Affirmed and Memorandum and Concurring Opinions filed March 10, 2020.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00339-CR

                  JOHN ROBERT-JAMES KANE, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 149th District Court
                           Brazoria County, Texas
                       Trial Court Cause No. 82739-CR

                          MEMORANDUM OPINION

      Appellant John Robert-James Kane appeals his conviction for assault–family
violence by impeding the normal breathing or circulation of the complainant. See
Tex. Penal Code Ann. § 22.01(b)(2)(B). In two issues appellant argues (1) the
evidence was insufficient to support his conviction; and (2) the trial court erred in
admitting hearsay testimony. Concluding that the evidence was sufficient to support
appellant’s conviction and appellant was not harmed by admission of hearsay
evidence, if any, we affirm.
                                   BACKGROUND

      The complainant testified that appellant was her common-law husband and
they had been together from January 2010 through September 2017. They have one
son who was five years old at the time of the offense.

      On the day of the offense the complainant was asleep in her bedroom when
appellant awakened her and asked her to go into another room. The couple’s son was
sleeping in the same bed with the complainant. When the complainant refused to go
into another room appellant began choking the complainant and showing her
pornographic videos on his phone. Appellant thought the woman in the videos was
the complainant. The complainant denied that she was the woman in the videos. The
complainant testified that while appellant was choking her she could not breathe and
thought appellant was going to kill her.

      Appellant dragged the complainant by her hair into the kitchen. Appellant told
the complainant to remove her pants and sit in a chair. When the complainant sat
down appellant put two socks into her mouth and placed duct tape over her mouth.
Appellant used an extension cord to tie the complainant’s ankles to the chair. While
the complainant was tied and gagged, appellant took a kitchen brush from the sink
and used the kitchen brush to sexually assault the complainant. When the couple’s
son woke up appellant stopped.

      Appellant went to check on their son and the complainant was able to free one
of her ankles. The complainant was unable to free her other ankle before appellant
came back into the room and tied her up again. Appellant gave the complainant paper
and pen and forced her to write an “apology” to their son for being in the
pornographic video. The complainant wrote, “That’s not me. Listen to her voice. It’s
not me.” The complainant suspected appellant was using methamphetamine at the
time of the assault.
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      When the couple’s son woke up a second time appellant again left to check
on him. At that time the complainant freed one of her ankles, grabbed the chair, and
ran out the back door with the chair still attached to her. While the complainant was
in the front yard looking for a neighbor appellant followed her outside and pulled
her down on the ground. By this time, it was early morning and the couple’s son
woke up and came outside. The complainant begged her son to get her car keys,
which he did. The complainant was unable to leave because appellant grabbed the
keys and put both the complainant and their son in the car and drove around to the
backyard.

      The complainant testified that appellant choked her twice; once when they
were leaving the bedroom and a second time when he held his arm around her throat
from behind. The complainant was unable to breathe normally during either of the
two times appellant choked her.

      Eventually appellant allowed the complainant to bathe and lie down. Later
that afternoon appellant told the complainant he was taking her to Katy, Texas to
take a polygraph test to determine whether the complainant was telling the truth
about not being in the pornographic videos. The complainant testified that she had
suggested the polygraph as a ruse to get appellant to take her out of the house.
Appellant, the complainant, and their son drove in their truck to Katy. When they
arrived at the polygraph location appellant wrote several questions on a piece of
paper. The polygraph examiner had earlier told appellant that children could not be
present during the polygraph exam. Appellant went inside the polygrapher’s office
alone and left the truck running with the complainant and their son still in the truck.
The complainant immediately moved to the driver’s seat and drove to the nearest
hospital.

      At the hospital the complainant called her mother to pick up the complainant’s

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son. The complainant tried to make a police report at the hospital but was told she
needed to make the report in the county where the offense occurred, which was not
where the hospital was located. When the complainant was discharged from the
hospital, at 8:41 p.m., she drove directly to the Brazoria County Sheriff’s Office.
The complainant was unable to make a report at that time because the door to the
substation was locked. The complainant then drove directly to her friend Stacy’s
house.

      Stacy Sockwell, the complainant’s friend, testified that the complainant came
to her house between 10:30 and 11:00 on a Saturday night. When Sockwell answered
the door, she noticed that the complainant was distressed. The complainant was
crying and began explaining the events of the night before. Sockwell testified that
the complainant told her the complainant and appellant had “been up basically all
night long” fighting. The complainant told Sockwell that appellant choked her and
pulled her hair. Sockwell took photographs of bruises she saw on the complainant.
The complainant reported she was naked from the waist down and appellant tied her
feet to a chair with an extension cord. The complainant also told Sockwell that
appellant used a kitchen cleaner or a sponge-type cleaner to sexually assault her. The
complainant explained to Sockwell that appellant thought the complainant was the
actor in a pornographic video.

      Sockwell described how the complainant was able to untie one of her legs
when appellant went into the son’s bedroom. After untying her leg, the complainant
was able to run outside, around daybreak. In explaining how she escaped the
complainant recounted the polygraph story to Sockwell.

      Sockwell observed bruising on the complainant’s body, arms, ankles, and
thighs. Sockwell took photographs of the injuries and the complainant called the
police from Sockwell’s home.

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      Deputy Dustin Mark Burke responded to the 911 call. The complainant
recounted the offense to Burke who took photographs of the complainant’s injuries.
Burke testified that the complainant’s injuries were consistent with her account of
the offense. The photographs, admitted into evidence without objection, showed
bruising on several locations including marks on the complainant’s neck that were
consistent with choking.

      Burke testified that the complainant was upset and emotional while describing
the offense. The complainant told Burke that appellant awakened her and told her he
needed to show her a video. When the complainant refused appellant grabbed her by
the throat and choked her. When the complainant again refused appellant told her,
“Get up. Come to this other room or I’m going to kill you. I’m going to gouge out
your eyes.” The complainant reported to Burke that appellant told her to remove her
pants and tied her legs to a kitchen chair with an extension cord. While the
complainant’s legs were tied to the chair appellant inserted a dish sponge handle into
her vagina.

      Gary Hale, a private polygraph examiner, testified that appellant came to his
office with a list of questions he wanted the complainant to answer. As Hale and
appellant were reviewing the questions appellant’s attention was diverted by the
sounds of a vehicle. Appellant looked out of the window, uttered “a few cuss words,”
and told Hale that he needed to leave. Specifically, appellant stated, “I need to get
back . . . before she does because I beat her up. And I need to get back because if I
don’t get back before she does, I’m going to be arrested.” Appellant tore up the piece
of paper and threw it in the garbage bin. Hale retrieved the pieces of paper and taped
them back together.

      Appellant was charged with assault of a family member or a person with
whom he had a dating relationship by impeding normal breathing or circulation.

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Appellant was further charged with sexual assault. The jury found appellant guilty
of assault of a family member by impeding breathing and found him not guilty of
sexual assault. Appellant appeals his assault conviction.

                                     ANALYSIS

      In two issues appellant argues (1) the evidence was insufficient to support his
conviction for assault family violence by impeding breathing; and (2) the trial court
erred in allowing Sockwell’s hearsay testimony.

I.    Sufficient evidence supports the jury’s verdict.

      In reviewing the legal sufficiency of the evidence to support a conviction, we
determine “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex.
Crim. App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Price v.
State, 502 S.W.3d 278, 281 (Tex. App.—Houston [14th Dist.] 2016, no pet.). In our
review, we consider all of the evidence in the record, whether admissible or
inadmissible. Price, 502 S.W.3d at 281. The jury is the sole judge of the credibility
of witnesses and the weight afforded their testimony. Montgomery v. State, 369
S.W.3d 188, 192 (Tex. Crim. App. 2012). The jury may choose to believe or
disbelieve all or a portion of a witness’s testimony, and we presume that the jury
resolved any conflicts in the evidence in favor of the prevailing party. See Marshall
v. State, 479 S.W.3d 840, 845 (Tex. Crim. App. 2016) (“We defer to the jury’s
finding when the record provides a conflict in the evidence.”); Jackson v. State, 495
S.W.3d 398, 405 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d).

      A person commits the offense of assault if the person “intentionally,
knowingly, or recklessly causes bodily injury to another, including the person’s


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spouse.” Tex. Penal Code Ann. § 22.01(a)(1). The offense is considered a third-
degree felony if the offense is committed against a family member or a person with
whom the defendant has a dating relationship, as defined in sections 71.0021(b),
71.003, or 71.005 of the 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.” Tex. Penal Code Ann. § 22.01(b)(2)(B).
Appellant does not challenge the sufficiency of the evidence to support the finding
that the complainant was a family member or a person with whom he had a dating
relationship. Appellant challenges the sufficiency of the evidence to support the
finding that he impeded the complainant’s breathing.

      The jury heard testimony that appellant used his hands to choke the
complainant twice, once when he first pulled her out of the bedroom and another
time while she was tied to the chair. The complainant also testified that appellant put
socks in her mouth and placed duct tape over her mouth. The jury viewed
photographs of the complainant taken the day after the offense, which depicted
marks on the complainant’s neck consistent with choking. The evidence is legally
sufficient to support a finding that appellant impeded the normal breathing or
circulation of blood of the complainant by applying pressure to her throat or neck.
See Marshall, 479 S.W.3d at 845 (evidence legally sufficient where complainant
testified appellant held pillow against her face and she was unable to take deep
breaths when he did so).

      On appeal appellant argues that the only evidence that tends to show appellant
intentionally, knowingly, or recklessly impeded the complainant’s normal breathing
by choking her was the complainant’s testimony. Appellant contends that the
complainant’s testimony was not credible because she did not report a sexual assault

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at the hospital, failed to flee while en route to the polygraph examiner’s office, and
admitted she could breathe through her nose while her mouth was taped shut. These
allegations either represent conflicts in the evidence or go to the weight and
credibility of the evidence and are therefore within the province of the jury to
consider and resolve. See Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993)
(“[T]he evidence is not rendered insufficient simply because appellant presented a
different version of the events.”). We will not disturb the jury’s decision resolving
the conflicts or weighing the evidence. Montgomery, 369 S.W.3d at 192 (reviewing
court must not usurp role of jury in assessing weight and credibility of witnesses).

      Viewing the entirety of the evidence in the light most favorable to the jury’s
verdict, we conclude that a reasonable factfinder could find beyond a reasonable
doubt that appellant committed the offense of assault of a family member by
impeding breath or circulation in violation of the penal code. See Marshall, 479
S.W.3d at 845. We overrule appellant’s first issue.

II.   Appellant was not harmed by the admission of Sockwell’s testimony.

      In his second issue appellant argues the trial court erred in admitting the
hearsay testimony of Sockwell. Specifically, appellant argues the following
testimony was inadmissible hearsay:

      Q. (By [the prosecutor]): What did [the complainant] tell you?
      A. She told me that the night before, they had been up basically all night
      long. Her and [appellant] were fighting.
      [Defense counsel]: Objection, hearsay.
      [Prosecutor]: Excited utterance exception.
      THE COURT: Do you have any response?
      [Defense counsel]: Utterance. It’s the — not a dialogue, if that’s what
      she’s going into.
      THE COURT: Overruled. I will allow it.

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Appellant argues this testimony was not admissible under the excited utterance
exception to the hearsay rule because several hours had passed since the events
described by the complainant.

      After appellant’s hearsay objection was overruled, Sockwell’s testimony
continued as follows:

      Q. Again, tell me what [the complainant] told you.
      A. She told me that basically the night before, [appellant] and her had
      been fighting. And at some point in the early morning — their son was
      sleeping with them — he choked her and pulled —
      [Defense counsel]: Objection, Your Honor. Hearsay.

      THE COURT: Overruled.

      A. That’s what she told me.

      Q. (By [the prosecutor]) Please continue.

      A. I don’t know the reasons. I don’t know what all they were fighting
      about. But there was — he had choked her. He pulled her hair. I know
      she had some bruising on her. I took photos of that. The son woke up a
      couple of times, is my understanding. Was upset. He took her into the
      dining room or the living room, kitchen area. He tied her up with an
      extension cord on her feet really tight. And she was naked from the
      waist down. And he — she told me that he took a kitchen cleaner or a
      sponge-type cleaner and sexually assaulted her with it.
      She also said that he told her to write a letter to her son because he was
      showing her videos. Apparently he thinks that she was on some kind of
      sexual video —
      [Defense counsel]: Objection. Talking about what he said.

      THE COURT: Sustained.

      Appellant did not object to Sockwell’s recitation of the complainant’s account
of the offense, including the complainant’s description of appellant choking her,
tying her to the chair, and sexually assaulting her with the kitchen utensil. Appellant
                                          9
objected to Sockwell’s testimony about appellant’s statements and the trial court
sustained that objection.

      To preserve error based on the erroneous admission of evidence, an appellant
must make a timely and specific objection in the trial court. Tex. R. App. P. 33.1(a);
Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). Additionally, an
objection must be made each time inadmissible evidence is offered unless the
complaining party obtains a running objection or obtains a ruling on his complaint
in a hearing outside the presence of the jury. Lopez v. State, 253 S.W.3d 680, 684
(Tex. Crim. App. 2008); Merrit v. State, 529 S.W.3d 549, 556 (Tex. App.—Houston
[14th Dist.] 2017, pet. ref’d).

      Appellant complains about the testimony that was admitted before his hearsay
objections. But, because he failed to object to Sockwell’s subsequent testimony,
obtain a running objection, or get a ruling on his objection outside the jury’s
presence, appellant has preserved error only as to Sockwell’s first statements that
the complainant and appellant had been up all night fighting and appellant choked
her. We need not decide whether it was error to admit this testimony, however,
because any error was harmless.

      The improper admission of hearsay testimony is nonconstitutional error that
is harmless unless the error affected appellant’s substantial rights. See Tex. R. App.
P. 44.2(b); Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004); Nino v.
State, 223 S.W.3d 749, 754 (Tex. App.—Houston [14th Dist.] 2007, no pet.). An
error is harmless if we are reasonably assured that the error did not influence the
verdict or had only a slight effect. See Garcia, 126 S.W.3d at 927; Shaw v. State,
329 S.W.3d 645, 653 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). Likewise,
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. See Mayes v.

                                         10
State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991).

      Any error in the admission of Sockwell’s testimony about the complainant’s
recitation of the offense was harmless because the complainant and Officer Burke
both testified to the events of the offense, and, in the case of the complainant, did so
in greater detail. Sockwell’s testimony was cumulative of evidence admitted
elsewhere including the unobjected-to portion of her testimony. Therefore, appellant
has not shown harm by the admission of Sockwell’s testimony. See Merrit, 529
S.W.3d at 557 (holding error in admission of witness’s hearsay testimony was
harmless when similar testimony was developed and offered without objection from
complainant and law enforcement officer).

      On this record, we conclude that any error in the admission of Sockwell’s
objected-to testimony did not influence the verdict or had only a slight effect. See
Garcia, 126 S.W.3d at 921. We overrule appellant’s second issue.

                                    CONCLUSION

      We overrule appellant’s issues and affirm the trial court’s judgment.




                                        /s/    Jerry Zimmerer
                                               Justice



Panel consists of Justices Wise, Zimmerer, and Spain (Spain, J. concurring).
Do Not Publish — Tex. R. App. P. 47.2(b).




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