Juan Domingo Hill v. State , 2013 Tex. App. LEXIS 453 ( 2013 )

NO. 07-11-00023-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JANUARY 16, 2013
JUAN DOMINGO HILL, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;
NO. 11,506; HONORABLE DAN MIKE BIRD, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
OPINION
Appellant Juan Domingo Hill appeals from his conviction of the offense of assault
against a family member and the resulting sentence of sixty years of imprisonment.
Through six issues, he challenges the judgment of the trial court. We will affirm.
Background
Appellant was indicted for “intentionally, knowingly or recklessly caus[ing] bodily
injury to [D.H.], a member of the defendant’s family, member of the defendant’s
household, or person with whom the defendant has or has had a dating relationship…by
striking the said [D.H.] on or about her body with defendant’s hand, and before the
commission of the offense, the defendant had previously been convicted of [a similar
offense in Oklahoma]…” 1 The indictment also contained two enhancement paragraphs. 2
Appellant plead not guilty and the case was tried to a jury.
At trial, the victim testified on direct examination appellant hit her on her face and
body with his hands. During cross-examination, she testified she had been drinking that
night and did not remember the assault or who hurt her and had filed an affidavit of non-
prosecution. The affidavit was introduced into evidence. A police officer testified he
responded to a domestic disturbance call at D.H. and appellant’s residence. He
testified D.H. had a “laceration above her eye. Her face was swollen, bruised, her eyes
almost swollen. I believe her pinky finger was cut almost to the bone. You could almost
see the bone. Her right knee had blood and an open wound on it.” He testified he took
photographs of D.H. and the location of the assault. The photographs were admitted
over appellant’s objection.
A friend of D.H.’s, Monte, testified D.H. came to his home that night and at first
he “couldn’t recognize her because she had blood all over her.” Someone knocked on
the door and, thinking it was the police, Monte opened it. Appellant came into the
house “and started beating on her again…he had her on the couch beating on her with
his fists…” for ten to fifteen minutes. He testified appellant hit D.H. like “a man beating
another man.”
1
Tex. Penal Code Ann. § 22.01(a), (b)(2), (f)(2) (West 2011).
2
Appellant plead “not true” to each of the enhancements. After hearing
punishment evidence, the jury found each enhancement true.
2
Analysis
Sufficiency of the Evidence
In appellant’s first point of error, he challenges the sufficiency of the evidence to
support his conviction. He argues that because D.H. testified she did not remember the
events of the assault or who hit her, a rational trier of fact could not have found
appellant intentionally, knowingly or recklessly struck D.H. with his hand.
A legal sufficiency challenge requires us to determine whether, after viewing the
evidence in the light most favorable to the verdict, any rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323
S.W.3d 893, 902-03, 912 (Tex.Crim.App. 2010); Wesbrook v. State, 29 S.W.3d 103,
111 (Tex.Crim.App. 2000). Under the Jackson standard, the reviewing court must give
deference to "the responsibility of the trier of fact to fairly resolve conflicts in testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007) (quoting Jackson, 443
U.S. at 318-19).
The testimony and photographs provided evidence of each element of the
offense. D.H. and Monte both testified appellant hit D.H. with his hands and fists on her
body, causing injury. The officer testified to the injuries and the jury saw photographs of
each injury. D.H. testified she and appellant were dating and living together. Viewing
the evidence in the light most favorable to the verdict, the jury could have found
appellant and D.H. were dating, appellant struck D.H. with his hand, causing bodily
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injury, and that he did so intentionally, knowingly or recklessly. The jury is the exclusive
judge of the credibility of the witnesses and of the weight to be given their testimony,
and it is the exclusive province of the jury to reconcile conflicts in the evidence. Mosley
v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998). We overrule appellant’s first point
of error.
Admission of Counselor’s Testimony
In appellant’s second point of error, he contends the trial court abused its
discretion in allowing testimony, admitted over his objection, concerning the general
behavior of victims of abuse.
We review a trial court's decision to admit or exclude expert testimony for an
abuse of discretion. Ellison v. State, 201 S.W.3d 714, 723 (Tex.Crim.App. 2006); Dixon
v. State, 244 S.W.3d 472, 478 (Tex.App.—Houston [14th Dist.] 2007, pet. ref’d). A trial
court abuses its discretion when its decision lies outside the zone of reasonable
disagreement. Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007);
Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex.Cim.App. 1991) (op. on reh’g).
Rule of Evidence 702 provides: "If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or otherwise." Tex. R. Evid. 702.
Pursuant to Rule 702, the trial court, before admitting expert testimony, must be
satisfied that three conditions are met: (1) that the witness qualifies as an expert by
reason of her knowledge, skill, experience, training, or education; (2) that the subject
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matter of the testimony is appropriate for expert testimony; and (3) that admitting the
expert testimony will actually assist the fact finder in deciding the case. Alvarado v.
State, 912 S.W.2d 199, 215-16 (Tex.Crim.App. 1995). The proponent of the expert
testimony bears the burden of proving the expert's qualifications. Perez v. State, 113
S.W.3d 819, 832 (Tex.App.--Austin 2003, pet. ref'd).
After D.H.’s testimony, the State called a licensed counselor to testify about the
behavior of victims of domestic abuse and the frequency with which victims request
dismissal of criminal charges. The counselor testified to the cycle of domestic violence
recognized by counseling professionals, telling the jury it is common for victims to stay
in relationships with their abuser and “not uncommon” that victims file affidavits of non-
prosecution. At trial, appellant argued this testimony would not aid the jury in resolving
an issue of fact in the case and should not be admitted. He makes the same argument
on appeal.
As noted, D.H. testified in an inconsistent fashion, telling the jury both that
appellant hit her and that she did not remember who hurt her. She testified she filed an
affidavit of non-prosecution. We agree with the trial court’s comment in his rulings on
appellant’s objections that D.H.’s testimony and her filing of the affidavit placed her
behavior at issue in a manner analogous to that in Dixon. 244 S.W.3d at 479-80 (expert
testimony admitted to help jury understand evidence victim continued to live with
defendant after assault). The trial court’s conclusion the counselor’s testimony would aid
the jury in understanding D.H.’s actions and resolving the contradictions in her trial
testimony is within the zone of reasonable disagreement. Casey, 215 S.W.3d at 879;
5
Dixon, 244 S.W.3d at 480. See also Brewer v. State, 370 S.W.3d 471, 474 (Tex.App.—
Amarillo 2012, no pet.) (finding testimony concerning “cycle of violence” assisted jury in
understanding victim’s delay in calling police after assault).
We resolve appellant’s second issue against him.
Admission of Photographs
In appellant’s third point of error, he argues the trial court erred in admitting
photographs of D.H.’s injuries because, he says, they were more prejudicial than
probative.
The admissibility of a photograph is within the sound discretion of the trial court.
Gallo v. State, 239 S.W.3d 757, 762 (Tex.Crim.App. 2007), citing Williams v. State, 958
S.W.2d 186, 195 (Tex.Crim.App. 1997). Generally, a photograph is admissible if verbal
testimony as to matters depicted in the photograph is admissible. Gallo, 239 S.W.3d at
762, citing Long v. State, 823 S.W.2d 259, 271-72 (Tex.Crim.App. 1991). In other
words, if verbal testimony is relevant, photographs of the same also are relevant. Gallo,
239 S.W.3d at 762; see Tex. R. Evid. 401 (defining relevant evidence).
Under Rule 403, otherwise relevant evidence is excluded when its probative
value "is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence." Tex. R. Evid. 403. Rule 403 favors the admission
of relevant evidence and carries a presumption that relevant evidence will be more
probative than prejudicial. Gallo, 239 S.W.3d at 762, citing Williams, 958 S.W.2d at 196.
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A court may consider several factors in determining whether the probative value of
photographs is substantially outweighed by the danger of unfair prejudice. Id. These
factors include, but are not limited to: (1) the number of exhibits offered; (2) their
gruesomeness; (3) their detail; (4) their size; (5) whether they are black and white or
color; (6) whether they are close-up; and (7) whether the body is depicted naked or
clothed. Id. The availability of other means of proof and the circumstances unique to
each individual case must also be considered. 3 Id. After independently evaluating all of
these factors, we will reverse a trial court's admission of photographic evidence only
when the probative value of the evidence is small and its inflammatory potential is great.
Ramirez v. State, 815 S.W.2d 636, 647 (Tex.Crim.App. 1991). See also Castilleja v.
State, No. 07-06-0062-CR, 2007 Tex.App. LEXIS 5974 (Tex.App.--Amarillo July 24,
2007, pet. stricken) (mem. op., not designated for publication).
The photographs admitted here were pictures of the locations at which the
assaults took place and pictures of D.H.’s injuries. A Vernon police officer testified he
observed the injuries to D.H. and he described them at trial. He told the jury he took the
photographs. None of the photographs are gruesome, D.H. is clothed in each
photograph in which she appears, and none are cumulative. On our review of the
record, we find the trial court did not abuse its discretion in admitting the photographs.
See Ramirez v. State, No. AP-75167, 2007 Tex.Crim.App. Unpub. LEXIS 610 (not
3
Courts have also held that under Rule 403, the trial court must evaluate: (1) the
probative value of the evidence; (2) the potential to impress the jury in some irrational,
yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent’s
need for the evidence. Casey v. State, 215 S.W.3d 870, 879-80 (Tex.Crim.App. 2007);
Erazo v. State, 144 S.W.3d 487, 489 (Tex.Crim.App. 2004).
7
published) (finding no abuse of discretion in ruling photographs were not duplicative and
their probative value not outweighed by prejudicial effect where they showed body from
different angles and views). Photographs that depict the nature, location, and extent of a
wound have been found sufficiently probative to outweigh prejudicial effect.
Montgomery v. State, 198 S.W.3d 67, 77-78 (Tex.App.--Fort Worth 2006, pet. ref'd).
We overrule appellant’s third point of error.
Oklahoma Conviction
In appellant’s fourth point of error, he asserts the trial court abused its discretion
when it denied his motion for a directed verdict because there was no evidence that the
alleged offense in Oklahoma was substantially similar to any of the assault offenses in
Texas. A challenge to a trial court's denial of a motion for directed verdict is a challenge
to the legal sufficiency of the evidence. Canales v. State, 98 S.W.3d 690, 693
(Tex.Crim.App. 2003).
At trial, the State offered a certified copy of the information and judgment and
sentence to prove appellant’s 2005 conviction for “Domestic Abuse—Assault & Battery”
in Oklahoma. The information detailed the allegations against appellant. The
documents also included the Oklahoma statute number for the offense of which
appellant was convicted.
Under the Texas Penal Code, a prior conviction for a family violence assault
offense committed in another state can be used as an enhancement if it is shown to
have elements that are “substantially similar” to the elements required for a family
violence assault conviction in Texas. Tex. Penal Code Ann. § 22.01(f)(2) (West 2011).
8
An analogous analysis is found in cases interpreting the “substantially similar” language
in relation to enhancements in certain sexual offenses. For example, in Ex parte White,
211 S.W.3d 316, 318 (Tex.Crim.App. 2007), the Court of Criminal Appeals found the
elements of Delaware’s crime of “unlawful sexual contact” were substantially similar to
the elements of the Texas offense of “indecency with a child,” despite differences in the
two offenses. In Prudholm v. State, 333 S.W.3d 590, 592 (Tex.Crim.App. 2011), the
court found “the elements being compared … must display a high degree of likeness,
but may be less than identical.” See also Ex parte Warren, No. AP-76,435, 2011
Tex.Crim.App. LEXIS 1322, at *18-19 (Tex.Crim.App. 2011) (mem. op.) (citing
Prudholm and engaging in similar analysis). We must consider whether the elements
are substantially similar with respect to (1) the individual or public interests protected
and (2) the impact of the elements on the seriousness of the offenses. Pallm v. State,
No. 12-10-00329-CR, 2011 Tex.App. LEXIS 9402, at *16-18 (Tex.App.—Tyler Nov. 30,
2011, no pet.) (mem. op., not designated for publication).
Here, the Oklahoma “domestic abuse” offense 4 required the state to prove
appellant had committed an assault and battery on a person with whom he had a family
or dating relationship. 21 Okla. Stat. § 644 (2011). Assault in Oklahoma contains the
following elements: (1) a willful and unlawful attempt or offer, (2) with force or violence
to do, (3) corporal hurt to the victim. 21 Okla. Stat. § 641 (2011). Battery requires proof
of (1) willful and unlawful, (2) use of force or violence, (3) upon the person of another.
4
The Oklahoma statute is not in the appellate record. On our own motion, we
take judicial notice of Oklahoma statutory law pursuant to Rule 202 of the Rules of
Evidence. Tex. R. Evid. 202; Davis v. State, 227 S.W.3d 766, 769-770 (Tex.App.—
Tyler 2005), aff’d 227 S.W.3d 733 (Tex.Crim.App. 2007).
9
21 Okla. Stat. § 642 (2011). To enhance a family violence assault offense in Texas, the
State must show appellant has been previously convicted of (1) intentionally, knowingly,
or recklessly, (2) causing bodily injury, (3) to a victim with whom the defendant had a
dating or family relationship. Tex. Penal Code Ann. § 22.01(b)(2) (West 2011).
Both statutes require a showing of a family or dating relationship between the
defendant and the victim; both require a culpable mental state that is more than
negligence; and both require bodily harm to the victim. The Oklahoma and Texas
offenses carry nearly identical punishments: imprisonment in county jail for not more
than one year and a fine not exceeding $5000 in Oklahoma and imprisonment in jail for
a term not to exceed one year and a fine not to exceed $4000 in Texas. 21 Okla. Stat.
§ 644(C) (2011); Tex. Penal Code Ann. § 12.21 (West 2011). The individual and public
interests served by each statute are identical. Both statutes serve to protect individuals
in dating or family relationships from violence by another person in the relationship.
Prudholm, 333 S.W.3d at 595.
By its ruling on appellant’s motion for a directed verdict, the trial court implicitly
determined that the Oklahoma and Texas offenses contain substantially similar
elements, within the terms of Penal Code § 22.01(f)(2). Agreeing with that
determination, we find the trial court did not err in denying appellant’s motion, and
overrule appellant’s fourth point of error.
Admission of Detective’s Statement
In appellant’s fifth point of error, he argues the trial court erred in its ruling on his
objection to testimony from a detective. The following exchange took place at trial:
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Prosecutor: Detective Owen, at any point in your interview with [D.H.], did she
tell you that she didn’t remember what had happened that night?
Detective: No, sir.
Prosecutor: Did she ever tell you that anyone else was the person that had
caused those injuries to her?
Detective: No, sir.
Appellant objected on the basis of hearsay. The trial court overruled the
objection. We review the trial court's decision to admit or exclude evidence for an
abuse of discretion. Apolinar v. State, 155 S.W.3d 184, 186 (Tex.Crim.App. 2005). We
will not disturb the trial court's judgment unless it falls outside the zone of reasonable
disagreement. Id. at 186. Under the abuse of discretion standard, we affirm the trial
court’s ruling under any applicable theory of law. Bowley v. State, 310 S.W.3d 431, 434
(Tex.Crim.App. 2010). Hearsay is a statement, other than one made by the declarant
while testifying at trial or a hearing, that is offered to prove the truth of the matter
asserted. Tex. R. Evid. 801(d). Hearsay statements are generally inadmissible unless
the statement falls within a recognized exception to the hearsay rule. Tex. R. Evid. 802;
Walters v. State, 247 S.W.3d 204, 217 (Tex.Crim.App. 2007).
The objected-to questioning related to D.H.’s identification of appellant as her
assailant in her conversation with the detective several hours after the attack. The trial
court reasonably could have considered the testimony admissible under Rule of
Evidence 801(e)(1)(C). D.H. testified at trial and was subject to cross-examination
11
concerning her statement to the detective. See Tex. R. Evid. 801(e)(1)(C) (providing
prior statement by witness admitted under such circumstances not hearsay if it is one of
identification of a person made after perceiving him); Rodriguez v. State, 975 S.W.2d
667, 682 (Tex.App.—Texarkana 1998, no pet.) (applying rule); 2 S. Goode, O.
Wellborn, M. Sharlot, Texas Practice Series: Guide to Texas Rules of Evidence § 801.5
(3rd ed. 2002).
The trial court did not abuse its discretion in overruling appellant’s hearsay
objection. We resolve appellant’s fifth point of error against him.
Jury Instruction
In appellant’s last point of error, he contends the trial court erred when it denied
his proposed jury charge to submit the issue whether the elements of the Texas and
Oklahoma assault statues were “substantially similar” such that his Oklahoma
conviction could be considered for enhancement purposes.
As the State points out, the determination whether the elements of two offenses
are substantially similar is a legal question and rests solely with the trial court.
Rodriquez v. State, 227 S.W.3d 842, 845 (Tex.App.—Amarillo 2007, no pet.); see Hardy
v. State, 187 S.W.3d 232, 236 (Tex.App.--Texarkana 2006, pet. ref'd) (court compared
two statutes to determine their similarity after noting that the interpretation of a statute is
a question of law); accord, Ex parte White, 211 S.W.3d at 318 (Court of Criminal
Appeals determined whether two statutes were substantially similar).
12
Because this is a question of law, the matter was not to be submitted to the jury
for resolution. Rodriguez, 227 S.W.3d at 845. The trial court did not err in refusing to
submit appellant’s proposed charge. We overrule appellant’s final point of error.
Conclusion
Having resolved each of appellant’s points of error against him, we affirm the
judgment of the trial court.
James T. Campbell
Justice
Publish.
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