Martin Suarez Juarez v. State ( 2014 )


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  •                                                                                                            ACCEPTED
    06-14-00052-CR
    SIXTH COURT OF APPEALS
    TEXARKANA, TEXAS
    12/30/2014 11:59:31 PM
    DEBBIE AUTREY
    CLERK
    No. 06-14-00052-CR
    IN THE COURT OF APPEALS                FILED IN
    FOR THE SIXTH DISTRICT OF TEXAS 6thTEXARKANA,
    COURT OF APPEALS
    TEXAS
    AT TEXARKANA, TEXAS          12/31/2014 11:43:00 AM
    ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗ DEBBIE AUTREY
    Clerk
    MARTIN SUAREZ JUAREZ,
    APPELLANT
    v.
    THE STATE OF TEXAS,
    APPELLEE
    ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
    On Appeal from the 195th Judicial District Court
    Hon. Fred Tinsley, Judge Presiding
    Dallas County, Texas
    In Cause No.F13-60355-N
    ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
    STATE’S RESPONSE BRIEF
    ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
    Counsel of Record:
    CRAIG WATKINS                                                 TARA CUNNINGHAM
    Criminal District Attorney                                    Assistant District Attorney
    Dallas County, Texas                                          State Bar No. 24068757
    Frank Crowley Courts Building
    133 N. Riverfront Boulevard, LB-19
    Dallas, Texas 75207-4399
    (214) 653-3828| (214) 653-3643 fax
    Tara.Cunningham@dallascounty.org
    Attorneys for the State of Texas
    The State requests oral argument only if Appellant argues.
    Table of Contents
    Table of Contents .................................................................................................................... i
    Table of Authorities .............................................................................................................. iii
    Statement of the Case ........................................................................................................... iv
    Statement of Facts .................................................................................................................. 1
    Summary of the Argument .................................................................................................... 6
    Argument ................................................................................................................................. 8
    Response to Issue One ....................................................................................................... 8
    Response to Issue Two .................................................................................................... 11
    Response to Issue Three .................................................................................................. 14
    Response to Issue Four ...................................................................................................... 8
    Response to Issue Five ..................................................................................................... 11
    Response to Issue Six ....................................................................................................... 14
    Response to Issue Seven .................................................................................................. 14
    Conclusion ............................................................................................................................. 16
    Certificate of Compliance .................................................................................................... 17
    Certificate of Service ............................................................................................................ 17
    i
    Table of Authorities
    Cases
    Asberry v. State,
    
    813 S.W.2d 526
    (Tex.App.—Dallas 1991, pet. ref’d)………………………………..12
    Atkins v. State,
    
    951 S.W.2d 787
    (Tex. Crim. App. 1991)……………………………………………..2
    Barajas v. State,
    
    93 S.W.3d 36
    (Tex. Crim. App. 2002)…….……………… ………………………..2
    Bell v. State,
    
    877 S.W.2d 21
    , 24(Tex. App. Dallas 1994))…….…………… …..……………….7,10
    Bigley v. State,
    
    865 S.W.2d 26
    (Tex. Crim. App. 1993)....……….…………………………....……..12
    Braxton v. State,
    
    226 S.W.3d 602
    (Tex. App.—Houston [1st Dist.] 2007, pet. dism'd)………..……3,4,5
    Burden v. State,
    
    55 S.W.3d 608
    (Tex. Crim. App. 2001)………………..………………..……….7,9,10
    Cassidy v. State,
    
    149 S.W.3d 712
    (Tex. Crim. App. 2004)………………………………..……..……5
    Coble v. State,
    
    330 S.W.3d 253
    (Tex. Crim. App. 2010)………………………………….……….7,10
    Cook v. State,
    
    858 S.W.2d 467
    , 471 (Tex. Crim. App. 1993)……………………………………….6
    Davis v. State,
    
    349 S.W.3d 517
    (Tex. Crim. App. 2011)....…………………………………..….........4
    Delacerda v. State,
    
    425 S.W.3d 367
    (Tex. App.--Houston [1st Dist.] 2011, pet. ref'd)………...……...…2
    Dillon v. State,
    2007 Tex. App. LEXIS 9339 (Tex. App. Tyler Nov. 30, 2007, pet. ref’d)…………....7
    Lee v. State,
    
    206 S.W.3d 620
    (Tex. Crim. App. 2006)………………………………………….…6
    Sanchez v. State,
    
    165 S.W.3d 707
    , 712 (Tex. Crim. App. 2005)…………..……….……………………3
    Standefer v. State,
    
    59 S.W.3d 177
    (Tex. Crim. App. 2001)…………..………………..…….………..3,4,5
    ii
    Statutes
    Tex. Penal Code § 22.01(a)(1)…..………………………………………….……….12
    Tex. Penal Code § 22.02(a)…..………………………………………….….…...…..12
    Texas Code of Criminal Procedure, Article 35.16(b)(3)……………………..……….5
    Rules
    Tex. R. Evid. 401…………………..……………………..……..………………….10
    Tex. R. Evid. 402…………………..……………………..……………..………….10
    Tex. R. Evid. 801…………………..……………………..………………………….7
    Tex. R. App. P. 44.2 (b)………………….………………..……….……………….12
    iii
    TO THE HONORABLE COURT OF APPEALS:
    The State’s Brief is submitted on behalf of Craig Watkins, the Criminal District
    Attorney of Dallas County, Texas, in response to the brief of Appellant, Martin
    Suarez Juarez.
    Statement of the Case
    Appellant was indicted for assault causing bodily injury by impeding the
    complainant’s normal breathing and circulation. (CR: 6). The indictment further
    alleged that the complainant was a member of Appellant’s family. (CR: 6). Appellant
    entered a plea of not guilty. (RR2: 12; RR3: 13). A jury found Appellant guilty and the
    trial court sentenced Appellant to 8 years’ confinement. (CR: 53; RR4: 26, 58). This
    appeal followed.
    iv
    Statement of Facts
    The facts relevant to this appeal are adequately set forth in the statement of the case
    and the arguments sections of this brief.
    Summary of the Argument
    Issue One:
    Voir Dire. The trial court did not abuse its discretion when it overruled
    Appellant’s objection to the State’s question during voir dire.
    Issue Two:
    Testimony of Officer Regarding 911 Call Notes. The trial court did not
    abuse its discretion when it allowed the investigating officer to testify regarding the
    911 call notes while describing the course of her investigation.
    Issue Three:
    Testimony of Officer Regarding Witness Statement. The trial court did not
    abuse its discretion when it allowed the investigating officer to testify regarding the
    statement of the complaining witness while describing the course of her investigation.
    Issue Four:
    Relevant Testimony. The trial court did not abuse its discretion when it
    allowed testimony regarding the emphasis that the Dallas Police Department has put
    on family violence.
    Issue Five:
    1
    Investigator’s Testimony Regarding Appellant’s Immigration Status. The
    trial court did not abuse its discretion when it allowed testimony from the State’s
    investigator regarding Appellant’s immigration status which fit as an exception to the
    hearsay rule.
    Issue Six:
    Investigator’s Testimony Regarding Appellant’s Immigration Status. The
    trial court did not abuse its discretion when it allowed testimony from the State’s
    investigator regarding Appellant’s immigration status because it was not speculative.
    Issue Seven:
    Judgment. The Court should reform the judgment to reflect that the correct
    offense statute.
    Argument
    Response to Issue One:
    The trial court did not abuse its discretion when it overruled Appellant’s
    objection to the State’s question during voir dire.
    Pertinent Facts:
    During voir dire the State explained to jurors that the State was required to
    prove beyond a reasonable doubt that Appellant caused bodily injury to the
    complainant by impeding the normal breathing and circulation of the complainant's
    blood by applying pressure to her throat or neck or by blocking her nose or mouth
    2
    with the use of a hand and hands. (RR2: 25). The State also let the jurors know that
    when she used the word ―choking‖ she was referring to the longer definition of
    ―caused bodily injury to the complainant by impeding the normal breathing and
    circulation of the complainant's blood by applying pressure to her throat or neck or
    by blocking her nose or mouth with the use of a hand and hands.‖ (RR2: 26). The
    State then asked people to raise their hands if they ―need to see something more than
    just bodily injury.‖ Every time a potential juror raised their hand, the State asked them
    if they would require the State to prove something in addition to bodily injury. (RR2:
    26-32). Three prospective jurors in a row raised their hand and said they would
    require the State to prove more than bodily injury. (RR2: 26-32). The State then asked
    if Venireperson Thompson felt the same way. (RR2: 32). Thompson said that he
    ―would like to see a bruise or something‖ in a choking case. (RR2: 32-33). The State
    followed up by asking the venireperson if no bruising meant that he would render a
    not guilty verdict. (RR2: 33). The venireperson never responded to the question after
    the State was interrupted by Appellant’s objection. The State followed up by asking
    the venireperson ―You would require the State to prove more than what is required
    under the law?‖ to which the venireperson replied, ―Yes.‖
    Standard of Review
    The trial court has broad discretion over the process of selecting a jury. Barajas
    v. State, 
    93 S.W.3d 36
    , 38 (Tex. Crim. App. 2002). A trial court’s ruling on an allegedly
    3
    improper commitment question during voir dire is reviewed under an abuse of
    discretion standard. Atkins v. State, 
    951 S.W.2d 787
    , 790 (Tex. Crim. App. 1997);
    Delacerda v. State, 
    425 S.W.3d 367
    , 381 (Tex. App.--Houston [1st Dist.] 2011, pet.
    ref'd).
    Applicable Law
    A commitment question is a question that commits a prospective juror to
    resolve or to refrain from resolving an issue a certain way after learning of a particular
    fact. Commitment questions are impermissible unless the law requires a commitment.
    Davis v. State, 
    349 S.W.3d 517
    , 518 (Tex. Crim. App. 20011). Improper commitment
    questions are prohibited to "ensure that the jury will listen to the evidence with an
    open mind—a mind that is impartial and without bias or prejudice—and render a
    verdict based upon that evidence." Sanchez v. State, 
    165 S.W.3d 707
    , 712 (Tex. Crim.
    App. 2005). Not all commitment questions are improper, however. Standefer v. State, 
    59 S.W.3d 177
    , 181 (Tex. Crim. App. 2001).
    The Court of Criminal Appeals has articulated a three-part test for determining
    whether a voir dire question is an improper commitment question. 
    Id. at 179;
    Braxton
    v. State, 
    226 S.W.3d 602
    , 604 (Tex. App.—Houston [1st Dist.] 2007, pet. dism'd). First,
    the trial court must determine whether the particular question is a commitment
    question. 
    Standefer, 59 S.W.3d at 179
    . A commitment question is one in which one or
    more of the possible answers is that the prospective juror would resolve or refrain
    4
    from resolving an issue in the case on the basis of one or more facts contained in the
    question. 
    Id. at 180.
    Second, if the question is a commitment question, the trial court
    must determine whether it is a proper commitment question. 
    Id. at 181.
    A
    commitment question is proper if one of the possible answers to the question gives
    rise to a valid challenge for cause. 
    Id. at 182;
    Braxton, 226 S.W.3d at 604
    . Lastly, if the
    question gives rise to a valid challenge for cause, then the court must determine
    whether the question contains only the facts necessary to test whether the prospective
    juror can be challenged for cause. 
    Standefer, 59 S.W.3d at 179
    . If additional facts are
    added beyond what is required to sustain a challenge for cause the question is
    improper. 
    Braxton, 226 S.W.3d at 604
    .
    Analysis
    It was clear that the State was referencing the comments of the other
    venirepersons who had just responded to her question saying that they would require
    more than what the State was required to prove under the law. (RR2: 26-32). He said
    that he ―would like to see a bruise or something‖ in a choking case. (RR2: 32-33). The
    State followed up by asking the venireperson if no bruising meant that he would
    render a not guilty verdict. (RR2: 33). That was a preliminary question to establish a
    challenge for cause. The venireperson never responded to the question after
    Appellant’s objection. The State followed up by asking the venireperson ―You would
    5
    require the State to prove more than what is required under the law?‖ to which the
    venireperson replied, ―Yes.‖
    The State may challenge for cause any venireman who has a bias or prejudice
    against any phase of the law upon which the State is entitled to rely for conviction or
    punishment. Texas Code of Criminal Procedure, Article 35.16(b)(3). One phase of the
    law upon which the State is entitled to rely is that the jury will not require a greater
    burden of proof than beyond a reasonable doubt. Cook v. State, 
    858 S.W.2d 467
    , 471
    (Tex. Crim. App. 1993). The State was required to prove the elements of the crime
    beyond a reasonable doubt. 
    Id. The state
    was entitled to ask prospective jurors if they
    would require more than that. 
    Id. The State
    started off by explaining the burden of proof and then followed up
    again with the State’s burden of proof. (RR2: 25, 34). Even though the State didn’t
    repeat the burden of proof for every question it was clear that each question was in
    the context of the previous explanation. (RR2: 25-34). The questioning of each juror
    is not viewed by an appellate court in isolation. Lee v. State, 
    206 S.W.3d 620
    (Tex.
    Crim. App. 2006). In context, the State’s later questions are merely short-hand
    renditions of the original question that properly elicited whether the venire persons
    could follow the law, and it reasonable to presume the venire persons understood the
    later questions in that manner.
    6
    The venireperson did not respond to the State’s question after Appellant’s
    objection. Even if the Court found the State’s question to be an improper
    commitment question, which the State does not concede, there was never a
    commitment or any response to the question from the potential juror and therefore
    there was no harm.
    Joint Response to Issues Two and Three:
    The trial court did not abuse its discretion when it allowed the investigating
    officer to testify regarding the 911 call notes and statement of the complaining witness
    while describing the course of her investigation.
    Standard of Review
    Appellate courts review a trial court’s ruling on the admission or exclusion of
    evidence under an abuse of discretion standard. Burden v. State, 
    55 S.W.3d 608
    , 615
    (Tex. Crim. App. 2001). If the trial court’s ruling is within the reasonable zone of
    disagreement, appellate courts will not disturb the ruling. 
    Id. Applicable Law
    Hearsay is a statement, other than one made by the declarant while testifying at
    the trial, offered for the truth of the matter asserted. Tex. R. Evid. 801; Coble v. State,
    
    330 S.W.3d 253
    (Tex. Crim. App. 2010). Bell v. State, 
    877 S.W.2d 21
    , 24(Tex. App.
    Dallas 1994). The purpose of the rule is to exclude evidence that is too unreliable to
    7
    be evaluated accurately by the trier of fact. 
    Id. If the
    relevancy of the statement does
    not hinge on the truthfulness of the statement, it is not hearsay. 
    Id. When the
    declarant appears for cross examination there is no constraint on the use of prior
    testimonial statements at trial unless it’s offered for the truth of the matter asserted.
    Dillon v. State, 2007 Tex. App. LEXIS 9339 (Tex. App. Tyler Nov. 30, 2007)(Pet.
    ref’d). A witness may testify regarding statements when they are offered to explain the
    actions taken by the witness after the statement was made. Id at 26. Police officer’s
    testimony regarding extra-judicial statements are not inadmissible hearsay when they
    are admitted not to prove the truth of the matter asserted, but rather to explain how
    the defendant came to be a suspect. Dinkins v. State, 
    894 S.W.2d 330
    , 347 (Tex. Crim.
    App. 1995); Jones v. State, 
    843 S.W.2d 487
    , 499 (Tex.Cr.App. 1992).
    Analysis
    Officer Courtney Collins responded to a call from someone at Appellant’s
    apartment building regarding a man and woman fighting, and the female screaming,
    ―let me go, let me go.‖ (RR3: 60-61). Whether what the caller said was true or not had
    no bearing on the relevance of the statement, which only served to explain why
    Officer Collins Appellant became a suspect and why Officer Collins arrived at
    Appellant’s apartment to investigate the disturbance. Officer Collins decided after
    investigating the matter to arrest Appellant. (RR3: 66). Office Collins testified that she
    was not at the scene when the offense took place, but that her decision to arrest was
    8
    based on her interview with the complainant which was conducted using a language
    line since the complainant spoke Spanish. (RR3: 61, 64-65). Whether statements
    made by the complainant to Officer Collins were true had no bearing on the relevance
    of Officer Collins testimony, which was simply offered to detail the course of her
    investigation and explain why she made the determination to arrest Appellant for the
    offence. Similarly, the accuracy of the language line translations did not make a
    difference as to the relevance of Officer Collin’s testimony. The statement’s only
    significance was that it explained the reasons for Officer Collin’s actions after the
    statement was made, not whether it was accurately translated or truthful. Appellant
    did not make a specific objection to the 911 call notes during trial. The Court should
    overrule Appellant’s objections two and three.
    Response to Issue Four:
    The trial court did not abuse its discretion when it allowed testimony
    regarding the emphasis that the Dallas Police Department has put on family violence.
    Standard of Review
    Appellate courts review a trial court’s ruling on the admission or exclusion of
    evidence under an abuse of discretion standard. 
    Burden, 55 S.W.3d at 615
    . If the trial
    court’s ruling is within the reasonable zone of disagreement, appellate courts will not
    disturb the ruling. 
    Id. 9 Applicable
    Law
    Relevant evidence is evidence having the tendency to make a fact of
    consequence more probable or less probable. Tex. R. Evid. 401. Evidence that is not
    relevant is not admissible. Tex. R. Evid. 402.
    Analysis
    Officer Collins testified regarding the importance of family violence
    cases. (RR3: 81). The relevance stemmed from cross-examination questions in which
    Appellant suggested that police officers do not typically do a thorough investigation
    and simply arrest the person who is the largest in size. (RR3: 73, 77-79). Officer
    Collins response was relevant in that it helped the jurors to understand that the Dallas
    Police Department does take family violence seriously and why they aim to protect
    the victim. (RR3: 81). The Court should overrule Appellant’s fourth issue.
    Joint Response to Issues Five and Six:
    The trial court did not abuse its discretion when it allowed testimony
    from the State’s investigator regarding Appellant’s immigration status which fit as an
    exception to the hearsay rule and was not speculative.
    Standard of Review
    Appellate courts review a trial court’s ruling on the admission or exclusion of
    evidence under an abuse of discretion standard. 
    Burden, 55 S.W.3d at 615
    . If the trial
    10
    court’s ruling is within the reasonable zone of disagreement, appellate courts will not
    disturb the ruling. 
    Id. Applicable Law
    Hearsay is a statement, other than one made by the declarant while testifying at
    the trial, offered for the truth of the matter asserted. Tex. R. Evid. 801; Coble v. State,
    
    330 S.W.3d 253
    (Tex. Crim. App. 2010). Bell v. State, 
    877 S.W.2d 21
    , 24(Tex. App.
    Dallas 1994). Evidence that a writing authorized by law to be recorded or filed and in
    fact recorded or filed in a public office, or a purported public record, report,
    statement, or data compilation, in any form, is from the public office where items of
    this nature are kept is properly authenticated. Tex. R. Evid 901.
    Analysis
    Dallas County District Attorney’s Office Investigator Eraina Longoria
    testified that she had the opportunity to review Appellant’s records contained in the
    Adult Identification System. The Adult Identification System is a Dallas County is
    properly authenticated because it is a public record. Investigator Longoria’s testimony
    was not hearsay or speculative because it was based on a public record. Tex. R. Evid
    901
    Response to Issue 7:
    The trial court did not abuse its discretion when it allowed testimony
    regarding the emphasis that the Dallas Police Department has put on family violence.
    11
    Standard of Review and Applicable Law
    The Court has the authority to modify the judgment to speak the truth when it
    has the necessary information to do so. Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.
    W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 
    813 S.W.2d 526
    , 529-30 (Tex.
    App. –Dallas 1991, pet. ref’d).
    Analysis
    The record provides enough information to correct the judgment in this
    case. The judgment reflects that the offense statute in this case is Section 22.02 Penal
    Code. (CR: 46). However, Appellant was indicted and found guilty under Section
    22.01. (CR: 6, RR4: 26). Therefore, the Court should exercise its authority to correct
    the judgment to properly reflect that Appellant was indicted and found guilty under
    Section 22.01.
    Conclusion
    This Honorable Court should overrule his points of error in issues one through
    six and affirm the judgment below. Additionally, the Court should correct the
    judgment to properly reflect that Appellant was indicted and found guilty under
    Section 22.01.
    12
    Respectfully submitted,
    /s/Tara Cunningham
    CRAIG WATKINS                     TARA CUNNINGHAM
    Criminal District Attorney        Assistant District Attorney
    Dallas County, Texas              State Bar No. 24068757
    Frank Crowley Courts Building
    133 N. Riverfront Boulevard, LB-19
    Dallas, Texas 75207-4399
    (214) 653-3828 | (214) 653-3643 fax
    Tara.Cunningham@dallascounty.org
    13
    Certificate of Compliance
    I certify that this brief contains 3247 words. This word count includes all
    necessary parts outlined in Texas Rule of Appellate Procedure 9.4(i)(1), and it was
    conducted with Microsoft Word 2010.
    /s/Tara Cunningham
    Tara Cunningham
    Certificate of Service
    I certify that a true copy of this brief was served on Julie Woods, as appellate
    counsel for Martin Suarez Juarez. Service of an electronically-formatted copy of this
    brief was made by use of the electronic service function that accompanies the filing of
    the brief with this Court through the electronic filing service provider to which the
    State subscribes.
    /s/Tara Cunningham
    Tara Cunningham
    14