Gerald Christopher Zuliani v. State

ACCEPTED
03-13-00493-CR
5686590
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/15/2015 9:56:08 PM
JEFFREY D. KYLE
CLERK
NO. 03-13-00493-CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
THIRD DISTRICT AUSTIN, TEXAS
AUSTIN, TEXAS 6/15/2015 9:56:08 PM
JEFFREY D. KYLE
GERALD CHRISTOPHER ZULIANI, Clerk
APPELLANT
VS.
THE STATE OF TEXAS,
APPELLEE
APPEAL FROM THE 167TH DISTRICT COURT
TRAVIS COUNTY, TEXAS
CAUSE NUMBER D-1-DC-13-900137
STATE’S MOTION FOR REHEARING
ROSEMARY LEHMBERG
DISTRICT ATTORNEY
M. SCOTT TALIAFERRO
TEXAS BAR NO. 00785584
ASSISTANT DISTRICT ATTORNEY
DIRECTOR, APPELLATE DIVISION
TRAVIS COUNTY DISTRICT ATTORNEY’S OFFICE
P.O. BOX 1748
AUSTIN, TEXAS 78767
PHONE: 512.854.3626 FAX: 512.854.4180
EMAIL: scott.taliaferro@traviscountytx.gov
AND AppellateTCDA@traviscountytx.gov
TABLE OF CONTENTS
FACTUAL AND PROCEDURAL BACKGROUND ..............................................2
THE STATE’S POINT OF ERROR .........................................................................4
THE COURT OF APPEALS MISAPPLIED THE JACKSON V. VIRGINIA STANDARD OF
REVIEW WHEN IT FOUND THE EVIDENCE LEGALLY INSUFFICIENT TO SUPPORT A
FINDING THAT THE APPELLANT ACTED WITH INTENT TO DEPRIVE THE VICTIM OF HER
CHECK. .....................................................................................................................4
1. The Court did not consider the evidence in the light most favorable to the
verdict……………………………………………………………….…………5
2. The Court appears not to have considered several inferences that support the
conclusion that the appellant facilitated his girlfriend’s withdrawal of the
funds……………………………………………………………………….…..8
a. The evidence supports an inference that the appellant was
accompanied by his girlfriend when he deposited the check………...…9
b. The evidence supports an inference that the appellant facilitated his
girlfriend’s withdrawals by providing his debit card to her………...…11
c. The records from the appellant’s other financial institution support an
inference that his girlfriend acted as his agent ………………………..14
d. The evidence supports an inference that the relationship between the
appellant and the victim was over and that the appellant had no
legitimate reason to deposit the check into the joint account……….…15
e. The evidence supports an inference that the appellant knew that he
needed the victim’s consent and that he was nevertheless acting without
it …………………………………………………………………….....16
i
PRAYER ..................................................................................................................17
CERTIFICATE OF COMPLIANCE .......................................................................18
CERTIFICATE OF SERVICE ................................................................................18
APPENDIX .............................................................................................................19
ii
NO. 03-13-00493-CR
IN THE COURT OF APPEALS
THIRD DISTRICT
AUSTIN, TEXAS
GERALD CHRISTOPHER ZULIANI,
APPELLANT
VS.
THE STATE OF TEXAS,
APPELLEE
APPEAL FROM THE 167TH DISTRICT COURT
TRAVIS COUNTY, TEXAS
CAUSE NUMBER D-1-DC-13-900137
STATE’S MOTION FOR REHEARING
TO THE HONORABLE COURT OF APPEALS:
The State of Texas, by and through the District Attorney for Travis County,
respectfully submits this motion for rehearing.
1
FACTUAL AND PROCEDURAL BACKGROUND
At the time of the events at issue here, Stephanie Running (“the victim”)
lived in a house that she owned, and she shared that home with the appellant, who
was her fiancé. Beginning on Sunday, October 21, 2012, the appellant engaged in
a series of violent acts toward the victim. See 12 RR 102. That conduct resulted in
four of the appellant’s five convictions—i.e., convictions for the offenses of
aggravated assault, aggravated kidnapping, assault with family violence, assault by
strangulation with family violence. Each of those convictions was affirmed by this
Court. See Zuliani v. State, Nos. 03-13-00490-CR, 03-13-00491-CR, 03-13-
00492-CR, 03-13-00493-CR, 03-13-00495-CR, 2015 Tex. App. LEXIS 5506 (Tex.
App.—Austin May 29, 2015) (not designated for publication). The Court’s
opinion is attached hereto as an appendix.
The jury also found the appellant guilty of theft, in relation to conduct that
occurred on Thursday, October 25, 2012, the day when the victim escaped from
the appellant and her home, which is where all of the physical abuse occurred. On
the day before that escape, the appellant went to the mailbox and obtained a check
that was payable to the victim. 12 RR 112-13. The $6,308.17 check, from Allstate
insurance company, compensated the victim for property losses that she had
previously sustained in connection with an automobile accident. See State’s Exh.
85 at 55.
2
When she fled from her home on the morning of Thursday, October 25, the
victim did not take her check with her; it remained inside of her house. 12 RR
132-33. Later that day, the appellant took the check and deposited it into a rarely-
used, joint savings account at Wells Fargo Bank. He did so without the victim’s
consent. 12 RR 133. The check had not been endorsed by the victim or by anyone
else. 12 RR 133; see State’s Exh. 85 at 55. One week after that deposit was made,
the appellant’s girlfriend, Glennis Richter, was added to the joint account without
the victim’s knowledge or consent. See 12 RR 140. The girlfriend then withdrew
all funds from the account.1
In his third point of error on direct appeal, the appellant challenged the
sufficiency of the evidence to support the conviction for theft. This Court reversed
the judgment of conviction for that offense and rendered a judgment of acquittal.
See id., slip op. at 27-30.
1
These facts will be addressed in more detail below.
3
THE STATE’S POINT OF ERROR
THE COURT OF APPEALS MISAPPLIED THE JACKSON V. VIRGINIA
STANDARD OF REVIEW WHEN IT FOUND THE EVIDENCE LEGALLY
INSUFFICIENT TO SUPPORT A FINDING THAT THE APPELLANT ACTED WITH
INTENT TO DEPRIVE THE VICTIM OF HER CHECK.
Argument and Authorities
When assessing the legal sufficiency of the evidence to support a conviction,
an appellate court is required to apply the Jackson v. Virginia standard. Under that
standard, the reviewing court must consider all of the evidence in the light most
favorable to the verdict and then determine whether, based on that evidence and
reasonable inferences therefrom, a rational juror could have found the essential
elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 43 U.S.
307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Clayton v. State, 235 S.W.3d 772,
778 (Tex. Crim. App. 2007).
In the instant case, the Austin Court of Appeals held that “there is
insufficient evidence to conclude that Zuliani authorized the addition of Richter to
the account.” Zuliani, slip op. at 30 (emphasis added). The State hereby asks this
Court to reconsider that determination. It appears that the Court did not consider
the evidence in the light most favorable to the verdict, as is required by Jackson. It
also appears that the Court did not consider several inferences that support the
conclusion that the appellant facilitated his girlfriend’s withdrawal of the funds.
4
1. The Court did not consider the evidence in the light most favorable to the
verdict.
Central to this Court’s conclusion was its evaluation of the Relationship
Change Application by which the appellant’s girlfriend gained access to the joint
account, which had previously been accessible only by the appellant and the
victim. Reasoning as follows, the Court concluded that the evidence was
insufficient to support an inference that the appellant authorized the addition of
Richter to the account:
The State emphasizes that Richter later withdrew all funds from
the account and argues that this is evidence that Zuliani was already
intending to withdraw the funds at the time he deposited the check. At
trial, the State called a bank investigator, who testified that on
November 1, about a week after Running escaped and Zuliani was
arrested, Zuliani added Richter to the joint account. The investigator
referenced State’s Exhibit 85 and stated that Zuliani’s signature
appeared on the signature card of the form adding Richter. However,
we have reviewed this exhibit, and we agree with Zuliani that
Zuliani’s signature does not appear anywhere on the form. Zuliani
points out that his name is written on the form in handwriting that is
completely different from his signature on other forms in the record.
We agree, but more importantly, none of the signatures on the form
adding Richter to the account even purport to be Zuliani’s. Instead, it
is evident from the face of the document that Richter herself signed
Zuliani’s name and then, in the same signature block, signed her own
name and indicated that she had power of attorney to sign for Zuliani.
Richter also signed her own name in Running’s signature block.
Therefore, only Richter’s signature appears on the form. Because the
State did not introduce any evidence that Zuliani had granted Richter
power of attorney or otherwise granted her authority to access funds
in the account, there is insufficient evidence to conclude that Zuliani
authorized the addition of Richter to the account.
5
Zuliani, slip op. at 29-30 (emphasis added).
The State respectfully asserts that this Court erred when it concluded that the
evidence is rendered insufficient in this regard by the State’s failure to “introduce
any evidence that Zuliani had granted Richter power of attorney or otherwise
granted her authority to access funds in the account.” Id. at 30. Here, the
Relationship Change Application, viewed in the light most favorable to the verdict,
is itself sufficient to support an inference that the appellant had granted Glennis
Richter power of attorney, i.e., the authority to execute that document on his
behalf. In two places on the document, Richter signed the appellant’s name and,
immediately below that signature, wrote the words, “Glennis K. Richter Power of
Attorney.” State’s Exh. 85 at 12, 13 (20 RR 523, 524) (emphasis added). See Tex.
Bus. & Com. Code § 3.402 (captioned Signature by Representative).
The circumstances surrounding Richter’s execution of that Relationship
Change Application provide further support for an inference that the appellant had
in fact granted Richter the authority to execute that document on his behalf. The
jury could reasonably have inferred from the document itself that the document
was executed at a major financial institution and in the presence of the Wells Fargo
banker named on the first page of that document (i.e., Ariel Barraza), and that
Wells Fargo Bank was satisfied that Richter did indeed have such authority.
6
When viewed in the requisite light, the representations in this document that
Richter had “power of attorney” should be taken at face value, even though those
representations were made by the person who ultimately drained the funds from
the account. Under the applicable standard of review, this Court cannot properly
impose upon the State a requirement that it present additional “evidence that
Zuliani had granted Richter power of attorney or otherwise granted her authority to
access funds in the account.” Zuliani, slip op. at 30. Under Jackson, the document
itself should suffice.2
2
The Court appears to have placed great weight on the bank investigator’s testimony regarding
the signatures that appear on the Relationship Change Application. The investigator, Robert
Fernandez, testified, inter alia, as follows:
Q. Okay. Again, referring to State's Exhibit 85, I want you to look at this page
here, Page 3 of 4. And after reading that, can you tell us who added Ms. Richter to
the account?
A. Gerald Zuliani did, added her.
Q. Okay. And what are we looking at, just for the record?
A. This is an account signature card.
Q. Besides Gerald Zuliani, are there any other signatures on this page?
A. There is a signature for Glennis Richter.
Q. Okay. So both Gerald Zuliani and Glennis Richter signed these pages -- or this
page; is that correct?
A. Yes, ma'am.
13 RR 225.
In this testimony, Fernandez makes two assertions, i.e., (a) that the appellant “added Ms.
Richter to the account” and (b) that “both Gerald Zuliani and Glennis Richter signed … this
page.” 13 RR 225. Even if the jury concluded (as this Court did) that the appellant did not
personally sign the document, the jury could still have found credible the investigator’s
testimony that the appellant “added her.” Id. This is especially true in light of the fact that the
jury might reasonably have inferred that the appellant “added her” by giving Richter the
authority to sign the document on his behalf. When performing its sufficiency analysis, this
Court is required to presume that the jury resolved any conflicting inferences in favor of the State
and defer to that resolution. See Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
7
2. The Court appears not to have considered several inferences that support
the conclusion that the appellant facilitated his girlfriend’s withdrawal of
the funds.
The record contains evidence suggesting that the appellant facilitated
Glennis Richter’s withdrawal of funds from the joint account. That evidence is
probative because it provides a basis upon which the jury could reasonably have
concluded that the appellant took and deposited that check with intent “to dispose
of property in a manner that makes recovery of the property by the owner
unlikely.”3 Tex. Penal Code § 31.01(2)(C). Before the appellant took that check
and deposited it, those funds were solely owned by Stephanie Running and
accessible only by her.4
3
Defining the offense of theft, Penal Code section 31.03 provides, inter alia, “A person commits
an offense if he unlawfully appropriates property with intent to deprive the owner of property.”
Tex. Pen. Code § 31.03(a) (emphasis added). In pertinent part, Penal Code section 31.01 defines
the term “deprive” as follows:
(2) "Deprive" means:
(A) to withhold property from the owner permanently or for so extended a
period of time that a major portion of the value or enjoyment of the property is
lost to the owner;
***
(C) to dispose of property in a manner that makes recovery of the property
by the owner unlikely.
Tex. Penal Code § 31.01(2)(A), (C). The appellant suggests that the resolution of his claim
should be resolved on the basis of the definition in subsection (2)(A). See Appellant’s Brief at
45. However, the definition in subsection (2)(C) should also be considered during this Court’s
analysis.
4
If the appellant, by depositing the check into the joint account, acquired an ownership interest
in the underlying funds, that fact should weigh heavily in favor a determination that he acted
with intent to deprive the victim of both the check and those funds. However, the extent to
which he obtained such an interest is not entirely clear. For example, it appears that, by
8
a. The evidence supports an inference that the appellant was
accompanied by his girlfriend when he deposited the check.
The appellant deposited the victim’s insurance check into the account via a
drive-through ATM at a Wells Fargo branch. To make the deposit, the appellant
used the Wells Fargo debit card that had been assigned to him. That debit card had
a card number ending in the digits 2614. 13 RR 220-21, 228. Surveillance photos
of that transaction show the appellant in the driver’s seat of a car. See State’s
Exhibits 87 and 88. Significantly, one such photo also reveals that the appellant
was accompanied by a woman. That woman, seated in the passenger seat of the
car, can be seen looking attentively in the direction of the ATM machine as the
appellant consummates the transaction. See State’s Exh. 87 .
The woman in the car with the appellant was not Stephanie Running, the
victim of these offenses. Compare State’s Exh. 87 with State’s Exhibits 8 and 83.
The record reflects that Ms. Running was at a hospital in Round Rock when the
depositing the check, the appellant acquired an interest in the funds sufficient to enable him to
pledge or transfer all such the funds to Wells Fargo Bank. See Tex. Fin. Code Ann. § 95.102.
On the other hand, some case law appears to suggest that, by making the deposit, the appellant
gained access to the underlying funds but may not actually have acquired any title in those funds.
See Hicks v. State, 419 S.W.3d 555, 558-59 (Tex. App.—Amarillo 2013) (“[A] party to a joint
account is entitled to lawfully draw monies from the account. That authority alone, however,
does not establish the party's ownership of the funds. Nor does it alone divest title to the funds
from the actual owner.”); see Bailey v. State, No. 03-02-00623-CR, 2003 Tex. App. LEXIS
10141, at *15 (Tex. App.—Austin December 4, 2003, pet. ref'd) (not designated for publication).
In the instant case, the offense of theft was predicated upon the appellant’s conduct in
taking and depositing the check, not upon the subsequent withdrawal of the funds from the
account. But for his act of depositing the check, the funds could not have been withdrawn by his
girlfriend.
9
appellant made that deposit. See 12 RR 128-29; see also State’s Exh. 26 (medical
records).
Instead, the evidence supports an inference that the woman accompanying
the appellant was his girlfriend, Glennis Richter. The woman seen in State’s
Exhibit 87 has the appearance of Glennis Richter. The jury received surveillance
photos showing Richter making two withdrawals from the joint account.5 See
State’s Exhibits 90 and 91. By comparing State’s Exhibit 87 (depicting the deposit
of the insurance check on October 25) with State’s Exhibit 90 (depicting Richter’s
withdrawal of $20.00 on November 1) and State’s Exhibit 91 (depicting Richter’s
November 6 withdrawal of $1,009.07), the jury could reasonably have concluded
that the same woman appears in all three photos and that Glennis Richter was
literally by the appellant’s side when he engaged in the conduct alleged in the
indictment.
Such a conclusion would also have been supported by the circumstances
surrounding the deposit, which suggest that the woman in the photo was a person
with whom the appellant shared a relationship of some sort. According to the
evidence presented at trial, the appellant did not have a vehicle of his own on the
day of the deposit. See, e.g., State’s Exh. 84 (where the appellant states, in
5
It is beyond dispute that Glennis Richter was the person who withdrew the funds from the
account. See App. Brief at 43, 47.
10
recorded phone message left for Ms. Running earlier that day, “I’m stuck here. I
got no way to get around.”)6 Yet State’s Exhibit 87 shows not only that the
appellant gained access to a car, but also that he was even allowed to drive that car.
Thus, the jury could reasonably have inferred that the car depicted in the bank’s
surveillance photos belonged to the woman in the passenger seat and that the
appellant’s relationship with the woman was one that enabled him to drive her car.
Such an inference would naturally buttress the conclusion that woman
accompanying the appellant when he deposited the $6,308.17 check was his
girlfriend, Glennis Richter.
b. The evidence supports an inference that the appellant facilitated his
girlfriend’s withdrawals by providing his debit card to her.
The Wells Fargo Bank debit card assigned to the appellant was used to
perform a number of the transactions at issue here. First, that card was utilized by
the appellant when he (accompanied by Glennis Richter) deposited the victim’s
insurance check. See 13 RR 220-21, 228; State’s Exhibits 87 and 88.
Next, that very same card was used by Glennis Richter on November 1, at
11:48 a.m., when she withdrew $20.00 from the joint account via an ATM
6
The record suggests that Stephanie Running, the victim, was not familiar with the vehicle the
appellant was driving when he deposited her check. She testified that she did not recognize the
car depicted in State’s Exhibit 86. That exhibit, however, was not offered into evidence. See 12
RR 198-99.
11
machine.7 See generally 13 RR 223, 232. As Wells Fargo Bank Investigator
Robert Fernandez testified, “Because these transactions were done at an ATM, an
ATM card had to be used. A customer will put the card in and from that transaction
an image or a photo is taken of that particular transaction which will include the
date, the time, and the last four numbers of the card used for that transaction.” 13
RR 219-20. A surveillance photo depicting the $20.00 withdrawal reflects that it
was performed with “Card Number XXXXXXXXXXXX2614.” State’s Exh. 90;
see State’s Exh. 85 at 47 (20 RR 558) (reflecting “ATM Withdrawal” and “2614”).
According to Fernandez, the Wells Fargo debit card ending in digits 2614 “was
assigned to Gerald Zuliani.” 13 RR 228. Richter’s use of that card on November
1—the very same day that Richter executed the Relationship Change Application
and represented that she had power of attorney—seems especially probative.
That same card was used again by Glennis Richter on November 5, 2012,
when she withdrew $300.00 from the joint account. See 13 RR 227-28; State’s
Exh. 85 at 47 (20 RR 558) (reflecting “ATM Withdrawal” and “2614”). The
testimony of Fernandez makes it clear that “the same card that was used on
October 25th to deposit the check is the same card that was used to withdraw $300
on November 5th.” 13 RR 228. Under the applicable standard of review, this
7
As was noted above, it is beyond dispute that Glennis Richter was the person who withdrew the
funds from the account. See App. Brief at 43, 47.
12
testimony should foreclose any notion that Richter may merely have used a
different card that had the same card number as the appellant’s card.
Viewed in the light most favorable to the verdict and in light of all of the
evidence presented to the jury, Glennis Richter’s use of the appellant’s debit card
supports an inference that she used it with his permission. Such an inference is
strengthened by the fact that Richter actually accompanied the appellant when he
used that same card to deposit the victim’s check into the account on October 25.
Indeed, the very nature of the relationship between the appellant and Richter has
probative value here. Glennis Richter was not a stranger to the appellant. Rather,
she was described at trial as his girlfriend. While the use of the appellant’s debit
card by a stranger might not give rise to an inference that the card was used with
his permission, such an inference is certainly reasonable where the person using
the card was a girlfriend who also signed a bank document indicating that she had
been given power of attorney.
Importantly, Richter’s access to the account via the appellant’s debit card
was completely independent of the access she obtained via the Relationship
Change Application at issue here. Even if it is assumed, arguendo, that “there is
insufficient evidence to conclude that Zuliani authorized the addition of Richter to
the account” (Zuliani, slip op. at 30), the evidence is nevertheless sufficient to
establish that the appellant permitted Richter to gain access to the account in
13
another way – i.e., through the use his debit card. In light of this evidence alone,
the Court should reconsider and correct its conclusion that “the State did not
introduce any evidence that Zuliani had … granted her authority to access funds in
the account.” Zuliani, slip op. at 30.
c. The records from the appellant’s other financial institution support an
inference that his girlfriend acted as his agent.
Wells Fargo Bank was not the only institution where the appellant kept
money. He also had accounts at the United Heritage Credit Union. Records from
that credit union reveal that Richter transacted business there for the appellant at
around the same time that she made the withdrawals from the joint account at
Wells Fargo Bank. On November 16, 2012, for example, she executed United
Heritage Credit Union documents on the appellant’s behalf, signing them as
“Glennis K. Richter POA for Gerald Christopher Zuliani.” State’s Exh. 140 (20
RR 843, 848, 849). Introduced into evidence as part of that credit union’s records
is a document entitled, “Statutory Durable Power of Attorney,” which purports to
have been executed on November 7, 2012—one day after Richter emptied the joint
account at Wells Fargo Bank. By signing that document, the appellant appointed
Glennis Richter as his agent or attorney-in-fact to act for him in a wide variety of
contexts, including “[b]anking and other financial institution transactions.” State’s
Exh. 140 (20 RR 818).
14
It is clear that these credit union documents were executed subsequent to the
Glennis Richter’s last withdrawal of funds from the joint account at Wells Fargo
Bank. However, the timing of these credit union documents weighs against any
inference that that Richter accessed the joint account without the appellant’s
authority. If she truly lacked his approval when draining thousands of dollars from
the appellant’s account at Wells Fargo bank, why would the appellant thereafter
grant her power of attorney to engage in similar conduct at a different financial
institution?
d. The evidence supports an inference that the relationship between the
appellant and the victim was over and that the appellant had no
legitimate reason to deposit the check into the joint account.
The victim testified that she escaped from her home on Thursday, October
25. When she returned to her house later that evening, she noticed that the
appellant had moved out of her house. She explained, “Chris had been packing
and had taken some of his stuff. There were clothes on hangers in the spare
bedroom that hadn't been there, half of his clothes in the closet that we shared were
gone.” 12 RR 131. Importantly, the victim’s check was deposited by the appellant
between the time of her escape and the time when she returned home that evening.
In light of the brutality that the appellant inflicted upon the victim during the
preceding days, and the fact that the relationship had come to an abrupt end, the
jury could reasonably have concluded that the appellant had no legitimate reason
15
for depositing the check into the joint account. Simply put, there was no reason to
deposit funds into the couple’s vacation account because the appellant no longer
considered them to be a couple. Indeed, the jurors may reasonable have inferred
from these circumstances that the appellant’s only conceivable reason for
depositing the check was an illegitimate one – i.e., to gain access to the underlying
funds so that he could use those funds for his own benefit.
e. The evidence supports an inference that the appellant knew that he
needed the victim’s consent and that he was nevertheless acting
without it.
After the victim escaped on the morning of Thursday, October 25, 2012, the
appellant called her, but she did not answer her phone. The appellant left her a
voicemail message, but the victim did not listen to the message at that time. 12 RR
126; see State’s Exh. 84. At about 10:23 that same morning, the appellant also
sent a text message to the victim, asking her for permission to deposit the check.
See Def. Exh. 29 (showing text message stating, “If I get by the bank May I deposit
the check from the accident?”). The victim did not respond to that text message.
12 RR 128.
Viewed in the light most favorable to the verdict, the fact that the appellant
actually requested the victim ’s consent supports an inference that he knew that he
could not properly deposit the check without such consent. In other words, this
Court cannot reasonably conclude either that the appellant assumed that he had the
16
necessary consent or that he simply did not consider the issue of whether he had
such consent.
The fact that the appellant deposited the check—without consent and with
knowledge that he needed such consent—therefore provides further support for an
inference that he negotiated that check with intent to deprive the victim of the
check and its underlying funds.
PRAYER
WHEREFORE, the State requests that the Court reconsider its ruling,
overrule the appellant’s third point of error, and affirm the judgment of the trial
court.
Respectfully submitted,
Rosemary Lehmberg
District Attorney
Travis County, Texas
/s/ M. Scott Taliaferro
M. Scott Taliaferro
Texas Bar No. 00785584
Assistant District Attorney
District Attorney’s Office
P.O. Box 1748
Austin, Texas 78767
Phone: 512.854.3626 Fax: 512.854.4180
Email: scott.taliaferro@traviscountytx.gov
and AppellateTCDA@traviscountytx.gov
17
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i), I hereby certify, based
on the computer program used to generate this brief, that this motion contains
4,161 words, excluding words contained in those parts of the brief that Rule 9.4(i)
exempts from inclusion in the word count. I certify, further, that this motion is
printed in a conventional, 14-point typeface except for footnotes, any and all of
which are printed in a conventional, 12-point typeface.
/s/ M. Scott Taliaferro
M. Scott Taliaferro
CERTIFICATE OF SERVICE
I hereby certify that, on this 15th day of June, 2015, a copy of the foregoing
motion for rehearing was sent was sent, via U.S. mail, email, facsimile, or
electronically through the electronic filing manager, to the following attorney for
the appellant:
Christopher P. Morgan, Esq.
3009 N. IH 35
Austin, TX 78722
Fax No. (512) 472-9798
/M. Scott Taliaferro
M. Scott Taliaferro
18
APPENDIX
19
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00490-CR
NO. 03-13-00491-CR
NO. 03-13-00492-CR
NO. 03-13-00493-CR
NO. 03-13-00495-CR
Gerald Christopher Zuliani, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NOS. D-1-DC-13-900010, D-1-DC-13-900011, D-1-DC-12-100127, D-1-DC-13-900137 &
D-1-DC-12-900269, HONORABLE P. DAVID WAHLBERG, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Gerald Christopher Zuliani guilty of assault with family
violence, see Tex. Penal Code § 22.01(b)(2)(A), assault by strangulation, see id. § 22.01(b-1),
aggravated assault with a deadly weapon, see id. § 22.02(a)(2), theft, see id. § 31.03(e)(4)(A), and
aggravated kidnapping, see id. § 20.04. All of the offenses except theft were enhanced by a prior
felony conviction. See id. § 12.42. The trial court rendered judgments on the jury’s verdicts and
assessed punishment at 10 years’ imprisonment for assault with family violence, 40 years for assault
by strangulation, 40 years for aggravated assault with a deadly weapon, 18 months’ confinement in
a state jail for theft, and 40 years’ imprisonment for aggravated kidnapping, with the sentences to
run concurrently. On appeal, Zuliani raises nineteen points of error. We will reverse the trial court’s
judgment of conviction for theft and render a judgment of acquittal. We will affirm the remainder
of the trial court’s judgments.
BACKGROUND
At trial, complainant Stephanie Running testified to the following facts. Before the
events in question, Running was engaged to Zuliani and he was living with her. On Sunday, October
21, 2012, Zuliani began accusing her of having affairs with other men. When Running denied the
affairs, Zuliani started hitting her face with his fists. Running tried to curl up in a ball and shield
herself with her arm, but Zuliani pulled her arms away and continued hitting her. Zuliani then
grabbed Running’s neck with both hands and pushed. This made it difficult for Running to breathe,
caused her pain, and made her believe that she might pass out.
After Zuliani released her, Running went into the kitchen. Zuliani continued accusing
her of having affairs, and Running continued denying it. Zuliani then began hitting Running with
a broom handle, causing her to bleed. When Zuliani stopped hitting Running with the broom, she
went into the hall bathroom.
Next, Zuliani grabbed the shower curtain rod and pulled it down, separating the rod
into two pieces. Zuliani then began hitting Running with half of the shower curtain rod as he
continued to accuse her of having an affair. The rod piece broke, so Zuliani then used the other half
of the rod to continue striking Running. According to Running, after the rod was “no longer viable
as a weapon,” Zuliani began striking her with a metal cane. Around this time, Running began
bleeding from a gash in her leg.
2
Zuliani then turned the shower on cold and threw Running into the bathtub. After a
while, Zuliani told Running to get out of the shower. When Running tried to put on dry clothes,
Zuliani would only allow her to put on her underwear. Running testified that she believed she had
to listen to Zuliani because if she did not, he would hit her again. Zuliani did not give Running any
moments to herself, and she did not feel free to leave.
After Running put on her underwear, Zuliani told her to clean up the house by picking
up broken objects and cleaning up her blood. Zuliani instructed Running to work quickly, and when
Running did not move fast enough, Zuliani grabbed her and threw her into a wall. Eventually,
Zuliani grabbed a two-by-four board from the garage and hit Running with it once or twice on
her back.
Soon after being struck by the board, Running wrapped herself in a blanket and ran
out the front door while screaming. Zuliani grabbed Running and pulled her back inside. During
the next few days, Zuliani at times seemed concerned for Running and would offer her medicine or
other aid. At other times, he would yell at her or strike her with his hands. Running testified that
although Zuliani left the house for several minutes on Wednesday, she did not attempt to escape or
call for help because she was afraid Zuliani was testing her and that he was actually monitoring her.
Finally, on the morning of Thursday, October 25, Running awoke to find Zuliani still
sleeping. Running escaped the house by running out the front door. Running eventually presented
at a hospital and was treated for multiple injuries.
The jury also heard evidence that on the same day Running escaped, Zuliani left her
a text message and voicemail asking if he could deposit a check made payable to Running. Although
3
Running never responded to those messages, Zuliani deposited the funds into an account he shared
with Running. According to evidence presented at trial, Glennis Richter, Zuliani’s girlfriend,
withdrew the funds from that account beginning about a week after Running’s escape.
Zuliani was indicted for five separate offenses, and the cases were consolidated for
trial. After a jury found him guilty of all five offenses, Zuliani appealed.1
DISCUSSION
Aggravated kidnapping: sufficiency of the evidence
In his first two points of error, Zuliani contends that the evidence is insufficient to
support his conviction for aggravated kidnapping.
The indictment alleged two grounds for finding Zuliani guilty of aggravated
kidnapping: Zuliani abducted Running “by using or threatening to use deadly force,” see Tex. Penal
Code § 20.04(b), and he “did then and there intend to facilitate the commission of a felony, to wit:
Felony Assault Family Violence,” see id. § 20.04(a)(3). As Zuliani points out, the jury found that
he did not abduct Running with the intent to commit assault with family violence. However, the jury
did find Zuliani guilty of aggravated kidnapping and also found that he intentionally or knowingly
abducted Running and used or exhibited a deadly weapon. These findings, if supported by sufficient
evidence, satisfy the elements of aggravated kidnapping. See id. § 20.04(b).
Zuliani does not challenge the jury’s deadly-weapon finding. Instead, Zuliani argues
that any use or threat of deadly force occurred before he allegedly abducted Running. According to
1
For organizational clarity, we will address Zuliani’s points of error in a different order than
he presents them.
4
Zuliani, the alleged abduction began when Running ran out the front door and Zuliani pulled her
back inside, and he asserts that the State presented no evidence that he used or exhibited a deadly
weapon at any time after he forced her back into the house. In other words, Zuliani asserts that
because he did not use or exhibit a deadly weapon during or after the abduction, he neither abducted
Running “by using or threatening to use deadly force” nor did he “use[] or exhibit[] a deadly weapon
during the commission of the offense.” See id. § 20.04(b).
In reviewing whether the evidence is sufficient to support a conviction, “an appellate
court must view the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found each essential element of the offense beyond a reasonable
doubt.” Schneider v. State, 440 S.W.3d 839, 841 (Tex. App.—Austin 2013, pet. ref’d) (mem. op.);
see also Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex.
Crim. App. 2010) (plurality op.). We do so by comparing the elements of the crime as defined by a
hypothetically correct jury charge to the evidence produced at trial. Thomas v. State, 444 S.W.3d 4,
8 (Tex. Crim. App. 2014). In addition, “when the indictment alleges a few, but not all, of the
alternative statutory manner and means of committing the offense, the hypothetically correct jury
charge against which the sufficiency of the evidence will be measured is limited to only those
statutory theories alleged.” Delay v. State, 443 S.W.3d 909, 917 n.19 (Tex. Crim. App. 2014) (citing
Curry v. State, 30 S.W.3d 394, 404–05 (Tex. Crim. App. 2000)).
Upon review of the record, we conclude that the State presented sufficient evidence
that Zuliani’s abduction of Running began even before she ran out the front door and before Zuliani
had ceased to use or exhibit deadly weapons. Running testified that on Sunday Zuliani struck her
5
with a broom, a shower curtain, a metal cane, and a two-by-four board, each of which the State
alleged to be deadly weapons. During the course of these beatings, Zuliani directed Running’s
actions. He forced Running into a cold shower and then ordered her to go to the bedroom. Zuliani
also prevented her from putting on any clothes except her underwear. Running testified that she did
not feel free to leave and that she felt she had to listen to Zuliani because she was afraid that if she
did not, he would start hitting her again. Therefore, we conclude that the State presented sufficient
evidence that Zuliani “restrained” Running because he “restrict[ed] [her] movements without
consent, so as to interfere substantially with [her] liberty, by moving [her] from one place to another
or by confining [her].” See Tex. Penal Code § 20.01(1) (defining “restrain”). And because Zuliani
restrained Running by periodically striking her with deadly weapons, he abducted her. See id.
§ 20.01(2) (“‘Abduct’ means to restrain a person with intent to prevent his liberation by . . . using
or threatening to use deadly force.”); id. § 1.07(17)(B) (“‘Deadly weapon’ means . . . anything that
in the manner of its use or intended use is capable of causing death or serious bodily injury.”).2
Accordingly, we conclude that there is sufficient evidence to support Zuliani’s
conviction for aggravated kidnapping. We overrule Zuliani’s first and second points of error.
2
The State had originally included hand or hands in the list of deadly weapons alleged to
have been used by Zuliani in the commission of aggravated assault. Zuliani argues that the State
later abandoned that theory because the final jury charge did not include “hand” as a possible deadly
weapon under the aggravated assault indictment. However, we note that “hand” remains listed as
a deadly weapon alternative in the aggravated kidnapping section of the final jury charge. Because
we conclude that there is sufficient evidence that Zuliani used a variety of objects as deadly weapons,
we need not decide whether the jury could have properly considered Zuliani’s hand to be a deadly
weapon in connection with his aggravated kidnapping conviction.
6
Aggravated kidnapping: jury charge error
In his twelfth point of error, Zuliani contends that the trial court committed
fundamental jury charge error by incorrectly explaining the elements of aggravated kidnapping in
the jury charge. In his thirteenth point of error, Zuliani challenges the trial court’s denial of his
motion for new trial on this ground.
As discussed above, the indictment for aggravated kidnapping alleged that Zuliani
intentionally or knowingly abducted Running “by using or threatening to use deadly force,” see id.
§ 20.04(b), and that he “did then and there intend to facilitate the commission of a felony, to wit:
Felony Assault Family Violence,” see id. § 20.04(a)(3). The “Relevant Statutes” section of the jury
charge contained, among other things, the following instructions:
A person commits aggravated kidnapping if the person intentionally or knowingly
abducts another person with the intent to:
1. facilitate the commission of a felony; or
2. inflict bodily injury on the person; or
3. terrorize the person.
Alternatively, a person commits aggravated kidnapping if the person intentionally or
knowingly abducts another person and uses or exhibits a deadly weapon during the
commission of the offense.
The three alternatives listed in the first paragraph correspond to Texas Penal Code
section 20.04(a)(3)–(5), respectively. The second paragraph corresponds to section 20.04(b). As
Zuliani notes, in addition to the two grounds for conviction alleged in the indictment (20.04(a)(3)
and 20.04(b)), the trial court also included in the jury charge instructions for grounds that were not
alleged in the indictment (20.04(a)(4) and (5)).
7
Because the three alternatives in the first paragraph followed the phrase, “with the
intent to,” the “Relevant Statutes” portion of the charge correctly explained that
section 20.04(a)(3)–(5) were alternatives requiring a finding of specific intent. See id. § 20.04(a) (“A
person commits an offense if he intentionally or knowingly abducts another person with the intent
to . . . .”) (emphasis added). However, the “Application of Law to Facts” section of the charge
stated, in relevant part:
You must determine whether the State has proved beyond a reasonable doubt . . . .
2. Gerald Christopher Zuliani:
a. acted with the intent to facilitate the commission of a felony,
specifically assault with family violence; or
b. did inflict bodily injury; or
c. did terrorize Stephanie Running; or
d. did use or exhibit a deadly weapon, to wit: hand, a metal rod or rods, a
wooden object, or a cane.
Alternative 2(a) in the above paragraph, which corresponds to section 20.04(a)(3),
correctly explained that this alternative required a finding of specific intent. But alternatives
2(b)–(c), corresponding to section 20.04(a)(4)–(5), incorrectly made it appear that these alternatives
did not require a finding of specific intent, because they omitted the phrase, “with the intent to,”
which is found in alternative (a).
The verdict form that the trial court submitted to the jury contained several counts of
aggravated kidnapping, each of which alleged a statutory ground for conviction corresponding to
2(a)–(d) of the “Application” portion of the charge, and required the jury to return a verdict on each
8
count. The jury found Zuliani not guilty of abducting Running with the intent to commit a felony
(section 20.04(a)(3)) but found him guilty on the other counts (section 20.04(a)(4)–(5), (b)).
Zuliani did not object to this alleged error at trial. Therefore, we will reverse the trial
court’s judgment only if the error caused Zuliani “actual, egregious harm.” Arrington v. State,
451 S.W.3d 834, 840 (Tex. Crim. App. 2015); see Kuhn v. State, 393 S.W.3d 519, 524 (Tex.
App.—Austin 2013, pet. ref’d) (“unobjected-to charge error requires reversal only if it resulted in
‘egregious harm’”). Egregious harm must be based on actual harm, not theoretical harm. Arrington,
451 S.W.3d at 840. Actual harm is established when the error affected the very basis of the case,
deprived the defendant of a valuable right, or vitally affected a defensive theory. Id.
Even assuming that the trial court erred in its charge, we conclude that any error did
not result in egregious harm to Zuliani. If we disregard the counts of aggravated kidnapping
presenting grounds for conviction not alleged in the indictment, the fact remains that the jury
specifically found Zuliani guilty of aggravated kidnapping by abducting Running and using or
exhibiting a deadly weapon. Zuliani’s complaint that the trial court did not properly instruct the jury
under section 20.04(a) is irrelevant because the jury found Zuliani guilty under section 20.04(b),
which contains no mens rea requirement other than that Zuliani intentionally or knowingly abducted
Running. See Tex. Penal Code § 20.04(b).
Because we conclude that any error did not result in egregious harm to Zuliani, we
also conclude that the trial court did not abuse its discretion in denying his motion for new trial on
this basis. See Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014) (appellate court
9
reviews trial court’s denial of motion for new trial for abuse of discretion). Accordingly, we overrule
Zuliani’s twelfth and thirteenth points of error.
Bassett’s testimony
In his eighth point of error, Zuliani contends that the trial court abused its discretion
in admitting the expert testimony of Margaret Bassett, a victim witness counselor with the Travis
County District Attorney’s Office.
When the State proffered Bassett’s testimony at trial, Zuliani objected, arguing that
Bassett was not qualified to testify as an expert witness, see Tex. R. Evid. 702, and that her
testimony was not relevant, see id. R. 402. Zuliani further argued that even if Bassett’s testimony
were relevant, it should nevertheless be excluded “because of its confusion of the issues, misleading
of the jury, and undue delay and needless presentation of cumulative evidence.” See id. R. 403.
Outside the presence of the jury, Bassett explained that her testimony would help explain why a
victim of domestic violence may not try to escape an abusive situation for several days. The State
argued that Bassett’s testimony was relevant because it would help the jury understand why Running
did not make another attempt to flee her house after Zuliani dragged her back in on Sunday until
Running eventually escaped on Thursday. The State also contended that Bassett’s testimony would
help the jury understand why a victim may not fight back against her assailant. The trial court
overruled Zuliani’s objections and allowed Bassett to testify.
If a trial court erroneously admits evidence, the error is non-constitutional and we
must determine whether the error was harmful. See Hankins v. State, 180 S.W.3d 177, 182 (Tex.
App.—Austin 2005, pet. ref’d) (“A violation of the rules of evidence is generally non-constitutional
10
error.”). Error is reversible under Rule 44.2(b) when the error affected the defendant’s substantial
rights. See Tex. R. App. P. 44.2(b); Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010).
“A substantial right is affected when the error had a substantial and injurious effect or influence in
determining the jury’s verdict.” Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014).
“Substantial rights are not affected by the erroneous admission of evidence if, after examining the
record as a whole, we have fair assurance that the error did not influence the jury, or had but slight
effect.” Campbell v. State, 382 S.W.3d 545, 553 (Tex. App.—Austin 2012, no pet.).
We need not decide whether the trial court abused its discretion in admitting Bassett’s
testimony. Instead, assuming without deciding that the trial court erroneously admitted Bassett’s
testimony, we conclude that the admission of Bassett’s testimony did not affect Zuliani’s substantial
rights.3 At trial, Zuliani’s counsel mitigated any damage Bassett’s testimony may have done by
subjecting Bassett to a thorough cross-examination in which Bassett admitted that she worked for
the district attorney’s office, that the only case information she had received came from
conversations with the prosecutors and viewing the offense report, and that her testimony was not
scientific. In addition, the sole purpose of Bassett’s testimony was to help the jury understand
Running’s testimony that she did not fight back against Zuliani or attempt to escape for several days.
Even without Bassett’s testimony, the jury was free to believe Running, and Bassett’s testimony
essentially provided the same explanation for Running’s actions that Running herself
3
We review a trial court’s ruling on the admissibility of evidence for an abuse of discretion.
Jessop v. State, 368 S.W.3d 653, 666 (Tex. App.—Austin 2012, no pet.). “Such rulings will rarely
be disturbed by an appellate court.” Id. We will uphold the trial court’s decision “unless it lies
outside the zone of reasonable disagreement,” and “[i]f the record supports the trial court’s
decision . . . there is no abuse of discretion.” Id.
11
provided—Running was afraid that if she tried to escape, Zuliani would resume beating her. The
influential effect of Bassett’s testimony, if any, was likely minimal. Therefore, based on the record
before us, we cannot conclude that the admission of Bassett’s testimony “had a substantial and
injurious effect or influence in determining the jury’s verdict.” See Tex. R. App. P. 44.2(b);
Schmutz, 440 S.W.3d at 39. Because any error the trial court may have committed in admitting
Bassett’s testimony did not affect Zuliani’s substantial rights, we overrule Zuliani’s eighth point
of error.
Elaine Zuliani’s testimony
In his ninth, tenth, and eleventh points of error, Zuliani contends that the trial court
erred in prohibiting Zuliani from eliciting certain testimony from Zuliani’s mother Elaine. Zuliani
argues that the trial court’s ruling violated his rights under the Sixth and Fourteenth Amendments
to the United States Constitution, article I, sections 10 and 19 of the Texas Constitution, and Texas
Rule of Evidence 613(b). See U.S. Const. amends. VI, XIV; Tex. Const. art. I, §§ 10, 19; Tex. R.
Evid. 613(b). Although the trial court allowed Elaine to testify, it did not allow her to discuss certain
encounters Elaine allegedly had with Running before the events at issue in this case.4
We begin by considering the State’s argument that Zuliani did not preserve his
constitutional claims. The State argues that this case is similar to Reyna v. State, 168 S.W.3d 173
(Tex. Crim. App. 2005). In Reyna, the defendant sought to elicit testimony from the alleged victim
4
During voir dire outside the presence of the jury, Elaine offered testimony that
characterized Running as having drinking problems, being jealous of Zuliani and attempting to
prevent his contact with other women, and being prone to aggression.
12
that the victim had previously made a false accusation of sexual assault. Id. at 175. The defendant
argued to the trial court that the testimony was relevant to the credibility of the same victim in the
defendant’s case. Id. The State objected, and the trial court sustained the objection. Id. On appeal,
the court of criminal appeals held that the defendant had failed to preserve his constitutional
arguments because he did not clearly articulate them to the trial court. Id. at 179. The court noted
that the defendant “argued to the trial judge that the evidence should be admitted for ‘credibility’”
but “did not cite to any rules of evidence, cases, or constitutional provisions.” Id.
We conclude that Reyna controls this case and that Zuliani has failed to preserve his
constitutional claims on appeal. Zuliani argued before the trial court that the proffered testimony
“goes to show [Running’s] general temperament when it comes to Mr. Zuliani in this matter and
affects her credibility as well.” Like the defendant in Reyna, Zuliani “did not cite to any rules of
evidence, cases, or constitutional provisions” in support of admission, and he did not clearly
articulate a constitutional argument. See id. That is, Zuliani did not “do everything necessary to
bring to the judge’s attention the evidence rule or statute in question and its precise and proper
application to the evidence in question.” Id. (internal quotation marks and footnote omitted).
Because we will not reverse the trial court’s judgment on a ground he did not present to the trial
court, we will not consider Zuliani’s constitutional arguments. See id. at 180 (“The Court of Appeals
erred in reversing Reyna’s conviction on a ground that he did not present to the trial judge.”).
We next consider whether the trial court’s decision to exclude certain portions of
Elaine’s testimony violated the Texas Rules of Evidence. We review a trial court’s ruling under the
rules of evidence for an abuse of discretion. Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App.
13
2009). “We consider the ruling in light of what was before the trial court at the time the ruling was
made and uphold the trial court’s judgment if it lies within the zone of reasonable disagreement.”
Id. If we conclude that the trial court abused its discretion in excluding evidence, we must then
determine whether the trial court’s error affected Zuliani’s substantial rights. See id. at 43; see also
Tex. R. App. P. 44.2(b).
Assuming without deciding that the trial court abused its discretion in excluding the
testimony, we conclude that any error did not affect Zuliani’s substantial rights. Elaine’s testimony,
if fully believed by the jury, would have shown that Running had, on at least a few occasions,
exhibited jealousy, aggression, and a tendency to drink too much. Some of this testimony would not
have contradicted Running’s own testimony and is therefore cumulative. Campbell, 382 S.W.3d at
553 (considering whether erroneously admitted evidence was cumulative in harm analysis under
Rule 44.2(b)). Running testified at trial, for instance, that shortly before the events in question she
had admitted to Zuliani that she wanted to cut down on her drinking. And although evidence of
jealousy and aggression may have provided some support to the defense’s theory that Running
initiated the confrontation with Zuliani, such evidence would have little value for the defense. The
trial court did not submit a question on self-defense to the jury. In addition, Running’s version of
events was supported by physical evidence of her extensive injuries, many of which Zuliani did not
attempt to explain at trial. We conclude that the State’s case against Zuliani was strong and that the
exclusion of portions of Elaine’s testimony did not have a “substantial and injurious effect or
influence in determining the jury’s verdict.” See Schmutz, 440 S.W.3d at 39.
14
Because we determine that any error the trial court may have committed in excluding
certain topics of Elaine’s testimony did not affect Zuliani’s substantial rights, we overrule Zuliani’s
ninth, tenth, and eleventh points of error.
State’s jury argument
In his eighteenth point of error, Zuliani challenges the trial court’s decision
to overrule his objections that the State’s jury argument “struck at [Zuliani] over his
counsel’s shoulders.”
During the State’s final closing argument at the guilt/innocence phase of trial, the
prosecutor made the following allegedly improper statements:
• The bottom line with a lot of the defense is sort of a magic act, smoke and
mirrors, red herrings, whatever you want to say—
• So what the Defense is doing is using a lot of tricks, smoke and mirrors . . . .
• So, again, these are all parts of these smoke and mirrors and these red
herrings the Defense is sending you on.
• It’s the same thing and the reality is the Defense is on sort of a smear
campaign with Stephanie Running. They’re showing you pictures ostensibly
to show what she looked like in a ponytail, but she’s flipping off the camera.
They say, well, this looks like a couch you sat on. This must be—we want
to introduce this picture and it’s a very unflattering picture of her. Why are
they doing that? It’s a smear campaign. She’s a drunk, she’s so overweight
that he could never lift her, and it’s all done to embarrass her, to so distract
you from what the real evidence in this case is and ask yourself why they’re
doing that.
We review a trial court’s ruling on an objection to improper jury argument for an
abuse of discretion. Nzewi v. State, 359 S.W.3d 829, 841 (Tex. App.—Houston [14th Dist.] 2012,
15
pet. ref’d) (citing Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim. App. 2010)). A trial court abuses
its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules and
principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.1990). “[P]roper jury
argument generally falls within one of four general areas: (1) summation of the evidence;
(2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and
(4) plea for law enforcement.” Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008).
Argument that attacks the defense attorney—that is, strikes at a defendant over the shoulders of
counsel—is improper. Davis, 329 S.W.3d at 821.
In this case, we need not decide whether the prosecutor’s comments in closing
argument were improper because we conclude that any error the trial court may have made in
overruling Zuliani’s objections was not reversible. When argument is improper because it strikes
over the shoulders of counsel, we consider three factors in determining whether the trial court’s error
affected the defendant’s substantial rights: “(1) severity of the misconduct (prejudicial effect),
(2) curative measures, [and] (3) the certainty of conviction absent the misconduct.” Martinez
v. State, 17 S.W.3d 677, 693 (Tex. Crim. App. 2000) (citing Mosley v. State, 983 S.W.2d 249, 259
(Tex. Crim. App. 1998)).
We conclude that the third factor weighs against reversal and is dispositive in this
case. The prosecutor’s comments encouraged the jury to disbelieve defense arguments that Running
initiated the confrontation with Zuliani or that she was not telling the truth about certain details—for
example, that she ran out of the house and Zuliani dragged her back inside. However, Running’s
testimony was corroborated with physical evidence, including evidence of her injuries and of the
16
objects with which Zuliani allegedly struck her. Running had been subjected to cross-examination,
and the jury was free to reach its own conclusions about her reliability. Based on the record before
us, we conclude that there is a high degree of certainty that the jury would have found Zuliani guilty
of the charged offenses even if the prosecutor had not made the allegedly improper comments.
Therefore, the trial court’s decision to overrule Zuliani’s objections to the prosecutor’s arguments
did not substantially affect Zuliani’s rights. Accordingly, we overrule Zuliani’s eighteenth point
of error.
Release in a safe place
In his nineteenth point of error, Zuliani challenges the trial court’s refusal to reduce
the punishment range for his conviction of aggravated kidnapping pursuant to Texas Penal Code
section 20.04(d). Under that provision, “[a]t the punishment stage of a trial, the defendant may raise
the issue as to whether he voluntarily released the victim in a safe place. If the defendant proves the
issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second
degree.” Tex. Penal Code § 20.04(d). At the punishment phase of the trial, Zuliani asked the trial
court to find that he voluntarily released Running in a safe place. The trial court denied Zuliani’s
request without explanation.
The determination of whether a location is a “safe place” under section 20.04(d) is
a “fact-specific inquiry made on a case-by-case basis, considering the totality of the circumstances.”
Butcher v. State, 454 S.W.3d 13, 19 (Tex. Crim. App. 2015). Courts may consider seven factors in
determining whether a place was safe: “(1) the remoteness of the location, (2) the proximity of help,
(3) the time of day, (4) the climate, (5) the condition of the complainant, (6) the character of the
17
location and surrounding neighborhood, and (7) the complainant’s familiarity with the location or
neighborhood.” Id. However, these factors are “merely nonexclusive aids.” Id. (footnote omitted).
We review the trial court’s ruling on Zuliani’s affirmative defense for both legal and
factual sufficiency. Id. at 20. In legal-sufficiency review, we first determine whether the record
contains a scintilla of evidence favorable to the factfinder’s decision. Id. We then overturn the
factfinder’s decision only if the appellant establishes that the evidence conclusively proves the
affirmative defense. Id. In factual-sufficiency review, we examine the evidence in a neutral light
and overturn the factfinder’s decision only if the decision is so against the great weight of the
evidence as to be manifestly unjust, conscience-shocking, or clearly biased. Id.
We determine that more than a scintilla of evidence supports the conclusion that
Zuliani did not release Running in a safe place, and we also determine that the trial court’s ruling
was not against the great weight of the evidence. At trial, the jury heard evidence that Zuliani had
assaulted Running in her own home over the course of several days. Running testified that Zuliani
had thwarted her attempt of escape on Sunday, and when Zuliani had briefly left the house on
Wednesday afternoon, Running did not attempt to flee because she was afraid that Zuliani was
testing her. In addition, Running was still suffering from multiple injuries when she finally escaped.
Upon review of the record, we cannot conclude that the evidence is legally or factually insufficient
to support the trial court’s ruling on Zuliani’s defense under section 20.04(d). Accordingly, we
overrule Zuliani’s nineteenth point of error.
18
Motion for election
In his fourth point of error, Zuliani challenges the trial court’s denial of his motion
requesting that the State elect which incident it was alleging as aggravated assault. Similarly, in his
fifth point of error, Zuliani challenges the trial court’s denial of his motion requesting that the State
elect which incident it was alleging as aggravated kidnapping. Zuliani argues that the State alleged
multiple criminal acts, any of which could support a conviction for aggravated assault. Zuliani notes
that the State alleged that he struck Running with several different objects at several different times
and in several different locations. Zuliani also argues that the State alleged separate acts, each of
which might support a conviction for aggravated kidnapping.5
Under certain circumstances, a trial court must order the State to elect which
transactions it will rely on for conviction. See Figueroa v. State, 250 S.W.3d 490, 505 (Tex.
App.—Austin 2008, pet. ref’d). However, an election is not required when the defendant’s criminal
acts were “part and parcel of the same criminal transaction.” Steele v. State, 523 S.W.2d 685, 687
(Tex. Crim. App. 1975); see Herring v. State, 752 S.W.2d 169, 171 (Tex. App.—Houston [1st Dist.]
1988, no pet.) (“Generally, the State is not required to elect between offenses if the evidence shows
that the offenses were committed as part of a single criminal transaction and the defendant is
convicted of only one offense.”) (citation omitted). In Steele, for example, the defendant was
5
The State questions whether Zuliani actually requested that the trial court order the State
to elect and whether Zuliani obtained a ruling from the trial court. See Cosio v. State, 353 S.W.3d
766 (Tex. Crim. App. 2011) (“A defendant’s decision to elect is purely strategic and may be waived
or forfeited.”). We assume, without deciding, that Zuliani actually moved for an election regarding
both his aggravated assault and aggravated kidnapping charges and obtained rulings from the
trial court.
19
convicted of rape by threats. The court of criminal appeals held that multiple acts of sexual
intercourse were part of the same criminal transaction because “the evidence show[ed] that the
several acts of intercourse were committed by one continuous act of force and threats.” Steele,
523 S.W.2d at 687.
We conclude that the State alleged only one criminal transaction in its aggravated
assault indictment and one criminal transaction in its aggravated kidnapping indictment. Even if
Zuliani is correct that several of the acts he allegedly committed could have supported a conviction
on their own, “‘there may be any number of distinct crimes in a single criminal transaction.’”
Crocker v. State, 573 S.W.2d 190, 198 (Tex. Crim. App. 1978) (quoting Whitford v. State,
24 Tex. Ct. App. 489, 492, 6 S.W. 537, 538 (1887)). All of the alleged actions constituting
aggravated assault occurred on Sunday; there was no clear break in the assault, and “a single guilty
intent ran through and connected” these assaultive acts. See McIntire v. State, 698 S.W.2d 652, 656
(Tex. Crim. App. 1985). In other words, the acts constituting aggravated assault “were committed
by one continuous act of force and threats.” Steele, 523 S.W.2d at 687. Similarly, the jury found
that Zuliani abducted Running by using or exhibiting a deadly weapon. Every use or exhibition of
a deadly weapon occurred on Sunday in a connected sequence of events.
Because we determine that all of the alleged acts constituting aggravated assault were
part of one criminal transaction and that all of the alleged acts constituting aggravated kidnapping
were part of one criminal transaction, we conclude that the trial court did not err in refusing to order
the state to elect. Accordingly, we overrule Zuliani’s fourth and fifth points of error.
20
Assault with family violence: jury charge error
In his sixth point of error, Zuliani contends that the trial court committed fundamental
jury charge error by failing to instruct the jury that it must unanimously agree on a single assault
supporting his conviction of assault with family violence. According to Zuliani, the trial court’s
charge allowed the jury to convict him by finding only that he intentionally or knowingly caused
bodily injury to Running and that he had previously been convicted of family violence. Zuliani
argues that the State presented evidence of multiple assaults and that the jury’s verdict may have
lacked unanimity because “[t]he possible combinations [of assault] are as numerous as the
acts/incidents she claimed he caused bodily injury.” In his seventh point of error, Zuliani contends
that the trial court abused its discretion by denying Zuliani’s motion for new trial on this ground.
Contrary to Zuliani’s arguments, a jury need only decide unanimously that the
defendant committed each element of a crime—it need not unanimously agree on the underlying
brute facts that make up each element or which of several means the defendant used to commit each
element. See Johnson v. State, 364 S.W.3d 292, 296 (Tex. Crim. App. 2012); see also Stuhler
v. State, 218 S.W.3d 706, 717 (Tex. Crim. App. 2007) (“On facts such as these, the series of acts
constitutes the commission of the offense. It follows that the jury charge should not require the jury
to agree as to any particular act in the series before it can convict.”). Here, the trial court instructed
the jury that in order to find Zuliani guilty it had to unanimously agree on each element of assault
with family violence. We conclude that the trial court was not required to go further and instruct the
jury to unanimously agree on which specific strikes with Zuliani’s hands, for example, caused which
specific injuries. Therefore, we also conclude that the trial court did not abuse its discretion in
21
denying Zuliani’s motion for new trial on this ground. See Colyer, 428 S.W.3d at 122 (“We review
a trial court’s denial of a motion for new trial for abuse of discretion.”). Accordingly, we overrule
Zuliani’s sixth and seventh points of error.
Assault by strangulation
In his fourteenth, fifteenth, sixteenth, and seventeenth points of error, Zuliani
challenges his conviction for assault by strangulation.
Statute, indictment, and jury charge
A person commits second-degree felony assault by strangulation if the person
“intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s
spouse,” “ the offense is committed against a person whose relationship to or association with the
defendant is described by [certain sections of the family code],” “it is shown on the trial of the
offense that the defendant has been previously convicted of an offense under [certain sections of the
penal code] . . . against a person whose relationship to or association with the defendant is described
by [certain sections 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
§ 22.01(a), (b-1).
The indictment against Zuliani alleged the following:
[Zuliani] did then and there intentionally, knowingly and recklessly cause bodily
injury to [Running], a member of the said [Zuliani’s] family and household and with
whom [Zuliani] has had a dating relationship, by seizing the said [Running] on or
22
about the neck with his hand, [and Zuliani] did intentionally, knowingly, and
recklessly impede the normal breathing and circulation of the blood of [Running], by
applying pressure to [Running’s] neck with his hand, [and Zuliani] had been
convicted of an offense against a member of the said [Zuliani’s] family and
household and against a person with whom [Zuliani] has had a dating
relationship . . . .
The “Relevant Statutes” portion of the trial court’s jury charge did not include prior
conviction as an element of the offense. In addition, the charge listed as an element of the offense
that “the defendant acted with intent to impede the normal breathing or circulation of the blood of
another; with knowledge that he would impede the normal breathing or circulation of the blood of
another; or with recklessness concerning whether he would impede the normal breathing or
circulation of the blood of another.” It did not include as an element that the defendant actually did
impede the victim’s breathing or blood circulation.
Similarly, the “Application of Law to Facts” portion of the trial court’s jury charge
did not mention a prior conviction. That portion stated that the following alternatives comprised the
impediment element of the offense:
a. [Zuliani] acted with intent to impede the normal breathing or circulation of the
blood of [Running]; or
b. [Zuliani] acted with knowledge that he would impede the normal breathing or
circulation of the blood of [Running]; or
c. [Zuliani] acted with recklessness concern whether he would impede the normal
breathing or circulation of the blood of [Running].
The “Application of Law to Facts” portion also instructed the jury that the jurors did not have to
unanimously agree on any of these three options.
23
The jury returned a verdict of guilty for “the offense of felony assault strangulation.”
Zuliani pleaded true to the enhancement paragraph alleged in the indictment, and the trial court
sentenced him for the offense as a first-degree felony. See id. § 12.42(b).
Zuliani’s points of error
In his fourteenth point of error, Zuliani contends that the trial court’s jury charge on
strangulation does not allow for him to be convicted of a first-degree felony. Zuliani notes that the
charge omitted the prior-conviction element of the offense. Therefore, Zuliani argues, the jury found
only the elements necessary to convict him under Texas Penal Code section 22.01(b)(2)(B), a third-
degree felony.
In his fifteenth point of error, Zuliani argues that his conviction should be reformed
to assault with family violence, not strangulation. As Zuliani notes, the trial court’s jury charge
allowed the jury to convict him without finding that he actually impeded Running’s breathing or
blood circulation. According to Zuliani, without a finding on the impediment element, he could have
been convicted, at most, of third-degree assault with family violence under Texas Penal Code
section 22.01(a)(1) and (b)(2)(A).
In his sixteenth point of error, Zuliani contends that the trial court committed
fundamental jury charge error by omitting the prior-conviction element and by not requiring the jury
to find beyond a reasonable doubt that Zuliani actually impeded Running’s breathing or blood
circulation. Zuliani argues that without these two elements, he could have been convicted only of
a class-A misdemeanor under Texas Penal Code section 22.01(a). Finally, in his seventeenth point
24
of error, Zuliani challenges the trial court’s denial of his motion for new trial on the grounds of
fundamental error in the jury charge.
Analysis
We conclude that the jury charge contained error because it allowed the jury to find
Zuliani guilty without finding that he actually impeded Running’s normal breathing or circulation
of the blood. See id. § 20.01(b-1)(3) (listing “impeding the normal breathing or circulation of the
blood” of victim as element of second-degree felony assault by strangulation); Murphy v. State,
44 S.W.3d 656, 661 (Tex. App.—Austin 2001, no pet.) (“The trial court is obligated to charge the
jury on the law applicable to the case. This requires that the jury be instructed concerning each
element of the offense or offenses charged.”) (internal quotation marks and citation omitted).
In addition, we assume, without deciding, that it was also error for the charge to omit the
prior-conviction element.6
Zuliani, however, did not object to these errors at trial. Therefore, we will only
reverse the trial court’s judgment if the error “caused actual, egregious harm” to Zuliani. Arrington,
6
The omission of the prior conviction was charge error if the prior conviction was an
essential element of the offense. As the State points out, a split of authority exists among the courts
of appeals as to whether a prior conviction of family violence is an essential element of an offense
under Texas Penal Code section 22.01(b) or a sentence enhancement. See Olivas v. State,
No. 08-11-00081-CR, 2013 WL 1182208, at *3 (Tex. App.—El Paso Mar. 20, 2013, no pet.) (not
designated for publication). This Court has previously declined to resolve the question. See Smith
v. State, No. 03-06-00430-CR, 2007 WL 2066291, at *5 (Tex. App.—Austin July 18, 2007, no pet.)
(mem. op., not designated for publication); Zavala v. State, No. 03-05-00051-CR, 2007 WL 135979,
at *1 n.2 (Tex. App.—Austin Jan. 22, 2007, no pet.) (mem. op., not designated for publication).
Because, as discussed below, we conclude that any error in the strangulation jury charge did not
cause egregious harm to Zuliani, we need not decide whether a prior conviction for family violence
was an essential element of the offense.
25
451 S.W.3d at 840; see Kuhn, 393 S.W.3d at 524. In determining whether charge error has caused
egregious-harm, we “consider the entirety of the jury charge itself, the evidence, including the
contested issues and weight of the probative evidence, the arguments of counsel, and any
other relevant information revealed by the record of the trial as a whole.” Jourdan v. State,
428 S.W.3d 86, 97–98 (Tex. Crim. App. 2014) (quoting Stuhler, 218 S.W.3d at 719).
We conclude that neither charge error asserted by Zuliani egregiously harmed him.
First, although the charge did not require the jury to find that Zuliani actually impeded Running’s
breathing or blood circulation, it did require the jury to find that Zuliani “caused bodily injury to
[Running] by applying pressure to [Running’s] neck with his hand.” It also required that Zuliani did
so “with intent to impede” Running’s breathing or blood circulation, with the knowledge that he was
causing such impediment, or with recklessness concerning whether he would cause such
impediment. These findings are not so far removed from a finding that Zuliani actually caused
impediment for us to conclude that Zuliani suffered egregious harm. In addition, Running testified
that Zuliani put his hands around her throat, making it difficult for her to breathe and causing her to
fear she might pass out. Under these circumstances, we believe it is unlikely that the jury would
have convicted Zuliani of the offense as charged but would not have found him guilty if the offense
had been properly charged.
Second, we conclude that the jury charge’s omission of the prior-conviction element
did not cause Zuliani egregious harm because the jury heard evidence that Zuliani had such a
conviction. Indeed, Zuliani stipulated to the existence of a prior conviction for family violence. It
is true that the jury was instructed that it could only consider that stipulation in connection with the
26
indictment for assault with family violence. Nevertheless, given that Zuliani stipulated to the
conviction, the error did not affect “the very basis of the case.” See Arrington, 451 S.W.3d at 840
(quoting Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011)). This case was about
strangulation, not about a prior conviction.
Because we conclude that any error in the trial court’s jury charge on assault by
strangulation did not cause Zuliani egregious harm, we also conclude that the trial court did not
abuse its discretion in denying Zuliani’s motion for new trial on this ground. See Colyer,
428 S.W.3d at 122 (appellate court reviews trial court’s denial of motion for new trial for abuse of
discretion). Accordingly, we overrule Zuliani’s fourteenth, fifteenth, sixteenth, and seventeenth
points of error.
Theft: sufficiency of the evidence
In his third point of error, Zuliani contends that the evidence is insufficient to support
his conviction for theft. Zuliani argues that the fact that he sent Running messages telling her that
he was going to deposit the check, deposited the funds into their joint account to which Running had
full access, and did not withdraw the funds establishes that he did not intend to deprive Running of
the value of the check. In addition, although the State introduced a bank record that it claimed
showed that Zuliani gave Richter access to the account, Zuliani asserts that his signature does not
appear on the form.
In reviewing the sufficiency of the evidence, we must determine whether a rational
trier-of-fact could have found each essential element of theft beyond a reasonable doubt. See
Schneider, 440 S.W.3d at 841. A person commits theft “if he unlawfully appropriates property with
27
intent to deprive the owner of property.” Tex. Penal Code § 31.03(a). “Appropriation of property
is unlawful if . . . it is without the owner’s effective consent.” Id. § 31.03(b)(1).
The State presented evidence that after Running escaped from Zuliani, Zuliani sent
Running a voicemail and text message asking for permission to deposit a check made out exclusively
to Running. Although Running did not respond to those messages, Zuliani deposited the check into
a joint account to which both he and Running had access. The jury also heard evidence that Zuliani’s
girlfriend Richter withdrew the funds from that account in a series of transactions beginning about
a week later. It is undisputed that Running did not expressly consent to Zuliani’s taking her check
and depositing it into an account to which he had access, and we conclude there is no evidence
suggesting that she gave apparent assent. See id. § 1.07(a)(11) (“‘Consent’ means assent in fact,
whether express or apparent.”); Baird v. State, 398 S.W.3d 220, 229 (Tex. Crim. App. 2013) (“For
‘assent’ ‘in fact’ to occur, therefore, there must be an actual or real agreement after thoughtful
consideration.”). Running did not respond to Zuliani’s requests for permission to deposit the check,
nor did she endorse the check. We therefore conclude that there is sufficient evidence to support the
jury’s determination that Zuliani appropriated Running’s property without effective consent.
We next consider whether the State presented sufficient evidence that Zuliani
intended to deprive Running of the value of her property when he deposited the check. For the
appropriation of property to constitute theft, the defendant must have intended to deprive the owner
of the value of the property at the time the defendant took the property. Peterson v. State,
645 S.W.2d 807, 811 (Tex. Crim. App. 1983) (“Relevant intent to deprive the owner of property
is the accused’s intent at the time of the taking.”); Hernandez v. State, No. 03-13-00268-CR,
28
2014 WL 4058828, at *2 (Tex. App.—Austin Aug. 14, 2014, no pet.) (mem. op., not designated for
publication). “The fact finder determines intent to deprive from the words and acts of the accused.”
Winkley v. State, 123 S.W.3d 707, 713 (Tex. App.—Austin 2003, no pet.).
According to Running’s testimony, Zuliani told Running that he intended to deposit
the check. He then deposited the check into a joint account and did not withdraw the funds.
Although the State presented evidence that Running seldom if ever used the joint account, it was
undisputed that Running knew of the account and had full access to it. We conclude that these facts
do not support the conclusion that Zuliani intended to deprive Running of the value of her property
at the time he deposited the check.
The State emphasizes that Richter later withdrew all funds from the account and
argues that this is evidence that Zuliani was already intending to withdraw the funds at the time he
deposited the check. At trial, the State called a bank investigator, who testified that on November 1,
about a week after Running escaped and Zuliani was arrested, Zuliani added Richter to the joint
account. The investigator referenced State’s Exhibit 85 and stated that Zuliani’s signature appeared
on the signature card of the form adding Richter. However, we have reviewed this exhibit, and we
agree with Zuliani that Zuliani’s signature does not appear anywhere on the form. Zuliani points out
that his name is written on the form in handwriting that is completely different from his signature
on other forms in the record. We agree, but more importantly, none of the signatures on the form
adding Richter to the account even purport to be Zuliani’s. Instead, it is evident from the face of the
document that Richter herself signed Zuliani’s name and then, in the same signature block, signed
her own name and indicated that she had power of attorney to sign for Zuliani. Richter also signed
29
her own name in Running’s signature block. Therefore, only Richter’s signature appears on the
form. Because the State did not introduce any evidence that Zuliani had granted Richter power of
attorney or otherwise granted her authority to access funds in the account, there is insufficient
evidence to conclude that Zuliani authorized the addition of Richter to the account.
Disregarding Richter’s later actions, we determine that no rational trier-of-fact could
have found beyond a reasonable doubt that Zuliani intended to deprive Running of the value of her
property when he deposited the check. Accordingly, we sustain Zuliani’s third point of error and will
reverse Zuliani’s conviction for theft and render a judgment of aquittal.
CONCLUSION
Having sustained Zuliani’s third point of error, we reverse the trial court’s judgment
of conviction for theft in cause number D-1-DC-13-900137 and render a judgment of acquittal.
Having overruled Zuliani’s remaining points of error, we affirm the trial court’s judgments of
conviction in cause numbers D-1-DC-13-900010, D-1-DC-13-900011, D-1-DC-12-100127, and
D-1-DC-12-900269.
30
__________________________________________
Scott K. Field, Justice
Before Chief Justice Rose, Justices Goodwin and Field
NO. 03-13-00490-CR Affirmed
NO. 03-13-00491-CR Affirmed
NO. 03-13-00492-CR Affirmed
NO. 03-13-00493-CR Reversed and Rendered
NO. 03-13-00495-CR Affirmed
Filed: May 29, 2015
Do Not Publish
31