Alaa Mohamad Weiss v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-390-CR
ALAA MOHAMAD WEISS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 5 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
A jury convicted appellant Alaa Mohamad Weiss of assault, assessed his
punishment at 182 days in jail with a $3,000 fine, and the trial court sentenced
him accordingly. Appellant brings ten issues on appeal. We affirm.
1
 See Tex. R. App. P. 47.4.
II. Facts
For several days in July 2005, appellant and his wife, Rania, had been
arguing over money. On July 15, 2005, Rania called appellant’s sister Majd
and asked her to help the couple resolve their dispute. That afternoon, Rania
went to Majd’s house and appellant arrived about an hour later. As they aired
their grievances, appellant started cursing Rania’s family. Rania objected to
that and told him to stop. When he persisted, Rania arose from her chair,
crossed the room and placed her bare foot on appellant’s leg, which in their
culture, signals disrespect. Appellant warned her to move away from him or
he would hit her.
When she refused to move away, Majd and her husband Haitham stood
up and moved closer to the couple. Appellant also stood, grabbed a remote
control from the table, looked Rania in the eye, and struck her in the face with
it.
Rania’s face went numb. Haitham told her she was bleeding. Rania tried
to call the police, but her in-laws took the telephone away from her.
For the next two hours, Rania asked to go to the hospital, but was only
given an ice pack and told that she was fine and that she didn’t need to go.
After she tried to leave on her own but swooned against the door, appellant
agreed to take her for medical attention, but instructed her to say that her
2
daughter had hit her with a toy. Appellant and Haitham drove Rania to a
CareNow facility, where personnel referred her to the USMD Hospital
emergency room.
When she arrived at the hospital, Rania was dizzy, weak, had trouble
standing and talking, and her head and eyes hurt. The doctors diagnosed a
concussion. Appellant told the doctor that Rania’s daughter had hit her. City
of Arlington Police Officer Michael Smith came to Rania’s room and appellant
told him the same story.
The doctor ordered a shot and wanted her to wait at the hospital for
thirty minutes, but appellant insisted that she leave after the injection, so he
took Rania back to his sister’s house. Rania spent the night there but awoke
early the next day, gathered her daughter, and drove home.
On the way, Rania felt dizzy and couldn’t see properly. Once she arrived
home, she called a friend who drove her to the police station where she met
with Arlington Police Officer Juan Williams. Officer Williams thought Rania
appeared nervous, frightened, and shaken up. She told him she was in pain and
felt dizzy. He was concerned that she might faint during the interview. After
he took her report, Officer Williams gave her a ride home because she told him
she was afraid appellant might be there waiting for her and that he might
retaliate against her for talking to the police.
3
Appellant was charged with assault bodily injury on a family member and
tried by a jury, which found him guilty, and assessed his sentence at 182 days’
confinement with a $3,000 fine. The trial court sentenced appellant
accordingly.
III. Jury Charge
Appellant’s first issue is a three-part challenge to the jury charge. In part
A, he argues that the trial court erred by combining the defenses of accident
and involuntary conduct in an application paragraph. That paragraph reads as
follows:
Therefore, if you believe from the evidence beyond a reasonable
doubt that [appellant] . . . did then and there intentionally or
knowingly cause bodily injury to RANIA WEISS, a member of
[appellant’s] family or household, by striking her with a remote
control, but you further believe from the evidence or have a
reasonable doubt thereof that the injury was a result of an accident
and was not the voluntary act of [the] conduct of [appellant] you
will acquit [appellant] and say by your verdict “Not Guilty
(emphasis added).”
Appellant and the State agree that “accident” is not a recognized defense
and that the court erred by including it in the charge. 2 Appellant also complains
that the charge erroneously combined accident with involuntary conduct, which
2
 See Rogers v. State, 105 S.W.3d 630, 637–38 (Tex. Crim. App.
2003) (“There is no law and defense of accident in the present penal code, and
the bench and bar would be well advised to avoid the term ‘accident’ in
connection with offenses defined by the present penal code.”) (quoting Williams
v. State, 630 S.W.2d 640, 644 (Tex. Crim. App. 1982)).
4
he contends authorized the jury to acquit only upon finding that appellant acted
involuntarily and that the injury was an accident.
Appellant preserved neither of these complaints by objecting in the trial
court. Although he did raise numerous objections to the charge, none of his
objections addressed the word “accident,” the use of accident as a defense, or
the combination of accident and involuntary conduct in the application
paragraph of the charge. Accordingly, we consider whether the error was so
egregious and created such harm as to deprive appellant of a fair trial. 3
Jury-charge error is egregiously harmful if it affects the very basis of the
case, deprives the defendant of a valuable right, or vitally affects a defensive
theory. 4 In determining whether jury-charge error is egregiously harmful, we
consider the entire charge, the evidence, including contested issues and
probative weight, arguments of counsel, and any other relevant information
revealed by the record as a whole. 5
3
 See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); Hutch v.
State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996); Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g).
4
 Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007);
Hutch, 922 S.W.2d at 171.
5
 Stuhler, 218 S.W.3d at 719.
5
The jury in this case was instructed that a person acts intentionally with
respect to a result of his conduct when it is his conscious objective or desire
to cause the result, and acts knowingly with respect to a result of his conduct
when he is aware that his conduct is reasonably certain to cause the result.
The jury was also instructed that it could find appellant guilty only if it found
that he intentionally or knowingly caused bodily injury to Rania Weiss. Viewing
the entire charge, the abstract portion, which contained both the required
mental state and accompanying definitions, sufficiently instructed the jury on
the requisite mental state for the offense. The application paragraph
specifically instructed the jury to find appellant guilty only if it found that he
intentionally or knowingly caused bodily injury to Rania. Further, in the very
next paragraph it instructed, “Unless you so find from the evidence beyond a
reasonable doubt or if you have a reasonable doubt thereof, you will acquit the
Defendant and say by your verdict ‘Not Guilty’.”
As for the contested issues and weight of the probative evidence, both
sides presented straightforward cases that relied largely on the credibility of
their key witnesses. The State maintained that appellant intentionally or
knowingly injured Rania by striking her in the face with a remote control,
whereas appellant’s theory directly contested the intent element and the State’s
allegation of manner and means. In appellant’s opening statement, counsel told
6
the jury that appellant did not intentionally injure Rania and that if she was hit
by anything, it was not by the remote control as alleged by the State’s
information.
Rania’s testimony supported the State’s theory that appellant intentionally
or knowingly injured her by striking her in the face with a remote. She testified
that appellant picked up the remote from the table and that he looked her in the
eye as he smashed it into her face. Majd’s testimony, on the other hand,
supported appellant’s theory. She testified that the fan, suspended from the
low ceiling, was on high because it was summertime, that appellant was under
it gesticulating wildly with the remote in his hand, that the remote flew out of
his hand, that everyone heard a loud noise, that Rania started bleeding, and that
batteries were found near the coffee table, love seat, and an ottoman below the
fan. Because these competing versions came largely through the parties’ two
key witnesses, Rania and Majd, the jury’s resolution of the contested issue in
the case hinged on its determination of which witness it found more believable.
If the jury believed Rania, as it apparently did, it was likely to find appellant
guilty, which it did. If it believed Majd, it was likely not to find him guilty
whether it believed that Rania’s injury was caused by accident, appellant’s
involuntary act, or both. The straightforward nature of the evidence and the
7
contested issues weighs against a finding that including accident in the charge
or combining it with involuntary conduct caused appellant egregious harm.
Considering the arguments of counsel and other relevant information in
the record, during voir dire the prosecutor told the venire that the State was
required to prove that appellant intentionally or knowingly caused bodily injury
to Rania. And during its closing arguments, the State opened and closed by
reiterating its burden to prove beyond a reasonable doubt that appellant
intentionally or knowingly injured Rania. In his closing remarks, defense counsel
noted that while Rania had testified that appellant directly struck her with the
remote, appellant had presented testimony from two eyewitnesses that he
picked up the remote when Haitham asked him to turn down the television, and
that as appellant was talking and moving his hands in an animated way, the
remote flew out and apparently struck the ceiling fan. Counsel for appellant
argued to the jury that appellant was not guilty because he did not intend for
the remote to hit his wife and because he did not knowingly cause her injury
since he could not have known that the remote would hit the fan, bounce off
it, and strike her in the face.
Defense counsel also argued that although he conceded that Rania had
been injured, she had not been injured as alleged in the State’s manner and
means because she had not been injured by the remote; rather she was hit by
8
a battery that came out of it when it shattered upon hitting the fan. Counsel
stressed, “The issue is: Did [appellant] intentionally or knowingly cause bodily
injury to Rania Weiss by striking her with a remote control?”
After considering the entirety of the charge, the evidence, including the
contested issues and weight of the probative evidence, the arguments of
counsel and statements made during the jury selection process, we hold that
the charge did not cause appellant egregious harm. 6 Part A of appellant’s first
issue is overruled.
In part B, appellant complains that the trial court erred by not submitting
in the charge his proposed definition of voluntariness and examples of
involuntary conduct.
Texas Code of Criminal Procedure article 36.14 provides, in pertinent
part, that the trial judge is required to submit to the jury
a written charge distinctly setting forth the law applicable to the
case; not expressing any opinion as to the weight of the evidence,
not summing up the testimony, discussing the facts or using any
argument in his charge calculated to arouse the sympathy or excite
the passions of the jury. 7
A defendant is not entitled to have an instruction in the charge worded
exactly as he requests, as long as the charge correctly states the law and
6
 See Stuhler, 218 S.W.3d at 719.
7
 Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007).
9
tracks the applicable statute. 8 A jury charge that tracks the language of the
applicable statute properly sets forth the law applicable to the case. 9
The trial court’s charge instructed the jury “that a person commits an
offense only if he voluntarily engages in conduct, including an act, omission, or
possession.” This instruction regarding involuntary conduct tracked the
language of penal code section 6.01(a). We overrule part B of appellant’s first
issue.
In part C, appellant complains that the charge lacked an application
paragraph on the manner and means and that it did not direct the jury to acquit
if it believed Rania was not hit by a remote control.
An instruction on a defensive issue is not called for if it merely negates
an element of the State’s case, rather than independently justifying or excusing
it through a defense set out in the penal code. 10 Here, the State had the burden
of proving that Rania was injured by the remote control. Appellant’s defensive
theory that she was not injured by the remote but actually by a battery merely
8
 Thacker v. State, 889 S.W.2d 380, 399 (Tex. App.—Houston [14th
Dist.] 1994, pet. ref’d), cert. denied, 516 U.S. 810 (1995).
9
 See Casey v. State, 215 S.W.3d 870, 886–87 (Tex. Crim. App.
2007).
10
 Walters v. State, 247 S.W.3d 204, 209 (Tex. Crim. App. 2007).
10
negated an element of which the State had the burden to prove. 11 The trial
court did not err by denying appellant his requested instruction on this issue.
Accordingly, we overrule part C.
Having overruled all its parts, we overrule appellant’s first issue.
IV. Sufficiency of the Evidence
In appellant’s second issue, appellant claims the evidence is legally and
factually insufficient to support the verdict.
In reviewing legal sufficiency, we consider all the evidence in the light
most favorable to the verdict and determine whether a rational juror, based on
the evidence and reasonable inferences supported by the evidence, could have
found the essential elements of the crime beyond a reasonable doubt. 12 We
defer to the responsibility of the trier of fact to fairly resolve conflicts in
testimony, to weigh evidence, and to draw reasonable inferences from basic
facts to ultimate facts. 13
Appellant was tried and convicted for assault causing bodily injury to a
family member. A person commits assault if the person intentionally,
11
 See id.
12
 Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
(1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
13
 Jackson, 443 U.S. at 318–19, 99 S. Ct. at 2789; Hooper, 214
S.W.3d at 13.
11
knowingly, or recklessly causes bodily injury to another, including the person’s
spouse.14
Appellant claims the evidence is legally insufficient to show that he
intended to injure his wife. Rania testified that appellant warned her during an
argument to get away from him or he would hit her. She further testified that
when she would not move away from him, he picked up a remote control,
looked her in the eyes, and smashed it against her face. Finally, she testified
that appellant kept her from calling the police, delayed in taking her to the
hospital, and only took her on the condition that she say that her daughter hit
her with a toy. We hold the evidence is legally sufficient to show appellant
intended to injure his wife.
When reviewing factual sufficiency, we view all the evidence in a neutral
light, favoring neither party. 15 We then ask whether the evidence supporting
the conviction, although legally sufficient, is nevertheless so weak that the
factfinder’s determination is clearly wrong and manifestly unjust or whether
conflicting evidence so greatly outweighs the evidence supporting the
14
 Tex. Penal Code Ann. § 22.01(a)(1) (Vernon Supp. 2009).
15
 Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert.
denied, 129 S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex.
Crim. App. 2006).
12
conviction that the factfinder’s determination is manifestly unjust. 16 To reverse
under the second ground, we must determine, with some objective basis in the
record, that the great weight and preponderance of all the evidence, though
legally sufficient, contradicts the verdict. 17
Appellant argues that the evidence is factually insufficient to support the
verdict because the great weight and preponderance of the evidence showed
that Rania was hit accidentally. The evidence weighing in support of this claim
includes Rania’s statements to medical personnel that her daughter hit her with
a toy and appellant’s sister’s and brother-in-law’s testimony that appellant
picked up the remote to turn down the television and that while gesticulating
during the argument with his wife, the remote flew out of his hand, struck the
low-hanging and fast-spinning ceiling fan, causing the remote to shatter and
expel a battery onto Rania’s face.
The jury is the sole judge of the weight and credibility of the evidence. 18
The defense’s presentation of a version of the facts that differs from the
16
 Lancon v. State, 253 S.W.3d 699, 704–05 (Tex. Crim. App. 2008);
Watson, 204 S.W.3d at 414–15, 417.
17
 Watson, 204 S.W.3d at 417.
18
 See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Margraves
v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000) (disapproved on other
grounds by Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009)).
13
State’s does not render the evidence insufficient. 19 The evidence will be held
factually insufficient only if it is so weak or so overwhelmed by the great
weight and preponderance of the evidence that the verdict shocks the
conscience or is manifestly unjust. 20 Having examined the entire record and
considered appellant’s arguments, we do not find that standard to have been
met in this case. Because the evidence is both legally and factually sufficient
to support the verdict, we overrule appellant’s second issue.
V. Voir Dire
Appellant contends in his third issue that the trial court abused its
discretion by denying his motion for a mistrial after the State informed the
venire of appellant’s prior acts. He claims that no instructions could have cured
the State’s unfairly prejudicial comments and that a fair verdict could not have
been reached.
The record during the State’s examination of the venire reveals the
following:
19
 See Maestas v. State, 963 S.W.2d 151, 156 (Tex. App.—Corpus
Christi 1998) (citing Anderson v. State, 701 S.W.2d 868, 872 (Tex. Crim. App.
1985), cert. denied, 479 U.S. 870 (1986)), aff’d, 987 S.W.2d 59 (Tex. Crim.
App.), cert. denied, 528 U.S. 834 (1999).
20
 See Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d at 414–15,
417.
14
MS. MEADOR [for the State]: . . . How punishment is
different from the guilt/innocence phase is this. You look at
guilt/innocence like a snapshot. Guilt/innocence phase of this trial
is going to be a snapshot of what happened on that day in
question. That’s all you’re going to get to hear about, just that
day. We can talk about things leading up to it and leading up to
the assault in that day, but that’s it. Punishment is the whole
photo album. Okay.
You’re going to get to hear whether or not this defendant has
ever been in trouble before. You’ll get to hear whether or not the
defendant has ever done this to the victim before or someone else.
You’ll also get to hear what we call character evidence: Is he a
good guy, or is he a bad guy? Does that make sense to everyone?
Ms. Knox, I mean, is it typical in a family violence situation
for it to just be a one-time thing?
PROSPECTIVE JUROR: Statistics say no.
MS. MEADOR: And punishment would be the time you get
to hear about that. Okay. We’ll only get to talk about the assault
that happened on that day. Does that make sense?
PROSPECTIVE JUROR: Yes.
MS. MEADOR: I don’t ever learn. Zigrang?
PROSPECTIVE JUROR: Zigrang.
MR. HUSSAMI: I object. She’s implying. She’s implying
something about she said on this assault on this occasion. She’s
implying that there was another occasion. We move to strike that
and give a proper instruction.
THE COURT: I’ll sustain the objection. The State cannot
imply what the evidence would be in the punishment phase of this
trial. I think she’s just asking you general questions.
15
But be careful.
I will sustain the objection.
MR. HUSSAMI: Disregard the – –
THE COURT: Disregard her last statement.
MR. HUSSAMI: And we move for a mistrial.
THE COURT: Denied.
On appeal, appellant complains about this entire exchange. In order to
preserve a complaint for our review, a party must have presented to the trial
court a timely objection, request, or motion. 21
We review a trial court’s ruling on a motion for mistrial for abuse of
discretion. 22 Mistrial is appropriate only when the trial court is faced with error
so prejudicial that expending further time and expense would be wasteful and
futile. 23 A prompt instruction to disregard usually will cure any prejudice caused
by an improper question and answer. 24 To determine whether the trial court
21
 Tex. R. App. P. 33.1(a)(1).
22
 Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003),
cert. denied, 542 U.S. 905 (2004); Trevino v. State, 991 S.W.2d 849, 851
(Tex. Crim. App. 1999) (citing State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.
Crim. App. 1993)).
23
 Simpson, 119 S.W.3d at 272.
24
 Id.
16
abused its discretion in denying the motion for mistrial, we balance three
factors: (1) the severity of the misconduct (prejudicial effect), (2) curative
measures, and (3) the certainty of conviction absent the misconduct. 25
Assuming, without deciding, that appellant’s objection preserved any
error to the prosecutor’s first question about whether family violence is typically
a one-time thing, and to the venireperson’s answer, “Statistics say no,” we
hold that these remarks, especially given the trial court’s prompt instruction, do
not warrant the extreme remedy of a mistrial. 26
As for the prosecutor’s next statement—that if appellant had committed
other assaults, the jury would hear about them during the punishment phase—
assuming it was improper, it was not severe. The trial court’s prompt
instruction, moreover, cured any error. The judge instructed the panel, “The
State cannot imply what the evidence would be in the punishment phase of this
trial. I think she’s just asking you general questions,” and then granted
appellant’s request for an instruction to disregard the prosecutor’s comment.
In determining whether the instruction was sufficient to cure error, we consider
25
 Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).
26
 See Young v. State, 137 S.W.3d 65, 67–68 (Tex. Crim. App. 2004)
(holding that venireperson’s statement in aggravated sexual assault of a child
case that in twenty-five years’ of social work she had never had a child lie
about being sexually assaulted did not warrant a mistrial because an instruction,
had it been requested, would have cured any prejudice from the remarks).
17
whether the reference was direct or implied, intentional or inadvertent, detailed
or vague, and whether the topic was pursued once the instruction was given. 27
The prosecutor did not directly inform the venire that appellant had committed
other assaults, but she implied that such evidence might exist. No details,
however, were provided. Moreover, the comment was brief and was not
repeated after the trial court’s instruction. We hold, therefore, that the trial
court’s instruction cured any error, and we overrule appellant’s third issue.
VI. Bill of Exceptions
In his fourth issue, appellant complains that the trial court failed to follow
rule of appellate procedure 33.2(c) by filing without signing appellant’s
corrected bill of exceptions, and he asks us to treat the bill as signed because,
otherwise, he would be prevented from presenting his case on appeal.
Alternatively, appellant asks that we defer a decision on this issue until
remedied by the trial court.
Appellant filed a formal bill of exceptions containing grounds for complaint
regarding certain of the trial court’s evidentiary rulings, and to which appellant
attached a deposition and offense report. The trial court found that the bill was
27
 See Hill v. State, No. 02-06-00357-CR, 2007 WL 2792863, at *6
(Tex. App.—Fort Worth Sept. 27, 2007, pet. ref’d) (mem. op., not designated
for publication) (citing Kipp v. State, 876 S.W.2d 330, 339 (Tex. Crim. App.
1994)).
18
incorrect and in the space provided for suggesting corrections, wrote, “See
official court’s record.” Later, appellant filed a corrected bill, incorporating the
trial court’s corrections, but attached no order to the bill, therefore, the trial
judge’s signature does not appear on it. Appellant subsequently filed a
bystander’s bill, in which he avers that he presented his corrected bill of
exceptions to the trial court, requested approval and filing, and that the court
informed him that the bill was part of the record, although later appellant
discovered that it had not been signed.
Texas Rule of Appellate Procedure 33.2 requires the trial court to sign and
file a bill of exceptions if the court believes the bill accurately reflects the
proceedings in the court, and if not, the court must prepare, sign, and file such
bill, as will, in the judge’s opinion, accurately reflect the proceedings. 28
Appellant raises each of the complaints to which his bills apply in his fifth,
sixth, seventh, and eighth issues, which we address below. In order to
expedite our decision in this case, we considered appellant’s corrected bill in
reviewing those issues. 29 As discussed below, upon examining those issues
and the record, including appellant’s corrected bill, we have determined that
none of those issues demonstrate harmful error. Because appellant was not
28
 Tex. R. App. P. 33.2(c).
29
 See Tex. R. App. P. 2.
19
harmed by any error complained of in the issues to which his bill pertains, he
was not harmed by the absence of the trial court’s signature on the bill.
Accordingly, we overrule issue four.
VII. Exclusion of Police Report During Cross-Examination of Rania
In his fifth issue, appellant contends that the trial court abused its
discretion by excluding Officer Williams’s police report during appellant’s cross-
examination of Rania.
Appellant argues that Officer Williams’s report should have been admitted
during his cross-examination of Rania because the “Gaskin Rule” codified as
rule of evidence 615 provides that when a State’s witness has made a report
or has given a statement prior to testifying, the defendant, after a timely
request, is entitled to inspect and use such report or statement for cross-
examination and impeachment purposes. 30 The rule is limited to a previous
report or statement made by the witness herself who is testifying for the
State.31
30
 See Tex. R. Evid. 615; Gaskin v. State, 172 Tex. Crim. 7, 8–9, 353
S.W.2d 467, 469 (1962) (op. on reh’g).
31
 Vaughn v. State, 634 S.W.2d 310, 312–13 (Tex. Crim. App. 1982);
Artell v. State, 372 S.W.2d 944, 945 (Tex. Crim. App.), cert. denied, 375 U.S.
951 (1963).
20
Neither the Gaskin rule nor its codification as rule 615 is a rule of
admissibility. 32 It merely provides for access to a witness’s statements to aid
in cross examining that witness. 33 Appellant concedes that the State provided
Officer Williams’s report to him through discovery. The trial court’s refusal to
admit it in evidence shows no violation of either the Gaskin rule or rule 615.
Appellant also argues that exclusion of the report harmed him by
preventing him from impeaching Rania with prior inconsistent statements.
Specifically, he asserts that he sought to impeach her testimony that the
incident occurred at 7:00 p.m.; that appellant was facing her when she was
struck and that she was not sure where her in-laws were standing; that
appellant grabbed the remote and smashed it into her face; that her in-laws
took the telephones away from her and kept her at the house for two hours
before taking her to the hospital; that she was taken to the hospital only on the
condition that she agreed not to tell the police that appellant hit her; and that
she did not remember telling Officer Williams that she told appellant “if you
want to hit me, come and hit me.”
32
 See Tex. R. Evid. 615; Gaskin, 172 Tex. Crim. at 8–9, 353 S.W.2d
at 469.
33
 Tex. R. Evid. 615.
21
A party may impeach a witness with evidence of a prior inconsistent
statement only if the party first gives the witness an opportunity to explain or
deny the prior statement. 34 To lay the proper foundation, appellant was
required to (1) identify the statement by time, place, and person to whom made
(2) summarize the contents, and (3) afford the witness an opportunity to
explain or deny the statements. 35 If a party fails to establish this predicate, the
trial court should sustain an objection to extrinsic proof of the prior inconsistent
statement.36
Before offering Officer Williams’s report, counsel for appellant asked
Rania just three questions about her conversation with Officer Williams, none
of which contradicted the testimony appellant now asserts he sought to
impeach. First, he asked if she remembered telling the officer that her in-laws
helped her by giving her an ice pack, and she agreed that she had told him that.
Second and third, he asked if she had told Officer Williams that her in-laws
decided to take her to the hospital only after she fell against the door and that
they prevented her from leaving. Thus, the record shows that appellant failed
34
 Tex. R. Evid. 613(a).
35
 See Madry v. State, 200 S.W.3d 766, 769 (Tex. App.—Houston
[14th Dist.] 2006, pet. ref’d).
36
 See id.
22
to lay the proper predicate for impeachment with prior inconsistent statements.
Accordingly, the trial court did not abuse its discretion by excluding Officer
Williams’s offense report during the cross-examination of Rania. We overrule
appellant’s fifth issue.
VIII. Exclusion of Police Report During Cross-Examination of the Officer
In his sixth issue, appellant claims that the trial court abused its discretion
by not admitting Officer Williams’s report during appellant’s cross-examination
of Officer Williams. Again, appellant relies on the Gaskin rule, in addition to a
rule requiring disclosure, and the Open Records Act. As with the Gaskin rule,
neither of these two other bases upon which appellant relies are rules of
admissibility of evidence. 37
We uphold a trial court’s evidentiary ruling if it is correct on any theory
reasonably supported by the evidence and applicable to the case. 38 Here,
appellant argued that the hearsay exception of rule 803(8)(C) applied because
the report was offered against the State.
Rule 803(8)(C) provides a hearsay exception for reports of public agencies
setting forth factual findings resulting from an investigation pursuant to
37
 See Tex. Code Crim. Proc. Ann. art. 39.14 (Vernon Supp. 2009);
Tex. Gov’t Code Ann. § 552.021 (Vernon 2004); Tex. R. Evid. 615; Gaskin,
172 Tex. Crim. at 8–9, 353 S.W.2d at 469.
38
 See Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).
23
authority granted by law, unless the sources of the information or other
circumstances indicate a lack of trustworthiness. 39
Our review of the report shows that it does not consist of “factual
findings resulting from an investigation,” or the officer’s opinions or conclusions
based on such findings. To the contrary, the report is a recitation of
statements made by Rania in reporting the offense. The trial court reasonably
could have excluded the report as outside the scope of the hearsay exception
set out in rule of evidence 803(8)(c). 40
Moreover, appellant offered the report in its entirety. Hearsay statements
contained therein would have been subject to exclusion. A trial court is under
no duty to sift through a report and separate the admissible from that which is
not.41 We hold, therefore, that the trial court did not err in excluding the entire
39
 Tex. R. Evid. 803(8)(C).
40
 See Pilgrim’s Pride Corp. v. Smoak, 134 S.W.3d 880, 892 n.2 (Tex.
App.—Texarkana 2004, pet. denied); Perry v. State, 957 S.W.2d 894, 897–98
(Tex. App.—Texarkana 1997, pet. ref’d); Ramirez v. State, No. 14-06-00538-
CR, 2007 WL 2127719, at *7 (Tex. App.—Houston [14th Dist.] July 26,
2007, pet. ref’d) (mem. op., not designated for publication) (holding that police
report prepared by detective and offered against the State did not contain
factual findings contemplated by rule 803(8)(c)).
41
 See Crane v. State, 786 S.W.2d 338, 354 (Tex. Crim. App. 1990)
(holding that even if a tape recording itself is admissible under a hearsay
exception, any statements made in that recording are subject to the hearsay
rule); August v. State, No. 02-04-00484-CR, 2006 WL 1174213, at *3 (Tex.
App.—Fort Worth May 4, 2006, pet. ref’d) (mem. op., not designated for
24
report during the cross-examination of Officer Williams. Appellant’s sixth issue
is overruled.
IX. Leading Questions
In his seventh issue, appellant contends that the trial court abused its
discretion and denied appellant’s right to confront and effectively examine an
adverse witness by not permitting him to ask leading questions of a witness he
called and whom he declared halfway through her testimony was adverse.
Appellant called Detective Elizabeth Edmonds-Hayes as a witness during
his case-in-chief. He did not notify the court that he considered her to be an
adverse witness when he first called her to the stand. Twenty pages into her
testimony, the trial court sustained the State’s objection to defense counsel’s
leading questions. Counsel did not, at that point, inform the trial court that he
wished to treat the witness as adverse. Only after the trial court sustained the
State’s second objection to leading did counsel for appellant inform the court
of his desire to treat the witness as adverse.
Texas Rule of Evidence 611 provides that the trial court shall exercise
reasonable control over the mode and order of interrogating witnesses and
presenting evidence so as to (1) make the interrogation and presentation
effective for the ascertainment of the truth, (2) avoid needless consumption of
publication).
25
time, and (3) protect witnesses from harassment or undue embarrassment. 42
The rule also provides that a party may ask leading questions of a witness it
calls who is hostile, an adverse party, or identified with an adverse party. 43
The State concedes that Detective Edmonds-Hayes was a witness
identified with a party adverse to appellant, and that the trial court should have
allowed appellant to ask her leading questions, had he made a timely request
to do so.
Assuming that the trial court erred by requiring appellant to ask
nonleading questions, the error offends rule 611(c). Accordingly, we determine
whether the error was harmful under the standard set out in appellate rule
44.2(b). 44
Under the appropriate standard, we must disregard the error unless it
affects appellant’s “substantial rights.” 45 A substantial right is affected when
the error had a substantial and injurious effect or influence in determining the
42
 Tex. R. Evid. 611(a).
43
 Tex. R. Evid. 611(c).
44
 See West v. State, 169 S.W.3d 275, 279–80 (Tex. App.—Fort
Worth 2005, pet. ref’d) (holding that, generally, error is nonconstitutional if the
court’s ruling merely offends the rules of evidence).
45
 Tex. R. App. P. 44.2(b).
26
jury’s verdict. 46 In making this determination, we must examine the entire
record. 47 Under rule 44.2(b), a conviction should not be reversed when, after
examining the record, the reviewing court has a fair assurance that the error did
not influence the jury or had but a slight effect. 48
Our review of the record shows that appellant was not harmed by the trial
court’s denial of his request to treat Detective Edmonds-Hayes as an adverse
witness. Appellant argues that his inability to lead the witness meant that he
could not ask her what avenues of investigation she failed to follow, what
questions she failed to ask, and why she failed to ask them. He further argues
that through leading questions, he could have established circumstances
surrounding the incident that Rania did not tell the detective, and that he could
have thus highlighted the lack of thoroughness in the detective’s investigation.
In his corrected bill of exceptions, appellant asserted that he would have
asked Detective Edmonds-Hayes about a number of inconsistencies between
Rania’s testimony at trial and her statements to officers investigating the case.
We have compared appellant’s assertions in his bill of exceptions and in his
46
 King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).
47
 Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002).
48
 McDonald v. State, 179 S.W.3d 571, 578 (Tex. Crim. App. 2005).
27
brief with the evidence in the record. All of the inconsistencies he presents
appear in the record.
Moreover, although the trial court may have denied appellant permission
to ask his questions in a leading fashion, it did not prohibit appellant from
inquiring into any of the areas he sought to elicit by leading. In fact, appellant
elicited much of the evidence from Detective Edmonds-Hayes.
Because appellant was not prevented from making inquiry into any of the
areas he asserts he wanted to explore, and because he was able, in fact, to
establish through Detective Edmonds-Hayes that inconsistencies existed
between Rania’s testimony at trial and statements she made to officers,
appellant suffered no harm from the trial court’s refusal to allow him to ask the
detective leading questions. 49 Accordingly, we overrule appellant’s seventh
issue.
49
 See Davis v. State, No. 06-05-00222-CR, 2007 WL 858782, at *8
(Tex. App.—Texarkana Mar. 23, 2007, pet. ref’d ) (mem. op., not designated
for publication) (holding even under rule 44.2(a) harm analysis there was no
harm from the trial court’s denial of appellant’s request to treat police officer
as adverse where appellant failed to show how any particular subject matter of
questioning was denied through other means of examination); Baltazar v. State,
No. 08-02-00447-CR, 2004 WL 1078502, at *3–5 (Tex. App.—El Paso May
13, 2004, no pet.) (not designated for publication).
28
X. Rebuttal
In his eighth issue, appellant argues that the trial court abused its
discretion by ruling that the defense had rested and that unless the State had
rebuttal, he could not present rebuttal, and by denying his request to reopen the
evidence.
After calling several witnesses for the defense at guilt–innocence,
appellant informed the trial court that he rested his case, but he wanted to call
a rebuttal witness. The State then closed, and the trial court informed appellant
that because the State had closed without rebuttal, the defense would not be
permitted to call a rebuttal witness. In his corrected bill of exceptions,
appellant states that he intended to call Sabah Nobani. Appellant attached the
deposition of Sabah Nofal, taken in the divorce case between appellant and
Rania, to his original bill of exception. Assuming that Sabah Nofal is Sabah
Nobani, the deposition shows that Sabah testified she had discussed the assault
with Rania, that Rania told her appellant hit her with a remote and gave her a
concussion, that she did not know who started the fight, and that she
remembered Rania saying that she had kicked appellant but did not know if it
was before or after appellant hit her with the remote.
29
We review a trial court’s decision to reopen the evidence under an abuse
of discretion standard. 50 A trial court must allow the introduction of evidence
at any time before the conclusion of argument if it appears necessary to the due
administration of justice. 51 “Due administration of justice” means the trial court
should reopen the case if the evidence would materially change in the
proponent’s favor. 52 To establish a material change, the proponent of the
evidence must show that the evidence is more than “just relevant – – it must
actually make a difference in the case.” 53 Thus, the trial court abuses its
discretion by denying a motion to reopen if the evidence the movant seeks to
present would materially change the case in the movant’s favor. 54
Sabah’s testimony would not have materially changed the case in
appellant’s favor. At trial, appellant never sought to justify his actions as self
defense. Nor did he argue that the seriousness of his striking Rania was
mitigated by her provocation. As discussed above, his theories were that he
had no intent to strike or injure her and that she was not hit by the remote.
50
 Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim. App. 2003); Reeves
v. State, 113 S.W.3d 791, 794 (Tex. App.—Dallas 2003, no pet.).
51
 Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 2007).
52
 Peek, 106 S.W.3d at 79; Reeves, 113 S.W.3d at 794.
53
 Peek, 106 S.W.3d at 79.
54
 Reeves, 113 S.W.3d at 794.
30
Now he argues that Sabah’s testimony would have shored up Majd’s credibility
by confirming her version of the events: specifically, that Rania kicked
appellant. But Sabah could not say whether Rania kicked appellant before or
after appellant hit her with the remote. Most of her deposition testimony
supported Rania’s testimony at trial. We cannot say that testimony that merely
shores up the testimony of another witness by confirming a single small detail
in that testimony would have materially changed the case in appellant’s favor.
We hold, therefore, that Sabah’s testimony was not necessary to the due
administration of justice and that the trial court did not abuse its discretion in
refusing appellant’s motion to reopen. We overrule appellant’s eighth issue.
XI. Jury Argument
In his ninth issue, appellant contends that two comments by the
prosecutor during closing argument at punishment were improper and harmful.
Appellant first complains of the following comment:
And what’s this really all about? It’s really all about
power and disrespect. Power that he had over his wife
and disrespect that he had . . . not only for Rania
Weiss but for this court, for six of you for this past
four days. The shenanigans, the smoke, mirrors.
31
Appellant did not object to this portion of the State’s argument.
Therefore, he has forfeited his right to complain about it on appeal. 55
Appellant also complains of the State’s argument that when appellant
testified at punishment he denied ever touching Rania, even after the jury had
found him guilty. Appellant objected and the trial court overruled. When the
prosecutor revisited the subject later during her argument, she said, “He sat on
this witness stand, and he doesn’t think he did anything wrong. Nothing.
Nothing.” Appellant did not object to this argument.
To preserve error, a party must continue to object each time
impermissible argument is made. 56 Because appellant failed to object when the
same line of argument was made, he has forfeited his right to complain about
it on appeal. 57 We overrule appellant’s ninth issue.
XII. Medical Report
In his tenth and final issue, appellant complains of the trial court’s
admission of a medical report showing that Rania had a concussion. We review
55
 Tex. R. App. P. 33.1(a)(1)(A); Threadgill v. State, 146 S.W.3d 654,
667 (Tex. Crim. App. 2004); Mathis v. State, 67 S.W.3d 918, 926–27 (Tex.
Crim. App. 2002); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App.
1996), cert. denied, 520 U.S. 1173 (1997).
56
 Haliburton v. State, 80 S.W.3d 309, 315 (Tex. App.—Fort Worth
2002, no pet.).
57
 See id.
32
a trial court’s decision to admit or exclude evidence for an abuse of discretion,
and we will not reverse that decision unless it falls outside the zone of
reasonable disagreement. 58
Appellant first complains that medical records admitted under the
business records hearsay exception and showing that Rania had a concussion
and a contusion or a bruise should not have been admitted without a sponsoring
expert. If a medical condition is a matter of common knowledge or is within
the experience of a layman, expert testimony is not required to explain it. 59 It
was within the trial court’s discretion to conclude that a concussion and a
contusion are medical conditions that are not outside common knowledge or the
experience of a layman and therefore do not need an expert to explain them.
Therefore, the trial court did not err by admitting the medical records on the
basis that they referred to appellant having a concussion and a contusion.
Appellant also complains about a handwritten notation on a page of the
medical records titled “Disposition Summary,” which refers to appellant refusing
to let Rania to stay at the hospital after getting a shot.
58
 Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001).
59
 See Hood v. Phillips, 554 S.W.2d 160, 165–66 (Tex. 1977); cf. Reed
v. State, 59 S.W.3d 278, 282 (Tex. App.—Fort Worth 2001, pet. ref’d)
(holding that medical records were properly excluded when the defendant
offered them without a sponsoring expert to support her argument that her
confession was involuntary).
33
Rania testified that she remembered getting a shot at the hospital, that
the doctors wanted her to stay, but that appellant made her leave. Appellant
did not object to this testimony; therefore he has forfeited his right to complain
on appeal about its admission elsewhere in the record. 60
Before admitting the medical records, the trial court allowed appellant to
make his objections to each individual page outside the presence of the jury.
Appellant objected to only two pages on confrontation clause grounds.
On appeal, appellant argues these pages contained testimonial statements
of a doctor and a nurse that are inadmissible under Crawford v. Washington. 61
Medical records created for purposes of treatment and admitted under the
business records exception are not testimonial under Crawford. 62 Accordingly,
60
 See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998);
Beheler v. State, 3 S.W.3d 182, 187 (Tex. App.—Fort Worth 1999, pet. ref’d)
(the unobjected-to introduction of evidence from one source forfeits subsequent
complaints about the same evidence from another source).
61
 541 U.S. 36, 124 S. Ct. 1354 (2004).
62
 Melendez-Diaz v. Massachusetts, — U.S. —, 129 S. Ct. 2527, 2533
n.2 (2009); See Crawford, 541 U.S. at 42, 56, 124 S. Ct. at 1359, 1367;
Berkley v. State, —S.W.3d—, No. 04-08-00381-CR, 2009 WL 2524926, at *3
(Tex. App.—San Antonio Aug. 19, 2009, no pet.); Sullivan v. State, 248
S.W.3d 746, 750 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (holding that
substance abuse counselor's notes on appellant's history of drinking, which
were contained in medical records, were not testimonial, and their admission
in evidence did not violate the Confrontation Clause); Felix v. State, No. 05-04-
01322-CR, 2005 WL 3163677, at *5 (Tex. App.—Dallas Nov. 29, 2005, no
pet.) (not designated for publication) (holding that results of blood alcohol test
34
introduction of the medical records did not violate appellant’s confrontation
rights.
We overrule appellant’s tenth issue.
XIII. Conclusion
Having overruled all of appellant’s issues, we affirm the judgment of the
trial court. 63
PER CURIAM
PANEL: CAYCE, C.J.; GARDNER and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 10, 2009
are not testimonial); Eslora v. State, No. 04-04-00112-CR, 2005 WL 763233,
at *4 (Tex. App.—San Antonio Apr. 6, 2005, pet. ref’d) (mem. op., not
designated for publication) (holding that medical records are not testimonial).
63
 The State raised a single cross point on appeal contending that the
trial court erred by including in the jury charge an instruction on voluntary
conduct, and appellant filed a motion to quash the cross point. Because of our
disposition of this appeal, we need not address the State’s cross point. We,
therefore, deny appellant’s motion to quash as moot.
35