Dwayne Uterral Hardeman v. State, 11-16-00244-CR

Background

Dwayne Hardeman was convicted by a jury of family‑violence assault by impeding breath or circulation (strangulation) and, after pleading not true to enhancements, received life imprisonment following jury findings of two prior felonies.
The charged incident: stepdaughter Lakisha (then 17) fled after taking pills; prosecution's theory was Hardeman grabbed/impeded her breathing. Lakisha and other family witnesses gave inconsistent statements and several recanted at trial.
Police and recorded interviews (in‑car and detective interviews) and jail calls contained repeated statements that Hardeman previously choked the victim’s mother (Melissa) and that Lakisha said she was choked; the State introduced those recordings and a prior judgment of conviction for an assault on Melissa.
Defense moved for mistrial after a veniremember allegedly used racial slurs before jury selection; the court confronted and removed that juror but denied broader inquiry and denied a mistrial.
Defense objected repeatedly that the State used recanting witnesses as “strawmen” to introduce extraneous‑offense evidence (prior choking of Melissa) and to impeach witnesses; the court admitted much of the recordings and prior‑act evidence under recorded‑recollection / impeachment and limited‑use instructions.
Defense requested a lesser‑included instruction (assault causing bodily injury rather than strangulation); the trial court denied the request.

Issues

Issue	Appellant's Argument	State's Argument	Held (trial‑court rulings reflected in brief)
1. Refusal to declare mistrial after venire racial slur	Juror made a virulent racial remark about "niggers and Mexicans"; concealment contaminated jury selection and deprived Appellant of impartial jury; counsel requested broader voir dire and mistrial.	The juror denied the remark; limited confrontation sufficed; removal of the juror cured any risk; no showing of contamination.	Trial court denied mistrial but removed the juror and seated alternate; refused broader inquiry.
2. Admission of extraneous‑offense evidence about choking Melissa (multiple witnesses)	Evidence of prior choking of Melissa was admitted to show propensity and to impeach recanting witnesses (strawman tactic); admission violated Rules 404(b) and 403 and prejudiced Appellant.	Evidence was admissible to show intent/absence of mistake, relationship dynamics under art. 38.371, and to explain witness non‑cooperation; limiting instructions were given.	Trial court admitted much of the extraneous‑act testimony and prior conviction with limiting instructions; denied some specific objections.
3. Use of impeachment as subterfuge (Melissa's written statement and Londrie)	State used impeachment (Rule 613) as pretext to place inadmissible prior‑act evidence before the jury; this was impermissible strawman impeachment.	The documents and third‑party testimony were proper for impeachment and for context; court can give limiting instruction.	Court allowed Melissa’s written statement and Londrie’s testimony for impeachment with limiting instruction.
4. Admission of recorded interviews (Lee, Morgan, Hurt of D.)	Recordings were hearsay and did not qualify as recorded recollections because witnesses testified with present recollection and recanted; recordings thereby improperly admitted and carried extraneous‑act content.	Recordings were admissible as present sense impressions, then‑existing mental/physical condition or recorded recollection and for impeachment; some portions were redacted; jury given instructions.	Court overruled hearsay objections and admitted recordings under recorded‑recollection / other exceptions; defense preserved running objections.
5. Refusal to submit lesser‑included offense (assault by bodily injury)	Evidence supported a rational jury finding of bodily injury without proof of impeding breathing; denial left jury with all‑or‑nothing choice and caused harm (significant sentence differential).	The evidence did not show only the lesser offense; State argued recklessness standard not met and accident/mistake instruction available; charging decision proper.	Trial court denied the requested lesser‑included instruction.

Key Cases Cited

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (harmless error / harm analysis for jury‑charge error)
Salazar v. State, 562 S.W.2d 480 (Tex. Crim. App. 1978) (juror withholding material information hampers exercise of challenges)
Franklin v. State, 12 S.W.3d 473 (Tex. Crim. App. 2000) (due diligence and ability to question juror after undisclosed relationship or bias)
Robbins v. State, 88 S.W.3d 256 (Tex. Crim. App. 2002) (limits on admission of extraneous‑offense evidence when defendant’s intent not in issue)
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) (Rule 403 balancing and abuse‑of‑discretion standard for evidentiary rulings)
Gonzales v. State, 304 S.W.3d 838 (Tex. Crim. App. 2010) (standard for reviewing mistrial rulings / abuse of discretion)