O P I N I O NEmmanuel Delgado appeals his conviction for Class A assault. In eight issues, Appellant contends: (1) The trial court abused its discretion in admitting hearsay under the excited-utterance exception; (2) even if the testimony was admissible, the evidence adduced at trial was legally insufficient to prove the bodily injury element of assault; (3) no rational trier of fact could have found Appellant guilty of class A assault because the victim’s testimony at trial contradicted her statement to the responding officer; (4) the prosecutor used knowingly false and perjured testimony when he allowed the victim to testify regarding whether or not she felt pain; (5) the evidence adduced at trial was insufficient to prove Crystal Martinez was the complaining witness because a variance existed between the information and the proof at trial; (6) the evidenced adduced at trial was only sufficient to show Appellant threw the object at Martinez, not that he struck her with it as was charged in the information; (7) the trial court constructively amended the information by excluding the manner and means of the assault in the jury charge; and (8) Article 42.013 of the Texas Code of Criminal Procedure is facially unconstitutional. We affirm.BACKGROUNDCrystal Martinez and Appellant had been in an on again, off again relationship for ten years at the time of the incident. They had two children together. Even though Crystal and Appellant were not seeing each other romantically at the time the two would still get together for the sake of their children.One evening, around 9:00 p.m., Appellant paid a visit to Martinez’s home because he was upset a male acquaintance of Martinez’s had called her. When he arrived, he and Martinez decided to take their two-year-old daughter, to get something to eat at McDonald’s. With Martinez driving and their daughter in the backseat, the three drove to McDonald’s where they bought their daughter a Happy Meal. On the way back home, Appellant confronted Martinez about the male caller and a heated argument ensued. When they arrived at the house and got out of the car, Appellant, still angry about the call, turned and threw the still full Happy Meal box at Martinez’s face.Martinez went back to the car to leave and put her daughter in the child car seat. Appellant wanted to go with them to help purchase their daughter another Happy Meal, but Martinez refused to let him go with her because she was afraid for her safety. As they were backing out of the driveway, Appellant punched her passenger-side window and shattered it. Martinez testified she thought she may have unintentionally run over his foot while she was driving away. Once out of the driveway, Martinez called 911. Appellant was later charged by information with assault.At trial, the State called Officer Sambrano of the El Paso Police Department who had responded to the 911 call and had met Martinez at her aunt’s house. Officer Sambrano testified he had arrived at the aunt’s house within ten minutes of the 911 call, and Martinez looked upset and frightened. Officer Sambrano also stated Martinez was “speaking very, very fast” and seemed to be crying. He further testified that within a few minutes of his arrival he asked Martinez if she felt pain from having the Happy Meal hit her in the face, and she responded affirmatively. The State also played the 911 call for the jury, wherein Martinez told the 911 operator Appellant had thrown a food container at her face and had shattered her car window.Martinez testified to the events as described above, but stated she was having some trouble remembering the details after three years. When asked if she had felt pain when she was hit in the face with the Happy Meal box, she wavered between stating she had not felt any pain and saying she could not recall if she had or not. She further testified she had not expected charges would be filed when she made her report to the police and did not want to see Appellant get into trouble. Martinez indicated Appellant helped her and her children financially, and if Appellant was incarcerated it would place a serious financial burden on them.Photographs of shattered glass and the Happy Meal contents strewn across the driveway were also admitted into evidence. After deliberations, the jury found Appellant guilty as charged in the information. Appellant accepted a plea bargain from the State as to punishment, and received a probated sentence of twelve months and was ordered to pay a $500 fine. This appeal followed.DISCUSSIONExcited Utterance Exception to HearsayIn his first issue, Appellant asserts the trial court abused its discretion in admitting Martinez’s out of court statement to Officer Sambrano that she felt pain as an excited utterance.[1] He contends the statement to Officer Sambrano was not a product of a startling occurrence, Martinez was not dominated by emotion or excitement when making the statement, and the statement was not related to the circumstances of the event.Standard of ReviewA trial court is given broad discretion in determining the admissibility of evidence. Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App. 1991). Accordingly, we review a trial court’s admission or exclusion of evidence under an abuse of discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex.Crim.App. 2010). A reviewing court should not reverse a trial court’s ruling that falls within the “zone of reasonable disagreement.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990)(op. on reh’g).AnalysisAn 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, and constitutes an exception to the hearsay rule. Tex.R.Evid. 803(2). No single principle governs the admissibility of evidence under the excited utterance exception; rather, each case is considered on its own particular facts. Arzaga v. State, 86 S.W.3d 767, 774-75 (Tex.App.–El Paso 2002, no pet.). The Court of Criminal Appeals set forth a test for determining whether a statement qualifies as an excited utterance in Sellers v. State, 588 S.W.2d 915, 918 (Tex.Crim.App. [Panel Op.] 1979). Under Sellers, a statement meets the requisite inidica of reliability when: (1) it is the product of an occurrence startling enough to produce a state of nervous excitement rendering the utterance spontaneous and unreflecting; (2) it is made before there is time to contrive and misrepresent while the excitement produced by the startling event still dominates the reflective powers of the mind; and (3) it relates to the circumstances of the event preceding it. Id. at 918. While the timing of the statement and whether it was in response to police questioning are factors to be considered in weighing a statement’s admissibility, the critical factor is “whether the declarant is still dominated by the emotions, excitement, fear, or pain of the event.” Arzaga, 86 S.W.3d at 775 (citingLawton v. State, 913 S.W.2d 542, 553 (Tex.Crim.App. 1995), cert. denied, 519 U.S. 826, 117 S.Ct. 88, 136 L.Ed.2d 44 (1996)).Here, Martinez stated she called 911 after the altercation with Appellant as she was driving away. Officer Sambrano testified he met with Martinez within ten minutes of the 911 call, and that within a few minutes of arriving asked her if she had felt pain when the Happy Meal box hit her in the face. He stated she responded affirmatively. Officer Sambrano further testified Martinez looked upset, seemed frightened, and had bleary eyes like she was crying. He also stated Martinez was “speaking very, very fast” when she spoke to him. Officer Sambrano’s testimony indicates Martinez was still under the stress of excitement caused by a startling event, namely, getting hit in the face with a full Happy Meal while in a heated argument with the father of her children. See Arzaga, 86 S.W.3d at 775 (no abuse of discretion where officer testified he arrived within minutes of the event and victim was emotional, distraught, and stuttering when she made her statement). Further, Martinez’s window had been smashed in when Appellant punched it as she was driving away, and her two-year-old daughter was in the back seat when this happened. This was undoubtedly startling and further supports a finding she was still dominated by emotion at the time she spoke with Officer Sambrano. Lozano v. State, 658 S.W.2d 201, 202 (Tex.App.– El Paso 1983, no pet.)(sufficiently startling events can produce the nervous excitement required for the excited-utterance exception, provided the statement is related to the event). Although the statement was in response to police questioning, that is only a factor to consider and does not, standing alone, make the statement inadmissible. Arzaga, 86 S.W.3d at 775. Further, Appellant’s general assertions that the statement was not a product of the event or related to it and Martinez was not dominated by emotion are not supported by the record. Accordingly, the trial court’s decision to admit Martinez’s statement as an excited utterance was not an abuse of discretion. Montgomery, 810 S.W.2d at 391. Appellant’s first issue is overruled.Sufficiency of the EvidenceIn Issues Two, Three, Five, and Six, Appellant asserts the evidence adduced at trial was legally insufficient to allow the jury to find him guilty of assault beyond a reasonable doubt. In doing so, he attempts to support three contentions: (1) the evidence was insufficient to prove the bodily injury element of assault; (2) the evidence was insufficient to prove Crystal Martinez was the complaining witness; and (3) the evidence was insufficient to prove the manner and means of the assault.Standard of ReviewUnder the due process clause of the fifth and fourteenth amendments of the U.S. Constitution, the State is required to prove every element of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In Brooks v. State, the Texas Court of Criminal Appeals held that the only standard a reviewing court should apply when examining the sufficiency of the evidence is the legal sufficiency standard, which requires deference to be given to the jury’s credibility and weight determinations. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex.Crim.App. 2010). The critical inquiry in a legal sufficiency challenge, as set out in Jackson, is whether the evidence in the record could reasonably support a conviction of guilt beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007). When reviewing the legal sufficiency of the evidence, an appellate court views all of the evidence in the light most favorable to the verdict to determine whether any rational juror could have found the defendant guilty of the essential elements of the offense beyond a reasonable doubt. Salinas v. State, 163 S.W.3d 734, 737 (Tex.Crim.App. 2005). The evidence is measured by the elements of the offense as defined by the hypothetically correct jury charge, that is, a charge that accurately sets out the law, is authorized by the indictment, does not unnecessarily restrict the State’s theories of liability, and adequately describes the offense for which the defendant was tried. Hooper v. State, 214 S.W.3d 9, 14 (Tex.Crim.App. 2007); Thomas v. State, 303 S.W.3d 331, 333 (Tex.App.–El Paso 2009, no pet.).AnalysisVarianceA variance occurs when there is a discrepancy between allegations in the indictment and the proof offered at trial. Byrdv. State, 336 S.W.3d 242, 246-47 (Tex.Crim.App. 2011). Only a material variance between the indictment and proof will render the evidence legally insufficient. Fuller v. State, 73 S.W.3d 250, 253 (Tex.Crim.App. 2002)(citing Gollihar v. State, 46 S.W.3d 243, 257 (Tex.Crim.App. 2001)). A variance involving the victim’s name is material where it: (1) fails to give the defendant notice of the victim’s identity; or (2) would allow a second prosecution for the same offense. Byrd, 336 S.W.3d at 247-48. For example, a variance where the indictment alleges an offense against one person, but the evidence put on at trial shows the offense was committed against an entirely different person, is a material variance and is actually a failure of proof because the offense in the indictment and the offense shown by the evidence are entirely different. Id., at 246-47. A minor misspelling of a victim’s name, however, that does not fail to give notice of the victim’s identity or would allow a second prosecution for the same offense, is an immaterial variance. Id., at 248. Immaterial variances are disregarded when weighing the sufficiency of the evidence. Fuller, 73 S.W.3d at 253.In this case, the variance is immaterial. Appellant complains the indictment spelled Crystal Martinez’s name as “Cyrstal Martinez” and claims this variance was material, though he does not assert how exactly he was prejudiced. Nothing in the record indicates Appellant was not aware the victim was his on again, off again girlfriend of ten years. His defense theory was also unrelated to the identity of the victim. Further, the variance complained of would not subject Appellant to another prosecution for the same offense. Fuller, 73 S.W.3d at 254. Accordingly, the variance arising here is immaterial and must be disregarded in our review of the sufficiency of the evidence. Byrd, 336 S.W.3d at 247-48.The Remaining EvidenceAppellant contends that even if Officer Sambrano’s testimony is admissible, the evidence was insufficient to prove the bodily injury element of assault. He asserts no rational trier of fact could have found him guilty of the bodily injury element because Martinez’s testimony contradicts Officer Sambrano’s testimony. Appellant also argues the proof at trial only showed he threw a Happy Meal at Martinez’s head, while the indictment required the State to prove he struck her in the head with the Happy Meal.As noted above, when reviewing a legal sufficiency challenge, the appellate court reviews all evidence in the light most favorable to the verdict to determine whether a rational juror could have found Appellant guilty of the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Salinas, 163 S.W.3d at 737. This is measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Hooper, 214 S.W.3d at 14; Thomas, 303 S.W.3d at 333. A person commits assault if the person intentionally, knowingly, or recklessly causes bodily injury to another. Tex.Penal Code Ann. § 22.01(a)(West Supp. 2017). The manner and means alleged of causing bodily injury is not an essential element of the offense. Thomas, 303 S.W.3d at 333. As applicable to the offense of assault in this case, the hypothetically correct jury charge would ask whether: (1) Appellant; (2) intentionally, knowingly, or recklessly; (3) caused bodily injury to Martinez. See Tex.Penal Code Ann. § 22.01(a); Thomas, 303 S.W.3d at 333.Here, the relevant evidence presented was as follows. On the night of the offense, Martinez called 911 and told the operator Appellant had thrown a box at her face and broke her car window. Officer Sambrano testified Martinez told him she and Appellant had gotten into a heated argument about a male friend calling Martinez over the weekend and Appellant subsequently threw the Happy Meal at her and hit her in the face. Martinez told him she felt pain from being hit. During her own testimony, Martinez stated Appellant had used an overhand throw when he threw the box at her face. Martinez vacillated between saying she felt no pain and saying she did not recall how she had felt because it had occurred three years prior to trial. She further stated she did not want to testify and did not want to see Appellant in jail because he helps her and her children financially, and his incarceration would place a heavy financial burden on her and her daughters.We give deference to the jury in resolving conflicts in testimony, weighing the evidence, and drawing reasonable inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13; Davila v. State, 346 S.W.3d 587, 590 (Tex.App.–El Paso 2009, no pet.). Based on the evidence presented, a rational juror could have concluded beyond a reasonable doubt that Appellant intentionally, knowingly, or recklessly caused Martinez bodily injury when he hit her in the face with the Happy Meal box. The jury was free to conclude from Martinez’s testimony that her memory lapse was based in part on her desire to prevent Appellant’s incarceration and the ensuing loss of his financial support. Davila, 346 S.W.3d at 590. Appellant’s argument that throwing the box at her face and striking her in the face with the box are distinct in a material way is frivolous. Thomas, 303 S.W.3d at 333. Accordingly, Issues Two, Three, Five, and Six are overruled.Issue PreservationIn Issues Four, Seven, and Eight, Appellant asserts: (1) the prosecutor knowingly used perjured testimony when he allowed Martinez to testify she could not recall if she had felt pain when she had previously stated she had not felt pain; (2) the trial court erred in constructively amending the information by excluding the manner and means from the jury charge; and (3) Article 42.013 of the Texas Code of Criminal Procedure—that mandated the trial court’s alleged finding of family violence—is facially unconstitutional.For an issue to be preserved on appeal, a party must make a timely objection specifically stating the legal basis for the objection. Tex.R.App.P. 33.1. Specific objections are required so the trial court has an opportunity to rule and opposing counsel has an opportunity to supply other testimony or remove the objection. Maldonado v. State, 902 S.W.2d 708, 711 (Tex.App.–El Paso 1995, no pet.). The objection does not have to be hyper technical to avoid forfeiting a complaint. Vasquez v. State, 483 S.W.3d 550, 554 (Tex.Crim.App. 2016). But a general or imprecise objection will not preserve error unless the legal basis for the objection is obvious to the court and opposing counsel. Id. A complaint on appeal must comport with the objection made at trial. Maldonado, 902 S.W.2d at 711. A defendant can waive any error—even a constitutional error— by failing to object. Tex.Code Crim.Proc.Ann. art. 1.14 (West 2005); Karenev v. State, 281 S.W.3d 428, 434 (Tex.Crim.App. 2009)(a defendant may not raise a facial challenge to the constitutionality of a statute for the first time on appeal); Maldonado, 902 S.W.2d at 711.Appellant did not make an objection at trial comporting with any of the three issues he now raises on appeal. He did not object during Martinez’s allegedly perjured testimony when it was offered, despite having previously complained of Martinez’s conflicting testimony during a pretrial hearing.[2] Prior to the submission of the jury charge, the trial court asked both the State and Appellant if they had had time to review the charge and if there were any objections to the proposed charge. Appellant’s only objection was to the omission of the lesser-included offense of Class C assault. After denying Appellant’s request to include the lesser-included offense, the trial court again asked if there were any other objections or proposed changes and Appellant stated he had none. Finally, Appellant made no objection at any point during trial or during his motion for new trial that Article 42.013 of the Texas Code of Criminal Procedure is facially unconstitutional. Having failed to make timely, specific objections at trial comporting with the issues raised on appeal, Appellant has failed to preserve them for our review. Tex.R.App.P. 33.1; Vasquez, 483 S.W.3d at 557; Maldonado, 902 S.W.2d at 711. Accordingly, Issues Four, Seven, and Eight are overruled.CONCLUSIONHaving overruled Issues One through Eight, the decision of the trial court is affirmed.May 30, 2018YVONNE T. RODRIGUEZ, JusticeBefore McClure, C.J., Rodriguez, and Hughes, JJ.Hughes, J. (Not Participating)(Do Not Publish)
