Jason Daniel Duran v. State ( 2014 )

IN THE
TENTH COURT OF APPEALS
No. 10-13-00363-CR
JASON DANIEL DURAN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 272nd District Court
Brazos County, Texas
Trial Court No. 12-04818-CRF-272
MEMORANDUM OPINION
Appellant Jason Duran was charged by indictment with the offense of
aggravated assault with a deadly weapon-family violence. The indictment alleged that
Duran had intentionally, knowingly, or recklessly caused bodily injury to his daughter
K.L. by striking her with his hand. Duran entered a plea of guilty, and after a
punishment hearing, the trial court sentenced Duran to fourteen years’ imprisonment.
This appeal ensued.
In his sole issue, Duran contends that the trial court erred in denying his
objections to lay opinion witness testimony. We review a trial court’s decision to admit
or exclude evidence under an abuse-of-discretion standard. Weatherred v. State, 15
S.W.3d 540, 542 (Tex. Crim. App. 2000).
Rule of Evidence 602 provides, “A witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that the witness has personal
knowledge of the matter.” TEX. R. EVID. 602. Lay witness opinion testimony is
admissible under Rule of Evidence 701, however, if the witness’s opinion or inferences
are “(a) rationally based on the perception of the witness and (b) helpful to a clear
understanding of the witness’ testimony or the determination of a fact in issue.” TEX. R.
EVID. 701.
The initial requirement that an opinion be rationally based on the perceptions of
the witness is itself composed of two parts. Fairow v. State, 943 S.W.2d 895, 898 (Tex.
Crim. App. 1997). First, the witness must establish personal knowledge of the events
from which his opinion is drawn. Id. Second, the opinion drawn must be rationally
based on that knowledge. Id. An opinion will satisfy the personal knowledge
requirement if it is an interpretation of the witness’s objective perception of events (i.e.,
his own senses or experience). Id. at 899. An opinion is rationally based on perception
if it is an opinion that a reasonable person could draw under the circumstances. Id. at
900.
The second requirement for admissibility under rule 701 is that the witness’s
opinion or inferences be helpful to the trier of fact to either understand the witness’s
testimony or to determine a fact issue. TEX. R. EVID. 701. While there is no bright line
Duran v. State Page 2
indicating when an opinion is helpful, general evidentiary considerations of relevance
and balancing will invariably assist the trial judge in making his determination. Fairow,
943 S.W.2d at 900.
At the punishment hearing, K.L.’s grandmother Kim Butler testified as follows:
Q. (BY [Prosecutor]) I don’t want you to go into what the
medical diagnosis was. We have other folks for that. But were you told
what [K.L.]’s injuries were?
A. Yes.
….
Q. Has it had a continuing effect on [K.L.]? Being around her
every day, have you noticed anything different about [K.L.]?
A. There’s certain little things that trigger - -
[Defense Counsel]: Object. This is going to call for
speculation as to making any connection with this incident with behavior
following that.
[Prosecutor]: If I could respond, Judge, she lives with the
child. She’s in a better position than anyone to testify to any differences in
the child before this or afterwards.
THE COURT: Overruled.
Q. (BY [Prosecutor]) Go ahead, Kim. How have you noticed
[K.L.] has been different since this happened?
A. Certain things, I guess, trigger emotions in her, I guess you
could say.
Q. What do you mean by that?
A. I guess she’s socializes [sic] wooden floors with the father.
She doesn’t like going in a house or anywhere that has wooden floors in it.
[Defense Counsel]: Judge, I’m going to object. Calls for
Duran v. State Page 3
speculation as to what the child - - she has no expertise to give this kind of
testimony.
THE COURT: How is it speculation if she notices the child
changes in presence of a wooden floor?
[Defense Counsel]: She’s making a connection that’s
associated with the father.
[Prosecutor]: Under Rule 702, 703, she’s allowed to do so
based on her experience.
THE COURT: I’m going to overrule the objection.
Q. (BY [Prosecutor]) Go ahead, ma’am.
A. And just certain things that she socializes [sic] with Hispanic
males in general.
Q. Have you noticed anything different about [K.L.] in terms of
when you are physically interacting with her?
A. We can’t make any fast movements.
Q. What do you mean by that?
A. She flinches.
Q. As a kind of matriarch of that house, do you ever have
occasion to like do [K.L.]’s hair or anything like that?
A. Yes.
Q. What’s her - - how does she react to things like that?
A. For the first six months or so, she didn’t want us touching
her hair.
THE COURT: She didn’t want what?
THE WITNESS: She didn’t want us touching her hair. She
didn’t want us brushing it. We wouldn’t put it up in ponytail. We
couldn’t do anything but gently run our fingers through it to do it. She
Duran v. State Page 4
didn’t like for us to wash her hair, any of that.
Q. (BY [Prosecutor]) Is that difficult for you to see as a
grandmother?
A. At that time, yes.
Q. How would you describe - - I want to back up for a minute.
How would you describe [K.L.] before this happened in terms of her
demeanor, in terms of her, I mean, behavior? Was she - - I don’t know of
another way to ask this. Was she a problematic child or difficult child?
A. No. She was a happy baby at my house.
Duran argues that Butler was improperly allowed to testify about the reasons for
K.L.’s behavior after her injury. Duran states that it was impossible for Butler to possess
personal knowledge of what K.L. was thinking in order to testify that she does not like
wooden floors because she associates them with her father or that K.L. thinks certain
things because she associates them with Hispanic males in general. But even assuming
without deciding that the trial court abused its discretion in allowing this testimony by
Butler, we conclude that the error was harmless.
Lay witness opinion testimony that is erroneously admitted into evidence is
subject to a harmless-error analysis. See Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim.
App. 2001). Because the error, if any, is non-constitutional, it must be disregarded
unless it affects substantial rights. TEX. R. APP. P. 44.2(b). A substantial right is affected
when the error had a substantial and injurious effect on a factfinder’s verdict or decision
on punishment. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).
Duran argues that Butler’s testimony about K.L. having some long-term
disabilities was prejudicial and resulted in a heavier sentencing penalty. We disagree.
Duran v. State Page 5
The complained-of testimony was very brief, and Butler acknowledged during cross-
examination that K.L. was physically healed from the injury and that she had been
cleared by her medical doctor. Furthermore, the complained-of testimony pales in
comparison to the graphic evidence of the injuries K.L. suffered from Duran. Dr. Mark
Boyle, who treated nine-month-old K.L. in the emergency room, testified that she had
skull fractures on both sides of her head and that it takes a lot of force to break a young
child’s bones. Bryan Police Detective Shawn Davis testified that Duran told him that
K.L. was incessantly crying, so he had hit her twice on the side of the head while her
head was on a windowsill to get her to stop crying. Detective Davis stated that Duran
then told him about other times when he had abused K.L. Detective Davis said that
Duran agreed that he had hit K.L. with his fist or his hand somewhere between five and
ten times beginning when she was seven months old. Duran had said that most of the
time, he would hit her in her head. One time, he had given her a stomach punch that
caused her to vomit profusely. Genesis Gavina, the mother of Duran’s son, who was
living with Duran before he was charged with this offense, also testified that she had
seen Duran beat K.L. on more than one occasion.
In light of the foregoing, we conclude that even if the trial court abused its
discretion in allowing the complained-of testimony from Butler, the error was harmless.
We overrule Duran’s sole issue and affirm the trial court’s judgment.
Duran v. State Page 6
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed September 18, 2014
Do not publish
[CR25]
Duran v. State Page 7