Samuel Fertic v. The State of Texas--Appeal from 41st District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

SAMUEL FERTIC,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-04-00168-CR

Appeal from the

41st District Court

of El Paso County, Texas

(TC# 20020D00048)

O P I N I O N

This is an appeal from a jury conviction for the offense of aggravated assault with a deadly weapon. The jury assessed punishment at ten years imprisonment and a fine of $10,000. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

Appellant was indicted for the offense of murder. The jury returned a verdict of guilty to the lesser-included offense of aggravated assault. The jury answered affirmatively to the special issue submitted inquiring whether or not Appellant used a deadly weapon during the commission of the offense.

At trial, the evidence revealed that on September 1, 2001, personnel from the El Paso County Medical Examiner s Office, emergency medical personnel, and police officers were dispatched to the apartment of Lisa Fertic and her ex-husband, the Appellant. Upon arrival, the medical technicians found Lisa Fertic, the victim, lying on her bedroom floor, which was covered in clothes. It was apparent that she had been without oxygen for some time and was dead.

El Paso Police Officer Orlando Hernandez was the first officer dispatched to the victim s apartment. Upon arrival, the officer requested assistance, and Officer Juan Ferrel arrived later. Officer Hernandez noted that the apartment was very messy and unkept. Specifically, he observed several beer cans scattered throughout the apartment. Similarly, Officer Ferrel testified that the apartment was dirty, unkept, and contained a lot of beer cans. However, Officer Ferrel did not observe any signs of a struggle. As the paramedics attended to both the victim and the Appellant, Officer Hernandez learned that she had been taking medication for depression. Officer Ferrel noted that the victim s face was pale and that a white, watery substance was on her lips.

Officer Hernandez then gathered some information from the Appellant and made a report. At that time, the officer was labeling the event as an unattended death. During his conversation with the Appellant, Officer Hernandez learned that the Appellant last saw the victim at 2:30 a.m. The Appellant then divulged that he had slept on the living room couch that night and when he woke up later that morning, he knocked on the bedroom door, which was shut. When she did not answer, he entered the room, and found her lying on the floor. Officer Hernandez testified that the Appellant appeared very distraught and troubled throughout the conversation, and he contacted a chaplain to comfort him. After speaking with the Appellant, Officer Hernandez instructed him to go upstairs with his neighbor, who was standing beside him.

Officer Hernandez then contacted his supervisor and told him that something was suspicious about the deceased s demise. Upon conclusion of that conversation, Officer Hernandez went to speak with the Appellant again. During this discussion, the officer learned that the victim and Appellant had slept in different rooms because, according to the Appellant, she had a habit of waking up several times throughout the night to peek out the living room blinds. But the Appellant told the officer that she had not engaged in such behavior on the night of her death.

Officer Ferrel also spoke with the Appellant. After asking for his side of the story, Appellant explained that he had a verbal argument with the victim earlier that night, and that the victim slept in the bedroom while he slept on the sofa. The Appellant then stated that the victim kept getting up throughout the night to look out the window, and that he last saw her around 2:30 a.m. The Appellant did not tell the officer whether the victim had been using either prescription or illegal drugs.

Robin Kasson, a medical examiner investigator, also responded to the scene. Afer gathering basic information from Officer Hernandez, Kasson examined the body. According to Kasson, the body was cold to the touch, her color was dark and reddish, and she was stiff. Based on these observations, Kasson concluded that the victim had been dead for quite some time. Kasson then noticed a froth around the victim s nostrils and mouth, a stiff jaw, and a laceration above her eyebrow. Kasson observed some bruising around the victim s knees, a bruise on her upper leg, and some red marks on her right inner thigh.

Kasson then noticed that the bedroom was disorganized and that several piles of clothes were strewn around, but she also found no signs of a struggle. Kasson also learned that some prescription drugs were lying atop the dresser--a bottle of Wellbutrin and some blister packets containing ferrous sulfate (an iron supplement) and Lamictal. Kasson then spoke to the Appellant. She explained that the purpose of the discussion was two-fold: (1) to obtain medical information; and (2) to find out what happened leading up to the death. It was brought to Kasson s attention that the victim was on medication. Appellant then divulged that the victim was a smoker, drinker, and had used illegal drugs in the past. The Appellant also told Kasson that he suspected that the victim may have started using illegal drugs again and elaborated that he saw a baggie in her cheek, that the phone number written on her hand was probably a drug contact, and that she had been acting strange for the past two weeks.

Kasson next asked the Appellant to explain what happened, and he elucidated that they had consumed beer and watched television. The Appellant told Kasson that the victim went into the bedroom around 2:30 a.m., and that he fell asleep on the couch. He stated to Kasson that he went to check on the victim around noon on the following morning, and found her unresponsive.

Michael Velez, a crime scene technician, was also dispatched to the victim s apartment concerning an unknown cause of death. Upon arrival, Velez noted that the apartment was unkept, dirty, and in disarray. Several beer cans were visible throughout the living room and kitchen. No ice pack was found near the bed or next to the victim. Upon meeting the Appellant, Velez noted that he was bothered and perturbed, but he did not appear to be grieving.

Subsequently, an autopsy was conducted on the victim s body by Dr. Corinne Stern. While performing the autopsy, Dr. Stern suspected that the death was a possible homicide. Consequently, she contacted Detective Armando Fonseca and requested his presence at her office. Initially, Dr. Stern noted that the victim was well-nourished and appeared to be well-developed. But Dr. Stern did notice the victim had two abrasions on her face and a black eye. Internally, the doctor discovered that she had several contusions in the front most portion of the scalp area. Also, Dr. Stern found several bruises on the top and back of the scalp, each of which was labeled as a separate impact site. Dr. Stern discovered significant bleeding inside the cranium--at least sixty milliliters of blood. In her opinion, such bleeding alone was sufficient to be fatal. Dr. Stern characterized the injuries to the head as blunt force injuries. In other words, she believed the victim was struck in the head with a hard object or her head was struck against something hard. She further opined that the injuries were not self-inflicted because there were no injuries to the neck area. The doctor also noted that her brain was starting to swell, which was a reaction to the bleeding. Specifically, the brain was pushing into the foramen magnum creating notches in the cerebellum and causing the brain to herniate.

Dr. Stern found several contusions on the thorax, both externally and internally. Specifically, she found bruises along with a fractured rib and bleeding from the rib cage. She testified the bruises were consistent with marks left by the knuckles of a fist. Dr. Stern also discovered several contusions on the victim s arms and legs. In her opinion, none of the victim s injuries including those to the head, appeared to be self-inflicted. Further, there were no signs that CPR had been administered to the victim. However, a large amount of cocaine toxicity was found in her bloodstream. Dr. Stern arrived at the opinion that the victim s death was a homicide, and was the result of concurrent causes: cocaine intoxication and blunt force trauma to the head.

Based on Dr. Stern s conclusions, Detective Fonseca gathered a group of detectives to conduct a follow-up investigation. Fonseca, along with Detectives Martinez, Pantoja, Ruiz, and Baca and Sergeant Hinojosa, then went back to the apartment to speak with the Appellant. After showing their credentials and explaining what they were investigating, the Appellant allowed them to enter the apartment. Specifically, the detectives asked whether he would consent to a search of the apartment and whether he would willingly go to the police headquarters to give a statement regarding the death. Appellant agreed to both.

Appellant was then transported without handcuffs, and in an unmarked car to the Crimes Against Persons police station with Detectives Fonseca and Martinez. Once there, the Appellant was Mirandized and after agreeing to be interviewed by Detective Fonseca, gave a statement. That statement sets out that the victim and the Appellant had bought and drank beer together on the evening of August 31, 2001, and that the victim had purchased cocaine from a drug dealer known to the Appellant only as Freak. The statement further sets out that the victim s behavior became paranoid and irrational after she consumed the cocaine. According to the Appellant, the victim went into her bedroom alone, and he heard noises coming from the room that sounded like banging on the walls. He characterized the banging as sounding as if she was looking for something in the bedroom; this lasted thirty minutes. He states that he subsequently entered the room and found the deceased lying on the floor face up with her head up against the wall. He noticed a piece of a barrette which had been in the deceased hair on the floor so he checked her head for injuries and did not find any. He then checked to see if she breathing, and found that she was breathing. The Appellant stated in his statement that he thought she was passed out drunk and he put her in bed and placed an ice pack next to her. He then went to sleep on the living room couch and when he looked in on her the following day, she was dead. In his statement, the Appellant avers that he had struck his wife in the past, but he denies ever hitting her while he had been in El Paso. He states he does not know what happened to his wife, the victim, but he suspects that she died of the medication, beer, and cocaine.

At trial, there was testimony from the witness, Jonathan Hardy, a friend of the victim s family. He was working as a cashier at the Albertsons grocery store, and on August 31, 2001, at approximately 6:30 or 7 p.m., he observed her and the Appellant purchasing a thirty-pack of beer. Hardy testified that in the past he had observed individuals under the influence of cocaine and based on his experience he did not believe that the victim was intoxicated by cocaine or alcohol. He testified further that she was wearing a short-sleeved shirt and he got a good look at her face and arms, but did not observe any injuries or bruises. In addition, there was testimony from Linda King, the victim s mother, indicating that she had spoken with her on the telephone sometime between 8 and 9 p.m. on the evening before her death. During that conversation, her daughter behaved normally and did not seem to be high or intoxicated in any fashion. So, King was shocked when she learned of her death the following day.

Dr. Ronald Charles Backer, a board certified forensic toxicologist, reviewed the autopsy and toxicologist reports performed on the victim. According to his testimony, there were no traces of Wellbutrin, ferrous sulfate, or alcohol in the victim s body. In fact, the only two substances found in the victim s body were cocaine and the major metabolite of cocaine. Based on Dr. Backer s conclusions, she ingested between 1.2 to 2.2 grams of pure cocaine. Based on the amount of cocaine consumed by the victim, Dr. Backer estimated that she would have died within an hour from the moment she ingested it.

The defense expert, Dr. Cyril Wecht, a specialist in forensic pathology, also reviewed the autopsy report and toxicology record, among other items. But Dr. Wecht did not agree with Dr. Stern s conclusion that the victim died from blunt force injuries to the head in combination with acute cocaine intoxication. Specifically, Dr. Wecht opined that the level of cocaine intoxication and not the head injuries caused the victim s death. According to him, the head injuries would be a one at best on a scale of one to ten. He testified that the victim would have had only a bad headache for a couple of days which would have required only aspirin or ibuprofen. In Dr. Wecht s opinion, her death was solely drug-related. His findings suggest that the lungs were filled with fluid, which was caused by the ingestion of cocaine and the amount of cocaine found in the blood alone was enough to cause her death. Consequently, Dr. Wecht opined that the victim died from acute cocaine toxicity. Further, the doctor stated that any of the injuries found on her body, including the fractured rib, could have been caused by simply brushing up against or falling on top of items found in her bedroom while under the effects of cocaine.

In contrast to Dr. Wecht, Dr. Juan Contin, deputy medical examiner, agreed with Dr. Stern that the victim s death was a homicide. According to Dr. Contin, although the sixty milliliters of blood collected in the brain from the head injuries was not a large amount, the combination of the amount of blood, the swelling of the brain, and the head injuries were sufficient to cause her death. Specifically, the brain had swelled and pushed itself into the foramen magnum, impairing the cerebellum--the portion of the brain that controls body functions such as heartbeat and breathing. Dr. Contin further testified that an aspirin, as Dr. Wecht had suggested, would actually be the worst thing to give somebody with a bleeding head injury because it would have enhanced the bleeding tendency.

Dr. Contin elaborated that the bruises to the victim s arms and legs, as well as the injuries to her head, were nonprotuberant. In other words, because the bruises were located in areas where a person could not receive a bruise by falling down, the bruises appeared to have been inflicted by someone else. Nor would the victim, according to the doctor, be able to inflict such bruises upon herself while flailing about in an excited state caused by cocaine usage.

Linda King, the victim s mother, testified that she was her best friend. Linda would go to her daughter s house everyday, and they would talk. She explained that her daughter and the Appellant met in Florida in 1993 and married in 1996. But the marriage only lasted six months, and they later divorced.

In 1998, the Kings, along with the victim, relocated from Florida to El Paso. There the victim moved into the apartment where she lived until her death. She remained in contact with the Appellant, and in July of 2001, he moved to El Paso. Linda testified that her daughter was treated for cocaine addiction in Florida and El Paso. She believed that her daughter had not used cocaine during the four months preceding her death. Further, she revealed that the victim had emotional problems when she was young. Specifically, she attempted to commit suicide at ages fifteen and eighteen, and she was subsequently diagnosed as depressed. According to the victim s treating physician, her prior suicide attempts were not serious efforts but simply attention-grabbing gestures.

Jennifer Roberts, who had known the victim since the seventh grade, elaborated on her character and her relationship with the Appellant. Roberts met the Appellant through a friend, who is now her husband. Although the victim and Roberts drifted apart in 1989 or 1990, the Appellant remained a part of her life since he was best friends with her husband. In 1994, the Appellant and the victim began dating, and consequently, she and Roberts began their friendship anew. At that time, Roberts also learned that both the victim and the Appellant were using cocaine. Between 1996 and 1997, Roberts, along with the victim and the Appellant, would ingest cocaine, crack, and marijuana approximately three to five times each week. According to Roberts, the Appellant was always in charge of the drugs.

Although she believed that the Appellant cared for the victim, Roberts testified that he was very controlling. Specifically, the Appellant wanted her to stay at home and keep to herself. The Appellant did not want her using the phone, and she could not leave the house unless he was with her. In addition, the Appellant would not allow the victim to get the mail, and she could not read it until the Appellant had finished with it.

Roberts recalled one incident where the Appellant physically abused the victim. She and the Appellant were staying at Roberts s house in November 1997. She testified that before she went to bed, everything was fine-- everybody was laughing, [and] joking. The room that Appellant and the victim were sleeping in was immaculately clean. The following morning, when Roberts went into that room, it looked like a tornado went through it. Specifically, a shelf was hanging off the wall, there was blood on the walls, the curtains were ripped from the walls, and the sheets were off the bed. Roberts saw the victim crumpled naked on the floor at the end of the bed with a comforter around her. The Appellant was asleep on the living room sofa. The victim had a black eye, blood matted into her hair, and blood and bruises all over her arms. Roberts testified that she was upset, hurt, scared, and traumatized. When Roberts woke her, she started crying. After talking to the victim for ten minutes, Roberts learned that the Appellant had physically abused her. Roberts then tried to push her out the window to get her away from the Appellant, but the victim did not want to leave--she relayed that she was scared to leave him. The next day, Roberts asked the Appellant what happened to the items in the bedroom, and without saying more, he simply responded that he would pay for it.

Roberts then testified to another incident that occurred in late 1996. During that time, the Appellant and the victim were staying at Henry Krause s house. Roberts arrived at his house one day to take the Appellant and the victim shopping. Outside, Roberts heard the Appellant and the victim arguing inside the residence. Roberts walked inside and heard the Appellant yelling at the victim, and her screaming stop. She next saw the Appellant strike her in the face and then pick her up and throw her onto the floor. The Appellant sat on the victim, and she told the Appellant to get up because she could not breathe. After a couple of seconds, the Appellant acquiesced, and the victim turned to walk away, but the Appellant struck again by pushing her. The fight soon ended, and the victim and the Appellant left with Roberts to go shopping. On another occasion, Roberts relayed that the Appellant pushed the victim out of their apartment and locked the door. The victim was erratic, stunned, and upset.

Henry Krause also testified at trial. He first met the Appellant in 1991 and the victim several years thereafter. Between 1995 and 1997, the Appellant and the victim stayed at Krause s house. While there, Krause and the couple regularly ingested crack cocaine. Krause testified that the Appellant became paranoid when he ingested drugs. Specifically, the Appellant would look out windows and doors, thinking someone was there. Krause also testified that the victim would also get paranoid and scared, but he never observed her running around or throwing herself into things.

According to Krause, the Appellant mentally abused the victim, and on one occasion, physically abused her. The physical altercation occurred sometime between 1996 and 1997. The Appellant had called his family to come and get him, and he wanted the victim gone before they arrived. At that point, the Appellant s demeanor was calm. But when his parents arrived, she had not left, and according to Krause, the Appellant began cursing and screaming at the victim. Not only did he throw things, but the Appellant also pushed the victim to the floor and kicked her on the side. The Appellant then grabbed a Bible and ran out the back door.

Krause also testified to another occasion when the Appellant refused to let the victim go to work. The Appellant and the victim were arguing over the use of the car, and when she drove off in the car, the Appellant ran her down and stopped her.

Dr. Bernardo Aleksander was the victim s psychiatrist. After a comprehensive psychiatric evaluation in June of 1999, he diagnosed her as suffering from major depressive disorder. Later, her diagnosis was changed to bipolar disorder. According to the doctor, the victim was well-connected with reality and a normal, functioning adult. Throughout the entire time that Dr. Aleksander treated the victim, she exhibited no signs of paranoia. Dr. Aleksander further testified that the victim never exhibited any signs of suicide during her treatment with him.

The defense presented several witnesses who testified to he victim s unstable behavior. According to the testimony of Miguel Reyes, who lived in the same apartment complex as the victim and the Appellant, although the victim appeared to be normal, she would quite often flip out and start acting weird. Specifically, Reyes testified to one occasion where she entered the living room of her apartment with a knife and accused him and the Appellant, who were watching television at the time, of calling the police. Reyes testified that on another occasion, the victim started cursing and yelling at him when he merely said hi as she arrived at her apartment.

Christopher Giles also testified that while working in his capacity as the manager at Wal-Mart, he witnessed some strange behavior. Specifically, he witnessed the victim waving a sheet of paper, walking back and forth from the front door to the registers, and vocalizing I can t find this and where is this? Giles attempted to help her, but the victim, according to him, refused any assistance. Consequently, Giles motioned for the security guard to watch her. Later, the Appellant, who was with the victim at the time, apologized to Giles for the victim s behavior.

Further, Denise Sanford, who worked at a chiropractic clinic, testified to another occasion that occurred in 2001. According to her testimony, the victim frantically entered the office looking for the Appellant, who was receiving treatment there. She appeared to be hysterical and was screaming and yelling because her car had been stolen. // Denise did not witness any interaction between the victim and the Appellant other than talking. However, she testified that during prior sessions, she was concerned with the number of bruises she observed on the victim s legs.

Thomas Fertic, the Appellant s father, also attested to the relationship between the victim and the Appellant. He testified he observed their relationship for several years before the two were married, during their marriage, as well as after their divorce. Thomas never witnessed any abusive behavior by the Appellant or the victim. Nor did he observe any controlling or domineering behavior between the two. He also testified that during the time that the victim had moved to El Paso and the Appellant was still in Florida, they had contact by phone several times a day and by mail once per day.

II. DISCUSSION

In Issue Nos. One and Two, Appellant challenges the factual sufficiency of the evidence to support a conviction for the lesser-included offense of aggravated assault and the affirmative finding of the use of a deadly weapon in the commission of the offense. Initially, we note that at the charge conference, Appellant did not object to the inclusion of the lesser-included offense of criminally negligent homicide in the charge to the jury. If a defendant requests or does not object to the submission of a lesser-included offense and accepts the benefits of such a charge, he is estopped from challenging the legal or factual sufficiency of the evidence. State v. Lee, 818 S.W.2d 778, 781 (Tex. Crim. App. 1991), overruled on other grounds by Moore v. State, 969 S.W.2d 4 (Tex. Crim. App. 1998); State v. Yount, 853 S.W.2d 6, 9 (Tex. Crim. App. 1993); Otting v. State, 8 S.W.3d 681, 686-87 (Tex. App.--Austin 1999, pet. ref d, untimely filed). In effect, an Appellant cannot induce the court to submit an instruction on a lesser-included offense or enjoy the benefits of such an instruction by failing to object to its submission and then attack, as legally or factually insufficient, a subsequent finding of guilt. Otting, 8 S.W.3d at 686-87; Reaves v. State, 970 S.W.2d 111, 118 (Tex. App.--Dallas 1998, no pet.); see Tamez. v. State, 865 S.W.2d 518, 519-20 (Tex. App.--Corpus Christi 1993, pet. ref d). Therefore, we hold that Appellant, by not objecting to submission of the lesser charge to the jury, waived his first issue challenging the factual insufficiency of the evidence to support his conviction for aggravated assault.

However, notwithstanding this rule of estoppel, we have applied the factual sufficiency standard of review to the instant case and we find that the evidence is factually sufficient to support the conviction and the finding of use of a deadly weapon. In conducting a factual sufficiency review, we view the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. We set aside the fact finder s verdict only if (1) the evidence supporting the verdict, when considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004). However, our factual sufficiency review must be appropriately deferential so as to avoid substituting our judgment for that of the fact finder. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). Accordingly, we are authorized to set aside the jury s finding of fact only in instances where it is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. at 135. If the evidence is factually insufficient, we remand to the trial court for a new trial. Id. at 133-35.

One commits the offense of assault by intentionally, knowingly, or recklessly causing bodily injury to another, including the person s spouse. Tex. Penal Code Ann. 22.01(a)(1) (Vernon Supp. 2005). An assault becomes an aggravated assault when a person uses or exhibits a deadly weapon during its commission. Tex. Penal Code Ann. 22.02(a)(2) (Vernon Supp. 2005). A deadly weapon is anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Penal Code Ann. 1.07(a)(17)(B) (Vernon Supp. 2005). Serious bodily injury is defined as bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Tex. Penal Code Ann. 1.07(a)(46) (Vernon Supp. 2005).

In the instant case, a significant amount of circumstantial evidence was presented to establish the Appellant s guilt. The record shows that the Appellant was living with the victim at the time of her death. According to all medical personnel and officers dispatched to the scene, the Appellant was the only person at the apartment when they arrived. Although the Albertsons cashier, as well as Miguel Reyes, did not see any bruises on the victim s arms or face on the day preceding her death, the medical examiner found several bruises on her body that the medical examiner characterized as not having been self-inflicted. Consequently, a reasonable trier of fact could have inferred that the Appellant, who was alone with the victim in the apartment in the hours preceding her death, was the source of her injuries. See Elledge v. State, 890 S.W.2d 843, 847 (Tex. App.--Austin 1994, pet. ref d) (jury could have reasonably inferred that Appellant committed the offense based on the fact that Appellant was alone with the deceased when the injuries occurred).

The Appellant alleges that the victim could have received her injuries from either her drug dealer, whom he alleges she visited with on the evening before her death, or from stumbling and falling about the apartment while in an excited state caused by the ingestion of cocaine. It would be reasonable for the jury to disregard Appellant s claim that Freak, the drug dealer, inflicted her injuries. Appellant mentions her purchasing cocaine from Freak, but he did not at any time state that she was injured or bruised upon returning from her meeting with him. Further, Appellant never divulged the allegations that Freak had injured the victim to either the responding medical examiners or the police. Accordingly, the jury, as the sole judge of the weight and credibility to be given the testimonies and evidence presented at trial, was free to reject the Appellant s allegations. See Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001) (jury free to reject Appellant s alternative, inconsistent explanations concerning who inflicted the injuries on the victim).

Furthermore, as evidence that the victim s injuries were not self-inflicted, both Dr. Stern and Dr. Contin determined that the bruises on her head and body were located in areas where a person could not receive such contusions by simply stumbling around or falling down. Concerning the injuries to her head, Dr. Stern specifically testified that since the victim had no neck injuries, her head injuries could not have been caused by falling to the floor or on top of objects found in the apartment and were therefore, not self-inflicted. Further, she stated that the exterior bruises found near her rib cage were consistent with marks left by the knuckles of a fist. The defense disagreed and offered the opinion of Dr. Wecht, which supported the Appellant s allegation that she self-inflicted her injuries by banging her head in the bedroom. Dr. Wecht not only testified that the victim s head injuries were insufficient to cause death, but he also testified that such injuries could have been caused while the victim was high on cocaine by simply falling down on the ground or on top of objects located in the bedroom.

The credibility of the experts was an issue for the jury as the sole judge of the weight and credibility to attach to each witness. The trier of fact, not the appellate court, is free to accept or reject all or any portion of any witness s testimony. After a neutral review, we must conclude that the proof of guilt is not so obviously weak as to undermine confidence in the fact finder s determination of the proof of guilt. Consequently, the evidence is sufficient to support Appellant s conviction for the offense of aggravated assault.

Further, ample evidence was presented that the Appellant used or exhibited a deadly weapon. Specifically, Dr. Stern testified that the victim received blunt force trauma to her head. To sustain such injuries, someone would have had to strike her head with a hard object or strike her head against a hard object. According to Dr. Stern and Dr. Contin, the head injuries caused the brain to swell to an extent sufficient to cause the victim s death. Moreover, Dr. Stern testified that the victim had a fractured rib cage and that the external bruises covering the rib cage were consistent with marks left by the knuckles of a fist. In determining whether a deadly weapon was used, the jury may consider all the facts of the case. Bethel v. State, 842 S.W.2d 804, 807 (Tex. App.--Houston [1st Dist.] 1992, no pet.). Additionally, the jury may affirmatively find that a deadly weapon was used even if the object was not identified. Gordon v. State, 173 S.W.3d 870, 873 (Tex. App.--Fort Worth 2005, no pet.) (citing Regan v. State, 7 S.W.3d 813, 819-20 (Tex. App.-- Houston [14th Dist.] 1999, pet. ref d); Mixon v. State, 781 S.W.2d 345, 346-47 (Tex. App.--Houston [14th Dist.] 1989), aff d, 804 S.W.2d 107,108 (Tex. Crim. App. 1991) (adopting as its own, part of court of appeals opinion holding that deadly weapon finding may be made even if object not identified). Further, the presence and severity of wounds on the injured party are factors to be considered in determining whether an object was used as a deadly weapon. Bethel, 842 S.W.2d at 807; Mixon, 781 S.W.2d at 347. A reasonable juror could have found by the presence and severity of the victim s injuries, that Appellant did in fact use a deadly weapon, although such weapon was never discovered. Consequently, the evidence was factually sufficient to show that the Appellant used a deadly weapon in committing the aggravated assault. We have examined all of the evidence impartially, and giving due deference to the jury s verdict, we conclude that the evidence contrary to the verdict is not strong enough that the beyond-a-reasonable-doubt standard was not met and the evidence was not such that it is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Issue Nos. One and Two are overruled.

Appellant contends in Issue No. Three, that the trial court erred in allowing the testimony of Jennifer Roberts, to the effect that she had witnessed the Appellant previously assault the deceased on two separate occasions. Similarly, in Issue No. Four, Appellant complains that the trial court erred in allowing the testimony of Henry Krause, also to the effect that the Appellant had previously assaulted the deceased. Specifically, the Appellant asserts that the evidence of extraneous offenses does not have relevancy beyond character conformity. Further, Appellant contends that the evidence was more prejudicial than probative.

A trial court s ruling concerning the admissibility of evidence of other crimes, wrongs, or acts is reviewed under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990); Williams v. State, 927 S.W.2d 752,758 (Tex. App.--El Paso 1996, pet. ref d). As long as the trial court s ruling is within the zone of reasonable disagreement, its decision should not be disturbed. Montgomery, 810 S.W.2d at 387, 391; Williams, 927 S.W.2d at 758. The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court s action. Rather, it is a question of whether the court acted without reference to any guiding rules and principles. Another way of stating the test is whether the act was arbitrary or unreasonable. The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Montgomery, 810 S.W.2d at 380. In the instant case, the Appellant maintains that when asked to articulate the relevancy of the extraneous offense to a particular material fact of the case, the trial court refused to do so. However, while the trial court is required to perform the Rule 403 balancing test, it need not enter its thought processes on the record. See Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998). If the record is silent, we will presume that the trial court properly conducted the test prior to ruling on the objection. See id.

Tex. R. Evid. 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided upon timely request by the accused, reasonable notice is given in advance of trial of intent to introduce in the State s case-in-chief such evidence other than that arising in the same transaction. Tex. R. Evid. 404(b). Further, in a murder prosecution, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense. Tex. Code Crim. Proc. Ann. art. 38.36(a) (Vernon 2005).

Under Tex. R. Evid. 401, evidence is relevant if it has any tendency to make the existence of a fact of consequence more or less probable. Montgomery, 810 S.W.2d at 387. The State argues that the evidence was relevant under Article 38.36(a) of the Code of Criminal Procedure to show intent and to rebut defensive theories, as well as to depict the nature of the relationship between the victim and the Appellant. See Tex. Code Crim. Proc. Ann. art. 38.36(a) (Vernon 2005). Throughout the trial, the Appellant denied ever striking the victim on the night of her death and urged, as defensive theories, that the victim caused her own injuries and death by alleging alternative scenarios: (1) that, based on her past, she killed herself by banging her head against the walls in the bedroom while high on cocaine; (2) that Freak, the drug dealer, assaulted her, as alleged in Appellant s statement; or (3) that the victim simply received her injuries, as testified to by Dr. Wecht, by injuring herself by falling about the bedroom while high on cocaine. The evidence of the extraneous offenses was relevant and necessary to the prosecution in order to rebut these defensive tactics.

In addition, the evidence showing the previous relationship between the Appellant and the victim became relevant to show an ongoing course of violence, and also to prove that it was his conscious objective to commit aggravated assault and thereby an act clearly dangerous to human life. Further, it provided some insight into the condition of the mind of the accused at the time of the offense. Thus the extraneous offenses were relevant to an issue of consequence other than the Appellant s character. See Robbins v. State, 88 S.W.3d 256, 261-62 (Tex. Crim. App. 2002).

It is clear to us that the complained-of testimony, when considered in the context of the other evidence at trial is relevant; it provides the small nudge toward proving Appellant s motive if he assaulted the deceased. Having found the evidence to be relevant, we must determine if the record reveals that the trial court abused its discretion in choosing to admit the evidence. See Montgomery, 810 S.W.2d at 381.

The Appellant contends that the evidence, if relevant, was more prejudicial than probative. Although relevant, evidence may nonetheless be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. The Court of Criminal Appeals has held that where relevant criteria, viewed as objectively as possible, leads to the conclusion that the danger of unfair prejudice substantially outweighed the probative value of the proffered evidence, the appellate court should declare that the trial court erred in failing to exclude it. Montgomery, 810 S.W.2d at 392. However, an appellate court should not make a de novo review of the record with a view of making a wholly independent judgment whether the probative value of the extraneous act is substantially outweighed by the danger of unfair prejudice. Id. In conducting our review, we must measure the trial court s ruling against the relevant criteria by which a Rule 403 decision is to be made. Id. The trial court has no right to be wrong if that means to admit evidence which appears to the appellate court, affording all due deference to the trial court s decision, nevertheless to be substantially more prejudicial than probative. Id.

The trial court initially heard the evidence outside the presence of the jury, and subsequently overruled the Appellant s objections. The trial court found that the probative value of the evidence of the assaults substantially outweighed the prejudicial effect. Further, the trial court submitted a limiting instruction to the jury in its charge. // It is presumed that jurors follow the instructions set forth in the court s charge. Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim. App. 1996).

Indeed, the evidence of extraneous offenses was prejudicial. Almost all evidence offered by the prosecution will be prejudicial to the defendant; however, Rule 403 excludes only evidence that is unfairly prejudicial. Caballero v. State, 919 S.W.2d 919, 922 (Tex. App.-- Houston [14th Dist.] 1996, pet. ref d). When Rule 403 provides that evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, it simply means that trial courts should favor admission in close cases, in keeping with the presumption of admissibility of relevant evidence. Montgomery, 810 S.W.2d at 389; Tex. R. Evid. 403.

Appellant asserts the bad acts are too remote in time to the charged offense, but we note that there is no per se rule as to when an extraneous offense is too remote in time to be introduced into evidence. Corley v. State, 987 S.W.2d 615, 619-20 (Tex. App.--Austin 1999, no pet.). While remoteness is a factor regarding the admission of the evidence, it is not a chief factor and must be considered among all other relevant factors. Id. at 620-21. The relevant criteria in determining whether the prejudice of an extraneous offense outweighs its probative value include: (1) whether the ultimate issue was seriously contested by the opponent of the extraneous offense evidence; (2) if the State had other convincing evidence to establish the ultimate issue to which the extraneous misconduct was relevant; (3) whether the probative value of the misconduct evidence was not, either alone or in combination with other evidence, particularly compelling; and (4) whether the misconduct was of such a nature that a jury instruction to disregard would have not likely have been effective. Montgomery, 810 S.W.2d at 392-93. The extraneous offenses were strong evidence of the state of mind as well as the relationship between the Appellant and the victim. The defense also put on its own witnesses to testify to the nature of the relationship between the two. Specifically, Thomas Fertic and Miguel Reyes both testified they never witnessed any abusive or controlling type of behavior. The evidence was highly probative of the Appellant s intent to engage in the charged offences, and this intent was seriously contested at trial. The evidence was compelling and there was no direct evidence aside from the autopsy evidence directly proving the offense. The trial court is given wide latitude to admit or exclude evidence of other crimes, wrongs, or acts. Id. at 390. As long as the trial court s ruling was within the zone of reasonable disagreement, we must not intercede. Id. at 391. We find that the probative value of the evidence combined with the limiting instruction was not substantially outweighed by the risk of unfair prejudice. We therefore find no abuse of discretion in the trial court s evidentiary ruling. Consequently, Issue Nos. Three and Four are overruled in their entirety.

In Issue Nos. Five and Six, Appellant contends that the trial court erred in admitting the victim s hearsay statements through Jennifer Roberts s testimony. Specifically, in his fifth issue, the Appellant contends the trial court erred in admitting the testimony to the effect that the deceased told the witness that the Appellant had assaulted her. In Issue No. Six, Appellant alleges that the trial court erred in admitting hearsay testimony to the effect that the deceased had told Roberts that she did not want to leave the Appellant.

As stated, Jennifer Roberts testified that in November of 1997, she found the victim bloodied, bruised, and injured in Roberts s child s bedroom where the victim and Appellant had spent the night. While the room had been immaculately clean the night before, the room was then in a shambles. The shelf was hanging off the wall, there was blood on the walls, the curtains were ripped of the wall, and the sheets were off of the bed. Jennifer woke the victim and she began to cry. Roberts testified that the victim was upset, hurt, scared, and traumatized. Prior to Roberts stating what the victim told her, Appellant objected to any hearsay statements. Appellant did not lodge any confrontation clause or due process objection. The State responded that the statement was an excited utterance, and the court overruled the objection.

Roberts then testified that the victim told her that Appellant had beaten her. The victim then stated that she was afraid to leave Appellant. Appellant then objected on the ground of hearsay, and the State responded that the statement was encompassed by the prior excited utterance ruling. The court responded that the State had not established whether the statement was part of the conversation or simply Roberts s assumption. The State elicited that the two had a ten-minute conversation and then Roberts tried to push the victim out the window to escape Appellant. The victim stated that she did not want to leave Appellant and gave no further explanation as to why she did not want to leave.

A court s ruling on the admissibility of an out-of-court statement as being an exception to the hearsay rule is reviewed on an abuse of discretion standard. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). The trial court does not abuse its discretion unless the ruling lies outside of the zone of reasonable disagreement. Id.

Initially, we note that to the extent Appellant is raising a confrontation clause or due process issue, he has failed to preserve such issues on appeal. Because Appellant objected only on the basis of hearsay, and did not raise any potential confrontation clause or due process violations at the trial court level, we do not address those issues. See Tex. R. App. P. 33.1; Bunton v. State, 136 S.W.3d 355, 369 (Tex. App.--Austin 2004, pet. ref d); Crawford v. State, 139 S.W.3d 462, 464 (Tex. App.--Dallas 2004, pet. ref d). Hearsay objections and confrontation clause objections are neither synonymous nor necessarily coextensive. Bunton, 136 S.W.3d at 368. Accordingly, we will only assess the hearsay contention. //

Hearsay is a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). For hearsay to be admissible, it must fit into an exception provided by a statute or the rules of evidence. Tex. R. Evid. 802. One such exception is that for excited utterances. Tex. R. Evid. 803(2). An excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Id.; Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim. App. 2001). In determining whether a hearsay statement is admissible as an excited utterance, the ultimate inquiry is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event or condition when the statement was made. Apolinar v. State, 155 S.W.3d 184, 186-87 (Tex. Crim. App. 2005). The court may consider factors such as the length of time between the occurrence and the statement, the nature of the declarant, whether the statement is made in response to a question, and whether the statement is self-serving. Id. at 187. However, no single factor is dispositive, but merely bears on our ultimate determination. See Lawton v. State, 913 S.W.2d 542, 553 (Tex. Crim. App. 1995); Penry v. State, 903 S.W.2d 715, 750-51 (Tex. Crim. App. 1995).

In the present case, the record reflects that Jennifer Roberts went to bed and awoke the next morning to find the victim bloodied and bruised, crumpled on the floor, naked, and wrapped in a comforter. The room was in a shambles. The victim upon awakening, started to cry; she was hurt, upset, scared, and traumatized. Clearly, the trial court could have found that the victim was still dominated by the emotions of what had happened to her. Her statement related to the startling event and was not the result of reflection. We find that the trial court did not abuse its discretion in admitting the statement that the Appellant had beaten the victim. See Salazar, 38 S.W.3d at 154.

Regarding the contention raised in Issue No. Six concerning the victim s statement that she did not want to leave Appellant, we find that Appellant has failed to preserve this contention on appeal. As stated, the trial court did not rule on Appellant s hearsay objection but stated that the State needed to establish whether or not the statement was part of the same conversation or an assumption made by Roberts. In order to preserve error, if any, a defendant must timely and specifically object, obtain an adverse ruling, and if he does so, he must request an instruction to disregard and move for a mistrial. Mock v. State, 848 S.W.2d 215, 220 (Tex. App.--El Paso 1992, pet. ref d). Here, the court did not rule on Appellant s objection, and even if the court s statement could be considered to sustain Appellant s objection, Appellant did not request an instruction to disregard or a mistrial. Issue Nos. Five and Six are overruled.

Having overruled each of Appellant s issues on review, we affirm the judgment of the trial court.

RICHARD BARAJAS, Chief Justice

June 1, 2006

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)