Houston Samuel Hammons v. the State of Texas

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-24-00216-CR

HOUSTON SAMUEL HAMMONS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 336th District Court
Fannin County, Texas
Trial Court No. CR-24-46623

Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice van Cleef
MEMORANDUM OPINION

A Fannin County jury convicted Houston Samuel Hammons of family violence assault by

impeding breath or circulation. Because Hammons had a prior conviction for family violence

assault, the offense was a second-degree felony, for which the jury assessed a punishment of

twenty years’ imprisonment. See TEX. PENAL CODE ANN. § 22.01(b-3) (Supp.). On appeal,

Hammons argues that (1) the evidence is legally insufficient to support the jury’s finding because

there was a material variance between the indictment and proof of his prior conviction of family

violence assault, (2) the trial court erred by admitting an officer’s testimony that injuries to the

victim were consistent with strangulation, and (3) the trial court erred during punishment by

overruling a hearsay objection to a North Carolina conviction.1

We find that there was no material variance in the State’s indictment and that, as a result,

the evidence is sufficient to prove the prior conviction for family violence assault. We also find

that Hammons waived any error related to the officer’s testimony and that the error, if any, in

admitting the North Carolina judgment of conviction was cured. As a result, we affirm the trial

court’s judgment.

I. There Was No Material Variance in the State’s Indictment

Family violence assault is typically a class A misdemeanor. TEX. PENAL CODE ANN.

§ 22.01(b) (Supp.). However, if the State alleges and proves that the defendant has previously

been convicted for family violence assault, the level of offense for the main charge increases.

See TEX. PENAL CODE ANN. § 22.01(b-3).

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In our cause number 06-24-00217-CR, Hammons also appeals from a conviction for criminal mischief.
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The State’s indictment in this case charged Hammons with (1) a main offense—family

violence assault by impeding breath or circulation—and (2) a predicate offense of a prior family

violence assault, which was required to raise the main offense to a second-degree felony.

Hammons raises no complaint about the sufficiency of the evidence to support the jury’s finding

on the main offense since ample testimony, including the victim’s, was legally sufficient to prove

that he committed family violence assault by impeding breath or circulation. Instead, in his first

point of error, Hammons argues that there was a material variance between the indictment’s

allegation of his conviction and the proof at trial. We disagree.

As for the predicate offense, the State alleged in the indictment that Hammons was

previously

convicted of an offense under Chapter 22 of the Texas Penal Code, against a
member of the defendant’s family, member of the defendant’s household, or a
person with whom the defendant has or has had a dating relationship, as described
by Section 71.003, 71.005, or 71.0021(b) of the Texas Family Code, namely on
December 6, 2019, in the 372nd District Court of Tarrant County, Texas, in cause
number 1598863001.

At trial, the State introduced without objection the prior judgment of conviction from the 372nd

Judicial District Court for family violence assault. However, while the State alleged in the

indictment that the judgment was entered on December 6, 2019, the proof at trial showed that it

was entered on December 16. Also, while it is alleged in the indictment that the cause number

for the prior offense was 1598863001, the proof at trial showed that the cause number was

1598863D. Hammons argues that, because the date of the prior conviction was off by ten days,

and because the last three numbers of the cause number listed in the indictment were different,

the variance between the indictment and proof at trial was material.
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It is well-settled that the State does not need to allege a predicate prior offense with the

same particularity that is required in charging a main offense. Human v. State, 749 S.W.2d 832,

835–37 (Tex. Crim. App. 1988) (op. on reh’g); see Freda v. State, 704 S.W.2d 41, 42 (Tex.

Crim. App. 1986); Rooks v. State, 576 S.W.2d 615, 617 (Tex. Crim. App. [Panel Op.] 1978)

(acknowledging “the trend in the law regarding allegations of prior convictions has generally

been toward a relaxation of the rigid rules of the past”). “The accused is entitled to a description

of the judgment of former conviction that will enable him to find the record and make

preparation for a trial of the question of whether he is the named convict therein.” Villescas v.

State, 189 S.W.3d 290, 293 (Tex. Crim. App. 2006) (quoting Hollins v. State, 571 S.W.2d 873,

875 (Tex. Crim. App. 1978)). Variances between an allegation of a prior conviction and the

proof in regard to cause numbers, courts, and dates of conviction have all been held to be

immaterial. Arce v. State, 552 S.W.2d 163, 164 (Tex. Crim. App. 1977); Human, 749 S.W.2d at

837; Freda, 704 S.W.2d at 42–43.

Moreover, a variance between the allegations and the proof will not render the evidence

insufficient if the defendant was not surprised or prejudiced by the variance. See Santana v.

State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001); Rojas v. State, 986 S.W.2d 241, 246 (Tex.

Crim. App. 1998); Human, 749 S.W.2d at 836; see also TEX. R. APP. P. 44.2(b).

Hammons had no objection to the State’s introduction of the indictment or certified

judgment of conviction for the predicate offense. Further, the record does not show that

Hammons was either surprised by the variance in the date or cause number of the predicate

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offense nor misled to his prejudice in preparing his defense. As a result, we find the variance

immaterial.

Moreover, Hammons does not argue that he was not the person convicted in the judgment

of conviction for the predicate offense. The judgment bore Hammons’s name and State

identification number, and the indictment from the predicate offense also contained Hammons’s

birthday. Simply put, the evidence is sufficient to show that Hammons was the person that was

previously convicted of family violence assault in the 372nd Judicial District Court, and

Hammons does not dispute this.

Because there was no material variance between the indictment and trial with respect to

the predicate offense, which was proved by the indictment and certified judgment admitted

without objection, we overrule Hammons’s first point of error on appeal.

II. Hammons Does Not Argue that He Was Harmed by Admission of the Officer’s
Testimony

At trial, the victim testified that Hammons climbed on top of her, held her down, and

choked her by placing his hands on her throat. The victim testified that she could not breathe

and was scared for her life. When asked to describe the choking in more detail, she testified that

it “felt like there was a lot of pressure in [her] throat, like [she] was losing air and oxygen.”

Ken Franklin, an officer with the Trenton Police Department, was dispatched to the scene

of the offense and found the victim “shaking” because she was “scared” and “distraught.”

Franklin testified, without objection, that the victim said Hammons “grabbed her around the neck

with, like, what we call a C-clamp . . . [a]nd threw her on the bed and choked her until she almost

passed out.” Without objection, the State introduced a photo of the victim’s neck that was taken
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by Franklin. Franklin testified that he personally observed “swelling and redness under her neck

below her jawline consistent with . . . the way she described being choked by [Hammons].”

After that testimony, the State called Jon McCann to testify as an expert to “explain the

differences between choking, how blood can be impeded, how breath can be impeded,” as well

as “how individuals can do manual strangulation, ligature, and his experiences with it, and what

some of the signs or symptoms of individuals who have been strangled go through.” Hammons

objected to McCann’s testimony on the ground that he was not qualified to testify about those

matters or to provide his opinion on any medical issue. The trial court overruled the objection

and allowed McCann’s testimony.

In his second point of error, Hammons argues that the trial court erred by “permitting a

deputy sheriff with no medical training to testify as an expert in the human neck’s anatomical

structures, the physiological effects to those structures caused by strangulation, and that

photographs of the victim’s injuries were consistent with strangulation.” Here, we do not

address whether the trial court erred by admitting McCann’s testimony because, even if we

concluded that its admission were error, Hammons does not argue in his brief that he was

harmed by its admission.

To assert an issue on appeal, an appellant’s “brief must contain a clear and concise

argument for the contentions made, with appropriate citations to authorities.” TEX. R. APP. P.

38.1(i). An issue is inadequately briefed when an “appellant does not address the question of

whether the alleged error . . . was harmless.” Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim.

App. 2000); see Wilson v. State, 473 S.W.3d 889, 901 (Tex. App.—Houston [1st Dist.] 2015,

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pet. ref’d) (citing Sierra v. State, 157 S.W.3d 52, 64 (Tex. App.—Fort Worth 2004), aff’d, 218

S.W.3d 85 (Tex. Crim. App. 2007)). In such a circumstance, the appellant has “waived the

issue” that he complains of on appeal. Wilson, 473 S.W.3d at 901 (citing Cardenas, 30 S.W.3d

at 393).

Because Hammons failed to brief the issue of harm, especially in light of the testimony

heard by the jury before McCann’s testimony, we find that Hammons waived his second issue on

appeal, and we overrule it.

III. Any Error in Admitting a North Carolina Conviction During Punishment Was
Cured

During punishment, the State introduced exhibit 43, which contained a warrant for

Hammons’s arrest for assault and a copy of a North Carolina judgment convicting Hammons of

misdemeanor assault on a female. Hammons made no objection to the authentication of the

document since it contained the clerk’s certification, and the sponsoring witness testified that it

was certified as a true and correct copy. Even so, Hammons argues that the document was not

properly certified and that the trial court overruled his hearsay objection to the document.

To preserve error, a party must make “a timely request, objection, or motion” in the trial

court, followed by either a ruling or a refusal to rule by the trial court. TEX. R. APP. P. 33.1(a).

For this reason, to avoid forfeiture, a “point of error on appeal must comport with the objection

made at trial.” Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Because

Hammons’s authentication arguments in his brief do not comport with the sole hearsay objection

made at trial, we overrule his complaint about lack of authentication.

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As to the issue of hearsay, we note, once again, that Hammons has failed to brief the

issue of harm. In any case, “a party must object each time the inadmissible evidence is offered

or obtain a running objection. An error [if any] in the admission of evidence is cured where the

same evidence comes in elsewhere without objection.” Davis v. State, 614 S.W.3d 223, 229

(Tex. App.—Texarkana 2020, no pet.) (alteration in original) (quoting Lane v. State, 151 S.W.3d

188, 193 (Tex. Crim. App. 2004)). While Hammons objected to exhibit 43 on hearsay grounds,

he failed to object to the sponsoring witness’s testimony stating that the exhibit contained “a

warrant for arrest out of the State of North Carolina” and “a judgment, also the State of North

Carolina [for] . . . [a]ssault on [a] female” occurring on January 22, 2017. Because evidence of

the North Carolina judgment was admitted without objection, error, if any, was cured.

Accordingly, we overrule Hammons’s third point of error.2

IV. Conclusion

We affirm the trial court’s judgment.

Charles van Cleef
Justice

Date Submitted: July 7, 2025
Date Decided: July 17, 2025

Do Not Publish

2
Hammons also argues that the “cumulating effect of the [other] errors denied Hammons a fair trial guaranteed by
the due process clause of the Constitution’s fourteenth amendment [sic].” Because our findings on Hammons’s
other points of error are dispositive of his cumulative error complaint, we summarily overrule it.
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