                                         4
other or they share a common ancestor. Id. §§ 573.002 (West 2012), 573.022. The

State does not argue that Dimas was related to A.W. by affinity.

      While there is scant evidence showing that Dimas is related to A.W. by

consanguinity, there is a significant amount of evidence relevant to the jury’s

determination that A.W. was a member of Dimas’s household. With respect to the

term “household,” the Family Code defines the term to mean “a unit composed of

persons living together in the same dwelling, without regard to whether they are

related to each other.” Tex. Fam. Code Ann. § 71.005. Notably, the Family Code

provision defining “household” does not include a provision that describes the

length of time the people must live together before the relationship can qualify as a

“household.” Id. § 71.005.

      We agree with Dimas’s argument that the evidence before the jury was not

sufficient to demonstrate that A.W. and Dimas shared a common ancestor.

Although A.W. referred to Dimas at one point in the trial as her uncle, she also

stated that she could not recall whether she and Dimas shared a common ancestor.

There was no other testimony introduced to establish that A.W. is related to Dimas

by consanguinity.

      Next, we turn to Dimas’s argument that A.W. was not a member of his

household. According to Dimas, the circumstances regarding why A.W. was

                                         5
present in his house on the date of the assaults demonstrate that A.W. was there

temporarily as a visitor. Dimas concludes the evidence is insufficient to show that

A.W. was a member of his household.

      The evidence before the jury that explains why A.W. was living with Dimas

allowed the jury to infer that she was a member of his household when the assaults

occurred. For instance, A.W. testified that in May 2012, her mother and Dimas

took her from Houston to Livingston to live with Dimas. A.W. described Dimas as

a member of her family, and she explained that before moving to Livingston, she

had previously lived with Dimas sporadically in Houston. Additionally, shortly

before A.W. moved to Livingston, she was homeless and had been living under a

bridge. According to A.W., approximately four days before the assaults occurred,

Dimas agreed to take her into his home. A.W. testified that she considered herself

to be a member of Dimas’s household. The evidence also shows that when A.W.

moved to Livingston, she moved into Dimas’s home along with all of her

possessions.

      With respect to the requirements to establish that a person is a member of

another’s household, the “Legislature has established a low legal threshold for

establishing the facts necessary to turn a simple assault into an assault-family

violence.” See Gomez v. State, 183 S.W.3d 86, 90 (Tex. App.—Tyler 2005, no

                                        6
pet.). There was no evidence showing that A.W. had plans to return to a more

permanent residence after she moved into Dimas’s home. When viewed in the light

most favorable to the jury’s verdict, the evidence before the jury describing A.W.’s

living arrangement allowed the jury to reasonably infer that she was a member of

Dimas’s “household” when the assaults occurred. As a member of his “household,”

she was also a member of his “family” under section 22.01(a)(1) of the Penal

Code. Tex. Penal Code Ann. § 22.01(a)(1). We overrule issue one.

               Rule of Evidence 403: Conducting a Balancing Test

      In issue two, Dimas contends that the trial court abused its discretion by

allowing the State to introduce testimony of a prior assault that Dimas allegedly

committed against P.K. According to P.K., who testified during the guilt-innocence

phase of Dimas’s trial, Dimas assaulted her in 2011 after she refused his request to

have sex. P.K. explained during the trial that Dimas pushed her back into the house

after she attempted to leave, and he choked her during an altercation that occurred

after she was forced back into Dimas’s home. Before P.K. testified, Dimas

objected to her testifying, arguing that her testimony about the 2011 incident would

be more prejudicial than probative. See Tex. R. Evid. 403. The record reflects that

the State represented that P.K.’s testimony would be relevant to establishing

Dimas’s identity, his intent, and to rebut the impression that A.W.’s testimony that

                                         7
she had been assaulted by Dimas was fabricated. The trial court overruled Dimas’s

objection. See Tex. R. Evid. 403. On appeal, Dimas complains that the trial court

erred by failing to conduct a test to balance the probative value of P.K.’s testimony

against its prejudicial impact before allowing her to testify before the jury.

      When a party objects that testimony should be excluded because it would be

more prejudicial than probative, the trial court is required to engage in a balancing

process. Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex. Crim. App. 1991)

(op. on reh’g). Factors considered in a Rule 403 balancing test include:

      (1) how compellingly the extraneous offense evidence serves to make
          a fact of consequence more or less probable—a factor which is
          related to the strength of the evidence presented by the proponent
          to show the defendant in fact committed the extraneous offense;
      (2) the potential the other offense evidence has to impress the jury “in
          some irrational but nevertheless indelible way”;
      (3) the time the proponent will need to develop the evidence, during
          which the jury will be distracted from consideration of the indicted
          offense;
      (4) the force of the proponent’s need for this evidence to prove a fact
          of consequence, i.e., does the proponent have other probative
          evidence available to him to help establish this fact, and is this fact
          related to an issue in dispute.

Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997).

      In Dimas’s case, the record does not specifically show that the trial court

refused to engage in the required balancing test before deciding to admit P.K.’s

testimony. However, the record’s silence about whether the balancing test was

                                           8
performed does not imply that the trial court failed to balance the prejudicial value

of the proposed testimony against its potentially prejudicial effect before the court

admitted the testimony. See Williams v. State, 958 S.W.2d 186, 195-96 (Tex. Crim.

App. 1997) (noting that “a judge is presumed to engage in the required balancing

test once Rule 403 is invoked and we refuse to hold that the silence of the record

implies otherwise”); Santellan, 939 S.W.2d at 173.

      While Dimas argues the trial court’s decision to admit the evidence harmed

him, Dimas has not argued that the trial court abused its discretion by accepting the

testimony for the purposes the State represented to the trial court that it was being

offered. Moreover, Dimas has not advanced a clear and concise argument in his

brief to explain why the prejudicial value of P.K.’s testimony about that assault, in

light of the reasons the State explained it wanted the evidence admitted,

outweighed the probative value of the testimony. See Tex. R. App. P. 38.1(i).

      We have no duty to evaluate an alleged error in admitting evidence, an issue

that does not involve a substantial right, where the defendant has not advanced an

argument to explain the testimony was inadmissible for the purposes it was

offered. See Alvarado v. State, 912 S.W.2d 199, 210 (Tex. Crim. App. 1995),

overruled on other grounds by Warner v. State, 245 S.W.3d 458, 463 (Tex. Crim.

App. 2008); Tex. R. App. P. 44.2(b) (requiring other errors, defects, irregularities,

                                         9
or variances that do not affect a defendant’s substantial rights to be disregarded).

An appellate court does not serve as counsel for the defendant, and we are not

required to make a party’s arguments on an issue that the party chose not to

advance on appeal. See Russo v. State, 228 S.W.3d 779, 792 (Tex. App.—Austin

2007, pet. ref’d).

      We hold that the trial court’s failure to expressly state that it had weighed

the probative value of P.K.’s testimony about the 2011 assault against the

prejudicial nature of the testimony before deciding to admit the testimony is no

indication that the trial court failed to perform the balancing test required by Rule

403. We overrule issue two.

                          Double Jeopardy: Same Offense

      In issue three, Dimas argues that punishing him for two assaults that

occurred on the same date resulted in a violation of his rights under the Double

Jeopardy Clause. See U.S. CONST. amend. V. According to Dimas, the proof

required to establish that he was guilty of committing the misdemeanor assault

included the same or less than all of the facts used by the State to establish that he

was guilty on the charge that he assaulted A.W. by choking her, a felony.

      Using the cognate pleadings approach and based on the facts alleged in

Dimas’s indictment, we will assume, without deciding, that the misdemeanor

                                         10
assault, as alleged in the indictment, is a lesser-included offense of the felony

assault. Compare Tex. Penal Code Ann. 22.01(a)(1), 22.01(b) (misdemeanor

assault) with Tex. Penal Code Ann. § 22.01(b)(2)(B) (impeding normal breathing,

a felony). “Where two crimes are such that the one cannot be committed without

necessarily committing the other, then they stand in the relationship of greater and

lesser offenses, and the defendant cannot be convicted or punished for both.”

Aekins v. State, 447 S.W.3d 270, 280 (Tex. Crim. App. 2014); see also Patterson v.

State, 152 S.W.3d 88, 92 (Tex. Crim. App. 2004) (the Legislature has not

authorized “stop-action” prosecutions for a single complete act of sexual assault).

“If the offense is a single continuous act, with a single impulse, in which several

different statutory provisions are necessarily violated along that continuum, the

offenses merge together.” Aekins, 447 S.W.3d at 275.

      The question of whether a double jeopardy violation occurred in this case

requires that we determine whether Dimas’s two convictions were the result of the

same criminal act. See Blockburger v. United States, 284 U.S. 299, 301-02 (1932);

Maldonado v. State, 461 S.W.3d 144, 150 (Tex. Crim. App. 2015); Aekins, 447

S.W.3d at 274. Dimas cites Saldana v. State, 287 S.W.3d 43, 56, 58 (Tex. App.—

Corpus Christi 2008, pet. ref’d) to support his argument that the assaults were the

result of the same criminal act. In Saldana, the defendant, on the same night,

                                        11
touched the victim’s genitals five times and penetrated her sexual organ. Id.

However, in Saldana there was no evidence to show that the five contacts occurred

at different times due to separate impulses, and the evidence indicated that the

offenses occurred as a single incident motivated by the same impulse. Id. In

Saldana, the Corpus Christi Court of Appeals held that the defendant could not be

sentenced more than once despite the jury’s findings because his contacts with the

victim all amounted to the same offense. Id.

      In Dimas’s case, however, there was evidence that a misdemeanor assault

occurred inside Dimas’s home, that another misdemeanor assault occurred outside

Dimas’s home when Dimas tried to prevent A.W. from leaving the premises, and

that a felony assault occurred as Dimas and A.W. fought with each other and he

choked her. The assaults that occurred outside resulted from Dimas’s desire to

prevent A.W. from leaving his home. Additionally, although relatively short, there

was a break between the assault that occurred in A.W.’s bedroom and the assaults

that occurred after A.W. left Dimas’s home.

      To determine if the offenses inside and outside Dimas’s home are the same

for double jeopardy purposes, we have considered the “‘allowable unit of

prosecution’” for the offense of assault. See Ex parte Cavazos, 203 S.W.3d 333,

336 (Tex. Crim. App. 2006) (quoting Ex parte Hawkins, 6 S.W.3d 554, 556 (Tex.

                                        12
Crim. App. 1999)). Determining the allowable unit of prosecution “is a necessary

step when a multiple-punishments claim deals with two offenses from the same

statutory section[.]” Garfias v. State, 424 S.W.3d 54, 59 (Tex. Crim. App. 2014).

With respect to assaults, the unit of prosecution is each victim. Id. at 60. In this

case, A.W. was the sole victim of the assaults. Nevertheless, the fact that criminal

acts involve only one victim is not the end of a court’s double jeopardy inquiry.

See Aekins, 447 S.W.3d at 277.

       The inquiry also requires that the court determine whether the Legislature

did not intend to allow multiple punishments for the same offenses. Id. (noting that

“two offenses that are the ‘same’ may both be punished; sometimes two ‘different’

offenses may not both be punished”) (footnotes omitted). In sexual assault cases,

for example, the Court of Criminal Appeals concluded that the Legislature

intended to punish each discrete assault. Id. at 277-78. According to the Court of

Criminal Appeals, “[t]he key is that one act ends before another act begins.” Id. at

278.

       In this case, the evidence shows that the assault inside the house came to an

end before the assaults that occurred outside the house began. A.W.’s written out-

of-court statement to an investigating officer was admitted into evidence without

objection. In her written statement, A.W. states that Dimas went into her room and

                                         13
told her she “was going to give it up [whether she] liked it or not, and [he] started

pulling my hair and pushing me.” 2 During the trial, A.W. explained that Dimas

came into her room and demanded sex. After she refused his advance, she tried to

leave, but Dimas caught her shortly after she left his house.

      Additional assaults occurred after A.W. fled Dimas’s home, including the

felony assault which is based on Dimas’s choking A.W. during the altercation that

occurred after she fled his home. The testimony reflects that when A.W. ran out of

the door of Dimas’s house, Dimas began to chase her, and she called 911. When

Dimas caught A.W., Dimas punched her in the head, kicked her, bit her, and

choked her until he saw the police were approaching. The evidence shows that the

assault in the bedroom had ceased before the assault outside the house began, and

the two assaults were not the result of the same impulse. We hold that no double

jeopardy violation occurred. We overrule issue three, and we affirm the trial

court’s judgment.
      2
         In his appeal, Dimas has not argued that the evidence was insufficient to
show that he intentionally, knowingly, or recklessly caused A.W. to suffer a bodily
injury that occurred inside Dimas’s home. We note that the jury charge required
the jury to find that Dimas caused A.W.’s bodily injury with respect to both the
misdemeanor and the felony assaults. And, based on all of the direct and
circumstantial evidence about the altercation that occurred inside the home, the
jury could reasonably deduce that the injury A.W. suffered when her hair was
pulled was painful. See Ramirez v. State, 518 S.W.2d 546, 547 (Tex. Crim. App.
1975); Goodin v. State, 750 S.W.2d 857, 859 (Tex. App.—Corpus Christi 1988,
pet. ref’d).
                                         14
      AFFIRMED.


                                            ________________________________
                                                    HOLLIS HORTON
                                                         Justice



Submitted on July 8, 2015
Opinion Delivered October 28, 2015
Do Not Publish

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




                                       15
