Willie Jermaine McCray v. State

Willie Jermaine McCray v. State

  IN THE

TENTH COURT OF APPEALS

No. 10-02-252-CR

     WILLIE JERMAINE McCRAY,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 26093CR

MEMORANDUM OPINION

      A jury convicted Willie Jermaine McCray of assaulting his wife Rhedonda and found that he had previously been convicted of assaulting her. The jury assessed his punishment at ten years’ imprisonment. McCray contends: (1) the evidence is legally and factually insufficient to sustain the conviction because the State failed to introduce a certified copy of the judgment of the prior assault conviction and because there are no fingerprints on that judgment; and (2) the court abused its discretion by permitting police officers and paramedics to testify about what Rhedonda told them.

PRIOR CONVICTIONS

      McCray argues in his first two issues that the evidence is legally and factually insufficient to sustain his conviction for felony assault because the State failed to introduce a certified copy of the judgment of the prior assault conviction and because there are no fingerprints on that judgment.

      In reviewing a claim of legal insufficiency, we view the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential element beyond a reasonable doubt. Lacour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). We resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

      In reviewing a challenge to the factual sufficiency of the evidence, we begin with the assumption that the evidence is legally sufficient. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We must view all the evidence without the prism of the “in the light most favorable to the prosecution” construct. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). We ask “whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.” Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001).

      The State sought to prove the prior conviction with a packet of papers prepared by the County Clerk of Dallas County and marked as State’s Exhibit No. 3. Each page within the packet bears a stamp purporting to be the seal of the county clerk and attesting the page to be a “true and correct copy of the original filed in Dallas County Clerk’s office.” In addition, one page of the packet bears an attestation signed and dated by a deputy clerk from that office. According to the testimony, this packet was stapled together. From this evidence we conclude that the packet of papers relating to McCray’s prior conviction was properly certified. See Tex. R. Evid. 902(4); Alvarez v. State, 536 S.W.2d 357, 361 (Tex. Crim. App. 1976); Grogan v. State, 713 S.W.2d 705, 711 (Tex. App.—Dallas 1986, no pet.).

      State’s Exhibit No. 3 contains the trial court’s docket sheet, the information and complaint, a community supervision order, and a judgment revoking community supervision. In addition, the exhibit contains two separate fingerprints: one on the revocation judgment; and one on a certificate filed on the same date as the community supervision order. The judgments and the information bear the same cause number. A witness for the State testified that McCray’s fingerprints match those contained in State’s Exhibit No. 3. This evidence is legally and factually sufficient to establish that McCray is the same person who was previously convicted of assault as reflected in State’s Exhibit No. 3. See Carriere v. State, 84 S.W.3d 753, 758 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d); Gill v. State, 57 S.W.3d 540, 545-46 (Tex. App.—Waco 2001, no pet.); see also Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim. App. 1986).

      For the foregoing reasons, we conclude that the evidence is legally and factually sufficient to prove that McCray was previously convicted of assaulting a member of his household. Thus, his first and second issues are without merit.

HEARSAY

      McCray contends in his third issue that the trial court abused its discretion by permitting Officer Arriola and Officer Vaughn to testify about what the victim Rhedonda told them. He claims in his fourth issue that the trial court abused its discretion by permitting two paramedics to testify about what Rhedonda told them. The State responds that Rhedonda’s statements were admissible as excited utterances and/or as statements made for purposes of medical diagnosis and treatment.

Preservation

      McCray did not make a hearsay objection to Officer Vaughn’s testimony. He did not make any objection to the testimony of Eddie Duran, one of the paramedics. Accordingly, he failed to preserve these issues for appellate review as to the testimony of these witnesses. See Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1(a)(1); Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002); Haynes v. State, 85 S.W.3d 855, 859 (Tex. App.—Waco 2002, pet. ref’d).

Excited Utterance

      Rule of Evidence 803(2) provides an exception to the hearsay rule for excited utterances. 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.” Id.

      In determining whether a statement fits within this exception, we may consider the time elapsed since the startling event or condition and whether the statement was made in response to questioning. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). However, these considerations are not necessarily dispositive. Id. The critical inquiry 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.” Id. at 596 (quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992)).

      Officer Arriola testified that when he arrived at the scene Rhedonda “appeared to be extremely upset. She was extremely excited. Her hair was disheveled. She had marks about her face, cheeks were flushed. There was [sic] marks around her throat. Her shirt was torn in a couple places I noticed up around the collar. And she was, again, extremely upset.” Arriola further testified that she was shaking and “wanting to say a number of things at one time.” They sat down and she described the assault in detail. Although Arriola would occasionally interject with a question about a particular detail, Rhedonda largely recounted what had happened without interrogation.

      From this, we conclude that the trial court did not abuse its discretion by admitting this testimony under the excited utterance exception to the hearsay rule. See id.

Medical Diagnosis

      Rule of Evidence 803(4) provides another exception to the hearsay rule for statements made for purposes of medical diagnosis or treatment. Tex. R. Evid. 803(4). This exception applies to “[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” Id.

      The first paramedic, Lisa Duran, testified that Rhedonda “pointed out” that she had been hit in the face. She told the paramedics in response to questioning that she had been hit in the face multiple times by her husband; that her face was hurting; and that she was afraid he may return.

      Much of Lisa’s testimony fits within the exception to the hearsay rule for statements made for purposes of medical diagnosis and treatment. See Mendoza v. State, 69 S.W.3d 628, 633-34 (Tex. App.—Corpus Christi 2002, pet. ref’d); Moyer v. State, 948 S.W.2d 525, 527-28 (Tex. App.—Fort Worth 1997, pet. ref’d). In addition, Eddie testified to virtually the same statements without objection. Thus, any error in the admission of Lisa’s testimony was rendered harmless by the subsequent admission of Eddie’s testimony without objection. See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); Haynes, 85 S.W.3d at 859.

      Accordingly, we conclude that McCray’s third and fourth issues are without merit.

      We affirm the judgment.

FELIPE REYNA

                                                                   Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Affirmed

Opinion delivered and filed February 4, 2004

Do not publish

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