Brian Douglas Hill v. State ( 2012 )

Opinion issued March 22, 2012.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00926-CR

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Brian Douglas Hill, Appellant

V.

The State of Texas, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Case No. 1238827

MEMORANDUM OPINION

Appellant Brian Douglas Hill was charged by indictment with assault of a person with whom he had a dating relationship.  Tex. Penal Code
§ 22.01(b)(2)(A) (West 2011).  The jury found him guilty, found true two enhancements, and sentenced him to twenty-five years in prison.  On appeal, Hill contends that the evidence was insufficient to prove there was a “dating relationship” between him and the complainant and that the trial court erred in prohibiting impeachment of the complainant through a witness who would have testified about the complainant’s criminal history.  We affirm.

Background

          On July 31, 2009, Renee Williams stopped at a gas station food mart to use the ATM.  Williams testified that she saw the complainant, Carolyn Lewis, run into the store.  Lewis appeared to be covered in mud and blood and was begging for help.  Hill ran into the store after Lewis, demanding her purse and a card.  When Lewis refused to give him her purse, Hill punched her in the face, causing her to slide across the store’s floor.  Williams saw Hill punch Lewis a second time. Williams called 911 from her car. According to Williams, when she asked Lewis who had hit her, Lewis told Williams that it was her boyfriend.

          Officers C. Bradshaw and H. Ceo of the Houston Police Department also testified.  Bradshaw testified that she and Ceo reported to the scene a few moments after receiving Williams’s 911 call.  Ceo testified that when she spoke with Lewis, Lewis told her that Hill had hit her with his closed fist seven times at various locations, including the gas station and street.  Lewis told Ceo that she and Hill had previously been together “relationally.”  Ceo thought this meant “that they had been intimate together.  Boyfriend and girlfriend.”

Officer Lee Berry also testified for the State.  Berry first spoke with Lewis the day after the incident on August 1, 2009.  Lewis told him that she had been assaulted by her ex-boyfriend, Hill.  Lewis also said Hill had taken her social security debit card. According to Berry, both Williams and Avelino Fernandez, a clerk at the food mart, identified Hill in separate photo line ups.

The State also offered the testimony of Deputy J. Ortiz, who confirmed that after comparing fingerprints taken from Hill with those on a jail card, Hill was the same Brian Douglas Hill who pleaded guilty to a 2008 assault of a family member charge.  At the close of its case, the State read Lewis’s medical records to the jury, including the EMS report and hospital records from this assault.  Both sets of records referred to Hill as Lewis’s boyfriend. 

Hill testified at trial, admitting that he was with Lewis on the day of the incident but offering a version of events that differed from Lewis’s claims. According to Hill, Lewis purchased a beer and cigar for each of them and they went for a walk.  As they walked towards the gas station he and Lewis began to argue about various things, including his new relationship with another woman.  Hill testified that the card that Williams said he demanded from Lewis was actually a Chase bank card with his name on it and not Lewis’s card.  Hill initially denied having physical contact with Lewis before she ran into the food mart, but he later admitted that he may have pushed her off of him at one point during their walk.  Hill also claimed that the only contact he had with Lewis inside the food mart was that they wrestled as he tried to recover his Chase bank card.  Hill later admitted that he did hit Lewis when they were inside of the food mart, but explained that she was hitting him and he had to defend himself by hitting her back.

Hill confirmed that he and Lewis lived together from 2006 until 2007.  In addition, he admitted that they had lived together for three days in 2008 after they had been evicted from their apartment and Lewis had moved in with her daughter.  About their relationship, Hill testified that he “could say [he] was in a relationship with her a year and a half where, [they] lived together,” but since then he went his way and “she went her way” and they were no longer together. Hill offered conflicting testimony as to the date of their breakup.  He initially testified that they had broken up the year before the incident, and later said that they had separated only a month before the incident. 

Sufficiency of the evidence to show a dating relationship

In his first issue, Hill argues that the evidence presented at trial was insufficient for a rational jury to have found beyond a reasonable doubt that Hill and Lewis had a dating relationship as defined by Texas Family Code section 71.0021(b).  Tex. Fam. Code. Ann. § 71.0021(b) (West 2009).   

A.   Standard of Review

“Evidence is insufficient to support a conviction if considering all record evidence in the light most favorable to the verdict, a factfinder could not have rationally found that each essential element of the charged offense was proven beyond a reasonable doubt.”  Gonzalez v. State, 337 S.W.3d 473, 478 (Tex.
App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979)).  An appellate court “determine[s] whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict.”  Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007)).  When the record supports conflicting inferences, an appellate court presumes that the factfinder resolved the conflicts in favor of the verdict and defers to that resolution.  Id. (citing Jackson, 443 U.S. at 326, 99 S. Ct. at 2793).  “An appellate court likewise defers to the factfinder’s evaluation of the credibility of the evidence and weight to give the evidence.”  Gonzalez, 337 S.W.3d at 479.  In viewing the record, a court treats direct and circumstantial evidence equally: circumstantial evidence can be as probative as direct evidence, and “circumstantial evidence alone can be sufficient to establish guilt.”  Clayton, 235 S.W.3d at 778 (quoting Hooper, 214 S.W.3d at 13).

B.   Applicable Law

A person commits assault by intentionally, knowingly, or recklessly causing bodily injury to another person.  Tex. Penal Code Ann. § 22.01(a)(1).  The assault becomes a third degree felony if it is committed against someone whose relationship with the defendant constitutes a “dating relationship” and the defendant has a previous conviction for family violence.  Tex. Penal Code Ann.
§ 22.01(b)(2).  A dating relationship is “a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature.”  Tex. Fam. Code Ann. § 71.0021(b). The existence of a dating relationship is determined based on consideration of: (1) the length of the relationship, (2) the nature of the relationship, and (3) the frequency and type of interaction between the persons involved in the relationship.  Id.  “A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a dating relationship.”  Id. at § 71.0021(c).

C.   Analysis

Hill does not dispute that the evidence was sufficient for the jury to find that he assaulted Lewis and had a previous family violence conviction. Hill argues only that the evidence was insufficient to prove that Hill and Lewis had a dating relationship as defined by Texas Family Code section 71.0021(b).  Specifically, Hill contends that the State was required to prove beyond a reasonable doubt that the relationship between Hill and Lewis was ongoing at the time of the incident.  Hill further argues that because there is no evidence concerning the time of their breakup, the evidence was insufficient for a jury to find that a dating relationship existed at the time of the incident.  See Tex. Fam. Code Ann. § 71.0021(b).

In order to prove Hill and Lewis had the required “dating relationship” the State had to demonstrate beyond a reasonable doubt that theirs was “a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature.”  The charge stated, consistent with the language of the Family Code, that the existence of the dating relationship should be determined based on the length and nature of the relationship as well as “the frequency and type of interaction between the persons involved in the relationship.”

The jury was thus permitted to find that Hill and Lewis had a dating relationship if it found that Hill and Lewis (1) have a continuing relationship of a romantic or intimate nature or (2) have had a continuing relationship of a romantic or intimate nature.  Hill contends that the use of the term “continuing relationship” means that only a relationship that is continuing or ongoing at the time of the assault satisfies the statute.  We reject Hill’s interpretation of the statute because construing “continuing relationship” as he urges would render the words “have had” meaningless.  We conclude that the inclusion of the words “have had” permitted the jury to find that a dating relationship existed if it found that Hill and Lewis had a continuing relationship of a romantic or intimate nature in the past, regardless of whether that relationship was ongoing at the time of the assault.  Tex. Fam. Code Ann. § 71.0021(b); see White v. State, No. 05-09-00112-CR, 2010 WL 2951748 at *2 (Tex. App.—Dallas July 29, 2010, pet. ref’d) (mem. op., not designated for publication) (evidence sufficient to show dating relationship where evidence showed complainant and appellant had dated but had broken up before assault).

Having concluded that the State was not required to prove that Hill and Lewis’s romantic or intimate relationship was ongoing at the time of the assault, we now address whether the evidence was sufficient for a jury to have found beyond a reasonable doubt that Hill and Lewis had a continuing relationship of a romantic or intimate nature before the assault.  Williams testified that Lewis referred to her assailant, Hill, as her “boyfriend.” Lewis’s medical records and EMS report, which were read to the jury, described Lewis’s assailant as her boyfriend.  Officer Ceo testified that Lewis told her that she and Hill had previously been together “relationally” and that Ceo took that to mean they were “intimate together” and “[b]oyfriend and girlfriend.”  Officer Berry testified that when he interviewed Lewis the day after the incident, she told him that she had been hit by her “ex-boyfriend.” In addition, Hill admitted that he had lived with Lewis from the end of 2006 until the end of 2007 and for a few days in 2008.  When questioned about how long it had been since the relationship had ended, Hill offered conflicting testimony, stating once that they “broke up last year” and later that it had been “probably about a month, probably” since their break up.[1]

Given the testimony concerning the length and nature of the relationship we conclude that there was sufficient evidence for a rational jury to find beyond a reasonable doubt that Lewis and Hill had a dating relationship as defined by the Texas Family Code.  Villareal v. State, 286 S.W.3d 321, 324 (Tex. Crim. App. 2009) (evidence sufficient to show dating relationship where defendant and complainant spent night at each other’s residences and had dated only about one month); see Caballero v. State, No. 03-09-00473-CR, 2010 WL 2133927 at *4 (Tex. App.—Austin May 28, 2010, pet. dism’d) (mem. op., not designated for publication) (although evidence showed complainant dated other men, evidence sufficient to show dating relationship where jury could believe complainant’s testimony that relationship lasted eight months, and evidence showed they lived together at campsite).

We overrule Hill’s first issue.

Impeachment Evidence

In his second issue, Hill argues that the trial court erred by prohibiting Hill from offering evidence of Lewis’s criminal history to impeach Lewis, who did not testify at trial, but whose hearsay statements were admitted through other witnesses.  See Tex. R. Evid. 806.

A.   Standard of Review

We review a trial court’s decision to admit or exclude evidence under an abuse of discretion standard.  Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 2966 (2011); Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003).  A trial court abuses its discretion if its determination “lies outside the zone of reasonable disagreement.”  Martinez, 327 S.W.3d at 736.

B.   Applicable Law

When hearsay has been admitted, the declarant’s credibility may be attacked through any evidence which would be admissible if he had testified.  Tex. R. Evid. 806.  To attack the credibility of a witness, evidence that he has been convicted of a felony or crime of moral turpitude shall be admitted if elicited through the witness or by public record, and the court determines the probative value outweighs its prejudicial effect.  Tex. R. Evid. 609.  The proponent of the evidence must show the evidence is admissible.  Arnold v. State, 36 S.W.3d 542, 546 (Tex. App.—Tyler 2000, pet. ref’d); see Davis v. State, 791 S.W.2d 308, 310 (Tex. App.—Corpus Christi 1990, pet. ref’d) (proponent must show evidence is competent before using evidence for impeachment).

C.   Analysis

During cross-examination, Hill’s counsel questioned Officer Berry about his investigation of the assault.  Berry testified that he ran criminal histories on all of the parties involved, including Lewis.  Hill’s attorney then asked Berry whether there had been any “hits” when he ran Lewis’s criminal history.  Before Berry could answer, the State objected to the question on the ground of relevance.  At the bench, the judge questioned Hill’s attorney about the relevance of Berry’s testimony:

Hill’s Counsel: It’s mostly thefts and there’s also another one; but they’re crimes against moral turpitude.

The Court: Okay.  Can you impeach someone who’s [sic] was going to testify?

Hill’s Counsel: I just asked him if there was [sic] hits.  That’s why I didn’t go into it.

The Court: Well, you knew that he could possibly say yes and run off the mouth the rest of it, too, because he wasn’t instructed.

Hill’s Counsel: Okay.  But I wasn’t going to ask anything.

The trial court sustained the State’s objection to relevance and Hill’s attorney continued questioning Berry about his investigation.

To preserve error for review, the record must show that the complaining party gave the trial court an opportunity to rule on the complaint by presenting that complaint to the trial court in a specific and timely objection.  See Tex. R. App. P. 33.1; Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992); Runnels v. State, 193 S.W.3d 105, 108 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (“When the appellate complaint fails to comport with the trial objection, nothing is preserved for review.”).  Here, Hill did not argue to the trial court that Lewis’s criminal history was admissible under Texas Rule of Evidence 806 or any other rule of evidence. When questioned by the trial court about the admissibility of the evidence, Hill’s attorney stated that he “wasn’t going to ask anything.” Hill never gave the trial court an opportunity to consider admissibility under Rule 806.  Accordingly, he may not now complain on appeal that the trial court erred in excluding evidence of Lewis’s convictions or criminal history.  See Martinez, 91 S.W. 3d at 336 (appellate court usually may not reverse trial court’s evidentiary ruling on theory of admissibility or inadmissibility not raised at trial); Kuecker v. State, No. 01-07-00016-CR, 2008 WL 1747692,
at *4 (Tex. App.—Houston [1st Dist.] Apr. 17, 2008, no pet.) (mem. op., not designated for publication) (appellant who failed to argue admissibility of evidence under Rule 806 waived argument of admissibility on that ground).  We conclude Hill failed to preserve this claim for review, and we thus overrule Hill’s second issue.[2]

Conclusion

          We affirm the judgment of the trial court.

                                                                   Rebeca Huddle

                                                                   Justice

Panel consists of Justices Jennings, Massengale, and Huddle.

Do not publish.   Tex. R. App. P. 47.2(b).

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[1]           Although Hill denied living with Lewis at the time of the incident, during his testimony he explained that Lewis had his debit card because he had left his cards lying around “the house.”  He then clarified that by “the house” he was actually referring to Lewis’s home.

[2]        Hill was required to–but did not–make an offer of proof or bill of exception, nor did he offer evidence demonstrating that the “hits” were prior convictions that were, in fact, admissible.  This is an independent basis for concluding that Hill failed to preserve this complaint for review.  See Johnson v. State, No. 01-01-00288-CR, 2002 WL 1227209, at *2–3 (Tex. App.—Houston [1st Dist.] June 6, 2002, pet. struck) (not designated for publication) (citing Hernandez v. State, 976 S.W.2d 753, 755–56 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) (when record silent as to date or details of convictions, appellate court could not review appellant’s claim that trial court erred in not admitting impeachment evidence of complainant); Kuecker v. State, No. 01-07-00016-CR, 2008 WL 1747692, at *4–5 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (mem. op., not designated for publication) (citing Davis v. State, 791 S.W.2d 308, 310 (Tex. App.—Corpus Christi 1990, pet ref’d) (trial court did not err in excluding impeachment evidence of non-testifying hearsay declarant when background check printout was only evidence of criminal history and proponent failed to link hearsay declarant to record).