DocketNumber: NO. 14-16-00739-CR
Judges: Boyce, Frost, Jewell
Filed Date: 11/21/2017
Status: Precedential
Modified Date: 10/19/2024
Appellant Andrew Gonzalez, Jr. appeals his conviction for assault on a family member as a second offender. In three issues, appellant argues the trial court erred in: (1) overruling his objection to the admissibility of the charging instrument for a prior assault against the same complainant; (2) failing to give a limiting instruction when admitting the charging instrument of the prior assault; and (3) overruling appellant's objection to the State's allegedly improper jury argument.
We affirm.
Background
A grand jury indicted appellant for the offense of assault against a family member as a second offender. The State alleged that appellant assaulted his girlfriend, Patty,
Jennifer Terriquez and her boyfriend, Stephen Gutierrez, visited appellant and Patty at the latter couple's apartment on the night of the alleged assault. At some point during the evening, appellant began yelling at Patty. Patty packed a bag and started to leave the apartment. According to Jennifer, appellant grabbed Patty's bag, threw it aside, and hit Patty in the back of *309her head as she exited the apartment. Patty ran down the stairs to the ground level, and appellant chased her. Jennifer and Stephen followed. When Jennifer caught up, she saw appellant kicking Patty and pulling her hair as she lay on the ground. Jennifer called 911.
Stephen's sister, Ericka, lived next-door. Ericka was at home when she heard a man and a woman screaming outside. Ericka opened the front door and saw appellant kicking Patty, who was "crouched down" on the ground. Ericka also called 911, and then went outside to help Patty. Ericka helped Patty walk to Ericka's porch, and Ericka locked the gate in front of her house to prevent appellant from entering the property.
Paramedics arrived and treated Patty. The paramedics' report documented that Patty was five months' pregnant; that Patty told the paramedics she fought with her boyfriend, who pushed her to the ground; and that Patty said she "needed HPD [Houston Police Department] to file a report," but that otherwise she was "fine" and had "no belly pain ... [and] no bleeding." Patty refused transportation to the hospital for further observation or treatment.
HPD officers David Carrucini-Ruiz and Jesus Gutierrez (no apparent relation to Ericka or Stephen) responded to the 911 call. Upon arriving, Officer Carrucini-Ruiz spoke with Patty, who told him that she was pregnant and appellant had grabbed her by the hair, pushed her to the ground, kicked her in the stomach, and attempted to choke her. Officer Carrucini-Ruiz testified that he did not see any visible injuries on Patty.
Though appellant fled the scene when Ericka came to assist Patty, he returned about twenty minutes later while police were investigating. Jennifer and Ericka identified appellant to the officers as the person who assaulted Patty. According to Officer Carrucini-Ruiz, appellant also matched the description from the 911 call. Officer Carrucini-Ruiz approached appellant and asked if he assaulted Patty. Appellant said no. At that point, appellant "started getting loud," and the police officers decided to detain him in a patrol car. Resisting the officers' efforts, appellant attempted to kick the officers, at which time the officers placed appellant in leg restraints. As Patty watched, she told the officers that she was going to record them on her cell phone. Then, contradicting her prior statements to the officers, and contradicting the statements of Jennifer and Ericka, Patty insisted appellant did not assault her and she "made everything up." According to Officer Carrucini-Ruiz, once the officers placed appellant in the patrol car, Patty said to appellant, "I love you, Baby. I'm going to drop the charges." Patty did not testify at trial to either confirm or refute the officer's testimony.
The State desired to elevate the charged offense to a felony, which required proof of one prior family-violence assault conviction.
*310The jury found appellant guilty of the charged offense. The trial court then arraigned appellant on two enhancements, to which appellant pleaded "not true." The jury found the first enhancement paragraph (regarding an attempted burglary conviction) not true, and found the second enhancement paragraph (regarding a robbery conviction) true. The jury assessed appellant's punishment at eleven years' confinement.
Appellant now appeals his conviction.
Analysis
A. Evidentiary Ruling
In his first issue, appellant argues that the trial court erred in overruling his objection to the admissibility of the complaint resulting in his 2014 conviction for assault of a family member. Appellant contends the complaint's admission into evidence violated Rule 404(b) because the complaint identified Patty as the complainant in 2014, when Patty was also the complainant as to the charged offense. According to appellant, admission of the 2014 complaint erroneously permitted the jury to find him guilty of assaulting Patty on October 12, 2015, based on his conviction for assaulting Patty in 2014. We disagree.
1. Standard of review and governing law
Evidence of a person's crime, wrong, or other act is not admissible to prove that person's character in order to show that the person acted in conformity with that character when allegedly committing the charged offense. See Tex. R. Evid. 404(b)(1) ; see also Powell v. State ,
Because trial courts are best-suited to decide these substantive admissibility questions, an appellate court reviews admissibility rulings under an abuse of discretion standard. Powell ,
2. The parties' arguments
During the guilt-innocence phase of trial, the State offered the complaint and judgment associated with appellant's prior conviction for assault of a family member. Appellant did not object to admission of the judgment, but objected to the complaint because it named Patty as the complainant. Appellant argued that admitting the complaint was unnecessary because only the judgment of conviction was needed to enhance the charge to a felony. The prior complaint, appellant contended, served no purpose other than to show "that if he did it once before, he probably *311did it again." The trial court overruled appellant's objection.
The trial court did not explain the basis for its ruling, but the State urged two grounds for the complaint's admissibility. First, the State argued it was relevant under Code of Criminal Procedure article 38.371, which allows, among other things, testimony or evidence concerning the nature of the relationship between the actor and the alleged victim in certain offenses involving family or dating violence. See Tex. Code Crim. Proc. art. 38.371(b). According to the State, the complaint was relevant to explain material, non-character-conformity fact issues, such as why Patty recanted her initial allegation, why the jury should credit Patty's initial allegation, and why Patty was absent from trial.
Alternatively, the State argued that the complaint was relevant to prove that appellant and Patty were in a dating relationship, which is one way of establishing one of the elements of the charged offense.
Article 38.371 provides, for certain family-violence offenses, including the one for which appellant was convicted:
(b) In the prosecution of an offense described by Subsection (a), subject to the Texas Rules of Evidence or other applicable law, each party may offer testimony or other evidence of all relevant facts and circumstances that would assist the trier of fact in determining whether the actor committed the offense described by Subsection (a), including testimony or evidence regarding the nature of the relationship between the actor and the alleged victim.
(c) This article does not permit the presentation of character evidence that would otherwise be inadmissible under the Texas Rules of Evidence or other applicable law.
Tex. Code Crim. Proc. art. 38.371 (emphasis added). Article 38.371 became effective on September 1, 2015, and we have found no reported appellate court decision to date that has had occasion to apply it.
With the parties' arguments in mind, we turn to an analysis of whether the trial court's ruling was correct on any theory of law applicable to the case. See McDuff v. State ,
3. Application
We first address the State's argument that the complaint was admissible to *312explain Patty's recantation and her absence from trial, and to lend credence to her initial allegation. Appellant argues that allowing the State to use the complaint to prove the nature of the couple's relationship under article 38.371"is specifically what Rule 404(b) sets out to exclude." We disagree that article 38.371 conflicts with Rule 404(b), or that the State's reliance on article 38.371 to support the complaint's admission is an end-run around Rule 404(b). Article 38.371(b) states that it is subject to the Texas Rules of Evidence, and article 38.371(c) does not permit the presentation of character evidence that otherwise would be inadmissible under the Texas Rules of Evidence. See Tex. Code Crim. Proc. art. 38.371. The trial court could have concluded that the evidence was admissible to refute appellant's defensive theory that Patty fabricated the assault or that no assault actually occurred. See Banks v. State ,
Moreover, as this court has noted, complainants in family-violence cases often do not testify at trial. See Spencer v. State ,
We conclude that it is at least within the zone of reasonable disagreement that the prior complaint was admissible for the non-character-conformity purposes of (1) explaining Patty's recantation and (2) rebutting appellant's defensive theory that *313Patty initially fabricated her allegations against him. See Tex. R. Evid. 404(b)(2) ; Banks ,
The two cases appellant cites do not support a contrary conclusion. In Robles v. State ,
Appellant also relies on Taylor v. State ,
We hold that the trial court did not abuse its discretion in overruling appellant's Rule 404(b)(2) objection and, accordingly, we overrule appellant's first issue.
B. Limiting Instruction
In his second issue, appellant argues that, should we overrule his first issue, the trial court nonetheless erred because it denied appellant's request for a limiting instruction at the time the court admitted the evidence.
1. Standard of review and governing law
Upon request, the trial court must give a limiting instruction to the jury at the time that extraneous-offense evidence is offered. See Tex. R. Evid. 105(a) ; see also Delgado v. State ,
In making this determination, we review the record as a whole, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error, and how it might be considered in connection with other evidence in the case. Motilla v. State ,
2. Application
At a bench conference, appellant asked the trial court to give a limiting instruction to the jury upon the State's introduction of the complaint. The trial court denied appellant's request. We presume for the sake of argument that the trial court erred in doing so. When admitting the complaint, the trial court did not contemporaneously instruct the jury that the jury could consider the complaint only for limited purposes. However, the court included an appropriate limiting instruction in the jury charge.
The trial court admitted the complaint and judgment from the prior assault during the testimony of the State's last witness. After the court admitted the complaint, the witness read a portion of the complaint; her remaining testimony, including on cross-examination, primarily related to the methodology used in fingerprint analysis. Appellant called no witnesses. Both sides then rested, the evidence closed, and the jury promptly received the jury charge, which instructed the jurors not to consider the extraneous-offense evidence as evidence of appellant's guilt.
These circumstances do not weigh in favor of finding harm. The inclusion of a limiting instruction in the jury charge, given almost immediately after the admission of the evidence, counsels against finding harm. See Rankin ,
For these reasons, we have fair assurance that the error did not influence the jury, or had but a slight effect. See Solomon ,
C. Closing Argument
In his third issue, appellant argues that the trial court erred in overruling his objections to certain statements by the State during closing argument. Appellant contends the prosecutor urged the jury to consider appellant's prior assault conviction as evidence of guilt as to the charged offense.
1. Standard of review and governing law
The law provides for, and presumes, a fair trial, free from improper argument by the State. See Borjan v. State ,
We review a trial court's ruling on an objection to jury argument for abuse of discretion. Smith v. State ,
2. Transcript of argument
We excerpt the relevant parts of the prosecutor's comments, appellant's objections, and the trial court's rulings:
[Prosecutor]: Before the police even get there, the victim is saying, I don't want to press charges. If she lied, if that's what she wants the officers to believe, then what is she so concerned about pressing charges for before they even get there? Why is she so concerned about that unless he was kicking her butt outside on the street, right?
And, so, when they start putting this defendant in leg restraints, she changes her tune again. But this time he's there, and she's shouting, that's my baby. Don't hurt him.
She's shouting because she wants him to hear her, and she wants him to know that she's not going to be the reason why he's getting arrested. Right?
Folks, there was a lot of discussion about this prior offense. You cannot find him guilty just because he did it before, but what you can do is use that prior offense to consider the nature and type *316of relationship that is between him and [Patty].
[Defense]: Judge, I'm going to object to that. That's improper.
[The Court]: Overruled.
[Prosecutor]: You can use that prior offense to consider the existence of a relationship between him and the victim....
The nature of the relationship. I'm not going to comment too much on the nature of the relationship between this defendant and this victim. We know he's been convicted of assaulting her once before, and here we are again. I think that speaks to the nature of their relationship.
[Defense]: Judge, I'm going to object as improper argument.
[The Court]: Overruled.
[Prosecutor]: The frequency and type of interactions between the persons involved in a relationship. Let's talk about the types of interactions involved between him and the victim. Well, actually, no. I'll let y'all talk about the types of interactions involved between him and [Patty]. Right.
This, along with her actions at the scene, tell you what type of interactions happen between those two. She wants him to know she's not the reason that he's getting arrested because what's going to happen if that's what he thinks?
With this context, we turn to the merits of appellant's argument.
3. Application
Appellant objected to the prosecutor's comments as "improper" and "improper argument." The trial court overruled these objections.
Appellant argues that his objections were sufficiently specific because "[t]he context of Appellant's objection was clear to the court, having previously been addressed on multiple occasions outside the presence of the jury, that this constituted a violation of Rule 404(b) [,] which prohibits the use of character conformity evidence to establish guilt on the primary charge." We presume without deciding that the trial court understood the nature of appellant's objections and error is therefore preserved. However, we conclude the trial court's rulings were not erroneous.
*317Appellant contends that the prosecutor's comments impermissibly invited the jury to consider the prior conviction as evidence of guilt of the charged offense. The State may not argue that prior convictions are evidence of a defendant's guilt. See Melton v. State ,
At trial, the parties hotly disputed whether any assault occurred at all. The State's main witnesses all testified that they either saw appellant in a physical altercation with Patty or heard Patty state that appellant assaulted her. Appellant's counsel then impeached Jennifer (with prior convictions) and Ericka (with evidence of intoxication) and cross-examined Officers Carrucini-Ruiz and Gutierrez on the accuracy and credibility of their recollections. During closing argument, appellant's counsel told the jury that the State had not proven an assault occurred and urged the jury to discount what she anticipated the State's argument would be-that Patty "changed her [allegations]" because Patty was afraid of appellant.
During the State's closing argument, the prosecutor first (correctly) stated to the jury that it could not find appellant guilty based on propensity or character conformity. The prosecutor then told the jurors they could rely upon the prior complaint and judgment in "consider[ing] the nature and type of relationship that is between [appellant] and [Patty]." This comment comports with the Code of Criminal Procedure, the rules of evidence, and our holding above regarding the admissibility of the evidence. See Tex. Code Crim. Proc. art. 38.371(b) ; Tex. R. Evid. 404(b).
The second challenged comment was a response to the defensive theory that there had been no assault. In discussing the "nature of their relationship" and the "frequency and type of interactions" between appellant and Patty, the prosecutor said: "We know he's been convicted of assaulting her once before, and here we are again.... This, along with her actions at the scene, tell you what type of interactions happen between those two. She wants him to know she's not the reason that he's getting arrested because what's going to happen if that's what he thinks?" Read in context, the prosecutor's comment was not an invitation for the jury to find appellant guilty based on the prior assault. Rather, it was an argument that the jury should consider Patty's initial allegations as true and her later recantation as false and motivated by fear.
Appellant cites one case, Sanchez v. State ,
We find Sanchez distinguishable. In contrast to Sanchez , in which the prosecutor's comments directly invited the jury to consider the prior convictions as evidence of the defendant's guilt of the charged offense, the prosecutor here referenced the extraneous-offense evidence to explain why Patty changed her account of what happened. The prosecutor then expressly reminded the jury that it could not consider a prior conviction as evidence of appellant's guilt.
Viewing the comments in the context in which they appear, the prosecutor's statements fell within the bounds of permissible jury argument. See Alejandro ,
We overrule appellant's third issue.
Conclusion
Having overruled appellant's issues, we affirm the trial court's judgment.
To protect the privacy of the complainant, we identify her by a pseudonym, "Patty."
See Tex. Penal Code § 22.01(b)(2).
See Tex. Penal Code § 22.01(b)(2) (felony assault against a person with whom the defendant has a dating relationship, a family member, or a member of the household); Tex. Fam. Code §§ 71.0021(b) (defining dating relationship), 71.003 (defining family member), 71.005 (defining household). The prior judgment stated that appellant was convicted of "Aslt Family Member." Because we conclude that the complaint was admissible on the State's first ground, we need not address whether it was also admissible to establish that appellant and Patty were in a dating relationship.
Similar statutes allow: (1) in murder prosecutions, admission of "testimony as to all relevant facts and circumstances surrounding ... the previous relationship between the accused and the deceased," Tex. Code Crim. Proc. art. 38.36(a) ; (2) in prosecutions of certain offenses committed against a child, admission of "evidence of other crimes, wrongs, or acts ... for its bearing on relevant matters, including ... the state of mind of the defendant and the child[,] and the previous and subsequent relationship between the defendant and the child,"
The charge provided:
You are instructed that certain evidence was admitted before you in regard to the defendant's having been charged and convicted of an offense or offenses other than the one for which he is now on trial. Such evidence cannot be considered by you against the defendant as any evidence of guilt in this case. Said evidence was admitted before you for the purpose of aiding you, if it does aid you, in passing upon the weight you will give the testimony, and you will not consider the same for any other purpose.
Appellant complains on appeal about another comment by the prosecutor during closing argument, but we do not address the merits of that argument because appellant did not object to it in the trial court and thus failed to preserve error. See Morris v. State ,
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