Opinion filed December 16, 2010




                                            In The


   Eleventh Court of Appeals
                                          __________

                                   No. 11-09-00037-CR
                                       __________

                      PERRY MONTEZ JOHNSON, Appellant

                                               V.

                              STATE OF TEXAS, Appellee


                 On Appeal from the County Criminal District Court No. 2

                                    Tarrant County, Texas

                               Trial Court Cause No. 1131094R


                           MEMORANDUM OPINION

       The jury convicted Perry Montez Johnson of aggravated assault causing bodily injury.
The trial court assessed his punishment at confinement in the Institutional Division of the Texas
Department of Criminal Justice for a term of fifteen years. Appellant challenges his conviction
in three issues. We modify and affirm.
                                         Background Facts
       Appellant was charged by three counts in the indictment with assaulting Simeauli Tia’i.
He was charged in Count One with intentionally or knowingly causing serious bodily injury to a
disabled individual by hitting Tia’i with his hand or by twisting her arm with his hand, a first
degree felony. TEX. PENAL CODE ANN. § 22.04(a)(1), (e) (Vernon Supp. 2010). In Count Two,
he was charged with intentionally or knowingly causing serious bodily injury to Tia’i by hitting
her with his hand or by twisting her arm with his hand, a second degree felony. TEX. PENAL
CODE ANN. § 22.02(a)(1), (b) (Vernon Supp. 2010). He was charged in Count Three with
intentionally or knowingly causing bodily injury to Tia’i, a disabled individual, by choking her
with his hand, by hitting her with his hand, or by twisting her arm with his hand, a third degree
felony. TEX. PENAL CODE ANN. § 22.04(a)(3), (f) (Vernon Supp. 2010).
          The jury acquitted appellant of the first degree felony alleged in Count One but convicted
him of the second degree felony alleged in Count Two. With respect to the third count, the jury
only found appellant guilty of the lesser included offense of assault causing bodily injury, a
Class A misdemeanor. TEX. PENAL CODE ANN. § 22.01(a)(1), (b) (Vernon Supp. 2010). After
the trial court received the jury’s verdict on guilt/innocence, the State announced in open court
that it would waive any further proceedings on Count Three based upon its belief that the lesser
included offense found by the jury also constituted a lesser included offense of the offense
alleged in Count Two. The trial court accepted the State’s waiver on Count Three and proceeded
to punishment only on Count Two.
          Tia’i is from American Samoa. She was twenty-four years old at the time of trial in
2008. She moved to Texas in 2003 from American Samoa to live with her older sister, Mafatu
Moi, after their mother died. Tia’i resided with Moi at her apartment located at the Parkside
Townhomes in Arlington. Dr. Helen Ferguson, a psychologist with MHMR of Tarrant County,
testified that Tia’i is mildly mentally retarded based upon her IQ score of 67. Moi testified that
Tia’i’s native language is Samoan.
          Tia’i identified appellant at trial as her attacker. She testified that she only knew him by
the name ―Midas.‖ She met him one day in the parking lot of the apartment complex when he
was working on his car as she was walking by. Tia’i testified that appellant offered to be her
―secret friend‖ during this initial meeting after he learned that she was single. He also showed
her where he lived in the complex. Tia’i subsequently went to appellant’s apartment on multiple
occasions to visit him. She testified that they engaged in sexual activity during these visits.
During one of these visits, appellant told Tia’i that he was behind on his rent. In response to his
request for financial assistance, Tia’i discussed asking for financial help for appellant from her
church.

                                                   2
        Tia’i ultimately decided not to ask her church for financial assistance for appellant. On
the morning of Sunday, November 19, 2006, Tia’i went to appellant’s apartment to tell him that
she would not be able to help him with his finances. In this regard, Tia’i testified that appellant
told her that this was the last day for him to raise the money that he needed in order to avoid
eviction. Tia’i testified that appellant became angry with her when she told him that she would
not be able to help him raise the funds and that he called her a ―liar‖ and a ―bitch.‖ He then
grabbed her by the neck with both of his hands and choked her. Appellant subsequently threw
Tia’i against a wall, causing her to fall on the floor on top of her left arm. She testified that her
left arm began to hurt ―pretty bad‖ at this point and that she believed it was broken. Appellant
subsequently permitted Tia’i to leave his apartment after she promised to not tell her sister about
the attack and to provide appellant with the money that he was seeking. The orthopedic surgeon
that treated Tia’i testified that she suffered a fractured humerus bone in her left arm that he
characterized as a serious bodily injury because she suffered a loss of function over a protracted
period of time with a possibility that the loss of function would be indefinite.
        Wendy Haines was the manager of Parkside Townhomes in November 2006.                      She
testified that appellant had resided in apartment no. 2003 since November 2005. This is the same
apartment that Tia’i identified as the apartment where ―Midas‖ lived.              Haines stated that
appellant became delinquent on his rent in October 2006. She filed eviction proceedings against
him on October 27, 2006, and she obtained an order for eviction on November 6, 2006. She
obtained a writ of eviction on November 20, 2006, (the day following the assault) which the
constable’s office enforced on November 22, 2006, by supervising the removal of appellant’s
furniture from the apartment.
                              Variance Between Indictment and Proof
        Appellant asserts in his third issue that the evidence was legally insufficient to support his
conviction because the evidence offered at trial varied from the facts alleged in the indictment.
Specifically, Count Two of the indictment alleged that he caused serious bodily injury to Tia’i by
hitting her with his hand or by twisting her arm with his hand. Appellant directs our attention to
the evidence that Tia’i’s arm was broken as a result of being thrown against a wall and falling to
the floor.
        When a defendant bases a legal sufficiency challenge on an alleged variance between the
allegation in a charging instrument and the proof at trial, we evaluate the evidence against the

                                                  3
elements of the offense as defined by the hypothetically correct jury charge for the case.
Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002); Gollihar v. State, 46 S.W.3d 243,
255-56 (Tex. Crim. App. 2001); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
A variance between the charging instrument and the proof at trial will only result in legally
insufficient evidence when the variance is a material variance. Fuller, 73 S.W.3d at 253;
Gollihar, 46 S.W.3d at 257. A variance will be construed to be a material variance when the
variance deprives the defendant of notice of the charges or when the variance subjects the
defendant to the risk of later being prosecuted for the same offense. Fuller, 73 S.W.3d at 253;
Gollihar, 46 S.W.3d at 257.
       The State has cited Matthews v. State, No. 07-07-0482-CR, 2008 WL 4889991 (Tex.
App.—Amarillo Nov. 13, 2008, no pet.) (mem. op., not designated for publication), as a case
involving a similar variance. The indictment in Matthews charged the defendant with assault by
grabbing the victim’s arm and twisting it and by grabbing her by the throat. Id. at *2. The
evidence indicated that the defendant injured the victim by grabbing her around the ribs while
holding her arms down and squeezing very tightly. Id. The court determined that this variance
did not constitute a material variance under Fuller and Gollihar. It based its determination on
the substantive elements of assault – that the defendant intentionally, knowingly, or recklessly
caused bodily injury to another. Id. at *3. The court held as follows:
       The fact that the State alleged a factual method of appellant’s causing the pain
       that was at odds with the proof at trial does not create a material variance. The
       culpable conduct was alleged in a manner to give appellant notice of the crime he
       was called upon to defend, an assault of the named victim on the alleged date in
       question. Further, appellant has never claimed that he did not know that he was
       defending himself against a charge of assault nor has he ever claimed surprise at
       the proof or allegations. Finally, since the entire record is reviewed in the case of
       a claim of double jeopardy, in the event of subsequent prosecution, appellant is
       not endangered of subsequent prosecution for the same culpable conduct. See
       United States v. Apodaca, 843 F.2d 421, 430 n. 3 (10th Cir.), cert. denied, 488
       U.S. 932, 109 S.Ct. 325, 102 L.Ed.2d 342 (1988).

Id.
       We conclude that the court correctly analyzed the variance in Matthews under the
holdings in Fuller and Gollihar. The circumstances in Matthews are analogous to the variance in
this appeal. Count Two of the indictment charged appellant with the substantive elements of
intentionally or knowingly causing serious bodily injury to Tia’i. The indictment sufficiently

                                                4
informed appellant of the charges to allow him to prepare an adequate defense and to defeat an
attempt to subsequently prosecute him for the same offense. The variance at issue is not material
because it only concerned the method by which appellant caused the serious bodily injury.
Appellant’s third issue is overruled.
                                        In-Court Identification
       Appellant asserts in his first issue that the trial court erred in overruling his motion to
suppress Tia’i’s in-court identification of him as her attacker based upon an impermissibly
suggestive pretrial photo lineup. The trial court conducted a pretrial hearing on appellant’s
motion. Detective Becky Szatkowski of the Arlington Police Department testified that Tia’i
initially provided her with the attacker’s nickname and apartment number. Detective Szatkowski
then contacted the apartment manger to find out his actual name. She prepared a photo lineup
containing appellant’s Texas identification photo for Tia’i to review. Detective Szatkowski
testified that she showed Tia’i the group of photos that she had assembled and asked Tia’i if she
recognized anyone in the photos. Tia’i immediately identified appellant’s photo as being a photo
of the person she knew as ―Midas‖ that broke her arm.
       Tia’i appeared at times to give a different version of the manner in which Detective
Szatkowski conducted the photo lineup. In this regard, she gave the following answers when
questioned about the photo lineup:
       Q.      Did the detective tell you which person did that to you?

       A.      Yes, ma’am.

       Q.      How did – how did the detective tell you – did she tell you what picture to
               point to?

       A.      Yes.

       Q.      How did she tell you what picture to point to?

       A.      She was asking me, can you show me any of these pictures, um, that you
               can see, Midas in this pictures.

       Q.      Did she tell you which picture was Midas?

       A.      Yes.

       Q.      How did she tell – did you tell her what picture was Midas?

                                                  5
A.   She was asking me. Show – she wanted me to just point my finger and if
     any of the pictures was lineup – if I remember – if I recognize how Midas
     looked like.

     ....

Q.   Did the detective tell you what picture she wanted you to point at?

A.   Yes.

Q.   And what picture did she tell you to point at?

A.   A picture of Midas.

Q.   Okay. Did she tell you which one was Midas?

A.   Yes.

Q.   How did she tell you which one was Midas?

A.   She say can you show me where Midas [is] in this pictures.

Q.   Okay.

A.   So I went ahead and showed it to her.

Q.   Okay. Before you told her which picture belonged to Midas, did she tell
     you which picture belonged to Midas?

A.   Yes.

O.   Okay. If she told you what picture belonged to Midas, why did you have
     to tell her?

A.   I’m confusing.

     ....

Q.   Okay. When the detective showed you the pictures, did she say I’m
     pointing to Midas, pick out Midas?

A.   No, that’s not the way she – let me show her how Midas looked like.

Q.   Okay. So when she brought you the pictures – did they look like this
     when she brought them to you?

A.   Yes.
                                      6
       Q.     What did she tell you?

       A.     For example, like you’re my detective and I’m here and then you show me
              the pictures of all these mens, so. And then you ask me can you show me
              Midas in this pictures. So I went ahead and point finger right here and I
              told her.

       Q.     And when she showed it to you, did she use her finger and say pick him or
              pick him or pick him?

       A.     No.

       Q.     Okay. So did she tell you which picture belonged to Midas?

       A.     Yes, ma’am.

       Q.     Okay. How did she tell you which picture belonged to Midas? Did she
              tell you which picture belonged to Midas or did you tell her which picture
              belonged to Midas?

       A.     I’m the one who told her.

       Q.     You told her who Midas was?

       A.     Yes.

       Q.     Did she tell you who Midas was?

       A.     She didn’t tell me who Midas was.

Appellant contends that the photo lineup was impermissibly suggestive based upon Tia’i’s earlier
responses that seemed to indicate that Detective Szatkowski told her at the outset which photo to
select in the photo lineup. We disagree.
       The question of whether a pretrial photo identification procedure was so impermissibly
suggestive that it may have tainted an in-court identification is reviewed de novo. Gamboa v.
State, 296 S.W.3d 574, 581 (Tex. Crim. App. 2009).            We consider the totality of the
circumstances in making this determination. Id. We apply a two-step inquiry: (1) whether the
pretrial identification procedure was impermissibly suggestive and, if so, (2) whether the
impermissibly suggestive procedure gave rise to a substantial likelihood of irreparable



                                               7
misidentification at trial. Simmons v. United States, 390 U.S. 377, 384 (1968); Barley v. State,
906 S.W.2d 27, 32-33 (Tex. Crim. App. 1995).
       A defendant bears the burden of establishing by clear and convincing evidence that the
pretrial identification procedure was impermissibly suggestive. Barley, 906 S.W.2d at 33-34.
When the trial court does not make express findings of fact and conclusions of law, we assume
the court made implicit findings of fact in support of its ruling as long as such findings are
supported by the record. Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005).
Accordingly, we presume that the trial court determined that Detective Szatkowski did not
conduct the photo lineup in an impermissible manner. This determination rested upon the trial
court’s evaluation of the credibility of Detective Szatkowski and Tia’i. At a suppression hearing,
the trial court is the sole judge of the credibility of the witnesses and the weight to be given their
testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). As the sole judge of
the witnesses’ testimony, the trial court was free to resolve the inconsistencies in Tia’i’s
testimony in support of Detective Szatkowski’s version of the events. We note in this regard the
difficulties that Tia’i had in communicating in English, her second language. Accordingly, the
trial court did not err in determining that the pretrial identification procedure was not
impermissibly suggestive.
       Furthermore, the record does not show that the pretrial lineup gave rise to a substantial
likelihood that Tia’i misidentified appellant as her attacker at trial. Tia’i had visited appellant in
his apartment on multiple occasions prior to the assault.                  Their dealings with each other
progressed to the point of a sexual relationship. Accordingly, appellant knew who assaulted her;
she just did not know his actual name.                      The photo lineup simply served the purpose of
confirming appellant’s correct name. Appellant’s first issue is overruled.
                                                           Jury Note
       In his second issue, appellant contends that the trial court erred in its response to a note
from the jury requesting to have a witness’s testimony read back. The note from the jury stated
as follows:
                                                      Jury Note #2
       Some jury members remember hearing that Bob knocked on [appellant’s door] on
       the morning of November 19th. Other jury members do not believe this was said.
       Can we please see the testimony from [Moi]1 regarding this point? Thank You

       1
           As referenced earlier, Moi is Tia’i’s sister.
                                                              8
The trial court responded to the request in the following manner:
            In answer to your Jury Note Number 2, after having searched the Court
       Reporter’s notes, there was no testimony found regarding the area in dispute in
       [Moi’s] testimony. Please refer to the Charge of the Court, and continue your
       deliberations.

―Bob‖ is Moi’s boyfriend. Tia’i testified that Bob went to appellant’s apartment on the morning
of the assault and that ―[appellant] wasn’t there.‖ Moi, however, did not testify about Bob going
to appellant’s apartment. Accordingly, the trial court instructed the jury that there was no
testimony from Moi about Bob going to appellant’s apartment. Appellant contends that the trial
court erred by not providing the jury with Tia’i’s testimony on this subject instead.
       TEX. CODE CRIM. PROC. ANN. art. 36.28 (Vernon 2006) provides:
               In the trial of a criminal case in a court of record, if the jury disagree as
       to the statement of any witness they may, upon applying to the court, have read
       to them from the court reporter’s notes that part of such witness testimony or the
       particular point in dispute, and no other.

When the jury asks that certain testimony be reread, the trial court must first determine if the
request is proper under Article 36.28. Howell v. State, 175 S.W.3d 786, 790 (Tex. Crim. App.
2005) (citing Moore v. State, 874 S.W.2d 671, 673 (Tex. Crim. App. 1994)). A request for
testimony is proper under Article 36.28 if it reflects that the jurors disagree about a specified part
of testimony. Id. If the request is proper, the trial court must interpret the communication,
decide which sections of the testimony will best answer the inquiry, and then limit the rereading
accordingly. Brown v. State, 870 S.W.2d 53, 55 (Tex. Crim. App. 1994). The trial court’s
decision will not be disturbed unless a clear abuse of discretion and harm are shown. Id.; see
also Howell, 175 S.W.3d at 790.
       The jury only requested that Moi’s testimony be read back. The trial court did not abuse
its discretion by not providing the jury with testimony from other witnesses when the jury
specifically limited its request to one witness’s testimony. When the jury requests the reading of
only a specific and limited portion of testimony, the trial court does not abuse its discretion by
providing only the requested information. See Robison v. State, 888 S.W.2d 473, 481 (Tex.
Crim. App. 1994); Jones v. State, 706 S.W.2d 664, 667 (Tex. Crim. App. 1986). The trial court
correctly informed the jury that Moi did not testify about the matter in disagreement. Had the



                                                  9
jury wanted to hear the testimony of additional witnesses on this question, it could have asked
the trial court in a subsequent jury note. Appellant’s second issue is overruled.
                             Clerical Error in Trial Court’s Judgment
       The trial court’s judgment states that the jury assessed appellant’s punishment. The
reporter’s record indicates that the trial court actually assessed appellant’s punishment. We
modify the trial court’s judgment to correct this clerical error.
                                        This Court’s Ruling
        The judgment of the trial court is modified to reflect that the trial court assessed
punishment. As modified, the judgment of the trial court is affirmed.




                                                               TERRY McCALL
                                                               JUSTICE


December 16, 2010
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




                                                  10
