      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-02-0000638-CR



                             Jeffrey Jerome Washington, Appellant

                                                  v.

                                   The State of Texas, Appellee




             FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY
             NO. 620569, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Jeffrey Jerome Washington appeals a judgment convicting him of aggravated assault.

See Tex. Pen. Code Ann. § 22.02(a)(1) (West 2003). Appellant argues that the county court, in a

bench trial, erred by: (1) allowing a fatal variance between the State’s pleading and proof; (2) basing

its conviction on evidence that is factually insufficient; and (3) allowing hearsay statements to be

admitted into evidence. We affirm the judgment of the trial court.


                                         BACKGROUND

               Appellant was visiting Bobby Jean Wallace, his mother, and Theodore Maxwell, a

family friend, at Wallace’s house on the evening of September 11, 2002. At some point, appellant
and Wallace began to argue. Shortly after the argument, Wallace’s granddaughter, who was in the

house but did not witness any of the events, called EMS. When Officers Ray Tynes and Alvin

Roden arrived about five minutes later, they found Wallace crying and upset, unclothed from the

waist up, and bleeding from two large wounds on her back. Appellant had already left. Wallace told

Officer Tynes that during an argument with appellant, appellant hit her in the back with a broken

glass, causing her wounds. After speaking to Wallace, Officer Tynes notified dispatch to send EMS

to the scene. While waiting for EMS to arrive, he took photographs of Wallace’s injuries and

searched the scene for the weapon that caused the injuries. Although he did not find a weapon, he

did notice pieces of broken glass lying on the carpet about a foot from the couch. After EMS arrived,

Officer Tynes prepared an assault victim statement at the scene with the help of Wallace, but when

he asked her to sign it she began crying and refused to do so.

               Approximately five minutes after Officer Tynes called dispatch for EMS, paramedic

David Curvin arrived and found Wallace still partially unclothed, crying, and upset. Curvin treated

her wounds. One wound was four to five inches long, an inch and a half wide, and an inch

deep—almost to the shoulder blade. The other was two to three inches long. Wallace stated to

Curvin that she had been cut while in a fight with a man, but she did not identify him.1

               At trial, Wallace and Maxwell gave a different account of the events. They testified

that appellant became enraged and threw a drinking glass at Maxwell, who was sitting on a couch

with Wallace. The glass hit the wall next to Maxwell and shattered, sending broken shards of glass




       1
           Curvin testified that Wallace told him “He cut me; we were in a fight,” although he also
testified that he was not sure of her exact words.

                                                 2
flying towards Wallace and causing her injuries. Wallace testified that the glass left a dent in the

wall, and Maxwell described the dent as an inch long and a half-inch deep. Wallace denied having

any dispute with appellant and denied arguing with him that evening. Maxwell, on the other hand,

acknowledged that Wallace and appellant had “some words.” Wallace acknowledged speaking to

the paramedics but denied speaking to the police officer. Wallace denied that appellant ever struck

her.2

               The testimony of both Curvin and Officer Tynes contradicted that of Wallace and

Maxwell. Curvin testified that Wallace’s wounds could have resulted only from direct force. As

he stated, the wounds looked as if “a knife [had been] applied directly to the patient, or something

would have had to have [been] thrown directly at them” because the deeper wound started at the top

of her shoulder and cut downward. In addition, Curvin did not think that glass “could bounce and

cause that kind of damage, not as deep as that cut was.” Additionally, Curvin stated that Wallace

told him that she had been cut in a fight while he was treating her wounds.

               Officer Tynes testified that Wallace told him that she had an argument with appellant

over custody of his granddaughter.3 He testified that Wallace stated at the scene that, after the

argument intensified, Maxwell tried to intervene. Officer Tynes further testified that Wallace told

him she heard the sound of breaking glass and noticed appellant approaching her. Officer Tynes then

testified that Wallace told him that appellant hit her in the back with a glass. He also stated that,



        2
         Both Wallace and Maxwell also testified that they did not want to see appellant get into
any trouble.
        3
         The granddaughter who was the subject of the argument is appellant’s granddaughter,
Wallace’s great-granddaughter. She is not the girl who called EMS for help.

                                                 3
while Wallace was telling him that appellant had struck her, she motioned with her arm and fist as

if to indicate a direct strike. Finally, Officer Tynes testified that the physical evidence at the scene

did not match the account that both Maxwell and Wallace gave at trial. Although he did see small

pieces of broken glass about a foot from the couch, none of those pieces had blood on them. He did

not recall seeing broken glass on the couch or a mark on the wall behind the couch.


                                           DISCUSSION

Admission of Out-of-Court Statements

               Appellant argues that the out-of-court statements made by Wallace and testified to

by Officer Tynes and Curvin were hearsay and should not have been admitted as evidence. Hearsay

is a statement, not made while testifying at a trial or hearing, offered in evidence to prove the truth

of the matter asserted. Tex. R. Evid. 801(d). An excited utterance is “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” and is an exception to the hearsay rule. Zuliani v. State, 97 S.W.3d 589, 595

(Tex. Crim. App. 2003) (citing Tex. R. Evid. 803(2)). The critical determination is whether the

declarant was still dominated by the emotion, excitement, fear, or pain of the event or condition at

the time of the statement. Id. at 596. The admissibility of an out-of-court statement under an

exception to the hearsay rule is within the trial court’s discretion. Id. at 595. Therefore, a reviewing

court should not reverse unless a clear abuse of discretion is shown. Id. An abuse of discretion

occurs “only when the trial judge’s decision was so clearly wrong as to lie outside that zone within

which reasonable persons might disagree.” Id. (citing Cantu v. State, 842 S.W.2d 667, 682 (Tex.

Crim. App. 1992)).

                                                   4
                Here, the record shows that Officer Tynes arrived within five minutes of the

altercation and that Wallace spoke with him shortly after his arrival, while she was crying, nude from

the waist up, and bleeding from two large wounds on her back. Both Officer Tynes and Curvin

testified as to Wallace’s condition when they arrived at the house. Furthermore, Curvin’s description

of the depth and severity of the wounds when he arrived to treat Wallace supports the trial court’s

conclusion that she was still dominated by the emotion, fear, and pain of the event at the time of her

statement. Although appellant argues that the statements ought to be excluded because Wallace’s

own trial testimony renders her out-of-court statements inadmissable, excited utterances are

admissible even though the declarant is available as a witness. Tex. R. Evid 803(2). Thus, because

the record supports the trial court’s ruling that the statement was admissible as an excited utterance,

we cannot say that the trial court abused its discretion in doing so. We overrule appellant’s issue

concerning the out-of-court statements.


Factual Sufficiency

                Appellant argues in his second issue that the evidence is factually insufficient to

support a conviction. In reviewing factual sufficiency, a court asks whether a neutral review of all

the evidence, both for and against the finding, demonstrates either that the proof of guilt is so

obviously weak as to undermine the confidence of the jury’s determination, or that the proof of guilt,

although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23

S.W.3d 1, 9 (Tex. Crim. App. 2000). This review, however, must employ appropriate deference to

the fact finder in order to prevent an appellate court from substituting its judgment for that of the fact




                                                    5
finder, and any evaluation should not substantially intrude upon the fact finder’s role as the sole

judge of the weight and credibility given to witness testimony. Id. at 7. Appellant argues the first

standard above, that the evidence is insufficient to support the finding of a vital fact—that he struck

Wallace. When the only evidence presented on the particular element supports the inference that the

fact is true, but that evidence is simply too weak by itself to support a rational finding, courts will

find the evidence factually insufficient. Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App.

2001).

               Although Wallace and Maxwell both testified that appellant did not strike Wallace,

there are inconsistencies in their accounts of what took place that evening. The testimony of Officer

Tynes and Curvin, on the other hand, is in agreement, and their testimony is corroborated by the

physical evidence. Wallace stated to both Officer Tynes and Curvin that she had been cut in a fight.

Wallace explained what happened in detail to Officer Tynes, stating that appellant struck her from

behind with a piece of broken glass, using a downward striking motion with her arm and fist to

further illustrate what had happened. Additionally, Curvin testified that the size, location, and depth

of Wallace’s wound was inconsistent with Wallace and Maxwell’s version of the events. Rather,

a wound of that size and depth could have been caused only by direct force. Given the great

deference that an appellate court must show the finder of fact, particularly when considering the

credibility of witnesses, and looking at all the evidence in a neutral light, we are unable to say that

the evidence supporting the verdict was so obviously weak as to render the conviction clearly wrong

and manifestly unjust. See Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).

Appellant’s second issue is overruled.



                                                  6
Fatal Variance

                In his first issue, appellant claims that there was a fatal variance between the State’s

pleading and proof. A variance occurs when there is a discrepancy between the allegations in the

charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d. 243, 246 (Tex. Crim. App.

2001). 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. Id. The two

questions asked in order to determine if a variance exists are (1) whether the indictment, as written,

sufficiently informed the defendant of the charge against him to allow him to prepare an adequate

defense, and (2) whether prosecution would subject the defendant to the risk of being prosecuted

later for the same crime under the deficiently drafted indictment. Id. at 257 (citing United States v.

Sprick, 233 F.3d. 845, 853 (5th Cir. 2000)). A variance is fatal only if it is material and prejudices

the defendant’s substantive rights. Id.

                Appellant complains that the evidence proved only that he threw a glass against a

wall, which then shattered and caused bodily injury to Wallace. Appellant contends that this is a

different offense from the indictment’s charge that he “did then and there intentionally, knowingly,

and recklessly cause bodily injury to Bobbie Wallace by striking Bobbie Wallace on and about the

torso with an object, to wit: a piece of broken glass,” and that the difference is material and required

to be in the indictment.4 As a general rule, an indictment that mirrors the language of the statute that

creates and defines the offense charged will be sufficient. Boney v. State, 572 S.W.2d 529, 532 (Tex.


        4
        Appellant also argues that he “would have had a good motion to quash” on this issue.
However, appellant did not make a motion to quash. As such, the issue was waived. Eanes v. State,
546 S.W.2d 312, 313 (Tex. Crim. App. 1977).

                                                   7
Crim. App. 1978). Further, in an assault indictment, the State need not allege the manner and means

used to commit the assault because it is not an element of the offense. Id. In the case before us, the

State’s indictment not only tracked the language of the statute, but also specifically identified the

means and manner of the offense—a piece of broken glass used to strike Wallace on and about the

torso. Appellant’s variance claim is misplaced. Although more than one version of the events was

given at trial, the fact finder was not faced with a variance but simply with a choice of which version

of the events to believe.5 Because the evidence in this case was sufficient to support a verdict under

the indictment, we overrule appellant’s first issue.


                                          CONCLUSION

               Because we overrule all of appellant’s issues, we affirm the judgment of conviction.




                                               W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices B. A. Smith and Patterson

Affirmed

Filed: October 16, 2003

Do Not Publish


       5
          Appellant’s brief extensively discusses whether Maxwell and Wallace’s version of events
would justify conviction under a theory of transferred intent or would meet the legal definition of
striking. Because the evidence is factually sufficient to support the conviction on the grounds that
appellant physically struck Wallace, we need not address these arguments.

                                                  8
