In The
Court of Appeals
Ninth District of Texas at Beaumont
NO. 09-24-00392-CR
JOHNNY MATTHEW SCHOLLER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 221st District Court
Montgomery County, Texas
Trial Cause No. 23-08-11966-CR
MEMORANDUM OPINION
Johnny Matthew Scholler was charged by indictment with assault of a family
member by impeding breath with prior conviction, a second-degree felony. Tex.
Penal Code Ann. § 22.01(b-3)(1). A jury found Scholler guilty and sentenced him to
sixteen years in prison. In three issues, Scholler argues that the trial court erred in
disallowing defense counsel to cross-examine the complaining witness about her
probation and drug use and that the evidence is legally insufficient to support his
conviction. We affirm.
1
Background
Rebecca met Scholler through a friend and they began a dating relationship.1
Rebecca described the relationship as “great” at first, but Scholler soon thereafter
began to show his true colors. Scholler became increasingly disrespectful over time,
frequently accusing Rebecca of cheating on him.
On August 11, 2023, Rebecca went with Scholler to help his friend unload
scrap metal. As they were driving home, Scholler accused Rebecca of cheating and
demanded that she tell him the truth. Rebecca was in fear when Scholler told her,
“Tell me by the time we get to the stop sign or else[.]”
They stopped at a stop sign, and Scholler hit the back of Rebecca’s seat. She
got out of the truck and began walking home, but Scholler blocked her way with the
truck. After Rebecca tried to walk around the truck, Scholler got out of the truck, ran
up to her, put his arm around her, and turned Rebecca around and told her to get in
the truck. Rebecca was scared to get in the truck with Scholler because she was
scared that “he was going to put hands on [her].”
In the truck, Scholler started hitting Rebecca with his fist on her chest, arm,
side, and head. Scholler continued to accuse Rebecca of cheating and threatened to
1
We use a pseudonym to protect the privacy of the victim in this case. See Tex. Const. art. 1, § 30 (protecting crime victims’ “right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”).
2
drop her off somewhere on the road. Rebecca jumped out of the truck and began to
run. Scholler ran after her across the road and grabbed her, threw her down into a
ditch, and got on top of her. Scholler put one hand on her neck and placed the other
on her mouth. He squeezed her throat with his hand and told her to breathe out of
her nose. Rebecca had a difficult time breathing while Scholler had his hand around
her neck. She thought that she was “not going to make it home.”
After holding Rebecca until there were no cars in the area, Scholler made her
help him find his keys. Rebecca got back into the truck and begged Scholler to take
her home, but he instead took her to the creek. They sat in the truck and Rebecca
told Scholler if he hurt her again, she was going to call the police. In response,
Scholler threatened to tie her to a log and throw her into the creek. Scholler
demanded that Rebecca tell him the truth. When Rebecca asked him what he was
talking about, Scholler grabbed her hair and asked her “How short do you want it?”
Scholler took out a knife and cut her hair. Scholler took Rebecca back to his friend’s
house, where she was able to “sneak” away and walk to a gas station. An individual
at the gas station let Rebecca use her phone to call Rebecca’s grandmother.
When Rebecca arrived home, her grandmother told her that Scholler was
coming to get his things. Rebecca left and went to her stepdad’s house. Her stepdad
saw the bruises on her and told her to call the police. Rebecca did not want to call
the police, so her stepdad called law enforcement.
3
Deputy Adam Smith with the Montgomery County Sheriff’s Office responded
to the domestic violence call on August 12 around 5:56 p.m. He made contact with
Rebecca who “was stressed out.” He observed bruising and marks up and down her
left arm. During the interview, he also saw finger marks on the right side of the neck
area. Smith took pictures of Rebecca’s injuries, and the pictures were admitted at
trial. The injuries Smith observed on Rebecca were consistent with what was
described in the 911 call.
Smith completed a strangulation supplement form based on information
Rebecca told him. Rebecca specified that she and Scholler were in a dating
relationship for about seven months. Rebecca specified that Scholler placed his left
hand around her throat, then told her to stop moving and breathe out of her nose.
Rebecca estimated Scholler applied pressure for five minutes. Smith observed
redness and possible petechiae in her eyes. Smith explained that petechiae is “red
spots that show up in the eyes when the circulation has been cut off” and is consistent
in cases where there is a higher amount of pressure applied. Rebecca also reported
neck tenderness, difficulty and pain with swallowing, which is consistent with a
person who experienced strangulation.
Smith contacted Scholler later that day and arrested him on an unrelated
warrant. After Smith read Scholler his Miranda warnings, Scholler told Deputy
Smith that nothing happened and blamed Rebecca’s injuries on an ex-boyfriend.
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Scholler acknowledged that Rebecca had bruises on her, but he did not seem
surprised. In a prior proceeding, Scholler had testified that he did not know how
Rebecca received her bruises but that a couple of scratches on her forearm came
from helping Scholler pick up an old metal oven, which was something Scholler did
not mention to Smith on scene.
Deputy Lizbeth Rodriguez also responded to the domestic violence call. She
spoke with Rebecca, whom she described as “upset, anxious” and “distraught having
to repeat[]” “the events that occurred[.]” Rebecca told Rodriguez that a knife was
involved and that Scholler cut her hair with it. Rodriguez then went to Rebecca’s
grandmother’s house where she found Scholler. She searched the vehicle and found
a knife on the ground near the driver’s side door. She also found hair that appeared
to match Rebecca’s hair under the driver’s seat.
At trial, Scholler testified that he never put his hands around Rebecca’s throat,
and he denied cutting her hair with a knife.
Analysis
Sufficiency of the Evidence
In his third issue, Scholler complains that the State did not present evidence
to prove beyond a reasonable doubt that Scholler committed the offense of assault
by impeding breath of a family or household member. Scholler argues that the
evidence is insufficient to support his conviction because Rebecca admitted she
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could breathe, and law enforcement performed an insufficient investigation. We
address this issue first because, if sustained, the issue would afford Scholler the most
relief. See Benavidez v. State, 323 S.W.3d 179, 182 (Tex. Crim. App. 2010); see also
Ex parte Reyes, 474 S.W.3d 677, 681 (Tex. Crim. App. 2015).
The jury is the exclusive judge of the credibility of the evidence and the weight
to be given to that evidence. Metcalf v. State, 597 S.W.3d 847, 855 (Tex. Crim. App.
2020). As such, the jury is responsible for resolving conflicts in the testimony, is
free to believe some, all, or none of a witness’s testimony, and may assign as much
or as little weight to a witness’s testimony as it sees fit. Id. Jurors may also draw
reasonable inferences from the evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007) “[A]n inference is a conclusion reached by considering other facts
and deducing a logical consequence from them.” Id. at 16.
When examining whether a criminal conviction is supported by legally
sufficient evidence, we compare the evidence to the elements of the offense as
defined by a hypothetically correct charge. Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997). We consider all the evidence, viewed in the light most
favorable to the verdict, along with the inferences that could reasonably be drawn
from the evidence. Hooper, 214 S.W.3d at 13. We do not assess the credibility of
the evidence, reweigh the evidence, nor substitute our judgment for that of the jury.
See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
6
The evidence is legally sufficient to support the conviction if any rational trier
of fact could have found each of the essential elements of the offense beyond a
reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). “Each fact
need not point directly and independently to a defendant’s guilt, as long as the
cumulative force of all the incriminating circumstances is sufficient to support the
conviction.” Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016)
(citation omitted); see also Garcia v. State, 667 S.W.3d 756, 761-62 (Tex. Crim.
App. 2023) (citation omitted) (“A proper review of evidentiary sufficiency considers
the cumulative force of the evidence.”).
To identify the essential elements of the crime that the State must prove, we
examine “the hypothetically correct jury charge for the case.” Dunham v. State, 666
S.W.3d 477, 482 (Tex. Crim. App. 2023) (quotations and citations omitted). A
hypothetically correct jury charge (1) accurately sets out the law, (2) is authorized
by the indictment, (3) does not unnecessarily increase the State’s burden of proof or
unnecessarily restrict the State’s theories of responsibility, and (4) adequately
describes the particular offense for which the defendant was tried. Id. “The law as
authorized by the indictment includes ‘the statutory elements of the offense…as
modified by the charging instrument.’” Id. (citations omitted).
To prove Scholler committed the offense of assault family violence by
impeding breath or circulation with prior conviction as charged in this case, the State
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was required to show that Scholler (1) was or had been in a dating relationship with
Rebecca, (2) intentionally, knowingly, or recklessly impeded the normal breathing
or circulation of the blood of Rebecca by applying pressure to Rebecca’s throat or
neck or by blocking her nose or mouth, and (3) Scholler had been previously
convicted of an offense involving family violence. See Tex. Penal Code Ann. §
22.01(a)(1), (b)(2)(A)-(B), (b-3). A person acts intentionally “when it is his
conscious objective or desire to engage in the conduct or cause the result[;]” a person
acts knowingly “when he is aware of the nature of his conduct or that the
circumstances exist[;]” and a person acts recklessly “when he is aware of but
consciously disregards a substantial and unjustifiable risk that the circumstances
exist or the result will occur.” Id. § 6.03(a), (b), (c). Bodily injury is defined as
“physical pain, illness, or any impairment of physical condition.” Id. § 1.07(a)(8).
The jury may infer intent from circumstantial evidence, such as the defendant’s acts,
words, and conduct. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).
A victim’s testimony alone can provide sufficient evidence to support a conviction
of felony assault of a family member by strangulation, and the evidence need not
show that the victim lost consciousness or was completely unable to breathe. See
Marshall v. State, 479 S.W.3d 840, 845 (Tex. Crim. App. 2016).
Here, the record shows that Rebecca testified that Scholler squeezed her neck
with one hand while covering her mouth with the other. This caused her pain and
8
difficulty breathing, and she believed she was going to die. Deputy Smith also noted
marks on Rebecca’s neck that were consistent with finger marks, as well as redness
and possible petechia in her eyes. Smith explained that petechia is visible in
instances where the circulation has been cut off due to strangulation. Photographs
showing Rebecca’s bruises and eyes were admitted at trial.
Additionally, although not necessary, there was evidence corroborating
Rebecca’s account of the assault. Rebecca testified that Scholler hit her on the arm,
chest, and head while he was driving. In addition, Deputy Smith noted that upon
meeting Rebecca, he observed bruising and marks up and down her left arm, but not
the right. Smith testified that the marks were consistent with someone sitting on the
passenger side of a vehicle and being struck from someone on the driver’s side.
Deputy Smith further noted that Rebecca had a skinned knee consistent with her
description of how she fell on the roadway. Rebecca described how Scholler grabbed
her hair and cut it with a knife. Deputy Rodriguez testified that she inventoried
Scholler’s truck and found a knife and hair that appeared to be Rebecca’s under the
driver’s seat. Rodriguez indicated that these pieces of evidence corroborated
Rebecca’s version of events.
Viewing the evidence in the light most favorable to the verdict, we conclude
that a rational jury could have reasonably concluded beyond a reasonable doubt that
Scholler committed the offense of assault family violence by strangulation. See Tex.
9
Penal Code Ann. § 22.01(a)(1), (b)(2)(B); see also Jackson, 443 U.S. at 319; Brooks
v. State, 323 S.W.3d 893, 899 n.13 (Tex. Crim. App. 2010); Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007); Hooper, 214 S.W.3d at 13; Penagraph v.
State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). Accordingly, we overrule
Scholler’s third issue.
Limitation of Cross-Examination
In his first issue, Scholler complains that the trial court erred when it sustained
the State’s objection to defense counsel’s question regarding Rebecca’s status as a
probationer. Scholler relies on the following colloquy:
Q. Did you have something to do later the evening after -- after the
deputies came and left?
[PROSECUTOR]: Objection, Your Honor. May we approach?
THE COURT: Yes.
(Bench conference.)
[PROSECUTOR]: Your Honor, I object to this entire line of
questioning. It’s going to her probation appointment that she had
scheduled later that day. It’s come out that she has been convicted of
the felony of possession, but her probation appointment and prior bad
acts related are not relevant to this trial. He’s asking if she had a
probation appointment.
[DEFENSE COUNSEL]: I haven’t asked that yet, but -- we know the
witness tomorrow or this afternoon will tell us she did not have an
appointment. There was no appointment. She’s lying. She lied the last
time, and I’m going to ask if she had an appointment. If she said she
had an evening appointment – that’s one of the first things I ask -- there
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was no appointment at all that day, nor the next. It wasn’t until several
days later. That’s, again –
THE COURT: Why is that relevant?
[DEFENSE COUNSEL]: It goes to her truthfulness.
THE COURT: Why is it relevant whether she had a probation
appointment, whether she did or didn’t? I don't think it was relevant the
first time. Why is it relevant this time?
[DEFENSE COUNSEL]: One, we didn’t have the facts that we have
now. She’s capable of lying. Her reputation –
THE COURT: Here’s the thing. If she lied in a prior time, that’s a bad
act. It doesn’t come in. I don’t understand -- like, you can’t just say that
she’s a liar, and she’s a liar this time. You can’t do that. You can’t say
she’s a bad person. I mean, you are limited to prior convictions and
crimes of moral turpitude. If she lied about a fact about this case, related
to this case -- I mean, did that have anything to do with the underlying
offense?
[PROSECUTOR]: No. It’s just because she was on probation for the
possession case. It wasn’t related to this case.
THE COURT: He didn’t get mad about it or –
[PROSECUTOR]: He made a statement to police that she made this up
because I was going to report her to probation.
THE COURT: Yeah. That’s kind of – I don’t think it’s relevant to talk
about her probation, the underlying facts. I think you are able to say
she’s been convicted of a felony in this state within the last ten years,
and you can move on. I don’t think you get to go into the facts or
whether she reported right or all that stuff. So, I’m sustaining.
A defendant’s right to cross-examine a State’s witness includes the right to
impeach the witness with relevant evidence that might reflect bias, interest,
11
prejudice, inconsistent statements, traits of character affecting credibility, or
evidence that might go to any impairment or disability affecting the witness’s
credibility. Virts v. State, 739 S.W.2d 25, 29 (Tex. Crim. App. 1987). Similar to our
review of a trial court’s decision to admit or exclude evidence, we review the trial
court’s decision to limit cross-examination under an abuse-of-discretion standard.
Sansom v. State, 292 S.W.3d 112, 118 (Tex. App.—Houston [14th Dist.] 2008, pet.
ref’d). An abuse of discretion occurs when the trial court acts without reference to
any guiding rules or principles. Id.
A trial court may violate a defendant’s right of confrontation by improperly
limiting cross-examination, but the scope of appropriate cross-examination is not
unlimited. See Hammer v. State, 296 S.W.3d 555, 561-63 (Tex. Crim. App. 2009).
A trial court, for example, may limit the scope of cross-examination to prevent
harassment, prejudice, confusion of the issues, harm to the witness, and repetitive or
marginally relevant interrogation. See id. at 561 n.7 (citing Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986)). Notwithstanding the trial court’s discretion in this area,
jurors are entitled to have the benefit of the defense theory before them so that they
can make an informed decision regarding the weight to accord the witness’s
testimony, even though they may ultimately reject the theory. Sansom, 292 S.W.3d
at 119.
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“Exposing a witness’ motivation to testify for or against the accused or the
State is a proper and important purpose of cross-examination.” Carpenter v. State,
979 S.W.2d 633, 634 (Tex. Crim. App. 1998). “Parties are allowed great latitude to
show ‘any fact which would or might tend to establish ill feeling, bias, motive and
animus on the part of the witness.’” Id. (quoting London v. State, 739 S.W.2d 842,
846 (Tex. Crim. App. 1987)). “In order to impeach a witness with evidence of
pending criminal actions, the proponent of the evidence must establish that the
evidence is relevant.” Id. “For the evidence to be admissible, the proponent must
establish some causal connection or logical relationship between the pending
charges and the witness’s ‘vulnerable relationship’ or potential bias or prejudice for
the State, or testimony at trial.” Id. (quoting McDuff v. State, 939 S.W.2d 607, 618
(Tex. Crim. App. 1997)). “Evidence that a witness is on probation, is facing pending
charges, or has a prior juvenile record is not relevant for purposes of showing bias
or motive to testify absent some plausible connection between that fact and the
witness’s testimony.” Irby v. State, 327 S.W.3d 138, 149 (Tex. Crim. App. 2010).
Scholler argues on appeal that Rebecca’s status as a probationer put her in a
vulnerable position which “can be used to show the bias or interest of the witness in
helping the State.” But in response to the State’s objection and the trial court’s
attempts to understand how the evidence was relevant, defense counsel did not
indicate the purpose was to show Rebecca’s bias or motive for testifying; rather,
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defense counsel’s only stated reason for asking the question was to attack Rebecca’s
credibility by showing that she was untruthful in her testimony during a prior
proceeding in which she apparently testified she had an appointment on the evening
the officers interviewed her. Texas Rule of Evidence 103 provides:
(a) Preserving a Claim of Error. A party may claim error in a ruling
to admit or exclude evidence only if the error affects a substantial right
of the party and:
(2) if the ruling excludes evidence, a party informs the court of
its substance by an offer of proof, unless the substance was
apparent from the context.
Tex. R. Evid. 103.
Defense counsel did not make an offer of proof, nor is it apparent from context
that any bias or motive would have been revealed based on how Rebecca answered
whether she had something to do after the officers left. As a testifying witness,
Rebecca was certainly subject to having her credibility challenged, but the Texas
Rules of Evidence prescribe proper, and proscribe improper, ways of going about it.
Texas Rule of Evidence 608 provides:
(a) Reputation or Opinion Evidence. A witness’s credibility may be
attacked or supported by testimony about the witness’s reputation for
having a character for truthfulness or untruthfulness, or by testimony in
the form of an opinion about that character. But evidence of truthful
character is admissible only after the witness’s character for
truthfulness has been attacked.
14
(b) Specific Instances of Conduct. Except for a criminal conviction
under Rule 609, a party may not inquire into or offer extrinsic evidence
to prove specific instances of the witness’s conduct in order to attack or
support the witness’s character for truthfulness.
Tex. R. Evid. 608.
As the trial judge correctly noted, specific instances of conduct other than
criminal convictions admissible under Rule 609 may not be used to impeach a
witness’s credibility. Without a showing that Rebecca was convicted of perjury,
Scholler was not entitled to impeach Rebecca’s credibility by inquiring into or
offering extrinsic evidence that she lied during a prior hearing. Therefore, we
conclude the trial court did not abuse its discretion in sustaining the State’s objection
to defense counsel’s cross-examination on this topic.
In his second issue, Scholler complains that the trial court erred when it
disallowed defense counsel to question Rebecca about whether she was using drugs
on the day of the assault. Scholler relies on the following colloquy:
[DEFENSE COUNSEL]: Your Honor, may I approach for a second?
THE COURT: Yes.
(Bench conference.)
[DEFENSE COUNSEL]: I’m about to – I’m about to ask if she was
using any drugs while she was there. I say that because there will be
testimony, and -- obviously, we don’t know it yet, but there will be, but
I want to see what her answer is, if she’s going to say “yes” or “no,”
and I will leave it at that, but I need to ask if she was using any drugs
once she was at that residence before she left.
15
[PROSECUTOR]: Prior bad act. 608 and 609 are clear about this. Prior
bad acts are not admissible, and there’s no exception for this.
[DEFENSE COUNSEL]: It goes to the crux of our defense, they were
using drugs. She may tell me Johnny was using drugs.
THE COURT: Why is that your defense? They were using drugs, so he
should have been able to strangle her?
[DEFENSE COUNSEL]: He had threaten[ed] to turn her into the
probation officer, who is on our subpoena list, because at some point,
obviously, we are saying she made this up and none of this happened
like she said.
THE COURT: You can say that theory that he wanted to report her to
the probation officer without going into this bad act. So, I’m sustaining
the objection.
Defense counsel did not make an offer of proof, and it is not clear from context
how Rebecca would have answered the question about whether she was using drugs
on the day of the assault. That said, Rule 608 barred defense counsel from attacking
Rebecca’s credibility by seeing whether Rebecca would deny using drugs and then
offering extrinsic evidence to prove that she was. See Tex. R. Evid. 608(b); see also
Lagrone v. State, 942 S.W.2d 602, 613 (“Indeed, Criminal Rule 608(b) expressly
prohibits the utilization of specific instances of conduct – such as drug addiction
evidence – for impeachment except to expose bias, correct any affirmative
misrepresentations made on direct examination, or demonstrate lack of capacity.”).
On this record, Scholler has not established a plausible connection between
Rebecca’s alleged drug use and any possible bias or motive to testify favorably for
16
the State. See Carpenter, 979 S.W.2d at 634; Irby, 327 S.W.3d at 149-50. Without
such a nexus, the trial court was within its discretion to rule that defense counsel
could explore the theory that Rebecca was motivated by Scholler’s threats to report
her to the probation officer without going into specific instances of conduct in
violation of Rule 608. We conclude the trial court did not abuse is discretion in
sustaining the State’s objection to defense counsel’s cross-examination on the topic
of whether Rebecca was using drugs. We overrule Scholler’s first and second issues.
Conclusion
Having overruled all of Scholler’s issues, we affirm the trial court’s judgment.
AFFIRMED.
KENT CHAMBERS
Justice
Submitted on June 29, 2026
Opinion Delivered August 19, 2026
Do Not Publish
Before Johnson, Wright and Chambers, JJ.
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