Francis Cherry Jr. v. State

Opinion issued November 12, 2009  

In The

Court of Appeals

For The

First District of Texas

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NO. 01-08-00626-CR

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FRANCIS CHERRY JR., Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from 177th District Court

Harris County, Texas

Trial Court Cause No. 1131289

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MEMORANDUM OPINION

Appellant, Francis Cherry, appeals from a judgment sentencing him to 25 years in prison for aggravated assault. See Tex. Penal Code Ann. § 22.01 (Vernon 2007). Appellant pleaded not guilty. The jury found him guilty and determined his sentence. In two issues, appellant contends the trial court erred by (1) admitting complainant's out-of-court statement through a testifying police officer, and (2) denying his motion for mistrial following testimony suggesting appellant was in jail. We conclude the trial court did not abuse its discretion by admitting the out-of-court statement and denying the motion for mistrial. We affirm the judgment of the trial court.

Background

In August 2007, Officer Billeaud of the Baytown Police Department, along with three other officers, responded to a disturbance at a house on South Second Street in Baytown. Officer Billeaud found complainant at the house upset, crying and bleeding from her face. When Officer Billeaud asked her if the person that injured her was still inside, she indicated yes and pointed to appellant's location in the attic. Officer Billeaud quickly apprehended appellant.

At trial, the State presented the testimony of Officer Billeaud, who testified that complainant looked frightened, was crying, and told him "she had gotten assaulted." The State also presented the testimony of complainant's 13-year-old son, who saw appellant hit complainant repeatedly in her body and face, hold a knife against her face, and threaten to kill her. In response to the State's question asking what happened next, complainant's son said "[appellant] started talking about how everyday he worked out in the jailhouse."  Admission of Out-Of-Court Statements

In his first issue, appellant contends the trial court erred by improperly admitting hearsay statements made by complainant. Specifically, appellant objects to Officer Billeaud's testimony that complainant told him she was assaulted. The State argues complainant's statements are admissible under the excited utterance hearsay exception.

A. Standard of Review for Evidentiary Rulings

We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). We will not reverse a trial court's ruling unless that ruling falls outside the zone of reasonable disagreement. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). Therefore, we address appellant's evidentiary challenge by determining whether the trial court's ruling was outside the zone of reasonable disagreement. See id. An appellate court must uphold the trial court's ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000).

B. Applicable Law for Admission of Out-Of-Court Statements

Hearsay is a statement, other than one made by the declarant while testifying at trial or hearing, offered into evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). For hearsay to be admissible, the statement must fit into an exception provided by a statute or the Rules of Evidence. Tex. R. Evid. 802; see also Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003).

Rule 803(2) of the Texas Rules of Evidence sets out the excited utterance exception to hearsay. See Tex. R. Evid. 803(2). An excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. See id. "The exception is based on the assumption that the declarant is not, at the time of the statement, capable of the kind of reflection that would enable him to fabricate information." Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). "In other words, the statement is trustworthy because it represents an event speaking through the person rather than the person speaking about the event." Zuliani, 97 S.W.3d at 595.

To determine whether a hearsay statement is admissible as an excited utterance, the court may consider (1) the length of time between the occurrence and the statement, (2) the declarant's demeanor, (3) whether the statement is made in response to a question, and (4) whether the statement is self-serving. Apolinar, 155 S.W.3d at 190; see also Clark v. State, 282 S.W.3d 924, 929-30 (Tex. App.--Beaumont 2009, no pet.). "The critical determination is 'whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event' or condition at the time of the statement." Zuliani, 97 S.W.3d at 596 (quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992)). A reviewing court must determine whether the statement was made "under such circumstances as would reasonably show that it resulted from impulse rather than reason and reflection." Id. (quoting Fowler v. State, 379 S.W.2d 345, 347 (Tex. Crim. App. 1964)).

C. Analysis

Appellant contends that complainant's statement regarding her assault was hearsay that does not meet the excited utterance exception. Contrary to appellant's contention, the State adequately developed the predicate for the excited utterance exception.

(1) Length of Time Between Occurrence and Statement

Although the record is silent as to the amount of time between the event and the statement, Officer Billeaud's response to an emergency call may be assumed to be reasonably short. See Davis v. State, 268 S.W.3d 683, 703 (Tex. App.--Fort Worth 2008, pet. ref'd) (declarant's upset appearance reasonably infers that officer's emergency response time was fairly quick). Furthermore, complainant was still bleeding from her injuries when she spoke with Officer Billeaud. See Clark, 282 S.W.3d at 930 (excited utterance found when declarant was bleeding from gun shot wound when officers arrived on scene). This factor suggests complainant's statement was still dominated by the excitement and emotions of the event despite the time lapse between the statement and the event.

(2) Declarant's Demeanor

Complainant's demeanor suggests her statement was an excited utterance. Appellant was in complainant's home when complainant answered Officer Billeaud's knock on the door. At no point was complainant separated from appellant. See Zuliani, 97 S.W.3d at 596 (holding statement made 20 hours after stimulus event was excited utterance because declarant appeared scared and had not been separated from her attacker since event occurred). According to Officer Billeaud, when complainant told him "she had gotten assaulted," she was "crying," "scared, frightened," and seemed as though she had just gone though something traumatic. Complainant's demeanor was consistent with a person still under the stress of excitement of the event because she had not been separated from appellant since the assault and was scared, frightened, and crying. See id.

(3) Whether Statement Is in Response to Question

It is unclear from the record if complainant made her statement in response to a question. However, there is no indication that Officer Billeaud was attempting to direct complainant's statement. See Lane v. State, 174 S.W.3d 376, 383-84 (Tex. App.--Houston [14th Dist.] 2005, pet. ref'd) (excited utterance found when the interaction did not display "the calmness of a controlled inquiry").

(4) Whether Statement Was Self-Serving

The complainant's statement was not self-serving. Complainant was in fear of danger and not motivated by revenge. See Apolinar, 155 S.W.3d at 190-91 (no self-serving motive found when appellant suggested complainant wanted to get even for prior attack). She did not stand to gain anything from the officer but protection from appellant. Compare Allridge v. State, 762 S.W.2d 146, 152-53 (Tex. Crim. App. 1988) (holding statement made to detective 18 hours after shooting was self-serving because it resulted from custodial interrogation and was made after reflection and deliberation). This factor also weighs in favor of admissibility under the excited utterance exception.

The record shows Officer Billeaud was responding to an emergency call. When he spoke with complainant, she was upset, crying, and still bleeding from the assault. Moreover, appellant was still in complainant's home. At no point between the assault and the statement was complainant separated from appellant. Complainant's statement was not in response to a controlled inquiry and was not self-serving. From these factors, the trial court reasonably concluded the out-of-court statement was an excited utterance and unlikely fabricated. See Apolinar, 155 S.W.3d at 186. We hold the trial court did not abuse its discretion by overruling appellant's objection to the out-of-court statement. We overrule appellant's first issue.

Motion for Mistrial

In his second issue, appellant contends the trial court erred by denying his motion for mistrial that he made when the State's witness told the jury that appellant said he worked out in jail. The State argues that error was not preserved for review because appellant's motion was for a directed verdict and not a mistrial. If error is preserved, the State argues that jury instructions to disregard cured any error.

A. Applicable Law for Preservation of Error

To preserve error for appellate review, the record must show that the complaint "stated grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." Tex. R. App. 33.1(a)(1)(A). The attorney has the burden to make an objection with enough clarity for the court to understand its nature and to obtain an adverse ruling. Crocker v. State, 248 S.W.3d 299, 303-04 (Tex. App.--Houston [1st Dist.] 2007, pet. ref'd).

The policy of requiring specific objections is based on two principles. Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977). First, the trial judge must be informed of the basis of the objection and afforded an opportunity to rule on it. Id. Second, the opposing counsel must be afforded an opportunity to rebut the objection or supply other testimony. Id. "[W]here the correct ground of exclusion [is] obvious to the judge and opposing counsel, no waiver results from a general or imprecise objection." Id. If it seems from the context that a party failed to effectively communicate its desire, the appellate court "should not hesitate to hold that appellate complaints arising from the event have been lost." Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). However, the appellant should be allowed to reach the merits of a complaint without reading a "special script to make [his] wishes known." Id.

B. Preservation of Error Analysis

The traditional and preferred procedure to preserve error for a party seeking a mistrial is (1) to object, (2) to request an instruction to disregard if the prejudicial event has occurred, and (3) to move for a mistrial if a party thinks an instruction to disregard was not sufficient. Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004). However, this sequence is not essential to preserve complaints for appellate review. Id. The essential requirement for preservation of error for the appellate court is a timely, specific request, which is refused by the trial court. See Tex. R. App. P. 33.1; Young, 137 S.W.3d at 69.

The record shows appellant's counsel at trial substantially followed the preferred method. He objected to the improper response. Then the trial court, sua sponte, instructed the jury to disregard. Preservation of error is not lost because the trial court instructed the jury to disregard before appellant's counsel could request an instruction. See Young, 137 S.W.3d at 70.

Rather than move for a "mistrial," appellant's counsel moved for an "instructed verdict." The record shows the following:

[State] So what happened then?

[Complainant's son] He started talking about how everyday he worked out in the jailhouse.

MR. BUNDICK: Objection, Your Honor.

THE COURT: Sustained. Disregard the answer of the last witness and do not consider it for any purpose.

MR. BUNDICK: Move for an instructed verdict.

THE COURT: That's denied.

An instructed verdict is not the equivalent of a mistrial. An instructed verdict is an evidentiary sufficiency challenge. The trial court may properly issue an instructed verdict if the State fails to prove a prima facie case of the offense alleged in the complaint. See Tex. Code Crim. Proc. Ann. art. 45.032. The test for review of a motion for instructed verdict made after the close of all evidence is whether, in a light most favorable to the verdict, there is any evidence which the jury could believe that would support that verdict. Chase v. State, 573 S.W.2d 247, 249 n.1 (Tex. Crim. App. 1978).

A motion for mistrial challenges prejudicial error, not evidentiary sufficiency. Mistrial is a remedy appropriate for a narrow class of highly prejudicial and incurable errors. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). It 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. Id. In other words, a mistrial is a procedure that conserves the resources that would be expended in completing the trial as well as those required for an appeal should a conviction occur. Young, 137 S.W.3d at 69.

The essential issue is whether appellant's request for an instructed verdict is apparent from the context to adequately be a substitute for a motion for mistrial. See Tex. R. App. P. 33.1(a)(1)(A). In the context of this exchange, it is. See Carmen v. State, 276 S.W.3d 538, 544 (Tex. App.--Houston [1st Dist.] 2008, pet. ref'd) (holding appellant's objection to omission of self-defense from jury charge placed trial court on notice that he was requesting charge of deadly force in defense of one's person). It appears the trial court understood appellant was asking for a mistrial because the exchange between the trial judge and appellant's counsel immediately followed the objectionable statement and followed the preferred sequence for requesting a mistrial. See Young, 137 S.W.3d at 69. Additionally, the request for instructed verdict occurred in the middle of a question sequence rather than at the close of the State's case, which suggests the trial court understood the request was for a mistrial because of the timing of when it was asserted. Appellant's counsel ordinarily would not seek an instructed verdict at this point in the trial. See Dixon v. State, 928 S.W.2d 564 (Tex. Crim. App. 1996) (objection "for the reasons stated previously" ruled to be sufficient); Gains v. State, 966 S.W.2d 838, 841 (Tex. App.--Houston [14th Dist.] 1998, pet. ref'd) (objection to juror's question ruled sufficient to cover whole process of jurors asking questions). Appellant's counsel simply misspoke. See Samuel v. State, 688 S.W.2d 492, 495-96 (Tex. Crim. App. 1985) (objection ruled sufficient despite seeming to have been "terse and almost in the nature of an afterthought"). We conclude the trial court understood appellant was requesting a mistrial because (1) the request followed the sequence for preserving error based on a mistrial and (2) the request could not reasonably have been a motion for instructed verdict, which is a motion that ordinarily comes at the close of the State's case and not in the middle of evidence. We hold the appellant's motion was adequately preserved for appellate review.

C. Applicable Law for Review of Denial of Motion for Mistrial

We review a trial court's ruling denying a mistrial under an abuse-of-discretion standard. See Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). The determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the case. Id. at 567; Hernandez v. State, 805 S.W.2d 409, 414 (Tex. Crim. App. 1990). 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 due to an obvious procedural error. Ladd, 3 S.W.3d at 567.

Most often, error from an improper statement can be cured or rendered harmless by its withdrawal or an instruction to disregard. See Hernandez, 805 S.W.2d at 413-14; Brossette v. State, 99 S.W.3d 277, 282-83 (Tex. App.--Texarkana 2003, pet. ref'd, untimely filed). "Only when it is apparent that an objectionable event at trial is so emotionally inflammatory that curative instructions are not likely to prevent the jury being unfairly prejudiced against the defendant may a motion for mistrial be granted." Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996).

D. Denial of Mistrial Analysis

"Under the Texas Rules of Evidence, evidence of other crimes, wrongs, or acts is not admissible 'to prove the character of a person in order to show action in conformity therewithin.'" De La Paz v. State, 279 S.W.3d 336, 342 (Tex. Crim. App. 2009) (quoting Tex. R. Evid. 404(b)). However, a witness's inadvertent reference to an extraneous offense is generally cured by a prompt instruction to disregard. Kipp v. State, 876 S.W.2d 330, 339 (Tex. Crim. App. 1994). The exception occurs in extreme cases when (1) the statement is of such a character as to suggest the impossibility of withdrawing the impression produced and (2) is clearly calculated to inflame the minds of the jury. Hernandez, 805 S.W.2d at 414.

(1) Possibility of Withdrawing the Impression

First, we consider if the jury instruction to disregard cured the witness's reference to appellant's activities in jail. A brief, general statement regarding prior incarceration does not suggest the impossibility of jurors disregarding the statement. See Tennard v. State, 802 S.W.2d 678, 685-86 (Tex. Crim. App. 1990) (holding jury instruction to disregard cured witness's statement that he first saw defendant when defendant got out of jail); Sperling v. State, 924 S.W.2d 722, 724-25 (Tex. App.--Armarillo 1996, pet. ref'd) (holding instruction to disregard sufficient to cure error when witness mentioned defendant would visit after defendant got out of jail). Therefore, the trial court's prompt jury instruction to disregard the statement cured the inadvertent reference to appellant's prior incarceration. See Tennard, 802 S.W.2d at 685-86.

(2) Whether Statement Was Calculated to Inflame the Jury

Next, we consider whether witness's statement was intended to inflame the jury. The State's non-leading question "so what happened then" was not intended to elicit a specific response. See Brossette, 99 S.W.3d at 282-83 (question asking witness if he had prior contact with appellant was intended to illicit answer concerning prior CPS investigation). Nor was the witness's statement an attempt to inflame the jury. Compare Walker v. State, 610 S.W.2d 481, 484 (Tex. Crim. App. 1980) (holding prosecutor's question whether appellant was nervous "when he committed the offense of incest with his daughter" required granting motion for mistrial because it was so manifestly improper and prejudicial that instructions to jury could not cure harm).

We conclude this is not an extreme case where the statement 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. See Hernandez, 805 S.W.2d at 414. We hold the trial court did not err in denying appellant's motion for mistrial. We overrule appellant's second issue.

Conclusion

We affirm the trial court's judgment.

Elsa Alcala

Justice

Panel consists of Justices Keyes, Alcala, and Hanks.

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