      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-00-00387-CR



                                    Gerald Zuliani, Appellant

                                                 v.

                                   The State of Texas, Appellee




             FROM THE COUNTY COURT AT LAW NO. 4 OF TRAVIS COUNTY
              NO. 544925, HONORABLE MIKE DENTON, JUDGE PRESIDING




               A jury convicted Gerald Zuliani of assault with bodily injury and assessed sentence at

one year in jail. Zuliani attacks the court’s overruling of a hearsay objection, challenges omissions

from and inclusions in the jury charge, and contends that the evidence is factually insufficient to

support the conviction. We will affirm the judgment.

               There is no dispute that Zuliani pushed Patti Dwinell and that she fell backwards, hit

her head, and cut her scalp; the dispute is over the circumstances surrounding that incident. Zuliani

and Patti Dwinell lived together for about eighteen months before the incident. Dwinell had thyroid

surgery and was about to undergo radiation therapy when she and Zuliani had an argument which

escalated into a physical struggle. Dwinell has told different versions of the incident. The day after

the incident, Dwinell said Zuliani was restraining her, trying to force her to kiss him; she pushed

away, knocking him down, and he responded by pushing her and causing her injury. The day after

the incident, Dwinell was fearful and pleading for help in telephone calls outside Zuliani’s hearing.
At trial, however, Dwinell explained the incident by exculpating Zuliani, saying he took a cigarette

out of her mouth to enforce her doctor’s order that she not smoke. Dwinell said she slapped him

twice, he restrained her to stop the slapping, she pushed away and shoved him down. When he got

up, she swung at him again and he put his arm out and pushed her away, causing her injury.

                By point of error two, Zuliani asserts that the court erred by permitting Judy Tobey

to testify over his hearsay objection about what Dwinell told her about the incident. The court

allowed Tobey’s testimony, finding that Dwinell’s statements to her were an excited utterance within

the rule providing that a “statement relating to a startling event or condition made while the declarant

was under the stress or excitement caused by the event or condition” is not excluded by the hearsay

rule regardless of the availability of the declarant. See Tex. R. Evid. 803(2). Zuliani contends that

the statements were not within the exception because too much time passed between the altercation

and the statements and because Dwinell’s demeanor was inconsistent with the definition of excited

utterance.

               We review the admission of evidence for an abuse of discretion. Salazar v. State, 38

S.W.3d 141, 154 (Tex. Crim. App. 2001). That means we will affirm the trial court’s decision if it

is within “the zone of reasonable disagreement.” Id. In discussing application of the excited

utterance exception, the court of criminal appeals recently reiterated that


       [i]t is not dispositive that the statement is an answer to a question or that it was
       separated by a period of time from the startling event; these are simply factors to
       consider in determining whether the statement is admissible under the excited
       utterance hearsay exception. See Lawton v. State, 913 S.W.2d 542, 553 (Tex. Crim.
       App. 1995); Penry v. State, 903 S.W.2d 715, 750-51 (Tex. Crim. App.), cert. denied,
       516 U.S. 977, 133 L. Ed. 2d 408, 116 S. Ct. 480 (1995); McFarland v. State, 845
       S.W.2d 824, 846 (Tex. Crim. App. 1992), cert. denied, 508 U.S. 963, (1993). The

                                                   2
       critical determination is “whether the declarant was still dominated by the emotions,
       excitement, fear, or pain of the event” or condition at the time of the statement.
       McFarland, 845 S.W.2d at 846.


Salazar, 38 S.W.3d at 154. The Salazar court cited several cases and summarized their holdings

regarding the passage of time. See id. (citing Wood v. State, 18 S.W.3d 642, 652 (Tex. Crim. App.

2000) (hearsay statement properly excluded because separated from event it concerned by ten to

twelve hours, and declarant did not act excited or nervous in interim); Lawton, 913 S.W.2d at 553

(hearsay statement by eyewitness properly admitted as excited utterance, even though an hour

separated event from statement, because of magnitude of crime witnessed and because officer testified

that declarant was excited and upset when making statement); McFarland, 845 S.W.2d at 846

(victim’s statement properly admitted as excited utterance because she was still under physical and

emotional stress of having been stabbed 43 times when discovered by police)). In Salazar, the court

examined the admission of testimony about a victim’s complaints of pain from a previous assault.

The two-year-old victim/declarant told witnesses she did not want to take off her jacket. When the

witnesses removed the jacket, the declarant cried out in pain; when asked, she said the defendant had

inflicted her injury. Despite the absence of testimony regarding how much time had passed between

the infliction of the injury and the accusation, the court found no abuse of discretion in the admission

of the evidence under the excited utterance exception. Id. at 154.

               We conclude that the trial court did not abuse its discretion in admitting Tobey’s

statements. Dwinell made her statements to Tobey twenty hours after the incident. Dwinell was

talking on the telephone when first seen by a deputy and did not appear excited or startled when

making her statement to Tobey. Even though her statements were not spontaneous, were made with

                                                   3
ample time for reflection, and were made with some deliberation at the time of making, Tobey said

that Dwinell appeared scared and withdrawn. Dwinell had not been separated from Zuliani since the

incident. Tobey and the deputy were there only because Dwinell had whispered “help me, help me,

help me” to Tobey’s husband during a telephone conversation.                      Dwinell’s demeanor,

communicativeness, and communications were different when Zuliani was outside the house. Her

scalp injury, diagnosed as needing stitches, had not been treated—apparently because Zuliani feared

that he would be arrested if they went to an emergency room. (He had taken her to a minor-

emergency clinic that refused to treat her because of her recent surgery.) Dwinell also said that, if

Zuliani were jailed, she feared what he would do when released. This combination of factors

convinces us that the trial court did not err by concluding that Dwinell was still under the stress of

excitement caused by the incident. It was not unreasonable to find that Dwinell’s stress was unabated

until family and law enforcement were around to shield her from Zuliani. Finding no error, we

overrule point two.

                By his third point of error, Zuliani argues that the trial court’s charge was deficient

because it failed to limit the definition of the culpable mental states of “intentionally” and “knowingly”

to the results of the defendant’s conduct. The court provided the following definitions:


        A person acts intentionally, or with intent, with respect to the nature of his conduct
        when it is his conscious objective or desire to engage in the conduct or cause the
        result.

        A person acts knowingly, or with knowledge, with respect to the nature of his
        conduct or to circumstances surrounding his conduct when he is aware of the nature
        of his conduct or that the circumstances exist. A person acts knowingly, or with
        knowledge, with respect to a result of his conduct when he is aware that his conduct
        is reasonably certain to cause the result.

                                                    4
          A person acts recklessly, or is reckless, with respect to circumstances surrounding his
          conduct or the results of his conduct when he is aware of but consciously disregards
          a substantial and unjustifiable risk that the circumstances exist or the result will occur.
          The risk must be of such a nature and degree that its disregard constitutes a gross
          deviation from the standard of care that an ordinary person would exercise under all
          the circumstances as viewed from the actor’s standpoint.


Zuliani objected and complains on appeal that these definitions permitted the jury to convict him for

simply intentionally or knowingly pushing Dwinell regardless of whether he intentionally or knowingly

injured her.

                  The State concedes that Zuliani has correctly assigned error, but contends that the

error was not harmful. See Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994). The court

of criminal appeals recently reaffirmed that we use the standard of review for jury-charge error set

out in the Code of Criminal Procedure and Almanza v. State, not the standards in the appellate

procedural rules. Huizar v. State, 12 S.W.3d 479, 484-85 (Tex. Crim. App. 2000). The code states,

“[T]he judgment shall not be reversed unless the error appearing from the record was calculated to

injure the rights of defendant, or unless it appears from the record that the defendant has not had a

fair and impartial trial.” Tex. Code Crim. Proc. Ann. art. 36.19 (West 1981). Under Almanza, we

examine the error in light of (1) the entire jury charge, (2) the state of the evidence, including the

contested issues and the weight of the probative evidence, (3) the arguments of counsel, and (4) any

other relevant information. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on

reh’g).

                  The entire jury charge. The court correctly stated the requisite mental state in the

application paragraph. The court informed the jury that, if it found beyond a reasonable doubt that



                                                      5
Zuliani “intentionally, knowingly, or recklessly cause[d] bodily injury to PATTI DWINELL, by

pushing PATTY DWINELL causing PATTI DWINELL’s head to strike a piece of furniture, or by

pushing PATTI DWINELL causing PATTI DWINELL’s head to strike a candle holder, then you will

find the Defendant guilty of the offense of assault.” Thus the jury could find Zuliani guilty only if it

found that Zuliani intended, not merely his conduct in pushing her, but also the bodily injury that

resulted from his conduct.

                The record. As discussed below, sufficient evidence supports the jury’s finding.

                Arguments of counsel. The State did not argue that it had to prove only that Zuliani

intended to push Dwinell. Rather, the State argued that Zuliani intentionally, knowingly, or recklessly

caused Dwinell’s bodily injury.

                Because the application paragraph correctly charged the jury on the culpable mental

state, the evidence supported a finding of the applicable mental state, and the arguments of counsel

tracked the correct formulation in the application paragraph, we conclude that Zuliani was not

harmed by the incorrect definition. We overrule point three.

                By point of error four, Zuliani complains that the court improperly charged the jury

on his right to act in self-defense. The penal code provides that “a person is justified in using force

against another when and to the degree he reasonably believes the force is immediately necessary to

protect himself against the other’s use or attempted use of unlawful force.” Tex. Penal Code Ann.

§ 9.31 (West Supp. 2001). Zuliani contends that, in the charge, the court erroneously predicated his

right to act in self-defense on a reasonable belief that Dwinell’s use or attempted use of unlawful force

would cause him bodily injury. The court charged the jury as follows:



                                                   6
       Upon the law of self-defense, you are instructed that a person is justified in using
       force against another when and to the degree he reasonably believes the force is
       immediately necessary to protect himself against the other person’s use or attempted
       use of unlawful force. A person is under no obligation to retreat to avoid the
       necessity of repelling or defending, with force less than deadly, against an attack or
       threatened attack.

       When a person is attacked with unlawful force, or he reasonably believes he is under
       attack with unlawful force, and there is created in the mind of such person a
       reasonable expectation or fear of some bodily injury, then the law excuses or justifies
       such person in resorting to force to the degree that he reasonably believes is
       immediately necessary, viewed from his standpoint at the time, to protect himself from
       attack or attempted attack. It is not necessary that there be an actual attack or
       attempted attack, as a person has a right to defend his person from apparent danger
       as fully and to the same extent as he would had the danger been real provided that he
       acted upon a reasonable apprehension of danger, as it appeared to him from his
       standpoint at the time, and that he reasonably believed such force was immediately
       necessary to protect himself against the other person’s use or attempted use of
       unlawful force.

        By the term “reasonable belief” as used herein is meant a belief that would be held by
        an ordinary and prudent person in the same circumstances as defendant.

        Now, if you find from the evidence beyond a reasonable doubt that on the occasion
        in question the defendant did push the complainant, PATTI DWINELL, but you
        further find from the evidence, or you have a reasonable doubt thereof, that viewed
        from the standpoint of the defendant at the time, from the words or conduct, or both,
        of PATTI DWINELL it reasonably appeared to the defendant that his person was in
        danger of bodily injury and there was created in his mind a reasonable expectation
        or fear of bodily injury from the use of unlawful force at the hands of PATTI
        DWINELL, and that acting under such apprehension and reasonably believing that the
        use of force on his part was immediately necessary to protect himself against PATTI
        DWINELL’S use or attempted use of unlawful force, the defendant did push PATTI
        DWINELL to defend himself, then you will acquit the defendant or, if you have a
        reasonable doubt as to whether or not the defendant was acting in self-defense on said
        occasion and under said circumstances, then you should give the defendant the benefit
        of that doubt and say by your verdict not guilty.


(Italics added.) Zuliani objected to the inclusion of the italicized language in the first paragraph and

suggested the court say instead “when there is created in the mind of such person a reasonable

                                                   7
expectation that another is using or attempting to use unlawful force against him.” Zuliani

complained that the “fear of bodily injury” language imposed an element not required by the statute.

Zuliani objected to similar defects in the application (fourth) paragraph. He requested that the court

“substitute for the current application paragraph, the application paragraph that we have submitted

in our defendant’s requested instruction number one, so that it is made clear to the jury that the

defendant would have the right to act in self-defense, if he pushed Patti Dwinell to prevent her from

hitting, slapping, or pushing him. As oppose[d] to having to believe that her conduct was in fact

going to cause him bodily injury.”1 The court overruled Zuliani’s objections and declined to give his

requested instructions.

                The State contends that the “fear of bodily injury” language does not create an

additional required source for his fear, but instead sets the standard for the reasonableness of the force

he used in response to his fear.

                We conclude, based on the record, that the trial court’s instruction did not harm

Zuliani. The self-defense statute does not require that the defendant fear bodily injury; indeed, it does

not mention bodily injury at all. See Tex. Penal Code Ann. § 9.31. The court’s instruction would be

harmful if the evidence permitted a finding that Zuliani feared Dwinell’s use of unlawful force, but

did not fear that she would cause him bodily injury. The trial court defined bodily injury as “physical




   1
     The requested application paragraph is not in the appellate record. The county clerk’s office
has no record of Zuliani filing requested instructions with the county court. The State notes the
absence of the instruction from the record, and Zuliani does not rebut that notation. The State does
not assert, however, that Zuliani waived this error by failing to file the requested paragraph with the
court. We conclude that his objection, coupled with the requested first paragraph quoted above
(included in the reporter’s record), was sufficiently specific to apprise the court of his objection.

                                                    8
pain, illness, or any impairment of physical condition.” The only evidence that Dwinell used unlawful

force was that she slapped Zuliani twice. Thus the instruction would be harmful to Zuliani if the jury

believed that Dwinell slapped him but did not believe that he reasonably feared that she would cause

him physical pain. Zuliani argues that Dwinell’s weakness from her medical treatments created just

such a situation; he contends that her actions could be an offensive or provocative touching, within

the definition of assault, 2 without causing fear of bodily injury. We conclude, however, that no

evidence supports Zuliani’s theory. The threshold for “bodily injury”—physical pain—is low; no

rational jury could believe the evidence that Dwinell slapped him, hit him, or pushed him down

without also finding that she caused him at least physical pain. On these facts, the error in the

instruction did not harm him and we overrule point of error four.

               Zuliani complains by point of error five that the trial court erred by including in its

charge an instruction on voluntary intoxication. The court instructed the jury that, “[v]oluntary

intoxication does not constitute a defense to the commission of crime. For purposes of this section,

‘intoxication’ means disturbance of mental or physical capacity resulting from the introduction of any

substance into the body.” These sentences track the language in Texas Penal Code section 8.04,

subsections (a) and (d). Zuliani objected, contending that the jury would consider the instruction a



  2
     The statute defines three modes of assault: (1) intentionally, knowingly, or recklessly causing
bodily injury, (2) intentionally or knowingly threatening with imminent bodily injury, or (3)
intentionally or knowingly causing physical contact with another when the actor knows or should
reasonably believe that the other will regard the contact as offensive or provocative. See Tex.
Penal Code Ann. § 22.01(a) (West Supp. 2001). All three assaultive actions are, by definition,
unlawful force, but only the first two mention bodily injury or implied fear of bodily injury. The
trial court’s instruction would allow Zuliani to defend himself lawfully only from the first two
types of assault.

                                                  9
comment on the weight of the evidence. He also complained that, though there was evidence he had

been drinking, there was no evidence that he was intoxicated. He complained finally that he had not

suggested to the jury that he should be acquitted because he was intoxicated.

               We find no harmful error in the giving of this instruction. Even if the defendant is not

relying on intoxication as an excuse for committing the offense, giving the instruction is appropriate

if there is evidence that might lead a jury to conclude that the defendant’s intoxication excused his

actions. See Taylor v. State, 885 S.W.2d 154, 157 (Tex. Crim. App. 1994). The court’s statement

of the applicable law was not a comment on the weight of the evidence. At worst, the instruction was

superfluous. If Zuliani was not intoxicated and did not use intoxication as a defense, then the jury

could simply ignore the instruction; if the jury believed he was intoxicated, the instruction correctly

guided them to ignore the intoxication. Finding no error, we overrule point five.

               By point of error one, Zuliani contends that the evidence is factually insufficient to

support the judgment. We consider all the evidence in a neutral light and can set aside the jury’s

verdict if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and

unjust. See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d

126, 129 (Tex. Crim. App. 1996). We must avoid substituting our judgment for that of the jury; we

should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility

given to witness testimony. Johnson, 23 S.W.3d at 7 (citing Jones v. State, 944 S.W.2d 642, 648

(Tex. Crim. App. 1996)). Zuliani contends that the evidence was overwhelming that he was

defending himself from Dwinell’s attacks.




                                                  10
                Zuliani points to the direct testimony supporting his theory. Dwinell herself testified

that Zuliani put his arm out and pushed her away defensively as she swung at him. A sheriff’s deputy

testified that Zuliani told him substantially the same story on the night of the incident.

                Zuliani downplays Tobey’s testimony that, on the night after the incident, Dwinell

painted Zuliani as the aggressor. He attacks this lone shred of evidence as second-hand, unreliable

because the effects of Dwinell’s surgery and the cold temperatures outside the house made Dwinell

very tired, lethargic, and slow-thinking. He asserts that Dwinell’s remarks on the night after the

incident were self-serving, omitting her role as aggressor to avoid arrest. He points out that Dwinell’s

testimony left room for the possibility that Zuliani was acting in self-defense. He argues that the

statement she gave law enforcement shortly after the incident (which resembled Tobey’s testimony

at trial) actually undercuts Tobey’s testimony because it likewise omits Dwinell’s aggressive acts.3

                The jury also heard Dwinell’s testimony regarding the nature of their relationship.

There were other violent incidents between them. She tried to leave him before and after the incident,

but continued to stay with him because she loved him. She wanted the charges dismissed.

               The jury had to make a credibility choice between Dwinell’s live testimony and her

reported statements made just after the incident. They could weigh Dwinell’s credibility against that

of those reporting her statements. Was she bending the truth in court to keep the relationship

together, to keep Zuliani out of jail, and to avoid Zuliani’s revenge when released from jail, or was

she bending it the day after the incident to keep herself out of jail and to punish Zuliani? We conclude




   3
      The statement was admitted for purposes of impeaching Dwinell’s trial testimony and not for
the truth of the matters contained within it.

                                                  11
that the jury’s resolution of these credibility decisions in favor of Zuliani’s guilt is not manifestly

unjust.

               Because the jury’s verdict is not so contrary to the overwhelming weight of the

evidence as to be clearly wrong and unjust, we overrule point one.


                                          CONCLUSION

               Having overruled all of Zuliani’s asserted errors, we affirm the judgment.




                                               Bea Ann Smith, Justice

Before Justices Kidd, B. A. Smith and Puryear

Affirmed

Filed: May 31, 2001

Publish




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