Vital Garcia v. the State of Texas ( 2023 )

Affirmed and Memorandum Opinion filed August 10, 2023.
In The
Fourteenth Court of Appeals
NO. 14-19-00086-CR
VITAL GARCIA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Cause No. 1533080
MEMORANDUM OPINION
This is an opinion on remand from the Texas Court of Criminal Appeals.
Appellant Vital Garcia has appealed his conviction for first degree aggravated
assault on a family member resulting in serious bodily injury. A jury convicted
appellant, and the trial court assessed his punishment at 35 years in prison. In two
issues, appellant contended that (1) the evidence was insufficient to establish that
the complainant suffered serious bodily injury or that she was appellant’s family
member, and (2) the trial court erred in refusing to submit a jury instruction on the
lesser included offense of second-degree aggravated assault.
In the original opinion, the majority held that the evidence was insufficient
to establish the complainant suffered serious bodily injury. The Court of Criminal
Appeals reversed, holding that the evidence was in fact sufficient to support that
finding. Garcia v. State, 667 S.W.3d 756, 765–66 (Tex. Crim. App. 2023). The
Court then remanded the case to this court for consideration of the remaining
issues, i.e., whether the evidence was sufficient to prove the complainant was
appellant’s family member and whether the trial court erred in refusing to submit a
jury instruction on a lesser included offense. Id. We now affirm the trial court’s
judgment.
Background1
The complainant testified that she was in a dating relationship with
appellant. She was 19 when they met, and appellant was “way older.” She said that
they were together “[n]o more than a year” and although the relationship was
“somewhat” good at the beginning, “it wasn’t such a great relationship.” They
lived in two consecutive apartments together. Appellant became physically and
verbally abusive when they moved into the second apartment. Complainant said
that appellant carried a .40 caliber gun with him “24/7” and threatened to kill her if
she cheated on him.
On cross-examination, complainant confirmed that she and appellant were a
couple, “did the normal couple things,” and “had relations.” She did not work
during their relationship but stayed home and took care of the apartment. Appellant
“[m]ade pretty good money” and shared it with complainant. Both of them were on
the lease agreement. Appellant paid for the apartment, food, utilities, and
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We limit our recitation of the facts in this case to those pertaining to the issues before
us. For the facts regarding the assault, please refer to the Court of Criminal Appeals opinion.
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complainant’s car. She said that they were “boyfriend and girlfriend” for a little
less than a year. She inconsistently stated that they had lived together at the first
apartment for two to three months or five to six months and stated that they had
only lived at the second apartment for less than two weeks when appellant shot her.
Complainant said that she lived with appellant voluntarily.
On re-direct, complainant stated that she was not in love with appellant and
did not have strong feelings for him but stayed with him for financial support. She
also said that she had wanted to leave him but was afraid of him. Complainant’s
medical records, which were also admitted as evidence, reflect that complainant
reported it was her “significant other” that shot her.
Family Member
In his first issue, appellant asserts that there was insufficient evidence to
support the jury’s finding that complainant was a family member of appellant at
the time of the alleged assault. In assessing the sufficiency of the evidence to
support a conviction, we must consider all the evidence in the light most favorable
to the verdict and determine whether, based on that evidence and reasonable
inferences therefrom, a rational trier of fact could have found the challenged
element or elements of the crime beyond a reasonable doubt. See Whatley v. State,
445 S.W.3d 159, 166 (Tex. Crim. App. 2014); see also Jackson v. Virginia, 443
U.S. 307, 318–19 (1979). In reviewing historical facts that support conflicting
inferences, we presume that the jury resolved any conflicts in the State’s favor and
defer to that resolution. Whatley, 445 S.W.3d at 166. We do not sit as a thirteenth
juror and may not substitute our judgment for that of the factfinder by reevaluating
the weight and credibility of the evidence. Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). As judge of the credibility of the witnesses, a jury may
choose to believe all, some, or none of the testimony presented. Cain v. State, 958
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S.W.2d 404, 407 n.5 (Tex. Crim. App. 1997).
Among the possibilities Penal Code section 22.02(b)(1) provides for who
can be considered a family member is people in a “dating relationship,” as that
term is defined by Texas Family Code section 71.0021(b). Section 71.0021(b)
provides that
(b) For purposes of this title, “dating relationship” means a
relationship between individuals who have or have had a continuing
relationship of a romantic or intimate nature. The existence of such a
relationship shall be determined based on consideration of:
(1) the length of the relationship;
(2) the nature of the relationship; and
(3) the frequency and type of interaction between the persons involved
in the relationship.
As the Court of Criminal Appeals has emphasized, the listed factors “are not
standalone elements of the offense which the prosecution must prove beyond a
reasonable doubt. Instead, they are guideposts for the jury to weigh in evaluating
whether the broader definition in Subsection (b)—a ‘continuing relationship of a
romantic or intimate nature’—is met.” Edward v. State, 635 S.W.3d 649, 657 (Tex.
Crim. App. 2021). Family Code section 71.0021(c) further explains that “[a] casual
acquaintanceship or ordinary fraternization in a business or social context does not
constitute a ‘dating relationship’ under Subsection (b).”
As set out above, complainant testified that she and appellant were boyfriend
and girlfriend, were a couple, had been together a little less than a year, and had
lived in two consecutive apartments together over several months. She said that
they “did the normal couple things” and “had relations.” Appellant shared his
money with complainant and paid for food and utilities and complainant’s car. The
police reported that complainant called appellant her boyfriend, and her medical
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records showed that it was her “significant other” who had shot her.
Complainant also testified, however, that while the relationship was
“somewhat” good at the beginning, “it wasn’t such a great relationship.” Appellant
had become abusive after they moved to their second apartment, and complainant
said that she was not in love with appellant and did not have strong feelings for
him. She said that she stayed with him voluntarily for financial support but also
that she had wanted to leave him but was afraid of him.
Appellant argues that complainant’s statements that she did not love
appellant and stayed with him for the money suggests that they were not, and had
not been, in “a continuing relationship of a romantic or intimate nature.” Appellant
cites no authority that supports reading the statute as requiring love or other strong
emotional bonds for the existence of a “dating relationship.”
The statute defines a “dating relationship” as “a continuing relationship of a
romantic or intimate nature,” and it requires consideration of the nature and length
of the relationship as well as the frequency and type of interaction. See Tex. Fam.
Code § 71.0021(b). The jury could have reasonably concluded based on the
evidence presented—particularly that appellant and complaint were boyfriend and
girlfriend, had been together and lived together for months, “did the normal couple
things,” and “had relations”—that complainant and appellant were in a dating
relationship, regardless of the fact that there may have been a financial component
behind why complainant continued to stay with appellant. See, e.g., Leach v. State,
No. 03-13-00784-CR, 2015 WL 8607060, at *7 (Tex. App.—Austin Dec. 9, 2015,
no pet.) (mem. op., not designated for publication) (holding evidence defendant
and complainant were “boyfriend and girlfriend,” lived together as a couple, shared
their daily routines, slept in the same bed, and engaged in sexual activities was
sufficient to demonstrate that they were in a dating relationship); Hill v. State, No.
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01-10-00926-CR, 2012 WL 983338, at *3 (Tex. App.—Houston [1st Dist.] Mar.
22, 2012, no pet.) (mem. op., not designated for publication) (holding evidence
was sufficient where complainant referred to the defendant as her “boyfriend” and
reported to the police that they had been together “relationally” and complainant
and defendant had previously lived together). Accordingly, we find no merit in
appellant’s second argument under issue one and overrule that issue.
Jury Instruction
In his second issue, appellant contends that the trial court erred in refusing to
instruct the jury on the lesser included offense of second-degree aggravated
assault. Under this issue, appellant again argues that the evidence suggested
appellant and complainant were not in a dating relationship, one of the elements
that elevated the alleged aggravated assault in this case to a first-degree felony.
To determine whether a lesser included offense instruction should have been
given, we first analyze whether the elements of the lesser included offense are
included within the proof necessary to establish the elements of the charged
offense and then whether there is evidence in the record that could allow a jury to
find the defendant guilty of only the lesser included offense. See State v. Meru, 414
S.W.3d 159, 161 (Tex. Crim. App. 2013). Under the second prong, the defendant is
entitled to an instruction on the lesser included offense when some evidence in the
record would permit a jury rationally to find that if the defendant is guilty, he is
guilty only of the lesser included offense. Hall v. State, 225 S.W.3d 524, 536 (Tex.
Crim. App. 2007). Although anything more than a scintilla of evidence may be
sufficient to entitle a defendant to a lesser included offense instruction, the
evidence must establish the lesser included offense as a valid, rational alternative
to the charged offense. Id. It is not enough that the jury may disbelieve crucial
evidence pertaining to the greater offense. Skinner v. State, 956 S.W.2d 532, 543
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(Tex. Crim. App. 1997). Rather, there must be some evidence directly germane to
a lesser included offense for the factfinder to consider before an instruction on a
lesser included offense is warranted. Id.As to the first prong, the State concedes that second-degree aggravated
assault is a lesser included offense of first-degree aggravated assault in this case
because it is established by proof of less than all of the same elements. Compare
Tex. Penal Code § 22.02(b) and § 22.02(b)(1). See generally Brown v. State, No.
12-22-00074-CR, 2023 WL 2533193, at *6 (Tex. App.—Tyler Mar. 15, 2023, pet.
ref’d) (mem. op., not designated for publication). Regarding the second prong,
appellant again argues that complainant’s testimony that she did not love appellant
and only continued to stay with him for financial support was evidence that they
were not in a dating relationship. A dating relationship is a required element for
first degree aggravated assault as charged but not for second degree aggravated
assault. Appellant, however, still does not offer any authority that supports reading
the governing statutes as requiring love or other strong emotional bonds for the
existence of a “dating relationship.” See Tex. Fam. Code § 71.0021(b); Tex. Penal
Code § 22.02(b)(1). As explained above, there is no such requirement in the
statutes. Accordingly, the cited testimony did not establish second-degree
aggravated assault as a valid, rational alternative to the charged offense of first-
degree aggravated assault. See Hall, 225 S.W.3d at 536. We overrule appellant’s
second issue.
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Conclusion
Having overruled appellant’s two issues, we affirm the trial court’s
judgment.
_/s/ Frances Bourliot__________
Frances Bourliot
Justice
Panel consists of Justices Bourliot, Hassan, and Poissant.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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