Jonas Smith v. State ( 2016 )

Affirmed and Opinion filed April 12, 2016.
In The
Fourteenth Court of Appeals
NO. 14-15-00037-CR
JONAS SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 299th District Court
Travis County, Texas
Trial Court Cause No. D-1-DC-13-205993
OPINION
Jonas Smith appeals his conviction for aggravated assault.1 He contends the
trial court (1) erred by denying his “motion to suppress his warrantless arrest;” (2)
abused its discretion by failing to grant a mistrial following complainant’s
reference to appellant’s previous incarceration; and (3) abused its discretion by
1
See Tex. Penal Code Ann. § 22.02(b)(1) (Vernon 2011).
“allowing a child witness to testify with the assistance of a service dog.” We
affirm.
BACKGROUND
Appellant was indicted for committing an aggravated assault against
complainant Lakeisha Toree Holman on October 15, 2013. A jury trial was held
from September 29, 2014, to October 2, 2014.
At trial, complainant testified that she and appellant had known each other
since high school but had started dating about two or three months before October
15, 2013. At the time, complainant lived in a house with her ten-year-old son,
K.H., and four-year-old daughter, T.W. Complainant testified that appellant lived
at his grandmother’s house but often spent the night at her house.
Complainant testified that she and appellant had an argument on October 14,
2013; appellant did not spend the night at her house on that date. After
complainant had gone grocery shopping with a friend on October 15, 2013,
complainant called appellant’s grandmother’s house to “check on him and see
where he was” because appellant had not answered her calls. When the
grandmother told complainant that appellant was at home, complainant drove to
the grandmother’s house to talk to appellant. Complainant testified that there was
no tension between appellant and her, and she invited appellant to come back to
her house and help her unload the groceries she had bought. Appellant agreed.
When they arrived at complainant’s house, appellant helped her unload the
groceries. Complainant testified that she had asked appellant to take a shower
while she started cooking dinner. After appellant had taken a shower, he sneaked
up behind complainant while she was doing “something at the stove with some
scissors.” Complainant chastised appellant for sneaking up on her and then went
2
into the living room. While complainant was tidying up the living room, she heard
noises from the kitchen that sounded like “when you’re hitting knives or forks or
anything against each other when you’re looking for something in the drawer.”
Shortly thereafter, appellant came around the corner to the living room
holding a butcher knife in his hand and telling complainant: “[Y]ou know I kill
you, right?” Complainant tried to talk to appellant but appellant had a blank look
on his face and repeated: “[Y]ou know I kill you, right?” Appellant stabbed
complainant in her arm. As she attempted to flee, appellant stabbed complainant in
the back and then dragged her by her hair back into the house. Complainant
testified that she reached back to pull the knife out of her back, and she threw it
under the couch.
Complainant testified that she tried to fight off appellant but she was
unsuccessful. She testified: “I was laying down on the floor at the point where I
gave up and didn’t fight anymore, he put his foot on my shoulder and told me he
wanted to see me bleed out.” Complainant started to pray and “told him that
please help me, my son -- my kids, I don’t want them to see me like this, you
know, please help me.” Complainant testified that appellant just stood there until
K.H. came home. Appellant then picked complainant up with the help of K.H.,
took her to her car, and drove her to the hospital.
At the hospital, complainant told the staff that appellant had assaulted her
and asked them to take care of K.H. Police then separated appellant and K.H. in
the waiting area. Appellant was covered in blood. Complainant told the police
that appellant had stabbed her, and appellant was arrested that evening.
Complainant suffered injuries to her arm, back, kidney, and head. She testified
that she had to have several surgeries because of the injuries she suffered and she
would require more surgeries in the future.
3
A tape recording of an October 28, 2013 jail telephone conversation between
appellant and complainant was played for the jury. During the jail call,
complainant and appellant extensively discussed the assault. Complainant
described the attack and said appellant had stabbed her in the arm, back, and the
ear. She told appellant she could not hear or smile. She stated that she had had
three surgeries already and two more were necessary. Complainant also stated:
“[Y]ou told me you wanted me to die.”
Appellant also testified at trial. Appellant agreed that he and complainant
had an argument on October 14, 2013. He also agreed that complainant had
invited him to come back to her house the next day on October 15, 2013, and help
her unload groceries. He testified that he took a shower and then left
complainant’s house to run an errand. After he had returned late from running the
errand and had no time to pick up complainant’s daughter from daycare,
complainant and appellant got into an argument.
According to appellant, complainant was jealous and first broke his cell
phone, then swung at him with her left hand, and finally went to the kitchen to get
“some scissors and a knife” to attack him. Appellant testified that he was
“swinging, trying to grab this knife out of her hand.” Appellant testified he “kind
of lost it” and tried to not get hurt. He testified that he did not “remember all the
events that took place after that” and the next thing he remembered was
complainant laying on the floor and praying.
Appellant then heard K.H. come into the house. Appellant “told [K.H.]
immediately when he came in to go to your -- go to your grandmother’s house and
call the police. Your mom tried to stab me.” Appellant testified that K.H. just
stood there. Appellant testified that he then “picked [complainant] up, put her in
the car and took her to the hospital.”
4
On cross-examination, appellant admitted that during an October 28, 2013
jail call with complainant, in which complainant had described the assault and how
appellant had stabbed her in her arm, back, and ear, and told her he wanted her to
die and bleed, appellant never accused complainant of attacking him with a knife
or other weapon. Appellant stated several times during the jail call that he did not
know how the assault happened.
The jury found appellant guilty, and the trial court assessed appellant’s
punishment at 27 years’ confinement. Appellant timely filed this appeal.2
ANALYSIS
In his first issue, appellant argues that the trial court erroneously denied his
motion to suppress because he was arrested without a warrant. In his second issue,
appellant argues that the trial court abused its discretion when it refused to grant a
mistrial after complainant mentioned that appellant had been in prison before
complainant and appellant started dating. In his third issue, appellant argues that
the trial court abused its discretion by “allowing a child witness to testify with the
help of a service dog.” We address each issue in turn.
I. Motion to Suppress
Appellant contends that the trial court erred by denying his “motion to
suppress his warrantless arrest” because the State “failed to meet its burden of
demonstrating the reasonableness of his warrantless arrest, and the evidence did
not support any of the applicable exceptions provided by Tex. Code Crim. Proc. §§
2
This appeal was transferred to the Fourteenth Court of Appeals from the Third Court of
Appeals. In cases transferred by the Supreme Court of Texas from one court of appeals to
another, the transferee court must decide the case in accordance with the precedent of the
transferor court under the principles of stare decisis if the transferee court’s decision otherwise
would have been inconsistent with the precedent of the transferor court. See Tex. R. App. P.
41.3.
5
14.01, 14.02, 14.03, or 14.04.”
We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App.
2010). We give almost total deference to a trial court’s determination of historic
facts and mixed questions of law and fact that rely upon the credibility of a
witness. Martinez v. State, 348 S.W.3d 919, 922-23 (Tex. Crim. App. 2011). We
review pure questions of law and mixed questions of law and fact that do not
depend on credibility determinations de novo. Id. at 923.
We view the evidence in the light most favorable to the trial court’s ruling.
Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007). In a suppression
hearing, the trial court is the sole trier of fact and judge of the credibility of
witnesses and the weight to be given their testimony. See State v. Ross, 32 S.W.3d
853, 855 (Tex. Crim. App. 2000). If the trial court makes no explicit findings of
fact, we imply fact findings to support the court’s ruling when the evidence
supports the implied findings. Gutierrez, 221 S.W.3d at 687. If the trial court’s
decision is correct on any theory of law applicable to the case, its decision will be
sustained. Ross, 32 S.W.3d at 855-56.
Under the Fourth Amendment, a warrantless arrest is unreasonable per se
unless it fits into one of a “few specifically established and well delineated
exceptions.” Minnesota v. Dickerson, 508 U.S. 366, 372 (1993); Torres v. State,
182 S.W.3d 899, 901 (Tex. Crim. App. 2005). A police officer may arrest an
individual without a warrant only if probable cause exists and the arrest falls within
one of the exceptions set out in the Code of Criminal Procedure. Torres, 182
S.W.3d at 901; see Tex. Code Crim. Proc. Ann. arts. 14.01-.04 (Vernon 2015 &
Supp. 2015).
Probable cause for a warrantless arrest requires the officer to have a
6
reasonable belief that, based on the facts and circumstances within the officer’s
personal knowledge or of which the officer has reasonably trustworthy
information, an offense has been committed. Torres, 182 S.W.3d at 901-02.
Information received from private citizens who witness a criminal act may be
regarded as inherently reliable. Cornejo v. State, 917 S.W.2d 480, 483 (Tex.
App.—Houston [14th Dist.] 1996, pet. ref’d) (citing Esco v. State, 668 S.W.2d
358, 360-61 (Tex. Crim. App. [Panel Op.] 1982)); see LeCourias v. State, 341
S.W.3d 483, 488 (Tex. App.—Houston [14th Dist.] 2011, no pet.). This rule also
applies if the citizen is the victim of a crime. Cornejo, 917 S.W.2d at 483.
Probable cause must be based on specific, articulable facts rather than the officer’s
mere opinion. Torres, 182 S.W.3d at 902. We use the “totality of the
circumstances” test to determine whether probable cause existed for a warrantless
arrest. Id.
The Texas Code of Criminal Procedure permits warrantless arrests in
situations where police officers have probable cause to believe a person committed
an offense involving family violence. Tex. Code Crim. Proc. Ann. art. 14.03(a)(4).
Family violence includes acts committed against one victim with whom the actor
has or has had a dating relationship that are intended to result in physical harm,
bodily injury, or assault. See id. art. 5.02. (Vernon 2015); Tex. Fam. Code Ann. §§
71.004(3), 71.0021(a) (Vernon Supp. 2015).
Here, the totality of the circumstances supported a reasonable belief that
appellant had committed an act of family violence.
At the motion to suppress hearing, Police Officer Joseph Poswalk testified
that he was called to St. David’s Medical Center on October 15, 2013, at
approximately 8:30 p.m. in regard to “an assault that had taken place.” When
Officer Poswalk arrived at the hospital, he saw appellant in a waiting room
7
“already being detained by other law enforcement officers” as a possible suspect of
the assault. Appellant was not under arrest at the time.
Officer Poswalk testified that he was in charge of watching over appellant
“while other parts of the investigation were taking place.” Officer Poswalk
testified that “other police officers gather[ed] information from the alleged victim
of the assault.” According to Officer Poswalk, complainant had told investigating
police officers that she had been “stabbed and then also stomped on” by “her
boyfriend, Jonas Smith.” Complainant had told officers that appellant had been a
friend for a long time and that she and appellant had been dating for two or three
months. Officer Poswalk testified that officers were also gathering information
from complainant’s doctors and nurses to “try to determine the level of her
injuries.”
Officer Poswalk testified that appellant, appellant’s shirt, and appellant’s
sandals were covered in blood, which Officer Poswalk believed was “consistent
with an assault having taken place.” Officer Poswalk stated that the police
investigated the assault for about one hour “before a decision was made to arrest
Jonas Smith.” Officer Poswalk stated that the decision to arrest appellant was not
made until all the information regarding complainant’s assault was gathered.
Officer Poswalk was asked: “And based on the information that was known to the
police at the time the decision was made to arrest Jonas Smith, was there probable
cause to believe that he had committed an offense involving family violence?” He
responded: “Yes, ma’am.” Officer Poswalk testified that he arrested appellant
without a warrant.
We reject appellant’s contention that the “State failed to meet its burden to
justify an arrest pursuant to Tex. Code Crim. Proc. § 14.03(a)(4) (the “family
violence” exception).”
8
Appellant contends that Officer “Poswalk did not offer specific, articulable
facts to show whether he became aware of the alleged domestic relationship before
or after he effected Appellant’s arrest.”
To preserve a complaint for review, the record must show that a specific and
timely complaint was made to the trial judge and the trial judge ruled on the
complaint. Lovill v. State, 319 S.W.3d 687, 691 (Tex. Crim. App. 2009); see Tex.
R. App. P. 33.1(a). A complaint is not preserved if the legal basis of the complaint
raised on appeal varies from the complaint made at trial. Lovill, 319 S.W.3d at
691-92. Appellant did not make this complaint in the trial court. Instead, appellant
argued that “[t]o make a warrantless arrest under the statute for assault, there must
be a continuing danger to the alleged victim, and that has not been established
through the testimony.” Therefore, appellant has not preserved the domestic-
relationship argument for appeal. See Tex. R. App. P. 33.1(a); Lovill, 319 S.W.3d
at 692. Even if appellant had preserved this argument, it is without merit in light
of Officer Poswalk’s testimony.
We also reject appellant’s contention that his warrantless arrest was
unlawful because Officer “Poswalk conceded there was no ‘danger of further
bodily injury’ to the complainant at the time of Appellant’s arrest.” Nothing in
Texas Code of Criminal Procedure article 14.03(a)(4) requires a complainant to be
in “danger of further bodily injury” at the time of appellant’s arrest. See Tex. Code
Crim. Proc. Ann. art. 14.03(a)(4). Article 14.03(a)(4) provides that “Any peace
officer may arrest, without warrant . . . persons who[m] the peace officer has
probable cause to believe have committed an offense involving family violence.”
Id.
Appellant confuses the requirements of article 14.03(a)(4) with the
requirements of article 14.03(a)(2), which provides that “Any peace officer may
9
arrest, without warrant . . . persons who[m] the peace officer has probable cause to
believe have committed an assault resulting in bodily injury to another person and
the peace officer has probable cause to believe that there is danger of further bodily
injury to that person.” See id. art. 14.03(a)(2). Appellant was not arrested pursuant
to article 14.03(a)(2); instead, appellant was arrested pursuant to article
14.03(a)(4).
The evidence presented at the motion to suppress hearing supports a
reasonable belief that appellant had committed an offense involving family
violence. Because appellant’s arrest was lawful pursuant to article 14.03(a)(4), the
trial court did not err by denying appellant’s motion to suppress.
Accordingly, we overrule appellant’s first issue.
II. Mistrial Ruling
Appellant challenges the trial court’s denial of his motion for mistrial
following complainant’s reference during her testimony to appellant’s previous
incarceration.
We review the denial of a motion for mistrial for an abuse of discretion.
Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). A trial court does
not abuse its discretion unless its decision falls outside the zone of reasonable
disagreement. Id.
A mistrial is a device used to halt trial proceedings when error is so
prejudicial that expenditure of further time and expense would be wasteful and
futile. Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009); Ladd v. State,
3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A trial court may properly exercise its
discretion to declare a mistrial if an impartial verdict cannot be reached, or if a
verdict of conviction could be reached but would have to be reversed on appeal
10
due to an obvious procedural error. Ladd, 3 S.W.3d at 567. “Only in extreme
circumstances, where the prejudice is incurable, will a mistrial be required.”
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). The determination
of whether an error necessitates a mistrial must be made by examining the facts of
each case. Ladd, 3 S.W.3d at 567.
During direct examination, complainant identified appellant in the
courtroom and then was asked about her living arrangement with appellant.
Complainant testified as follows:
[THE STATE:] Did [appellant] live with you under some formal
arrangement, like was he paying rent or anything?
[COMPLAINANT:] No.
[THE STATE:] How did he come to be living with you?
[COMPLAINANT:] He actually -- he was really staying with his
grandmother. And when he got out of jail that last time that he had
went, he kind of stayed at my house some of the time, between my
house and his grandmother’s house.
[THE STATE:] And let’s just talk about --
[APPELLANT’S COUNSEL:] May I approach, Your Honor?
THE COURT: You may.
* * *
THE COURT: Would you like a limiting instruction?
[APPELLANT’S COUNSEL:] Yes, to disregard any -- that last
response.
* * *
THE COURT: Ladies and gentlemen of the jury, the last answer that
the witness gave will be stricken from the record and disregard her
statement, and I will give you a further limiting instruction at the time
of the jury instructions.
[APPELLANT’S COUNSEL:] The Defense would move for a
mistrial at this time.
11
THE COURT: That motion is denied.
Unless clearly calculated to inflame the minds of the jury or of such damning
character as to make it impossible to remove the harmful impression from the
jurors’ minds, a witness’s reference to a defendant’s criminal history or previous
incarceration, standing alone, generally is cured by a prompt instruction to
disregard. See Ladd, 3 S.W.3d at 571 (instruction to disregard cured witness’s
improper reference to defendant’s multiple juvenile arrests); Kemp v. State, 846
S.W.2d 289, 308 (Tex. Crim. App. 1992) (“We find the uninvited and
unembellished reference to appellant’s prior incarceration—although
inadmissible—was not so inflammatory as to undermine the efficacy of the trial
court’s instruction to disregard.”); Nobles v. State, 843 S.W.2d 503, 514 (Tex.
Crim. App. 1992) (witness’s statement that defendant “didn’t want to go back to
prison” cured by prompt instruction to disregard); Gardner v. State, 730 S.W.2d
675, 696-97 (Tex. Crim. App. 1987) (witness’s statement that “[appellant] told me
that even when he was in the penitentiary, that he had stomach problems” was
cured by trial court’s instruction to disregard); Jackson v. State, 287 S.W.3d 346,
354 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (complainant’s two
references to appellant’s previous incarceration were cured by instruction to
disregard). “[O]nly in the most egregious cases when there is an ‘extremely
inflammatory statement’ is an instruction to disregard . . . considered an
insufficient response by the trial court.” Williams v. State, 417 S.W.3d 162, 176
(Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (citations omitted).
This case does not involve circumstances under which the harmful
impression could not be removed from the jurors’ minds. Nothing in the record
indicates that complainant’s reference to appellant’s previous incarceration clearly
was calculated to inflame the minds of the jury. See Jackson, 287 S.W.3d at 354.
12
Complainant’s reference to appellant’s previous incarceration was uninvited and
unembellished and mirrored those references typically cured by an instruction to
disregard. See Ladd, 3 S.W.3d at 571; Kemp, 846 S.W.2d at 308; Nobles, 843
S.W.2d at 514; Gardner, 730 S.W.2d at 696-97; Jackson, 287 S.W.3d at 354.
Because the trial court gave a prompt and appropriate curative instruction to the
jury to disregard complainant’s reference to appellant’s previous incarceration, the
trial court acted within its discretion when it denied appellant’s motion for mistrial.
Accordingly, we overrule appellant’s second issue.
III. Service Dog
Appellant argues that the trial court abused its discretion by “allowing a
child witness to testify with the assistance of a service dog.”
Before trial, the following exchange occurred when the State informed the
trial court that a service dog may be in the courtroom during the testimony of
complainant’s son K.H.:
[THE STATE]: Your Honor, this does not relate to the motion to
suppress. I just wanted to make the Court and [appellant’s counsel]
aware that we do have a juvenile witness testifying in this case, and he
has the opportunity to connect with a service dog that is available at
the Children’s Advocacy Center. That’s been available to him, and he
has expressed interest.
And so at the time of his testimony tomorrow the service dog
may be employed. I’m not sure that that’s happened in this court
before. I know it’s happened in other district courts in this building.
But I wanted to raise the Court’s awareness of that now.
THE COURT: Are you going to have any objection?
[APPELLANT’S COUNSEL]: I love dogs.
THE COURT: There we go.
Then, before opening statements, the following exchange occurred outside the
presence of the jury:
13
THE COURT: So the issue, on the record, is the Defense has asked
about the service dog. We have a ten-year-old that will be testifying
later today. A service dog has been provided to aid him in his
testimony. And so maybe the State can better answer what the use of
service dogs, you know, promotes or why.
[THE STATE]: Well, I think it’s generally for the child’s comfort
and anxiety and mental well-being while they’re in the scary setting of
the courtroom.
[THE STATE]: The child is ten, and he’s testifying about a violent
event that he witnessed involving his mother. He is seeing a therapist
connected with this event.
[THE STATE]: He also has not been in the presence of the defendant
since the night of the arrest and the assault itself, so this will be his --
just coming in the courtroom just now was his first opportunity to
view the defendant since it happened.
[THE STATE]: And the service dog is going to be at the child’s feet
outside of the view of the jury. It’s very unobtrusive and not a
distraction, and we don’t see how that could be prejudicial.
[APPELLANT’S COUNSEL]: Will it be inside the box?
[THE STATE]: The dog’s going to be sitting inside the box.
THE COURT: And what we’ll do is we’ll excuse the jury, seat the
child and the dog. The therapist will be behind, the therapist relating
to the dog, the handler of the dog, so that if the dog acts up or
anything, that she’s there to handle it, which is how I understand it’s
usually done.
[APPELLANT’S COUNSEL]: So she’ll just be sitting in a chair?
THE COURT: In a chair behind, yes. And that will all happen --
they’ll all be seated, and then the jury will come in so they won’t see.
Then when the child is excused, they might see the dog wander out,
but then it’s after the testimony.
[APPELLANT’S COUNSEL]: Okay. Well, I would just lodge an
objection. I think it’s overly prejudicial.
THE COURT: I’ll overrule the objection and note it for the record.
In his brief, appellant acknowledges that his sole objection in the trial court
regarding the presence of the service dog was that it was “overly prejudicial.”
14
Appellant further acknowledges that he “did not object on grounds that the trial
court failed to adhere to the procedures set out in Tex. Code Crim. Proc. Ann. §
38.074” and is therefore “presently constrained from urging error on this basis.”
Appellant nonetheless argues that “the contents of” article 38.074 are “germane to
[his] objection on the basis of prejudice” and quotes the language of article 38.074
in his brief. Article 38.074 governs testimony of a child in prosecution of an
offense.
Article 38.074, section 1(2) provides that a “‘[s]upport person’ means any
person whose presence would contribute to the welfare and well-being of a child.”
Tex. Code Crim. Proc. Ann. art. 38.074, § 1(2) (Vernon Supp. 2015). Section 3(b)
provides that “[o]n the motion of any party . . ., the court shall allow the child to
have a toy, blanket, or similar comforting item in the child’s possession while
testifying or allow a support person to be present in close proximity to the child
during the child’s testimony if the court finds by a preponderance of the evidence
that: (1) the child cannot reliably testify without the possession of the item or
presence of the support person, as applicable; and (2) granting the motion is not
likely to prejudice the trier of fact in evaluating the child’s testimony.” Id. § 3(b)
(Vernon Supp. 2015). Section 3(d) provides that the “court may set any other
conditions and limitations on the taking of the testimony of a child that it finds just
and appropriate, considering the interests of the child, the rights of the defendant,
and any other relevant factors.” Id. § 3(d) (Vernon Supp. 2015).
Appellant argues in his brief that (1) the “definition of ‘support person’ in
Section 1(2) specifically references a ‘person,’ not an animal;” (2) a “canine seated
nearby is not the equivalent of a ‘toy, blanket, or similar comforting item in the
child’s possession;’” (3) taking “measures to reduce the dog’s visibility . . . does
not mean the jury was unaware of the animal’s presence;” (4) “the State did not in
15
any way establish that the dog was required in order for [K.H.] to ably testify;” and
(5) there was “no indication that [K.H.] needed to avail himself of the dog, or that
he had even interacted with the dog prior to taking the stand.” Therefore, appellant
asserts that the “trial court abused its discretion by allowing the use of the service
dog in this instance,” and “it is impossible to determine whether the dog’s presence
influenced the ultimate verdict, and as a result, the conviction must be reversed and
the cause remanded to the trial court for a new trial.”
Because appellant did not make any of these arguments in the trial court,
they present nothing for our review. See Tex. R. App. P. 33.1(a); Pena v. State,
353 S.W.3d 797, 807 (Tex. Crim. App. 2011). Appellant’s only objection with
regard to a service dog sitting in the witness box during K.H.’s testimony was: “I
think it’s overly prejudicial.” Assuming this objection preserved a complaint
under section 3(b)(2) regarding prejudice from the service dog’s presence, the
record does not establish error.
Before allowing ten-year-old K.H. to testify, the trial court gave the State
and appellant an opportunity to present arguments. The State explained that a
service dog’s presence is “generally for the child’s comfort and anxiety and mental
well-being.” The State further explained that (1) K.H. is ten years old and “in the
scary setting of the courtroom;” (2) K.H. has to testify “about a violent event that
he witnessed involving his mother;” (3) K.H. has not been in appellant’s presence
since the night of his mother’s assault; (4) “the service dog is going to be at
[K.H.]’s feet outside of the view of the jury;” and (5) the “dog’s going to be sitting
inside the [witness] box.”
During the hearing, the trial court assured appellant that it would excuse the
jury before seating the service dog and K.H. The trial court also stated: “And
[w]hat will all happen -- they’ll all be seated, and then the jury will come in so they
16
won’t see.” Appellant did not present any evidence or argument at the hearing that
the jury likely would be prejudiced by the presence of the service dog in the
witness box. Based on the record before us, we conclude that the trial court did not
err by finding that the service dog’s presence was not likely to prejudice the jury in
evaluating K.H.’s testimony. See Coronado v. State, 431 S.W.3d 744, 748 (Tex.
App.—Amarillo 2014, pet. ref’d) (“We find there was a preponderance of evidence
supporting the trial court’s determination that the presence of a support person was
not likely to prejudice the trier of fact in evaluating the child’s testimony.”).
Even assuming for the sake of argument that the trial court erroneously
allowed the service dog to be in the witness box during K.H.’s testimony, any
alleged error was harmless.
Appellant’s brief does not identify any harm from the use of a service dog.
Appellant does not argue that the trial court’s alleged error was constitutional and,
because this asserted error does not implicate constitutional rights, Texas Rule of
Appellate Procedure 44.2(b) governs the harm analysis. See, e.g., Taylor v. State,
268 S.W.3d 571, 592 (Tex. Crim. App. 2008).
Under Texas Rule of Appellate Procedure 44.2(b), a non-constitutional error
“that does not affect substantial rights must be disregarded.” Tex. R. App. P.
44.2(b); Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014). A
substantial right is affected when the error had a substantial and injurious effect or
influence in determining the jury’s verdict. Schmutz, 440 S.W.3d at 39. If the
error did not influence the jury, or had only a slight effect, the error is harmless.
Tillman v. State, 376 S.W.3d 188, 198 (Tex. App.—Houston [14th Dist.] 2012, no
pet.).
In assessing the likelihood that the jury’s decision was adversely affected by
the alleged error, an appellate court considers everything in the record. Schmutz,
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440 S.W.3d at 39. This includes testimony, physical evidence, jury instructions,
the State’s theories and any defensive theories, closing arguments, and voir dire, if
applicable. Id. Important factors include the nature of the evidence supporting the
verdict, the character of the alleged error and how it might be considered in
connection with other evidence in the case. Id.
The record shows that the trial court did not allow the jury to be in the
courtroom until K.H. and the service dog were seated on the witness stand. The
trial court excused the jury and announced, “[W]e’re going to take a short
afternoon break and we’ll be back here in ten minutes.” Outside the jury’s
presence, the trial court seated K.H. and the dog. At the conclusion of K.H.’s
testimony, the trial court announced, “Okay. We’re going to have one more. This
will be our last quick break in the afternoon, so just another ten minutes.” After
the jury exited the courtroom, the trial court excused K.H. and the dog from the
witness stand, stating: “Okay, [K.H.], you did good. You can go.” Thus, the jury
was not present either when K.H. and the dog entered or later when they left the
courtroom. Nor is there anything in the record to suggest that the jury saw or knew
that a service dog had been in the courtroom and in the witness stand during K.H.’s
testimony.
Even assuming that the jury saw the service dog and the dog’s presence
somehow evoked the jury’s sympathy toward K.H. and unduly validated K.H.’s
credibility, K.H.’s testimony could hardly have influenced the jury in finding
appellant guilty. K.H. testified that he came home the night of the assault and saw
complainant on the kitchen floor bleeding from her arm and appellant standing
next to her. K.H. testified that he did not see complainant or appellant holding
anything in their hands. K.H. testified that complainant seemed to be scared;
complainant was bleeding and “her arm was cut open.” K.H. helped complainant
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get up and get into her car. Appellant, complainant, and K.H. then drove to the
hospital. K.H. never testified that he saw appellant hurt complainant in any way;
he testified that he “didn’t actually see how [complainant] got hurt.”
Further, complainant testified in detail how appellant assaulted her the night
of October 15, 2013. The jury also heard complainant’s and appellant’s October
28, 2013 jail call conversation, in which complainant, who was still very
distraught, described the attack and that appellant had stabbed her in the arm, back,
and ear. The jury heard complainant tell appellant: “you told me you wanted me
to die.” The jury also heard appellant never denying that he had assaulted
complainant; instead, the jury heard appellant tell complainant repeatedly that he
did not know “how this s_ _ _ happened.”
Based on the record before us, we conclude that any alleged error in
allowing the service dog to be present during K.H.’s testimony was harmless.
Accordingly, we overrule appellant’s third issue.
CONCLUSION
We affirm the trial court’s judgment.
/s/ William J. Boyce
Justice
Panel consists of Chief Justice Frost and Justices Boyce and Wise.
Publish — Tex. R. App. P. 47.2(b).
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