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Date: 07-15-2017

Case Style:

Eddie M. Herrera v. The State of Texas

Houston man sentenced to 25 years in prison for death of prom date in hotel room

Case Number: 01-16-00403-CR

Judge: Harvey G. Brown

Court: Court of Appeals For The First District of Texas

Plaintiff's Attorney:

Clinton A. Morgan  
Daniel C. McCrory
The Honorable Kim K Ogg

Defendant's Attorney:



Nicole DeBorde



Juan Manuel Contreras

Description: Jessica was a 17-year-old high school senior when she invited 18-year-old
Herrera, whom she had known for several years, to her high school prom. Without
telling Jessica’s mother, Herrera’s mother, Melissa Martinez, helped the pair
secure a hotel room, narcotics, and alcohol for prom night, and then Martinez
1 See TEX. PENAL CODE §§ 12.32, 22.02.
3

presented Jessica’s mother with a cover story for the young couple. When Martinez
did not return Jessica home on time, Jessica’s mother repeatedly tried to call
Jessica, Herrera, and Martinez, but none responded. In the middle of the night,
Jessica’s mother contacted the police.
Around 9:00 a.m. the next morning, Martinez called for emergency
assistance in the pair’s hotel room, reporting to the emergency operator that Jessica
was cold and not breathing. The emergency dispatcher instructed Martinez to
perform CPR on Jessica. The Houston Fire Department arrived within minutes to
find that Jessica was dead.
When Sergeant M. Miller arrived at the hotel, he noted that Jessica’s
clothing appeared as though it had been put on haphazardly and “[d]idn’t look like
she had put [it] on herself.” According to Miller, there were no signs of a struggle
in the hotel room and neighboring occupants did not hear screams or anything that
indicated a struggle.
J. Oliphant with the Houston Police Department Crime Scene Unit
investigated the scene. He testified that he found an empty bottle of Crown Royal
in the trash and another half-empty bottle repackaged in the Crown Royal box
inside Jessica’s bag. Oliphant also found prescription bottles in the room.
At the hotel, Miller spoke with Herrera and his mother together and then
individually. Herrera gave Miller an overview of the night. According to Herrera,
4

he and Jessica checked into the hotel, went to the prom for a couple hours, went
back to the room, had sexual intercourse, and went to sleep. When he woke up the
next morning, he found Jessica dead. Miller asked Martinez and Herrera to be
interviewed in the homicide division offices.
During questioning at the homicide division offices later that day, Herrera
told Miller that he woke up around 7:00 a.m., saw Jessica’s dead body, and called
his mother in a panic. Martinez, who was already near the hotel, arrived quickly.
Herrera and his mother dressed Jessica’s naked body, then Martinez called 9-1-1.
The emergency call was placed around 9:10 a.m.—two hours after Herrera found
Jessica and called Martinez.
Herrera indicated to the investigators that Jessica had brought all the alcohol
as well as any Hydrocodone she consumed that night. During a break in the
questioning, though, investigators allowed Martinez and Herrera time to talk
between themselves in the interview room. That portion of the videotape, along
with the remainder of the interview, was played to the jury. During their
conversation, Martinez told Herrera to be truthful about her providing the
Hydrocodone and alcohol. From that point on, Herrera told the police that he and
his mother were involved in bringing the alcohol and Hydrocodone to the hotel
room.
5

During further questioning, Herrera told the investigators that he and Jessica
had consensual intercourse in the hotel room after the prom, but he made no
mention of placing any pressure on her neck during the encounter.
Miller testified that at no point during the interview did Herrera become
emotional or show any signs of being upset.
Dr. Haden-Pinneri, a medical examiner for the Harris County Institute of
Forensic Sciences, performed an autopsy on Jessica’s body the day after she was
found. In her external examination of Jessica, she found bruises on her neck, face,
and legs. In her internal examination of Jessica’s body, Pinneri found extensive
injuries to Jessica’s neck, anal trauma, and petechiae in Jessica’s eyes, which
Pinneri explained are burst blood vessels that can be markers of “potential
asphyxia or an absence or reduction of blood flow that goes to the brain” and are
often seen in cases involving neck-compression injuries. She further testified that
these petechial hemorrhages are not typical of drug overdose deaths absent an
unusual post-death body position, which Jessica did not exhibit.
The presence of petechiae led Pinneri to closely examine Jessica’s neck for
evidence of compression. There she found multiple hemorrhages in multiple layers
of muscle tissue in both the front and back of Jessica’s neck. According to Pinneri,
it would have required “a directed forceful squeeze, multiple places, multiple
6

times” to cause that level of hemorrhaging; it could not have resulted from “a light
touch” or “someone simply grabbing the front of the neck.”
Pinneri advised the police of her findings. Because Herrera’s earlier
statement was inconsistent with the extensive neck injuries seen during the
autopsy, the investigators interviewed Herrera again.
Miller questioned Herrera about Jessica’s neck injuries. Herrera explained
that Jessica had asked him to “choke her a little bit” during sex and that he put his
right hand around her neck only “once” while he was facing her and for “no more
than a few minutes.” Herrera stated that, after sex, he and Jessica had an extended
discussion, took photos on Snapchat, and then fell asleep. Miller had Herrera
demonstrate his hand placement and the amount of pressure he had applied. At
trial, Miller described Herrera as using “very mild pressure.”
After the interview, Miller provided Pinneri with an audio recording of
Herrera’s remarks. According to Pinneri, none of Jessica’s injuries were consistent
with someone “simply grabbing the front of the neck” or the consensual sexual
encounter Herrera described. Pinneri testified that she would not expect that
someone “would be up chatting, taking photographs and talking about future plans
after sustaining that degree of neck trauma.” According to Pinneri, the neck
injuries would likely have caused Jessica to lose consciousness.
7

Herrera was interviewed again. He said that Jessica had placed his hands on
her neck and then he “squeezed her neck.” He maintained that this was part of their
consensual intercourse. During this interview, Herrera no longer indicated that they
had a conversation or took pictures after the sexual encounter; instead, he said that
he did not remember if she spoke at all and that he immediately passed out.
Herrera told the investigators that, when he woke up the next morning, Jessica was
in the same position she had been in when the intercourse ended.
After the interview, Herrera was indicted for felony aggravated assault. A
jury convicted Herrera and assessed punishment at 25 years’ confinement. Herrera
appeals.
Elements of the Offense
Herrera was convicted of an aggravated assault offense. The offense
involves several aggravating factors that, combined, elevate it to a first-degree
felony. See TEX. PENAL CODE § 22.01 (assault); § 22.02 (aggravated assault);
§ 12.32 (first-degree felony).
A person commits assault if he “intentionally, knowingly, or recklessly
causes bodily injury to another.” Id. § 22.01. The offense converts to aggravated
assault if he commits assault and either “causes serious bodily injury to another” or
“uses or exhibits a deadly weapon during the commission of the assault.” Id.
§ 22.02. Aggravated assault elevates even more, to a first-degree felony with a
8

punishment range of five to ninety-nine years or life, if he “uses a deadly weapon
during the commission of the assault and causes serious bodily injury to a person
whose relationship to or association with [him] is described by” Section
71.0021(b), which addresses “dating violence.” Id. § 12.32, 22.02; TEX. FAM.
CODE § 71.0021(b).
Section 71.0021 includes within the definition of “dating violence” any non
defensive act that is intended to result in bodily injury and is committed against
one with whom the actor has or has had a “dating relationship.” TEX. FAM. CODE
§ 71.0021(a). A “dating relationship” is “a relationship between individuals who
have or have had a continuing relationship of a romantic or intimate nature.” Id.
§ 71.0021(b). The existence of a dating relationship is determined based on
considerations 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.” Id. A “casual acquaintanceship or ordinary
fraternization in a . . . social context does not constitute a ‘dating relationship’
. . . .” Id. § 71.0021(c).
Both the State and Herrera agree that, as indicted, this was a result-oriented
offense and, for a conviction, the jury had to determine beyond a reasonable doubt
that Herrera acted intentionally or knowingly with respect to the result of his
conduct, i.e., serious bodily injury.
9

Assertion of Charge Error
In his second issue, Herrera contends that the trial court erred by incorrectly
instructing the jury on the applicable mens rea for the offense. Specifically,
Herrera contends that the trial court erred in instructing the jury with the conduct
oriented definition of “knowingly”—which requires that a person be aware of the
nature of his conduct—in addition to the properly instructed result-oriented
definition of “knowingly”—which requires that the person be aware that his
conduct is reasonably certain to cause the result. He argues that this error allowed
the jury to convict him by concluding only that he knowingly choked Jessica
without also determining—as he contends was required—that he knowingly caused
serious bodily injury.
A. Standard of review
When analyzing a jury-charge issue, we first determine if error exists. See
Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (en banc) (op. on
reh’g); Tottenham v. State, 285 S.W.3d 19, 30 (Tex. App.–Houston [1st Dist.]
2009, pet. ref’d). If there is error, we then consider whether an objection to the
charge was made to preserve error because whether error was preserved determines
the appropriate harm analysis to apply. Tottenham, 285 S.W.3d at 30. When charge
error is not preserved, the error may lead to reversal only if it created egregious
harm, meaning that the error was so harmful that the defendant did not have a fair
10

and impartial trial. Almanza, 686 S.W.2d at 171. When considering whether a
defendant suffered egregious harm, a reviewing court must consider: (1) the entire
jury charge; (2) the state of the evidence, including the contested issues and weight
of probative evidence; (3) the argument of counsel; and (4) any other relevant
information revealed by the record of the trial as a whole. Id. at 171. The reviewing
court examines the whole record for “actual, not just theoretical, harm to the
accused.” Id. at 174.
The State concedes that the trial court should not have instructed the jury
with the conduct-oriented definition of “knowingly.” Herrera, in turn, concedes
that he did not object to the error. Thus, we will review the record for egregious
harm.
B. Assuming error, Herrera did not suffer egregious harm to warrant reversal
An erroneous instruction is egregiously harmful if it denies a defendant a
fair and impartial trial in that it goes to the very basis of the case, deprives the
defendant of a valuable right, or vitally affects his defensive theory. Almanza, 686
S.W.2d at 172. We consider the entire jury charge, the state of the evidence,
counsels’ argument, and any other relevant information in the trial record as a
whole when reviewing for egregious harm. Id. at 171.
1. Jury charge
The court’s charge contained the following definition of “knowingly”:
11

A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
Thus, the jury was instructed on both the conduct-oriented and the result-oriented
definitions of “knowingly.”
Definitions in a charge must be examined in the context in which the defined
terms appear and not in isolation. Turner v. State, 805 S.W.2d 423, 430–31 (Tex.
Crim. App. 1991) (en banc). In the application paragraph, the charge instructed the
jury to convict Herrera only if it found beyond a reasonable doubt that Herrera
“knowingly cause[d] serious bodily injury to” Jessica and to acquit Herrera if it
had reasonable doubt or did not so find. As such, there is little risk that the jury
interpreted the charge as instructing it to convict based solely on a finding that
Herrera intended to use his hands to choke Jessica without consideration of the
result of that action. The charge made clear that the jury could not convict unless it
found beyond a reasonable doubt that he “knowingly cause[d] serious bodily
injury.” Thus, Herrera has not established egregious harm. See Peterson v. State,
836 S.W.2d 760, 765–66 (Tex. App.—El Paso 1992, pet. ref’d) (concluding that no
harm was shown from inclusion of both conduct-oriented and result-oriented
definitions of “knowingly” because application instruction properly required jury
12

to find beyond reasonable doubt that defendant knowingly caused bodily injury);
see also Almanza, 686 S.W.2d at 172.
Moreover, the charge included a mistake-of-fact instruction, which informed
the jury that, even if it found that Herrera knowingly caused serious bodily injury
to Jessica, if it also found that Herrera formed a reasonable belief of fact by
mistake that negated the culpability required to find him guilty, then the jury must
find Herrera not guilty. This instruction further mitigates the risk that the jury
could have understood the charge to allow a conviction based on a finding that
Herrera only intended to choke Jessica without also intending to cause her serious
bodily injury. This can be seen in Herrera’s closing argument.
2. Closing arguments
During his closing argument, Herrera’s counsel discussed the mistake-of
fact instruction. He told the jury that if Herrera had a mistake of fact that caused
him to form a reasonable belief “that he was not causing any injury or he was
doing it, let’s say, consensually,” then the jury was obligated to find him not guilty.
In other words, Herrera argued to the jury that it could not convict if it doubted that
he intentionally or knowingly caused serious bodily injury.
The inclusion of this argument that linked the mistake-of-fact instruction to
whether Herrera intended to cause serious bodily injury further demonstrates the
lack of egregious harm in instructing the jury on both “knowingly” definitions.
13

There is little risk that a reasonable jury would have determined from the charge, in
light of the closing argument, that it could have convicted simply based on a
finding that Herrera intended to engage in the act of choking.
3. Evidence
In the police interviews admitted into evidence, Herrera did not deny that he
choked Jessica or deny remembering having done so. Instead, he admitted that he
“choked” her, described the event as consensual, and explained in detail how he
used only his right hand for only a few seconds without applying force. But
Jessica’s neck injuries revealed in the autopsy were irreconcilable with Herrera’s
description.
Dr. Pinneri, the assistant deputy chief medical examiner, testified that
Jessica had significant neck injuries that could have resulted only from intense
squeezing in multiple places at multiple times. She described “large,”
“pronounced” hemorrhages in Jessica’s neck that went “down into multiple layers”
of muscle in both the front and the back of her neck. The hemorrhaging caused
“substantial” accumulations of blood, which, according to Pinneri, could only
result from “direct significant force” and not merely from “just a light touch or
something like that.” She elaborated: “It’s going to have to be a directed, forceful
squeeze, multiple places, multiple times . . . to achieve the hemorrhages” found in
Jessica’s autopsy. To achieve these injuries, it would have required pressing hard
14

enough “to actually cause the blood vessels to burst,” which would have required
“a significant amount of pressure or force.” Along with the hemorrhages and
contusions, Pinneri found evidence of petechial hemorrhaging (i.e., ruptured blood
vessels) near Jessica’s eyes. 2
Dr. Pinneri testified that Jessica’s injuries were not consistent with Herrera’s
earlier statements describing how he claimed to have placed his hands on Jessica’s
neck. There were “too many hemorrhages in too many locations and they’re too
deep to be . . . as [he] demonstrated and described.” Herrera had to have used a
significant amount of force at the front and back of Jessica’s neck—enough to
damage multiple layers of muscle, burst blood vessels, cause significant pooling of
blood in the neck, restrict blood flow to the brain so as to cause additional
petechial hemorrhaging, and, ultimately, to cause a loss of consciousness. The jury
was shown autopsy photographs evidencing Jessica’s neck injuries.
Pinneri’s testimony and the autopsy photographs could have led a reasonable
jury to conclude that Herrera was untruthful in his explanation of events and that,
instead, he used significant force against Jessica.
2 Pinneri noted that petechial hemorrhaging is typically not seen in a “sedative-type overdose death,” but, instead, with compression or strangulation based injuries involving “an absence or reduction of blood flow that goes to the brain.” The discussion of sedative-related death and overdose arose in light of Jessica’s toxicology results. Pinneri testified that the level of Hydrocodone in Jessica’s body would not typically cause death on its own. The level of alcohol in her body, though, was “just starting into a lethal range.”
15

Furthermore, according to Pinneri, the extent of Jessica’s neck injuries make
it unlikely that, after intercourse, she had been lying comfortably with Herrera,
casually discussing their evening and future plans, as Herrera had claimed in one
of his police interviews. Instead, according to Pinneri, once Jessica received those
neck injuries, she likely would have lost consciousness.
The evidence of significant physical trauma to Jessica’s neck belies
Herrera’s assertion of egregious harm from charge error because the evidence
leaves little risk that a reasonable jury could have concluded that Herrera knew he
was “choking” Jessica but was not aware that his conduct was reasonably certain to
cause serious bodily injury.
We conclude that Herrera has not demonstrated egregious harm in the
submission of both “knowingly” definitions in the court’s charge. We overrule his
second issue.
Sufficiency of the Evidence
In issues one, three, and four, Herrera challenges the sufficiency of the
evidence on various elements of the offense for which he was convicted.
Specifically, he argues that there was insufficient evidence that he “choked”
Jessica, that he did so “intentionally and knowingly,” and that he and Jessica were
in a “dating relationship” as was required to elevate the offense to a first-degree
felony.
16

A. Standard of review
We review sufficiency of the evidence using the standard enunciated in
Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 2788–89 (1979). See
Brooks v. State, 323 S.W.3d 893, 898–902 (Tex. Crim. App. 2010). Under that
standard, “the relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at
319, 99 S. Ct. at 2789 (emphasis omitted); Laster v. State, 275 S.W.3d 512, 517
(Tex. Crim. App. 2009). We consider all reasonable inferences that may be drawn
from the evidence in making our determination, including all direct and
circumstantial evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007).
Evidence is insufficient in four circumstances: (1) no evidence exists that is
probative of an element of the offense in the record; (2) only a “modicum” of
evidence exists that is probative of an element of the offense; (3) the evidence
conclusively establishes a reasonable doubt; and (4) the alleged acts do not
establish the criminal offense charged. See Jackson, 443 U.S. at 314, 320, 99 S. Ct.
at 2786, 2789; Laster, 275 S.W.3d at 518.
The jury has the exclusive role of evaluating the facts, the credibility of the
witnesses, and the weight a witness’s testimony should be given. Penagraph v.
17

State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981); Jaggers v. State,
125 S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). The jury
may choose to believe all, some, or none of a witness’s testimony. Davis v. State,
177 S.W.3d 355, 358 (Tex. App.—Houston [1st Dist.] 2005, no pet.). And the jury
alone must reconcile any conflicts in the evidence. Wyatt v. State, 23 S.W.3d 18,
30 (Tex. Crim. App. 2000).
Under the Jackson standard, we defer to the factfinder “to resolve conflicts
in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.” Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton,
235 S.W.3d at 778. If there are conflicts in the evidence, we must presume the
factfinder resolved the conflicts in favor of the verdict and defer to that
determination, as long as it is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at
2793; Penagraph, 623 S.W.2d at 343 (“A jury is entitled to accept one version of
the facts and reject another or reject any of a witness’[s] testimony.”).
Contradictory evidence will not diminish the legal sufficiency of the evidence that
supports the verdict. See McDonald v. State, 462 S.W.2d 40, 41 (Tex. Crim. App.
1970). If the evidence is insufficient, we must reverse and enter an order of
acquittal. See Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 2218 (1982).
18

B. Evidence of “choking”
Herrera was indicted for and convicted of the offense of aggravated assault
by causing serious bodily injury to Jessica “by choking [her] with his hands.” In
his videotaped interview, Herrera described how he “squeezed” Jessica’s neck as
he was “choking” her. Dr. Pinneri testified about extensive hemorrhaging and
contusions on Jessica’s neck consistent with significant compression of the neck.
Thus, there is legally sufficient evidence from which a reasonable jury could have
concluded that Herrera did as he admitted—squeezed Jessica’s neck and choked
her—and, in doing so, caused bodily injury.
Herrera’s argument, though, is not that the evidence is insufficient to
conclude that he did what he admitted he had done. Instead, his argument is that
(1) the indictment specifically alleged that he injured Jessica by “choking” her;
(2) the term “choking” signifies a restriction of air flow; (3) Dr. Pinneri testified
that Herrera restricted Jessica’s blood flow to the brain; and, thus, (4) there was
legally insufficient evidence that he did what the indictment alleged: choked
Jessica.
The combination of Herrera’s statements and Dr. Pinneri’s testimony
provided legally sufficient evidence for the jury to conclude that Herrera caused
bodily injury by choking Jessica. Herrera admitted that, in his words, he “choked”
Jessica and “squeezed” her neck. He demonstrated doing so in the video played for
19

the jury. And Pinneri testified that she found evidence that there had been “a
significant amount of pressure” placed on Jessica’s neck that caused extensive
bodily injury. She explained that her testimony about neck compression was
consistent with what lay people commonly refer to as “choking.” She also
confirmed that Herrera’s physical demonstration of applying pressure on Jessica’s
neck and his use of the term “choking” to describe that act were consistent with the
bodily injuries Pinneri observed on Jessica’s neck. Moreover, according to Pinneri,
Herrera’s action would “decrease the amount of blood that the brain is receiving”
as well as “deprive the brain potentially of receiving oxygen.”
We conclude that there was legally sufficient evidence, including Herrera’s
own statement, from which the jury reasonably could have concluded, beyond a
reasonable doubt, that Herrera choked Jessica and caused bodily injury. Cf.
Cordero v. State, No. 04-95-00713-CR, 1997 WL 13608, at *4 (Tex. App.—San
Antonio 1997, pet. ref’d) (mem. op., not designated for publication) (rejecting
defendant’s argument that there was no evidence that he had “choked” complainant
because medical examiner testified that complainant died only from restricted
blood flow, not from restricted air flow; rejecting argument, in part, based on
medical examiner’s testimony that colloquial term “choking” includes
strangulation, which blocks both air and blood).
We overrule Herrera’s third issue.
20

C. Evidence of mens rea
In his first issue, Herrera argues that nothing in Herrera’s statements to
police “suggests he had any intent to harm or seriously hurt” Jessica. Instead, he
asserts that he squeezed her neck because she asked him to do so during their
sexual encounter. He asserts that Dr. Pinneri’s testimony “offered no insight into
whether someone causing [Jessica]’s injury would have necessarily been aware of
the danger involved.”
Direct evidence of the requisite culpable mental state—the mens rea of the
offense—is not required. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002).
Mens rea is almost always proven through circumstantial evidence. Stobaugh v.
State, 421 S.W.3d 787, 862 (Tex. App.—Fort Worth 2014, pet. ref’d); see
Tottenham, 285 S.W.3d at 28 (“[B]oth intent and knowledge may be inferred from
circumstantial evidence and proof of a culpable mental state almost invariably
depends on circumstantial evidence.”). “A jury may infer intent from the acts,
words, and conduct of the accused, as well as from the extent of the injuries and
the relative size and strength of the parties.” In re I.L., 389 S.W.3d 445, 456 (Tex.
App.—El Paso 2012, no pet.). Additionally, a jury may infer that a criminal
defendant intended the natural consequences of his acts. See Ruffin v. State, 270
S.W.3d 586, 591–92 (Tex. Crim. App. 2008).
21

There is ample circumstantial evidence from which a reasonable jury could
have concluded that Herrera had the requisite mens rea to find him guilty of
aggravated assault, meaning that he was aware that his conduct was reasonably
certain to cause serious bodily injury. Herrera admitted that he squeezed Jessica’s
neck, but his various statements to police were not consistent with each other or
with the physical evidence of Jessica’s injuries. Initially, he omitted the choking
incident from his description of events. At another time, he admitted that he
choked her but said that it was with only one hand. At another time, he said that
she placed both of his hands on her neck. These inconsistencies in Herrera’s
statements could have led a reasonable jury to conclude that he was not credible
and to disregard his statements that sought to diminish his role in Jessica’s injuries.
See Revels v. State, 334 S.W.3d 46, 53 (Tex. App.—Dallas 2008, no pet.) (stating
that jury could believe portions of individual’s testimony that supported conviction
while disregarding other inconsistent portions of testimony).
Dr. Pinneri testified that Herrera’s descriptions of how he squeezed
Jessica’s neck were inconsistent with the injuries revealed in the autopsy. It would
have required a significant amount of force on Jessica’s neck to cause the depth
and severity of her injuries, including significant hemorrhaging deep within the
layers of muscle in her neck. Because all evidence indicated that Herrera was the
only person in the hotel room with Jessica when her neck was injured and those
22

injuries could not have been caused by the minimal degree of force Herrera
claimed he applied, the jury could have concluded that he was being untruthful in
his explanations and, based on that conclusion, inferred that he had the requisite
culpable mental state when he inflicted such serious injuries to Jessica’s neck. See
Padilla v. State, 326 S.W.3d 195, 201 (Tex. Crim. App. 2010) (rational factfinder
may consider defendant’s untruthful statements, in connection with other
circumstances of case, as affirmative evidence of defendant’s guilt).
Viewing the evidence in the light most favorable to the verdict, we conclude
that a rational jury could have reasonably inferred from Herrera’s acts, conduct,
and remarks and from the surrounding circumstances that he possessed the
requisite culpable mental state to support a conviction for aggravated assault.
We overrule Herrera’s first issue.
D. Evidence of dating relationship
In his fourth and final issue, Herrera contends that the evidence is legally
insufficient to prove that he and Jessica were in a dating relationship, as was
required to elevate the aggravated-assault offense to a first-degree felony. See TEX.
PENAL CODE § 22.02; TEX. FAM. CODE § 71.0021.
The “dating violence” provision lists factors to be considered in evaluating
whether a relationship meets its definition, while noting that a “casual
acquaintanceship” will not qualify. TEX. FAM. CODE § 71.0021(b)–(c). “The
23

existence of 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.” Id.
§ 71.0021(b).
In Herrera’s videotaped statements to the police, he told the investigating
officer that he had asked Jessica to be his girlfriend and had given her a ring on the
night of prom. The two had sexual intercourse and, in Herrera’s words, “talked
about our future.” Sergeant Miller referred to Jessica as Herrera’s girlfriend, and
Herrera did not correct that characterization. Herrera told Miller that he and Jessica
had been dating for three weeks at the time of her death. In a portion of the police
interview video, Herrera’s mother is in the interview room with Herrera and says,
“You loved her, right?” to which he responded by nodding affirmatively.
The jury determined that a teenage romance that had progressed in this
manner, with these types of interactions, and had continued for three weeks leading
up to Jessica’s death, constituted a “continuing relationship of a romantic or
intimate nature.” Id. (defining “dating relationship” as “a relationship between
individuals who have or have had a continuing relationship of a romantic or
intimate nature.”).

24

Herrera argues that a three-week relationship is inadequate to meet the
statutory definition of a “dating relationship.” He points to a one-month
relationship at issue in Villarreal v. State, 286 S.W.3d 321 (Tex. Crim. App. 2009),
arguing that three weeks does not meet that threshold and that there are no other
cases approving of a dating period of less than one month as qualifying as a
“continuing relationship” under the statute. But the appellate issues in Villarreal
did not involve whether the length of the relationship met the statutory standard.
And at least one other “dating violence” case involving teenagers dealt with a
couple who had been “dating” only two weeks and considered each other as
boyfriend and girlfriend. See B.C. v. Rhodes, 116 S.W.3d 878, 880 (Tex. App.—
Austin 2003, no pet.) (as with Villarreal¸ not involving challenge to whether length
of relationship was statutorily adequate).
Because a rational trier of fact could have concluded, on this evidence
viewed in the light favorable to the verdict, that Herrera and Jessica were in a
dating relationship, we overrule Herrera’s fourth and last issue.

Outcome:

We affirm.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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