Sheshtawy, Adel v. State ( 2002 )

Affirmed and Opinion filed May 9, 2002

Affirmed and Opinion filed May 9, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00744-CR

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ADEL SHESHTAWY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Criminal Court at Law No. 12

Harris County, Texas

Trial Court Cause No. 1029693

O P I N I O N

            Adel Sheshtaway appeals a conviction for assault^[1] on the grounds that: (1) the trial court erred by excluding photographs and related testimony; (2) the evidence was legally and factually insufficient to establish that the complainant was injured as a result of being grabbed by appellant; and (3) the trial court erred in not ordering a mistrial with regard to a police officer’s testimony.  We affirm.

Exclusion of Evidence

            Appellant’s first issue argues that the trial court erred by excluding six photographs (the “photos”) that would have shown that the injuries the complainant allegedly suffered from the assault had actually been suffered before the assault and thus that her assault claim was false.

            We review a trial court’s decision to exclude evidence for abuse of discretion. See Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001).  A trial court’s evidentiary ruling will be sustained if it is correct under any theory of law applicable to the case.  Dewberry v. State, 4 S.W.3d 735, 750 n.12 (Tex. Crim. App. 1999).

            In this case, although appellant’s counsel argued at trial and argues on appeal that the injuries depicted in the photos are very similar to those alleged to have been inflicted during the assault, appellant’s brief cites no evidence in the record from trial to establish any similarity between the two or even to establish how close the photos were taken to the time of the assault. Nor does appellant cite any evidence to show any similarity between the photos and the injuries appellant claims the complainant had already suffered before the assault occurred.  Because appellant’s first point of error thus fails to demonstrate the relevance of the photos and any error by the trial court in excluding them for lack of relevance, appellant’s first issue is overruled.

            Appellant’s second issue argues that the trial court erred in excluding his testimony (the “testimony”) that the complainant had admitted to him that the only photographs of her injuries were taken at the Westside Police Station and by the District Attorney’s Office.  Appellant contends that this testimony would have established that the photos discussed in issue one predated the assault.  However, because the content of the photos was not shown to be relevant, testimony showing that the photos predated the assault was likewise not shown to be relevant.  Therefore, issue two does not demonstrate error in excluding the testimony and is overruled.

Legal and Factual Sufficiency

            Appellant’s third and fourth issues contend that the evidence was legally and factually insufficient to establish that the complainant suffered bodily injury from the assault alleged, i.e., that appellant grabbed her with his hand.  In support of both of these issues, appellant contends that there is no evidence of any injury that was suffered by the complainant from being grabbed by appellant.

            In reviewing legal sufficiency, we look at all of the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  See Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).  In reviewing factual sufficiency, we look at all of the evidence in a neutral light, and will reverse only if the evidence supporting guilt is so obviously weak as to render the conviction clearly wrong and manifestly unjust, or if that evidence, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust.  Id.

            A person commits an offense of assault if he intentionally, knowingly, or recklessly causes bodily injury to another, including his spouse.  Tex. Pen. Code Ann. § 22.01(a)(1) (Vernon Supp. 2002).  Bodily injury means physical pain, illness, or any impairment of physical condition.  Id. § 1.07(a)(8) (Vernon 1994).

            In this case, there was evidence, among other things, that: (a) appellant grabbed the complainant around the neck, grabbed her by the left arm, and threw her to the ground; and (b) the complainant had bruises around her neck and on her left arm after the assault and/or the following day.  A rational trier of fact could have inferred from this evidence that the complainant suffered pain, injury, or both from being grabbed by appellant’s hand, and this evidence is not so obviously weak as to render the conviction clearly wrong and manifestly unjust. Accordingly, appellant’s third and fourth issues fail to demonstrate legal or factual insufficiency of the evidence and are overruled.

Mistrial

            Appellant’s fifth issue contends that the trial court erred by denying his request for a mistrial after the following exchange occurred:

Q:        Are you required at any point before you decide to make an arrest, to interview a defendant?

A:        No.

Q:        Are you required to ask him what his side of the story is or how he feels about the situation?

A:        No, they are going to lie anyway.

            Although the trial court sustained appellant’s objection to this statement and instructed the jury to disregard it, appellant argues that the comment was particularly egregious because this officer was the primary witness for the State, and it was disparaging to appellant and constituted a comment on his veracity.

            Generally, a mistrial is required only when improper evidence is clearly calculated to inflame the minds of the jury members and is of such a character as to suggest the impossibility of withdrawing the impression produced in their minds.  Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999).  In all other situations, the jury is presumed to follow the trial court’s instruction to disregard improperly admitted evidence.  Id.  We review a trial court’s denial of a mistrial for abuse of discretion.  Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000).

            In this case, although the officer’s comment was clearly inappropriate, it was not so inflammatory or prejudicial as to require a mistrial.  Accordingly, issue five is overruled, and the judgment of the trial court is affirmed.

                                                                        /s/        Richard H. Edelman

                                                                                    Justice

Judgment rendered and Opinion filed May 9, 2002.

Panel consists of Justices Hudson, Fowler, and Edelman.

Do Not Publish — Tex. R. App. P. 47.3(b).

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^[1]           The jury found appellant guilty and assessed a $4,000 fine.