Opinion
No. 14-08-00076-CR
Opinion filed December 9, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 184th District Court Harris County, Texas, Trial Court Cause No. 1109748.
Panel consists of Chief Justice HEDGES and Justices GUZMAN and BROWN.
MEMORANDUM OPINION
Appellant Ivan Hernandez was found guilty by a jury of the felony offense of family-violence assault, second offender. Based on an agreement reached by appellant and the State, the trial court sentenced appellant to two years' confinement in the Institutional Division of the Texas Department of Criminal Justice. On appeal, appellant contends that the trial court erred by allowing the complainant and a police officer to testify to similar bad acts, and by failing to instruct the jury to disregard the prosecutor's argument after sustaining appellant's objection to the prosecutor's reference to "battered wife syndrome" during closing argument. Appellant also contends the evidence of bodily injury is factually insufficient to support his conviction. We affirm.
Factual Background
On March 26, 2007, appellant and his wife, Clarissa Gonzales, were in the drive-through lane at a Taco Bell restaurant with their three-year-old son. It was between 4:00 and 5:00 p.m., and Gonzales had just picked up appellant from another restaurant where he had been drinking. The two began to argue and, while at the restaurant, appellant assaulted Gonzales by striking her with his hand, grabbing her by the neck, twisting her arm, and throwing her to the ground. Several people witnessed the assault. At trial, Cameron Irving, the drive-through cashier at the Taco Bell, testified that appellant was talking over Gonzales as she tried to place their order at the speaker, and because Irving could not hear her, he asked Gonzales and appellant to pull up to the window to place their order. When they drove up, Irving saw appellant reach over and "connect with a hit," meaning that appellant struck Gonzales. Irving testified that he saw Gonzales's head move "like she got hit." Appellant then turned to Irving and yelled, "what the f — you want to do?" Appellant got out of the car, slammed the door, and went inside the Taco Bell. Irving testified that appellant looked very angry, and because he felt that appellant's anger was directed at him, he decided to leave the restaurant. As Irving retreated through the back door, Hywatha Goodwill, another Taco Bell employee, saw appellant enter the restaurant and look behind the counter. Goodwill testified that appellant then left the restaurant and returned to his car, where he grabbed Gonzales, pulled her hair, put his hands behind her neck, twisted her arm, and tried to slam her to the ground. She also testified that Gonzales was crying. Goodwill did not intervene, but went back to work and did not see anything else. Patrick Adeseye testified that he arrived at the Taco Bell and saw the altercation between appellant and Gonzales. As he walked into the Taco Bell, he saw Gonzales sitting in the driver's side of the car as appellant was screaming and angrily striking the car with his fist. Adeseye then went inside the restaurant to ask if anyone had called the police. When he looked back outside, he saw that appellant had gained access to the car and had his hands on Gonzales's neck, forcibly removing her from the car. He testified that Gonzales was screaming as though she was "scared for her life" as appellant threw her to the ground. A bystander attempted to intervene. Just as an altercation began between the intervenor and appellant, the police arrived and broke it up. Officer Virgil Thomas spoke to Gonzales, who appeared emotionally distraught and excited. Gonzales told Officer Thomas that appellant was drunk. She also told him that appellant had hurt her by hitting her on the head and grabbing her neck. Officer Thomas testified that he saw marks on Gonzales's arm and the side of her neck. He also testified that Gonzales told him she was afraid of appellant and needed time to hide from him because "he don't care about protective orders or none of that stuff." However, when Gonzales testified at trial, she recanted her allegations of abuse. She testified that appellant went into the Taco Bell to make sure they got the order right. While he was inside, she began looking at the phone numbers in his cell phone, and began to suspect that he was cheating on her. When he returned, they argued as he tried to take the cell phone away from her. She then threw the phone down and broke it, and he became upset because his work contacts were on that phone. Gonzales denied that appellant ever touched her in a violent or harmful manner, or that appellant struck her, pulled her hair, forced her out of the car, or grabbed her by the neck. Gonzales denied telling Officer Thomas that appellant caused her pain by hitting her in the head; she said that she had told him she had a headache from the incident. She also denied saying that she was afraid of appellant. Gonzales testified that her visible injuries were work-related or caused by holding her son. Gonzales's mother, Elisa Carey, testified that she saw Gonzales later that day and she saw no indication that Gonzales had been assaulted. She testified that Gonzales told her that, while at a Taco Bell, she and appellant "had a struggle" over the cell phone because Gonzales was looking at it to see whom appellant had been calling. However, Gonzales did not say that appellant had hit her.Analysis of Appellant's Issues
In his first and second issues, appellant contends that the trial court erred by allowing Gonzales and Officer Thomas to testify to prior bad acts by appellant. In his third issue, appellant contends that the trial court erred by refusing to instruct the jury to disregard the prosecutor's reference to "battered wife syndrome" during his closing argument after sustaining appellant's objection to the comment. In his fourth issue, appellant contends that the evidence of bodily injury is factually insufficient to sustain his conviction. We address each of appellant's arguments below.I. Testimony of Similar Bad Acts by Appellant
In his first and second issues, appellant contends that the trial court should not have allowed Gonzales and Officer Thomas to testify concerning appellant's similar bad acts because the evidence was inadmissible evidence of conformity with character under Texas Rule of Evidence 404(b).A. The Applicable Law
Under Rule 404(b), evidence of other crimes, wrongs or acts is not admissible to prove a defendant acted in conformity with his bad character. See Tex. R. Evid. 404(b). However, such evidence may be "admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident" when it has relevance beyond character conformity. Id; Moses v. State, 105 S.W.3d 622, 626 (Tex.Crim.App. 2003). The list of exceptions under Rule 404(b) is neither mutually exclusive nor collectively exhaustive. Montgomery v. State, 810 S.W.2d 372, 388 (Tex.Crim.App. 1990). A trial court's ruling on the admissibility of such evidence is reviewed under an abuse-of-discretion standard. Id. at 391. As long as the trial court's ruling is within the zone of reasonable disagreement, there is no abuse of discretion, and the trial court's ruling will be upheld. Santellan v. State, 939 S.W.2d 155, 169 (Tex.Crim.App. 1997).B. Gonzales's Testimony
Appellant complains about the following exchange arising from the State's attempt to question Gonzales about her statement to the police, which the State argued was relevant for the purpose of impeachment:Q: [State] And, ma'am, you said in your statement that he was swinging at you, correct?
A: [Gonzales] Correct.
Q: [State] And it's true also on that day that you told the police in your statement that the defendant is violent, correct?
[Defense] I would object, Your Honor, as to the relevance and also the — to not being admissible at this time.
[The Court] Overruled.
[Defense] Any [sic] extraneous.
[The Court] Sorry I'm so hoarse. Overruled. Thank you.
Q: [State] And you also told the police that he was a threat to you and your son that day, didn't you?
A: [Gonzales] Yes.The State argues that these statements were offered for the purpose of impeaching Gonzales's testimony that appellant never touched her in a "violent, harmful manner" and "never laid a hand on [her]." Before the State began questioning Gonzales on this part of the statement, the trial court ruled that Gonzales's prior statements that appellant was violent and a threat to her and her son were relevant and admissible as prior statements inconsistent with her testimony at trial. Thus, the statements were not offered to prove that appellant was acting in conformity with character, but instead were offered and admitted to show that Gonzales changed her story between the day of the assault and the time of trial. In these circumstances, the trial court did not abuse its discretion by determining that Gonzales's prior statements were admissible for purposes of impeachment under Rule 404(b). See Whitmire v. State, 183 S.W.3d 522, 529 (Tex.App.-Houston [14th Dist.] 2006, pet. ref'd) (holding that evidence offered and admitted to impeach appellant's testimony was not inadmissible under Rule 404(b) because it was not offered to show conformity); Davis v. State, No. 05-05-01694-CR, 2007 WL 122138, at *6-7 (Tex.App.-Dallas Jan. 18, 2007, no pet.) (holding that prior inconsistent statement used to impeach witness did not violate Rule 404(b)); see also Aranda v. State, 736 S.W.2d 702, 707 (Tex.Crim.App. 1987) ("The rule of admissibility of evidence of prior inconsistent statements should be liberally construed and the trial judge should have discretion to receive any evidence which gives promise of exposing a falsehood."); Staley v. State, 888 S.W.2d 45, 49 (Tex.App.-Tyler 1994, no pet.) (holding trial court did not abuse its discretion when it admitted witnesses' video taped prior statements for purposes of impeachment). We overrule appellant's first issue.
B. Officer Thomas's Testimony
Appellant also complains about the admission of Officer Thomas's statement that Gonzales told him that appellant "does this when he is drunk, him beating up on her in the past." The exchange that led to this statement was as follows:Q: [State] Start with whatever order you want, but did she ever say anything about the defendant striking her or harming her?
A: [Thomas] Yes.
Q: [State] Tell me — tell the jury what she said.
A: [Thomas] Well, she had advised that — she was explaining that he was drunk. She said he does this when he is drunk, beating up on her in the past.Appellant objected to the testimony as "a possible prior offense that was stated for the jury to hear." The trial court sustained the objection and instructed the jury to "disregard the last portion of the witness'[s] answer and consider it for no purpose." Appellant requested a mistrial, which the trial court denied. Because the trial court sustained appellant's objection to Officer Thomas's testimony as a prior bad act or extraneous offense, we understand appellant's complaint concerning this testimony to be that the trial court erred in denying his request for a mistrial. We review the trial court's ruling on a motion for mistrial under the abuse-of-discretion standard. Webb v. State, 232 S.W.3d 109, 112 (Tex.Crim.App. 2007). We view the evidence in the light most favorable to the trial court's ruling and uphold the trial court's ruling if it was within the zone of reasonable disagreement. Id. A mistrial is appropriate only for highly prejudicial and incurable errors. Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003). A witness's inadvertent reference to an extraneous offense is generally cured by a prompt instruction to disregard. Rojas v. State, 986 S.W.2d 241, 250 (Tex.Crim.App. 1998). If a trial court instructs a jury to disregard, then we presume that the jury followed the trial court's instruction. Rodriguez v. State, No. 01-05-00589-CR, 2006 WL 2042513, at *2 (Tex.App.-Houston [1st Dist.] July 20, 2006, no pet.) (mem. op., not designated for publication). A mistrial is required only when the improper question is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). Here, the testimony from Officer Thomas was elicited inadvertently, and it was not emphasized by the State. Moreover, the trial court instructed the jury to disregard the testimony and to "consider it for no purpose." We cannot conclude that this brief statement was clearly prejudicial or so inflammatory that it would be impossible for the jury to withdraw its impression from their minds. Moreover, appellant has offered no evidence to rebut the presumption that the jury followed the trial court's instruction to disregard the testimony. See Rodriguez, 2006 WL 2042513, at *2. On this record, the trial court did not abuse its discretion by refusing to grant appellant's motion for mistrial. See id. at *1-2 (holding that trial court did not abuse its discretion in refusing to grant mistrial after instructing jury to disregard police officer's testimony that appellant's wife told him that `this was not the first time that something like this had happened, but it was the first time that it happened in front of her children"); see also Webb, 232 S.W.3d at 112; Simpson, 119 S.W.3d at 272, 274. We overrule appellant's second issue.
II. The Prosecutor's Argument
In his third issue, appellant contends that after the trial court sustained his objection to the prosecutor's reference in closing argument to "battered wife syndrome," the trial court erred by refusing to instruct the jury to disregard the statement. The State responds that the argument was not improper, and even if it was, the trial court's failure to instruct the jury to disregard it was harmless error. During the closing argument, the prosecutor was addressing the defense's position that Gonzales testified contrary to the other witnesses. He then argued the following:. . . What is the motivation to lie? Why not tell the truth?
The very reasons we talk about in voir dire. Fear, love, concern about what the consequence will be if he is found guilty of this offense. Those are all clear bias of motivation to not tell the truth. And I submit to you that those are what are in play here now. Classic battered wife syndrome. Classic I have been hit, but I'm going to deny it to save my man.The trial court sustained appellant's objection to the argument, but denied his motion to instruct the jury to disregard it. The law provides for, and presumes, a fair trial, free from improper argument by the State. Long v. State, 823 S.W.2d 259, 267 (Tex.Crim.App. 1991). Proper jury argument includes four areas: (1) summation of the evidence presented at trial; (2) reasonable deduction drawn from that evidence; (3) answer to the opposing counsel's argument; or (4) a plea for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App. 2000); LaHood v. State, 171 S.W.3d 613, 623 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). To constitute reversible error, the argument must be manifestly improper or inject new, harmful facts into the case. Jackson, 17 S.W.3d at 673-74. In examining challenges to jury argument, we consider the remark in the context in which it appears. Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App. 1988). Attorneys may draw all reasonable, fair, and legitimate inferences from the facts in evidence. Id. Matters of common knowledge may be properly incorporated into final argument without express support in the evidence. See Carter v. State, 614 S.W.2d 821, 823 (Tex.Crim.App. 1981). The prosecutor's argument, taken in context and in light of the evidence presented, is not manifestly improper. First, in the context in which the comment appears, it is evident that it was a response to opposing counsel's argument that Gonzales "was the most credible witness of all that you heard" and had "no reason, no motive to be here lying to you to try and get Ivan out of jail." Further, the argument incorporated a matter of common knowledge. As courts have noted, victims of domestic violence frequently recant their accusations or refuse to cooperate with a prosecution. See Moore v. State, 169 S.W.3d 467, 469 n. 3 (Tex.App.-Texarkana 2005, pet. ref'd); Spencer v. State, 162 S.W.3d 877, 878 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). The prosecutor's argument was also proper as a reasonable deduction from the evidence. The evidence included a police officer's testimony that Gonzales told him at the scene that appellant had assaulted her — an assault that several witnesses described in their own testimony. Despite this evidence, however, Gonzales recanted her prior statements and contradicted the testimony of the other witnesses at trial. The prosecutor's argument addressed Gonzales's reluctance to prosecute and possible motive for recanting. Accordingly, the evidence falls with the boundaries of reasonable jury argument and the trial court did not err when it refused to instruct the jury to disregard it. However, even assuming the argument was improper, any error by the trial court in failing to instruct the jury to disregard it was harmless. Appellant argues that he was harmed by the introduction of evidence outside the record and asserts that the "the better practice would have been to call a witness to testify about the battered woman's syndrome, the cycle of domestic violence, etc. so that the witness'[s] theories and their application to Appellant's case could have been tested by cross-examination." Generally, an improper comment during jury argument is considered a non-constitutional error. Martinez v. State, 17 S.W.3d 677, 692 (Tex.Crim.App. 2000). Any non-constitutional error that does not affect substantial rights must be disregarded. Tex. R. App. P. 44.2(b); Martinez, 17 S.W.3d at 692; Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998). To determine the harm of an improper jury argument, three factors are balanced: (1) the severity of the misconduct (prejudicial effect); (2) curative measures; and (3) the certainty of conviction absent the misconduct. Martinez, 17 S.W.3d at 692-93. Although there was no curative instruction, the State's comment is not of such great magnitude to cause appellant severe prejudice. The comment was brief and made only once. A reading of the record indicates that the State was responding to the defense's argument that Gonzales was the most credible witness and should be believed over all the other witnesses, and nothing in the record suggests that the prosecutor did not in good faith make a reasonable deduction from the evidence. Further, there is strong evidence to support appellant's conviction. Three eyewitnesses testified at trial that they saw appellant assault Gonzales. Substantial evidence was presented that appellant hit Gonzales, pulled her hair, twisted her arm, grabbed her by the neck, and threw her to the ground. Accordingly, we hold that even if the trial court's refusal to give the jury a curative instruction was erroneous, it was not harmful. See id.; see also Scott v. State, No. 02-04-00139-CR, 2007 WL 2460354, at *5-6 (Tex.App.-Fort Worth Aug. 31, 2007, pet. ref'd) (mem. op. on remand, not designated for publication) (holding that argument injecting new facts into case was harmless even though no curative instruction was given).
III. The Factual Sufficiency of the Evidence
In his fourth issue, appellant contends the evidence is factually insufficient to sustain a conviction because the State failed to demonstrate bodily injury.A. Standard of Review and Applicable Law
In a factual-sufficiency review, we review all of the evidence in a neutral light, favoring neither party. Garza v. State, 213 S.W.3d 338, 344 (Tex.Crim.App. 2007); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006). We ask whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the jury's verdict seems clearly wrong and manifestly unjust, or whether, considering conflicting evidence, the jury's verdict is against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414-15; Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). While we may disagree with the jury's conclusions, we must exercise appropriate deference to avoid substituting our judgment for that of the jury, particularly in matters of credibility. Drichas v. State, 175 S.W.3d 795, 799 (Tex.Crim.App. 2005). The jury found appellant guilty of the felony offense of family-violence assault, as a repeat offender. A person commits the offense of assault if the actor intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse. Tex. Penal Code Ann. § 22.01(a)(1) (Vernon Supp. 2007). "Bodily injury" is defined as "physical pain, illness, or any impairment of physical condition." Id. § 1.07(a)(8) (Vernon Supp. 2007). This definition is purposefully broad and encompasses even relatively minor physical contact so long as that contact constitutes more than mere offensive touching. Lane v. State, 763 S.W.2d 785, 786 (Tex.Crim.App. 1989); Salley v. State, 25 S.W.3d 878, 881 (Tex.App.-Houston [14th Dist.] 2000, no pet.).B. Application of Law to Facts
In support of his factual-sufficiency challenge, appellant points to Gonzales's testimony that (1) she gets "a lot of bruises and marks and scratches" from her job and that her injuries were caused by work, (2) the redness on her arm was caused by her son's moving around as she held him, and (3) her headache that day was not the result of appellant assaulting her, but instead was caused by the incident of fighting in public with appellant, who was drunk, over whether he was cheating. Appellant also points to the testimony of Gonzales's mother, Elisa Carey, who testified that she saw Gonzales that day and saw no evidence that she had been assaulted. Conversely, the State contends that the evidence is factually sufficient to prove bodily injury. The State asserts that it was the jury's task at trial to review the credibility of all the witnesses and to determine the weight to be given their testimony. By rendering a guilty verdict, the jury believed the eyewitnesses' and officer's version of events over Gonzales's testimony that her injuries were work-related or caused by holding her son. Further, the State contends that the fact that Gonzales recanted her allegations of assault does not greatly outweigh the evidence supporting the verdict. The State concludes that the evidence supporting the verdict is no so weak to as to undermine confidence in the jury's determination, nor was there any contrary evidence so strong that the standard of proof beyond a reasonable doubt could not have been met. Viewing all the evidence in a neutral light, we conclude that the evidence is factually sufficient to prove that appellant caused bodily injury to Gonzales. Cameron Irving saw appellant "connect with a hit" to Gonzales before appellant "blew up" and cursed at him. Hywatha Goodwill saw appellant grab Gonzales with his hands around her neck before grabbing her arm and twisting it behind her back as though he were trying to slam her to the ground. She also saw appellant pull Gonzales's hair. Patrick Adeseye saw appellant grab Gonzales's neck and throw her to the ground after forcibly removing her from the vehicle. Officer Thomas spoke with Gonzales shortly after the incident, and she told him that she had pain in her head from being hit in the head by appellant. Gonzales also told Officer Thomas that appellant had grabbed her around the neck, and she had visible injuries, including marks on her arm and on the side of her neck. At trial, however, Gonzales denied that any assault occurred, and stated that the injuries the officer saw were either work-related or caused by holding her son. She also stated that the pain in her head was a headache caused by the incident and not from being hit by appellant. Elisa Carey, Gonzales's mother, testified that she saw no signs of an assault on Gonzales when she saw her later that day. Thus, the jury was presented with the testimony of three eyewitnesses who testified that appellant assaulted Gonzales, and the testimony of an officer who testified that Gonzales told him that appellant hit her in the head causing her pain, and grabbed her neck. The officer also saw visible injuries on Gonzales. The jury was also presented with Gonzales's testimony recanting her earlier statements to the officer and wholly denying that appellant assaulted her, as well as her mother's testimony that she saw no signs of assault on Gonzales. Here, the jury chose to believe the three eyewitnesses and the officer over Gonzales and her mother. We are mindful that we must defer to the jury's credibility determinations to avoid substituting our judgment for theirs. See Drichas, 175 S.W.3d at 799; Watson, 204 S.W.3d at 414. The jury's decision is not manifestly unjust merely because it resolved conflicting views of the evidence in favor of the State. See Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). Accordingly, we hold that the evidence is factually sufficient to prove that appellant caused bodily injury to Gonzales, his spouse. We therefore overrule appellant's fourth issue. The trial court instructed the State concerning the use of the prior statements as follows:
Meaning that when she says he is violent, that's an inconsistent statement with what she said on the stand, that he was not violent that day. You may use it in that context. You have to be careful. Because to that extent, I think this is probative. But at some point it becomes so prejudicial that that outweighs the probative value. So, tread lightly.
Appellant also appears to suggest that the trial court further erred in failing to grant a motion for a mistrial. However, appellant did not move for a mistrial after his objections to Gonzales's testimony were overruled; therefore, he did not preserve error on this issue. See Tex. R. App. P. 33.1(a). We also note that appellant did not request a limiting instruction, and he did not object that the testimony's probative value would be substantially outweighed by the danger of unfair prejudice under Texas Rule of Evidence 403.
The only cases appellant cites in support of his first two issues are Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App. 1996), overruled on other grounds, Ex parte Lewis, 219 S.W.3d 335 (Tex.Crim.App. 2007) ("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."), and Rodriguez v. State, No. 01-05-00589-CR, 2006 WL 2042513, at *2 (Tex.App.-Houston [1st Dist.] July 20, 2006, no pet.) (mem. op., not designated for publication) (evaluating whether trial court abused its discretion in refusing motion for mistrial after extraneous offense testimony was admitted and trial court instructed jury to disregard it). In his one-paragraph argument, appellant contends that "[t]his is one of those cases in which the event is so inflammatory that it could not have been cured by an instruction to disregard" because it informed the jury that "Appellant's default setting was wife beater." However, appellant does not refer to or apply the cited cases in his argument under these issues.