Richard Brittain v. the State of Texas ( 2021 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00826-CR
Richard BRITTAIN,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 13, Bexar County, Texas
Trial Court No. 589944
Honorable Rosie S. Gonzalez, Judge Presiding
Opinion by: Lori I. Valenzuela, Justice
Sitting: Beth Watkins, Justice
Liza A. Rodriguez, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: June 30, 2021
AFFIRMED
A jury convicted Richard Brittain of assault causing bodily injury. On appeal, Brittain
asserts nine issues gathered into seven groups: (1) denial of motion for new trial alleging
ineffective assistance of counsel; (2) judicial bias; (3) violation of the Confrontation Clause;
(4) jury charge error; (5) legal insufficiency of the evidence; (6) failure to declare a mistrial after
the State’s violation of the trial court’s order on Brittain’s motion in limine; and (7) admission of
the responding officer’s opinion on whether Brittain acted in self-defense. We affirm.
04-19-00826-CR
BACKGROUND
On August 29, 2018, at approximately 5 a.m., a complainant, Chelsea Criss, called 911 and
requested police and EMS assistance for a reported domestic violence incident at Brittain’s house.
Audibly crying, Criss reported that Brittain “beat” her, “choked” her, “threw [her] head against
glass,” and that Brittain owned weapons (although none were used in the incident). She further
offered Brittain’s address, where he was presently located, and explained that she was calling from
a neighbor’s house because Brittain had taken her cellular phone.
San Antonio Police Department (“SAPD”) officer Brandon Liles was assigned to the case.
Captured on his body camera and later played to the jury, Liles can be seen responding within a
few minutes of the 911 call. Liles had learned from a key card that an unknown complainant, Criss,
had been assaulted by Brittain and that Brittain was in possession of a firearm in the house, though
he had not threatened Criss with it.1 A subsequent key card (generated shortly after from a second
911 caller) stated Criss had been assaulted by her boyfriend and Criss was bleeding from her ear
and had lost consciousness.
As Liles approached Brittain’s residence, a bystander approached him to report that the
bystander saw an unknown figure flee from Brittain’s house to another residence across the street.
After this discussion, Liles knocked on Brittain’s front door, and Brittain exited the residence and
closed the door behind him. For officer safety, Liles handcuffed Brittain during Liles’s
investigatory questioning. Brittain answered Liles’s questions. In pertinent part, Brittain reported
(1) he and Criss, an ex-girlfriend, had resumed their relationship when she moved back in with
him the night of August 28; (2) they were in a volatile relationship; (3) Criss was a stripper who
1
A key card is a memorialized recording of details gathered by an operator during a 911 call. The 911 operator relays
information electronically to a SAPD key card—information formatted to appear on laptops mounted inside SAPD
police vehicles.
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had substance abuse issues; (4) a physical altercation had occurred; (5) Brittain acted in self-
defense by pushing Criss away after she first punched him in the nose; (6) Criss was “large” and
“big-statured” with “shoulders like Rhonda Rousey”; and (7) Criss had fled Brittain’s home and
he did not know where she was.
A second officer reached the scene minutes after Liles’s arrival. The second officer entered
Brittain’s house to physically investigate the upstairs bedroom where the incident occurred. Inside
the bedroom, the second officer found two sets of floor-length, mirrored sliding-closet doors. The
mirror on one door was shattered down its length, and the door was off its hinges.
After speaking with the bystander and Brittain, Liles located Criss at a neighbor’s house.
Liles observed Criss was bleeding from inside her ear, one of her fingernails was broken and
bleeding, and the back of her head near the neck was red. Her injuries were photographed and later
shown to the jury. Liles later testified that Criss appeared upset and scared as he spoke with her.
He also observed Brittain had greatly exaggerated Criss’s size—she was approximately 5’7” and
130 pounds.
As she received EMS assistance, Criss reported that Brittain hit her at least twice on the
side of the head and twice threw her into a mirror. After observing the disparity in the levels of
injury and physical size, interviewing both Brittain and Criss, and in light of the broken mirror,
Liles concluded that the complainant was the first to strike Brittain, but Brittain’s subsequent
actions exceeded any potential self-defense claims. Liles arrested Brittain; Criss was transported
to a nearby hospital for treatment.
Brittain was charged with assault causing bodily injury and interference with emergency
request for assistance. The interference case was dismissed, and on September 23, 2019, the trial
on the assault case began. Before jury selection, Brittain’s trial counsel discovered that Criss would
not be appearing at trial to testify. Having first discovered this on the day of trial, Brittain’s trial
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counsel notified the trial court that he intended to move to suppress evidence pursuant to Crawford
v. Washington, 541 U.S. 36 (2004). The trial court indicated that it would not entertain a Crawford
motion because it was its courtroom procedure to hear pre-trial motions, including Crawford
motions, exclusively before the start of a trial.
Notwithstanding the trial court’s stated policy of not hearing Crawford motions on the day
of trial, during extended discussions, the trial court, in fact, heard what Brittain’s trial counsel
described as “Crawford-like arguments” and ruled, pursuant to Brittain’s motion in limine, that
the State must redact the reference to Criss’s phone being taken by Brittain from the 911 call, and
the 911 call could only be played until Criss confirmed her safety. Subject to these exceptions, the
trial court determined that Criss’s 911 call was admissible. The trial court then proceeded to jury
selection, but due to a mistake in the seating of jurors, the trial court declared a mistrial.
The following morning, the parties seated a new panel, conducted a second jury selection,
and empaneled the jury. During the State’s case-in-chief, the State called Liles and a custodian of
records to admit the 911 call. While playing the 911 call, the State violated the motion in limine
when it played the portion of the call where Criss stated that Brittain had taken her phone. Brittain’s
trial counsel moved for a mistrial, which was denied. Brittain was the only witness to testify in his
defense. The primary issue at trial was the reasonableness of Brittain’s belief that the force he used
was immediately necessary to protect himself. The jury disbelieved his assertion of self-defense
and convicted Brittain of assault. The trial court assessed punishment at one year confinement,
probated for eighteen months. This appeal followed.
DENIAL OF MOTION FOR NEW TRIAL ALLEGING INEFFECTIVE ASSISTANCE OF COUNSEL
After conviction and sentencing, Brittain filed a motion for new trial predicated on alleged
ineffective assistance of trial counsel. In his first two issues, Brittain asserts that the trial court
erred in (1) denying his motion for new trial and (2) doing so without holding a hearing.
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A defendant is entitled to effective assistance of counsel under the United States
Constitution and the Texas Constitution. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. To
establish ineffective assistance of counsel, the appellant must show: (1) trial counsel’s assistance
fell below an objective professional standard of reasonableness and (2) counsel’s actions
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9
S.W.3d 808, 812 (Tex. Crim. App. 1999). Concisely outlined by this court, a defendant must
demonstrate deficient performance and prejudice. Vega v. State, 610 S.W.3d 79, 82 (Tex. App.—
San Antonio 2020, no pet.). An appellant “bears the burden of proving by a preponderance of the
evidence that counsel was ineffective.” Id.“To establish deficient performance, an appellant must show counsel’s assistance ‘fell
below an objective standard of reasonableness.’” Id. (quoting Thompson, 9 S.W.3d at 812). “An
appellant must overcome the ‘strong presumption that counsel’s conduct fell within the wide range
of reasonable professional assistance.’” Id. “[T]hat is, the defendant must overcome the
presumption that, under the circumstances, the challenged action might be considered sound trial
strategy.” Id. “To defeat the presumption of reasonable professional assistance, ‘any allegation of
ineffectiveness must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness.’” Id. “If no reasonable trial strategy can justify counsel’s
choices or conduct, performance necessarily falls below an objective standard of reasonableness.”
Id. “However, few cases demonstrate such deficiency on direct appeal because the record is
unlikely to include any explanation by trial counsel, and ‘we can [frequently] conceive of potential
reasonable trial strategies that counsel could have been pursuing.’” Id. at 82–83.
“Once an appellant establishes deficient performance, the appellant must then establish
prejudice.” Id. at 83. An appellant “must show a reasonable probability that, but for counsel’s
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unprofessional errors, the result of the proceeding would have been different.” Id. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id.
A. Motion for New Trial
In his first issue, Brittain asserts the trial court abused its discretion in denying his motion
for new trial. A motion for new trial must be supported by an affidavit that specifically sets out the
factual basis for the claim. Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009). When
ineffective assistance of counsel is raised in a motion for new trial, “a defendant must allege
sufficient facts from which a trial court could reasonably conclude both that counsel failed to act
as a reasonably competent attorney and that, but for counsel’s failure, there is a reasonable
likelihood that the outcome of his trial would have been different.” Smith v. State, 286 S.W.3d
333, 340–41 (Tex. Crim. App. 2009) (emphasis added). The decision on a motion for new trial
rests within the sound discretion of the trial court. State v. Gonzales, 855 S.W.2d 692, 696 (Tex.
Crim. App. 1993).
Reversal is only justified when the trial court’s decision “was so clearly wrong as to lie
outside that zone within which reasonable persons might disagree.” Smith, 286 S.W.3d at 339.
Thus, appellate review is limited to a determination of whether the trial court’s decision was
arbitrary or unreasonable. Gonzales, 855 S.W.2d at 695 n.4. Under this deferential standard of
review, appellate courts view the evidence in the light most favorable to the trial court’s ruling.
Burch v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017).
Brittain’s motion for new trial asserts his trial counsel performed deficiently by failing to
investigate favorable evidence admissible at trial. Specifically, Brittain claims that trial counsel
should have interviewed Brittain’s adult children who were present in the house the night of
August 28 and at the time of the incident. According to the motion and attached affidavits,
Brittain’s daughter could have testified to Criss’s intoxication the night of August 28 and Criss’s
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reputation for being aggressive and violent when intoxicated, as well as to the details of a prior
incident in which Criss attacked Brittain resulting in Criss taking a “huge chunk out of Brittain’s
nose” and causing him a black eye. Her affidavit also reflects she did not see or hear anything after
going to bed the night of August 28. Brittain’s son provided a substantially similar affidavit. A
third affidavit, executed by a friend of Brittain’s children who was not present the night before or
at the time of the incident, evidenced Criss’s reputation as violent and frequently intoxicated.
According to Brittain, Criss’s reputation for violence was admissible to show that she was the first
aggressor, and the witnesses’ descriptions of Criss’s abuse of alcohol and drugs was “germane to
her character for violence.” Brittain also asserts the children and third witness would have provided
evidence of Brittain’s peaceable character and absence of criminal history.
It was undisputed at trial that Criss was the first aggressor and she abused drugs. The
principal issue at trial was whether Brittain reasonably believed the force he used was immediately
necessary to protect himself against Criss’s use of unlawful force. The record reflects Brittain’s
trial counsel represented to the court that Brittain’s children were at home at the time of the incident
but that they did not witness the incident. The affidavits confirm the veracity of trial counsel’s
representation. Although the affidavits presented new evidence of an isolated prior incident of
violence where Criss was the aggressor, along with information about Brittain’s peaceable
character, Brittain is unable to show that there is a reasonable probability the result would have
been different, therefore not satisfying the second prong under Strickland. For these reasons, even
if the affidavits presented some new information that was not contained in the record, the trial
court could reasonably conclude that trial counsel did not fail to act as a reasonably competent
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attorney. 2 We cannot conclude that the trial court abused its discretion in denying Brittain’s motion
for new trial. We overrule Brittain’s first issue.
B. A motion for new trial hearing was not required.
In his second issue, Brittain asserts that the trial court abused its discretion in declining to
hold a hearing on Brittain’s motion for new trial. The right to a hearing on a motion for new trial
is not absolute. Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). “[A] hearing is not
required when the matters raised in the motion for new trial are subject to being determined from
the record.” Id. at 816 (emphasis in original). “Conversely, a trial judge abuses [its] discretion in
failing to hold a hearing on a motion for new trial when that motion raises matters which are not
determinable from the record.” Smith, 286 S.W.3d at 338.
As a prerequisite for a hearing, motions for new trial must be supported by an affidavit of
either the accused or someone else specifically showing the truth of the grounds asserted. Jordan
v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994) (citing Reyes, 849 S.W.2d at 816). A
defendant requesting a new trial needs to “assert reasonable grounds for relief which are not
determinable from the record in order to be entitled to a hearing.” Id. “[I]f the defendant’s motion
and affidavit are sufficient, a hearing on the motion is mandatory.” Jordan, 883 S.W.2d at 665.
In the context of ineffective assistance claims, entitlement to a hearing requires a showing
that there is a reasonable likelihood that the outcome of his trial would have been different. Smith,
286 S.W.3d at 340–41. For the reasons discussed above, the affidavits attached to Brittain’s motion
for new trial did not assert the existence of reasonable grounds for relief. Id. at 335 (“We now hold
that for the movant to demonstrate reasonable grounds for relief when alleging ineffective
2
The record discloses trial counsel sought to ensure Brittain’s children could remain in the gallery after the State
invoked the Rule. See, e.g., Vega, 610 S.W.3d at 82 (citing Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App.
2005) (“Frequently, we can conceive potential reasonable trial strategies that counsel could have been pursuing. When
that is the case, we simply cannot conclude that counsel has performed deficiently.”)).
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assistance of counsel, he must establish both Strickland prongs, which includes showing a
reasonable probability that but for counsel’s deficiency (if any) a different result would have
occurred.”).
Liles testified upon his arrival at the scene he received information that Criss had fled
Brittain’s home and was at a neighbor’s house. He observed Criss’s injuries as bleeding from
inside of her ear, one of her fingernails being broken enough to bleed, and general redness around
the back of her head, toward her neck. Liles further testified that the physical evidence, including
the broken floor-length mirrored sliding-closet door at the scene supported Criss’s version of
events that she was thrown into said mirrored-door more than once. As she received EMS
assistance, Criss stated that she was hit at least twice on the side of the head and thrown into a
mirror. Having heard all of the evidence that corroborated Liles’s conclusion, the court could have
disbelieved Brittain’s testimony that he only pushed Criss once in self-defense or found the force
he used was unreasonable under the circumstances.
Although the affidavits outlined new information, given (1) the evidence presented in the
case and (2) Brittain’s own testimony, “[w]e are not persuaded that ‘reasonable grounds exist’ for
believing that remanding this case to the trial court . . . could result in the granting of appellant’s
motion for new trial or any other relief to appellant.” Whitaker v. State, 286 S.W.3d 355, 366 (Tex.
Crim. App. 2009). Thus, Brittain failed to meet the threshold requirement to be entitled to a
hearing. See Jordan, 883 S.W.2d at 665. We cannot conclude the trial court abused its discretion
in declining to hold a hearing on Brittain’s motion for new trial. We overrule Brittain’s second
issue.
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JUDICIAL BIAS
In his third issue, Brittain asserts the trial court’s conduct evidenced apparent bias that
violated his right to a fair trial. Brittain’s third issue is divisible into two, discrete subparts:
unconstitutional bias and comments on the weight of the evidence. We take each subpart in turn.
A. Brittain cannot show clear unconstitutional bias.
Both the United States Constitution and the Texas Constitution prohibit an accused from
being deprived of life, liberty, or property, without the due process of law. U.S. CONST. amend. V,
XIV; TEX. CONST. art. I, § 19. In the context of a trial, “[d]ue process requires a neutral and
detached body or officer.” Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006).
Judicial bias may be presumptive or actual. Presumptive bias exists where a judge’s interest
in the outcome of a case objectively “poses such a risk of actual bias or prejudgment that the
practice must be forbidden if the guarantee of due process is to be adequately implemented.”
Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 883–84 (2009); see also TEX. CONST. art. V,
§ 11 (prohibiting judges from sitting in cases where the judge is interested, related to a party, or
where the judge acted as counsel in the case). Actual bias exists where a judge possesses “such a
high degree of favoritism or antagonism as to make fair judgment impossible.” Litekey v. United
States, 510 U.S. 540, 555 (1994); Abdygapparova v. State, 243 S.W.3d 191, 210 (Tex. App.—San
Antonio 2007, pet. ref’d). Actual bias may arise where the judge improperly relies on an
“extrajudicial source” or “evidence[s] the degree of favoritism or antagonism required . . . when
no extrajudicial source is involved.” Litekey, 510 U.S. at 555.
“Absent a clear showing of bias, a trial court’s actions will be presumed to have been
correct.” Id. at 551; Abdygapparova, 243 S.W.3d at 198. “Thus, judicial remarks during the course
of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases,
ordinarily do not support a bias or partiality challenge.” Litekey, 510 U.S. at 555. This includes
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“expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds
of what imperfect men and women . . . sometimes display.” Id. at 555–56. Ordinary efforts at
courtroom administration—even stern and short-tempered—remain immune. Id.At issue in this case is Brittain’s claim of actual bias. In support of his claim, Brittain quotes
various statements made by the trial court. A review of the record demonstrates that the trial court’s
statements were almost entirely made outside the presence of the jury and were explainable as
courtroom administration efforts. See id. Even the harshest statement made by the trial court—
what it perceived as the criminal defense bar’s purported dilatory trial strategy in asserting
Crawford motions on the day of trial—was made before voir dire, outside the presence of the jury,
and directly related to pretrial administration under its courtroom rules. See Jasper v. State, 61
S.W.3d 413, 421 (Tex. Crim. App. 2001) (“[A] trial judge’s irritation at the defense attorney does
not translate to an indication as to the judge’s views about the defendant’s guilt or innocence.”).
Although Brittain alleges numerous instances of the trial court acting sharply towards
defense counsel, the record reflects that the trial court acted in the same manner towards the State.
For example, the trial court refused to allow the State to recall Liles in rebuttal because the State
could not secure his attendance on the evening of trial, and the trial court refused to allow the case
to continue to a second day. In doing so, the trial court stated that the State “really need[s] to
prepare better.” These comments, made to both sides, reflect the trial court’s overriding concern
was to efficiently administrate justice in a one-day jury trial. See Litekey, 510 U.S. at 555. We
cannot say that Brittain has clearly shown actual bias. Absent a clear showing of actual bias, we
must presume the trial court’s actions to have been correct. Litekey, 510 U.S. at 551;
Abdygapparova, 243 S.W.3d at 198. To the extent Brittain’s third issue relies on a claim of
unconstitutional bias, we overrule it.
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B. Brittain did not preserve complaint over an alleged improper comment on the weight
of the evidence.
In addition to constitutional protections, Texas law prohibits a trial court from commenting
on the weight of evidence. TEX. CODE CRIM. PROC. art. 38.05. Because jurors are prone to seize
upon any conduct or language of the trial court which they may interpret as shedding light on its
view of the weight of the evidence or the merits of the issues involved, a trial court is required to
be alert in its communications with the jury—not only to avoid impressing them with any view
that it has, but to avoid in its manner and speech things that they may so interpret. Abdygapparova,
243 S.W.3d at 209–10 (citing Lagrone v. State, 209 S.W. 411, 415 (Tex. Crim. App. 1919)).
“To constitute reversible error under Article 38.05, the comment must be such that it is
reasonably calculated to benefit the State or prejudice the defendant’s rights.” Marks v. State, 617
S.W.2d 250, 252 (Tex. Crim. App. 1981). In order to be reasonably calculated to benefit the State
or prejudice the defendant’s rights, the comments must “[rise] to such a level as to bear on the
presumption of innocence or vitiate the impartiality of the jury.” Jasper, 61 S.W.3d at 421. “It is
not improper for a trial judge to interject in order to correct a misstatement or misrepresentation of
previously admitted testimony.” Id. “Further, a trial judge’s irritation at the defense attorney does
not translate to an indication as to the judge’s views about the defendant’s guilt or innocence.” Id.“If raised as a freestanding statutory complaint, error under Article 38.05 is subject to non-
constitutional harm analysis.” Proenza v. State, 541 S.W.3d 786, 791 (Tex. Crim. App. 2017).
Brittain asserts as a freestanding statutory claim that the trial court’s instruction to the
prosecution to replay Liles’s bodycam video after an initial playthrough during Liles’s questioning
constituted an impermissible comment on the weight of the evidence. During the initial
playthrough, the State repeatedly interrupted the video to question the witness. The record reflects
that everyone—including Brittain and Brittain’s trial counsel—had trouble hearing the bodycam
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audio. The video exhibit in the record confirms that speakers other than Liles (who wore the body
camera) are exceedingly difficult to hear.
The trial court’s instruction to replay the bodycam video came in response to Brittain’s
trial counsel’s complaint about the State’s questioning during the initial playthrough and
suggestion that the trial court should “let the thing play.” Moreover, the trial court asked Brittain’s
trial counsel whether he objected to the trial court replaying the video in its entirety without
interruption, and he did not object. Sharp v. State, 707 S.W.2d 611, 619 (Tex. Crim. App. 1986)
(“[S]ince appellant made no objection at the time the statement [comment on the evidence] was
made, nothing was presented for review.”). To the extent Brittain’s third issue relies on an
allegation the trial court improperly commented on the evidence, nothing is presented for our
review.
CONFRONTATION CLAUSE
In his fourth and fifth issues, Brittain asserts violations of his right to confrontation.
Specifically, Brittain asserts the trial court erred in (1) denying Brittain a “complete” hearing on
his Crawford motion and (2) admitting Criss’s 911 call without her appearing to testify.
A. The trial court heard Brittain’s Crawford motion.
Trial courts have discretion to conduct pretrial hearings on preliminary matters, including
the admissibility of evidence. State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016); TEX.
CODE CRIM. PROC. art. 28.01. Such discretion permits trial courts, upon proper objection, to elect
to determine the admissibility of the challenged evidence during the trial on the merits. Yanez v.
State, 199 S.W.3d 293, 300–01 (Tex. App.—Corpus Christi 2006, pet. ref’d). An abuse of
discretion occurs when the trial court acts arbitrarily or unreasonably without reference to any
guiding rules or principles. Hill, 499 S.W.3d at 865.
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Brittain asserts the trial court abused its discretion by failing to give him a “complete”
hearing on his Crawford motion. In his briefing, Brittain discusses at length the problematic nature
of the trial court’s courtroom policy of only hearing Crawford motions before the day of trial. One
such issue arose here, where Brittain did not learn until the first day of trial that Criss would not
appear to testify.
Despite the trial court indicating there would not be a hearing, the trial court allowed
Brittain’s trial counsel to argue each point he intended to make under Crawford. After presenting
argument, Brittain’s trial counsel confirmed as much: “That was really the extent of what the
pretrial hearing would have been. So thank you for the opportunity.” Under this record, we cannot
say the trial court acted arbitrarily or without reference to guiding principles. The trial court did
not abuse its discretion. We overrule Brittain’s fourth issue.
B. Brittain did not preserve right to confrontation issues for appeal.
Before we reach the merits, we address the State’s assertion that Brittain did not properly
preserve right to confrontation issues for appeal. The State asserts Brittain waived the right to
confrontation by failing to object during the trial each time the State offered potentially offending
evidence. We agree.
It is not disputed that Brittain objected to the 911 call through a pretrial motion in limine;
however, a pretrial objection on right to confrontation issues, standing alone, is insufficient to
preserve the issue for our review. Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004).
To avoid waiver, Brittain was required to object to the admission of the evidence at trial when the
State sought to introduce it. He did not do so. We hold that Brittain’s fifth issue is not preserved
for our review on appeal. Even if we found the issue properly preserved, as next discussed, we
would find no error because the 911 call only contained non-testimonial statements.
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C. The 911 call played to the jury only contained non-testimonial statements.
In Crawford, the Supreme Court holds that testimonial witness statements are admissible
only if (1) the person who gave the statement is unavailable and (2) the accused had a prior
opportunity for cross-examination. Crawford, 541 U.S. at 68. Although it did not explicitly define
the term, the Court delineated the parameters of “testimonial,” applying it “at a minimum to prior
testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police
interrogations.” Id. Crawford thus holds that a “core class of ‘testimonial’ statements” includes:
(1) ex parte in-court testimony, (2) affidavits, (3) depositions, (4) confessions, (5) custodial
examinations, and (6) statements made under circumstances that would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial. Id. at 51–52. The
issue in this case is whether the portions of Criss’s 911 call played for the jury fall within the class
of statements defined as testimonial under the last category.
We review de novo a trial court’s constitutional rulings, including whether a statement is
testimonial or non-testimonial in nature. Watson v. State, 421 S.W.3d 186, 195 (Tex. App.—San
Antonio 2013, pet. ref’d) (citing Lilly v. Virginia, 527 U.S. 116, 137 (1999) and Wall v. State, 184
S.W.3d 730, 742 (Tex. Crim. App. 2006)). Whether a statement is testimonial or non-testimonial
is determined by the standard of an objectively reasonable declarant standing in the shoes of the
actual declarant. Wall, 184 S.W.3d at 742. We consider “the formal nature of the interaction, the
intent of the declarant, or some combination of the two factors.” Watson, 421 S.W.3d at 196.
We begin our analysis by reviewing the statements heard by the jury:
OPERATOR San Antonio 911, this is Ashley. Police, fire, or EMS?
CRISS Hi ma’am, can I get an EMS and can I get, um, police
officers. Um, at --
OPERATOR You need police and EMS?
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CRISS Police and EMS, yes ma’am. I just got beat. The address is
[redacted].
OPERATOR Okay. That’s the house?
CRISS That is the house. I’m at the neighbors across the street.
There -- There’s blood everywhere. And it was my ex-boyfriend
who just beat me right now. 3
OPERATOR Is he still there?
CRISS He’s at his house. Yes ma’am. He took my phone. That’s
why I had to come to a neighbor.
At the time Criss made these statements, the emergency was ongoing: Criss reported that
she “just got beat.” A second 911 caller reported Criss lost consciousness. Shortly thereafter, Liles
observed Criss “bleeding from inside of her ear.”
An objectively reasonable declarant would believe they are answering the operator’s
questions to receive assistance, not to be used as evidence in a hypothetical future trial. Wall, 184
S.W.3d at 742. Initiated by Criss, the 911 call was an informal interaction in which “frantic answers
were provided over the phone, in an environment that was not tranquil, or even (as far as any
reasonable 911 operator could make out) safe.” See Davis v. Washington, 547 U.S. 813, 814
(2006). Criss’s answers were clearly intended to elicit police and EMS support for an ongoing
emergency. See Michigan v. Bryant, 562 U.S. 344, 366 (2011); Watson, 421 S.W.3d at 196.
Other courts presented with similar 911 calls have also found the statements to be non-
testimonial. See Rodgers v. State, 09-09-00359-CR, 2010 WL 3043705, at *2 (Tex. App.—
Beaumont Aug. 4, 2010, no pet.) (holding declarant’s 911 call involving hit-and-run ongoing
emergency was non-testimonial); Reyes v. State, No. 04-09-00210-CR, 2010 WL 956140 (Tex.
App.—San Antonio Mar. 17, 2010, no pet.) (holding child’s 911 call requesting assistance because
3
The exhibit provided to the jury for deliberation ended at this point in the transcript.
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father “beat my mom” was non-testimonial); Dixon v. State, 244 S.W.3d 472, 484–85 (Tex.
App.—Houston [14th Dist.] 2007, pet. ref’d) (holding distressed 911 caller’s report that her
boyfriend “just beat [her] up” after she fled to her car was non-testimonial); Santacruz v. State,
237 S.W.3d 822, 828–29 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (holding wife’s 911
call after husband hit her and fled scene was non-testimonial); Cook v. State, 199 S.W.3d 495,
496–97 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding excited observer’s 911 call
reporting potential crime in progress after defendant gestured obscenely and threw bottle at
complainant’s truck was non-testimonial).
In short, the statements heard and considered by the jury were non-testimonial. See Bryant,
562 U.S. at 366; Davis, 547 U.S. at 814; Wall, 184 S.W.3d at 742. Because the statements were
non-testimonial, even if the issue were preserved, we would find no error with their admission.
JURY CHARGE
In his sixth issue, Brittain asserts the trial court’s jury charge erroneously included two
instructions unsupported by the evidence presented at trial. Before closing arguments, the trial
court provided a proposed charge to the attorneys for Brittain and the State that included, in
relevant part, instructions on provocation and the duty to retreat. Both Brittain and the State
accepted the trial court’s proposed charge without objection.
Based on the evidence presented at trial, the State admits that inclusion of these two
instructions was erroneous; however, Brittain failed to preserve error by timely objecting to the
trial court’s proposed charge. As a result, to constitute reversible error, the unpreserved charge
errors must have resulted in “egregious harm” affecting the very basis of the case, depriving the
defendant of a valuable right, or vitally affecting a defensive theory. Olivas v. State, 202 S.W.3d
137, 144 (Tex. Crim. App. 2006); see also TEX. CODE CRIM. PROC. art. 36.19. “Reversal is not
required unless the error is so egregious that the defendant was denied a fair and impartial trial.”
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Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (en banc). To assess whether
charge error is egregiously harmful, courts consider (1) the entire jury charge; (2) the state of the
evidence, including contested issues; (3) arguments of counsel; and (4) any other relevant
information contained in the record as a whole. Gelinas v. State, 398 S.W.3d 703, 705 (Tex. Crim.
App. 2013).
Reviewing the totality of the record, neither the provocation instruction nor the duty to
retreat instruction rose to the level of egregious harm. The charge was relatively simple. As a
matter of form, the offending instructions were not set apart or emphasized. It was uncontested
that Criss made the first strike to Brittain’s face and it was undisputed that Brittain had a right to
be in his own home. Neither the provocation instruction nor duty to retreat instruction were
contextualized by any evidence presented nor discussed in closing argument. Closing arguments
focused on the primary issue of contention in the trial court: the reasonableness of Brittain’s
physical response. Having found no egregious error, we overrule Brittain’s sixth issue.
LEGAL SUFFICIENCY OF EVIDENCE
In his seventh issue, Brittain asserts the evidence was legally insufficient to support his
conviction. In a sufficiency claim, our role is “restricted to guarding against the rare occurrence
when a factfinder does not act rationally.” Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App.
2009). We assess the evidence in the light most favorable to the verdict to determine whether any
rational trier of fact could have found the essential elements of the offense beyond a reasonable
doubt. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). The essential elements of the
offense are defined by the hypothetically correct jury charge for the case. Ramos v. State, 407
S.W.3d 265, 269 (Tex. Crim. App. 2013). Conflicting inferences are resolved in favor of the
verdict. Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Direct and circumstantial
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evidence are treated equally, and circumstantial evidence alone can be sufficient to establish guilt.
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
The primary issue at trial was the reasonableness of Brittain’s belief that the force he used
was immediately necessary to protect himself against Criss’s use of unlawful force. A person is
justified in using force against another when and to the degree the actor reasonably believes the
force is immediately necessary to protect the actor against the other’s use or attempted use of
unlawful force. TEX. PENAL CODE § 9.31. Brittain argues the evidence establishes only that Criss
punched him, and in response he either pushed or punched Criss. According to Brittain, the
evidence is legally insufficient because the State only took issue with the degree of force he used,
and the degree of force used—a push or return strike—was not unreasonable.
Brittain’s argument implicitly rests on the invalid assumption that jurors could only act
rationally by concluding that Brittain’s trial testimony was true because Criss did not testify at
trial. But the jury was entitled to disbelieve Brittain’s version at trial for any number of reasons.
Brittain’s testimony varied in material respects from Brittain’s description of events to Liles on
the morning of the incident. The jury could have rationally believed, based on a review of the
photograph of Criss’s bleeding ear, that Brittain did more than “shove” Criss—especially in light
of the recording of Criss in the ambulance in which she stated Brittain had struck her twice on the
side of the head. The jury could have rationally believed, based on a review of photographs of a
broken door and shattered mirror that Brittain did more than “shove” Criss. There is sufficient
evidence from which a rational jury could have concluded Brittain’s force far exceeded what he
claimed; consequently, a rational jury could have concluded Brittain did not reasonably believe
the force he used was immediately necessary to protect himself against Criss’s use of unlawful
force. We overrule Brittain’s seventh issue.
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VIOLATION OF MOTION IN LIMINE
In his eighth issue, Brittain asserts the trial court erred in denying his request for a mistrial
after the State violated the motion in limine. The trial court granted the motion in limine prohibiting
the State from playing a portion of the 911 call in which Criss stated, “He took my phone. That’s
why I had to come to a neighbor.” The trial court’s ruling was predicated on a previous dismissal
of the separate offense of interference with emergency request for assistance. According to
Brittain, the violative statement referenced an extraneous offense and, therefore, the trial court
abused its discretion in denying his motion for mistrial.
A. Brittain preserved error on the State’s violation of the trial court’s order.
We first address the State’s contention that Brittain failed to preserve error by not asking
for an instruction to disregard before moving for mistrial. “Generally a motion in limine will not
preserve error to the admission of inadmissible evidence.” Brazzell v. State, 481 S.W.2d 130, 131
(Tex. Crim. App. 1972). When evidence is placed before the jury in violation of a motion in limine,
an instruction to disregard is generally sufficient to cure error. Barnes v. Univ. Fed. Credit Union,
No. 03-10-00147-CV, 2013 WL 1748788, at *12 (Tex. App.—Austin 2013, no pet.) (citing Barney
v. State, 698 S.W.2d 114, 125 (Tex. Crim. App. 1985)) (mem. op.). While preferred, the traditional
procedure of objecting, requesting an instruction to disregard, and then moving for a mistrial is not
essential to preserve error for appellate review. Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim.
App. 2007). A request for an instruction to disregard is only necessary “when such an instruction
could have had the effect desired by the requesting party.” Id.Had Brittain’s trial counsel requested the trial court to instruct the jury to disregard the
segment of the 911 audio in which Criss stated her phone was taken by Brittain, it would not “have
had the effect desired by the requesting party”—rather, from trial counsel’s perspective, it could
have highlighted the existence of the dismissed extraneous offense. Moreover, Brittain satisfied
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the essential requirement for preservation by making a timely, specific request for mistrial that was
refused by the trial court. See id. Immediately after the bench conference discussing the State’s
violation, Brittain’s counsel re-approached and concisely stated, “In light of the State violating the
Court’s motion in limine, we move for a mistrial.” Accompanied with the trial court’s denial, this
was sufficient to preserve error. See id.B. The trial court did not abuse its discretion in denying mistrial.
The denial of a motion for mistrial is reviewed under the abuse of discretion standard.
Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004) (en banc); Dossett v. State, 216
S.W.3d 7, 31 (Tex. App.—San Antonio 2006, pet. ref’d). “A mistrial is an appropriate remedy in
‘extreme circumstances’ for a narrow class of highly prejudicial errors.” Ocon v. State, 284 S.W.3d
880, 884 (Tex. Crim. App. 2009). Generally, a mistrial is only required when the improper
evidence or testimony is “clearly calculated to inflame the minds of the jury and is of such a
character as to suggest the impossibility of withdrawing the impression produced on the minds of
the jury.” Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999). Whether a given error
necessitates a mistrial must be made by examining the particular facts of the case. Ladd v. State, 3
S.W.3d 547, 567 (Tex. Crim. App. 1999).
Brittain nowhere identifies the exact offending statement that he complains over in his brief
and instead obliquely concludes that a portion of the 911 call refers to an extraneous offense.
Because we must examine the particular facts of the case to determine whether a given error
necessitates a mistrial, we ascertain from the record that Brittain complains over the following
statement from the 911 audio recording: “He took my phone. That’s why I had to come to a
neighbor.” We examine three factors to determine whether the trial court abused its discretion in
denying a motion for mistrial: (1) the severity of the misconduct (prejudicial effect); (2) curative
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measures; and (3) the certainty of conviction absent the misconduct. Hawkins, 135 S.W.3d at 75;
Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).
First Factor: Severity of the Misconduct. The State does not dispute that it mistakenly
violated the motion in limine. But the State’s error in playing the offending statement is not highly
prejudicial. See Ocon, 284 S.W.3d at 884. As we have determined, the statement is non-testimonial
in nature. Further, the statement, “He took my phone,” does not obviously reference an extraneous
offense. This is especially true given Criss’s next sentence: “That’s why I had to come to a
neighbor.” Absent an instruction to disregard that would highlight to the jury the existence of some
issue with these two sentences, the statements facially appear to explain why Criss placed the call
to 911 from a neighbor’s house. Had the trial court denied Brittain’s motion in limine and allowed
this portion of the 911 call to be admitted into evidence, we do not believe that the trial court would
have abused its discretion.
Moreover, the offending statements constitute relevant surrounding facts and
circumstances of the charged offense. See Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App.
1986). That is, they were independently admissible as same-transaction contextual evidence to
impart to the jury information essential to understanding the context and circumstances of events
which, although legally separate offenses, are blended or interwoven. See Camacho v. State, 864
S.W.2d 524, 532 (Tex. Crim. App. 1993). Same-transaction contextual evidence “is admissible,
not for the purpose of showing character conformity, but to illuminate the nature of the crime
alleged.” Id. at 535. To illustrate, there are many reasons why a domestic violence complainant
may flee to a neighbors’ house seeking assistance. One is to escape continuing violence. That was
not the case here. Rather, Criss’s explanation for why she placed a call from a neighbor’s house
potentially assisted Brittain in the mind of a jury by explaining that she did so because she needed
a phone and not to avoid continued assault.
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Even if we assume the statement was prejudicial, the level of prejudice does not rise to the
level requiring a mistrial. Texas courts have approved far more prejudicial same-transactional
contextual evidence without error. See, e.g., Nelson v. State, 864 S.W.2d 496, 499 (Tex. Crim.
App. 1993) (“It would have been impracticable to avoid describing the charged offense without
also describing the attempted capital murder of the second victim.”); Smith v. State, 424 S.W.3d
588, 594 (Tex. App.—Texarkana 2013, no pet.) (holding that the extraneous rape of the murder
victim’s wife by the codefendant was admissible as contextual evidence against the defendant
because it was “interwoven and related” to the murder of the husband). The first factor supports
trial court’s denial.
Second Factor: The Measures Adopted to Cure the Error. The second factor assumes
the existence of error. While we find no error, we assume it for purposes of this analysis. Even
before Brittain moved for mistrial, the trial court effectively sanctioned the State by excluding all
portions of the 911 call that were not yet played. Under the trial court’s order, the State was not
able to play approximately two minutes of the 911 call that included admissible statements.
Instead, the State was only allowed to play (and the jury only received) forty-one seconds of the
911 call. In other words, the trial court excluded nearly three-quarters of the 911 call originally
proffered by the State. Additionally, redaction of the complained-over statement prior to
submission ensured the jury did not have access during deliberations. Even assuming the existence
of error, the trial court’s remedial actions were sufficient to cure it. The second factor supports the
trial court’s denial.
Third Factor: The Certainty of Conviction Absent the Erroneous Admission of
Evidence. Like the second factor, the third factor assumes the existence of error; thus, we again
assume it for purposes of this analysis. Brittain’s conviction remains certain had the jury not heard,
“He took my phone. That’s why I had to come to a neighbor.” Not only because it is not
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inflammatory or highly prejudicial but because it was never again mentioned to the jury during the
trial. The State never referenced the extraneous offense in argument. It is simply not credible to
say that the jury would have found Brittain not guilty if those two sentences were not uttered one
time during trial. Our determination that the evidence was legally sufficient for Brittain’s
conviction also buttresses our conclusion that the third factor supports the trial court’s denial.
The State’s violation of the motion in limine is unfortunate. But the statement, “He took
my phone. That’s why I had to come to a neighbor,” was not improper evidence calculated to
inflame the passions of the jury. See Hinojosa, 4 S.W.3d at 253. Weighing all three factors, we
cannot say the trial court abused its discretion in denying Brittain’s motion for mistrial. See
Hawkins, 135 S.W.3d at 75; Mosley, 983 S.W.2d at 259. We overrule Brittain’s eighth issue.
IMPROPER OFFICER TESTIMONY
In his ninth issue, Brittain asserts the trial court erred in admitting Liles’s opinion regarding
whether Brittain acted in self-defense because Liles’s testimony was that of a nonexpert witness.
This issue was not preserved for our review. As a prerequisite for appellate review, the record must
show that trial counsel objected with sufficient specificity to make the trial court aware of the
complaint, unless the specific grounds were apparent from the context. TEX. R. APP. P. 33.1(a).
Brittain complains over the following exchange:
PROSECUTOR So in your opinion, since you talked about your
training on self-defense, after seeing the injury -- alleged injury on
the Defendant, and after seeing personally the injury on the victim
[Criss] bleeding from her ear, and after hearing about being
slammed against the door and after seeing the slammed door, what
is your opinion of self-defense?
DEFENSE Objection, leading.
PROSECUTOR I asked for his opinion on self-defense, Your
Honor.
THE COURT Overruled.
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PROSECUTOR What is your opinion on self-defense, if you can
tell the jury?
LILES As it pertains to this case, sir?
PROSECUTOR Yes.
LILES I don’t believe what occurred was self-defense.
The trial court overruled Brittain’s objection to the first question as “leading,” and Brittain
did not otherwise object. The State expressly sought Liles’s opinion on self-defense, but Brittain
did not object with sufficient specificity to make the trial court aware that Brittain complained over
Liles offering his opinion. See id.; Villarreal v. State, 821 S.W.2d 682, 687 (Tex. App.—San
Antonio 1991, no pet.) (“The complaint presented on appeal varies from the objection made during
trial and presents nothing for review.”) (citing Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim.
App. 1986); Sharp v. State, 707 S.W.2d 611, 619 (Tex. Crim. App. 1986), cert. denied, 488 U.S.
872 (1988)). Brittain also extensively cross-examined Liles on self-defense. Cf. Prytash v. State,
3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (“[T]he law of invited error estops a party from making
an appellate error of an action it induced.”). Brittain’s ninth issue is not preserved for our review
on appeal.
CONCLUSION
Because each of Brittain’s nine issues is either overruled or not preserved for our review,
the judgment of the trial court is AFFIRMED.
Lori I. Valenzuela, Justice
Do Not Publish
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