Opinion
NO. 01-16-00655-CR
03-27-2018
OMENANI KAFOMDI ANENE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court Harris County, Texas
Trial Court Case No. 1480309
MEMORANDUM OPINION
A jury found appellant, Omenani Kafomdi Anene, guilty of the offense of aggravated assault of a public servant. After finding true the allegation in an enhancement paragraph that he had been previously convicted of a felony offense, the jury assessed his punishment at confinement for twenty years. In his sole issue, appellant contends that the trial court erred in admitting certain evidence during the punishment phase of trial.
See TEX. PENAL CODE ANN. § 22.02(a)(2), (b)(2)(B) (Vernon 2011).
We modify the trial court's judgment and affirm as modified.
Background
Harris County Jail ("HCJ") Detention Officer K. Nickelson, the complainant, testified that on September 1, 2015, while working at the jail as a "pod deputy," he was called to "B pod" because of an "[i]nmate disturbance." In response to the call, he went to B pod and spoke with HCJ Detention Officer V. Qualls. However, Nickelson could not recall anything that happened thereafter. He explained that the next thing that he remembered was waking up at his home the next morning, where his grandmother told him that he had been "jumped by inmates." As a result of being "jumped," Nickelson suffered a "fractured eye socket," which required surgery, and memory loss because of "head trauma." He noted that he would likely require additional surgery in the future in order to "lift[] back up" his "actual bone eye socket."
Officer Qualls testified that on September 1, 2015, while working at the HCJ, she was assigned to B pod to "oversee roughly about a hundred inmates." While working inside the B pod "picket," she could see the dayroom, i.e., the "common area" where the inmates watched television, read, "s[a]t around," and "occup[ied] their time." During Qualls's shift, a new inmate needed a "bottom bunk[]," which prompted her to request that Officer Nickelson come to B pod to assist the inmate in finding one.
Officer Qualls explained that she watched Officer Nickelson enter the B pod dayroom and proceed to the inmates' cell area "to see if there were . . . any bottom bunks available." As Nickelson then "c[a]me out of the cell . . . area," appellant "started punching him in the face" and "hitting him in the back of the head," continuously. Nickelson fell to the ground, and appellant continued "hitting him in the face." Appellant then took Nickelson's handcuffs, "opened them up," and "beat [Nickelson] in the face with the handcuffs" "while . . . standing over him." Qualls noted that she "thought that at [any] moment . . . one of [Nickelson's] eyes" would "pop out" because appellant was "hitting him . . . severe[ly]." According to Qualls, appellant caused serious bodily injury to Nickelson.
At some point, appellant stopped hitting Officer Nickelson and began walking back toward the cell area, where he received a cane from another inmate. During that time, Nickelson left the dayroom and exited B pod. Appellant then began "walking around" the dayroom, "pacing," while holding the cane, "as if he was waiting for someone [else] to come in."
Other detention officers subsequently arrived at B pod, and Officer Qualls, along with approximately ten other officers, entered the dayroom where appellant was still located, holding the cane. As the detention officers tried to restrain appellant, he "swung" the handcuffs, "punch[ed]," "kick[ed]," and "tr[ied] to use the cane." At one point, appellant struck Harris County Sheriff's Office ("HCSO") Sergeant J. Revelle with his fist.
Officer Qualls noted that prior to appellant hitting Officer Nickelson, there appeared to be no interaction between the two men and appellant appeared to strike Nickelson "out of nowhere." After the incident, Nickelson had "blood all over his face," injuries near his eye, and a swollen cheekbone. Qualls opined that the cane used by appellant was capable of causing serious bodily injury.
HCSO Deputy J. Abbott, a former HCJ detention officer, testified that on September 1, 2015, he was working at the jail as a "rover" when he was called to B pod. When he arrived, he saw Officer Nickelson "sitting on the floor against the wall," outside of B Pod, "with his face swollen with knots and lacerations and covered in blood." Nickelson had "a lot of blood covering his whole face," and Abbott believed that he had been assaulted. When Abbott then looked into the B pod dayroom, he saw appellant "in a fighting stance, holding . . . a metal cane," and "ready to strike."
Deputy Abbott further explained that he, Sergeant Revelle, and five or six detention officers subsequently entered the B pod dayroom, ordering appellant to drop the cane and get on the ground. Appellant, however, "drop[ped] back" and "start[ed] swinging the cane" at the officers. He still had Officer Nickelson's handcuffs in his hand, and he, with the cane, "jabbed" one of the detention officers in the lip, causing it to swell. As the officers "tr[ied] to gain control" of appellant, he continued to violently swing the cane and his fist, kick, and resist. At one point, Abbott saw appellant leaning over Revelle, who was on the floor, and striking him in the head, with a closed fist. Revelle's head "hit[] the concrete floor as he [was] being struck." Eventually the detention officers were able to restrain appellant and place him in handcuffs. Abbott noted that the cane used by appellant was capable of causing serious bodily injury.
Sergeant Revelle testified that he sustained a concussion and was diagnosed with "postconcussion syndrome," from which he still suffers.
Standard of Review
We review a trial court's decision to admit evidence for an abuse of discretion. See Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). When considering a trial court's decision to admit evidence, we will not reverse the trial court's ruling unless it falls outside the "zone of reasonable disagreement." Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996) (internal quotations omitted). We will uphold a trial court's evidentiary ruling if it is correct on any theory of law applicable to that ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
Admission of Evidence
In his sole issue, appellant argues that the trial court erred in admitting into evidence, during the punishment phase of trial, State's Exhibit 26, "an inmate offense report and Disciplinary Committee Hearing and Determination Report generated by the Harris County Jail" because "offense reports are not admissible" under the "business records exception to the hearsay rule" and "[t]he erroneous admission of [State's Exhibit 26] was highly damaging" and "violat[ed] . . . [his] Sixth Amendment right to confront the witnesses against him." See U.S. CONST. amend. VI; TEX. R. EVID. 802, 803(6). In response, the State argues that appellant has not preserved his complaint because "after the State tendered State's Exhibit 26 to appellant for inspection, [he] reviewed the document and stated 'no objection.'"
The Confrontation Clause bars the admission of testimonial statements of a witness who does not appear at trial unless that witness is unavailable and the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369 (2004); Russeau v. State, 171 S.W.3d 871, 880 (Tex. Crim. App. 2005); see also Dixon v. State, 244 S.W.3d 472, 482-83 (Tex. App.—Houston [14th Dist.] 2007, pet ref'd) (Confrontation Clause applies during punishment phase of trial). However, Confrontation Clause claims are subject to the preservation requirement of a timely and specific objection to the complained-of evidence. Davis v. State, 313 S.W.3d 317, 347 (Tex. Crim. App. 2010); Reyna v. State, 168 S.W.3d 173, 179-80 (Tex. Crim. App. 2005); Smith v. State, 420 S.W.3d 207, 222-23 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd).
"Hearsay" is an out-of-court statement that is offered in evidence to prove the truth of the matter asserted in the statement. TEX. R. EVID. 801(d). Hearsay is generally not admissible except where allowed by statute or rule. TEX. R. EVID. 802. A complaint that the trial court erred in admitting evidence containing hearsay must be preserved. See TEX. R. APP. P. 33.1(a); Swanner v. State, 499 S.W.3d 916, 918 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (error not preserved where defendant "did not object to the admission of the evidence on the basis of hearsay"); see also Anguiano v. State, No. 01-16-00592-CR, 2017 WL 2871791, at *2-3 (Tex. App.—Houston [1st Dist.] July 6, 2017, pet. ref'd) (mem. op., not designated for publication).
During the punishment phase of trial, HCSO Sergeant A. Ortiz, a "floor supervisor" at HCJ, testified about a search of appellant's cell that resulted in the discovery of contraband. Prior to Ortiz's testimony, the following discussion occurred about her forthcoming testimony and State's Exhibit 26:
On appeal, appellant does not contend that the trial court erred in admitting Sergeant Ortiz's testimony.
[The State]: Judge, if not this witness, the next witness, [Sergeant] Ortiz, I plan on discussing some of the disciplinary conduct for [appellant] while inside Harris County jail. She's a sergeant with Harris County jail. I have on file with the business record affidavit and a copy of which was given to [appellant's] counsel of the entire record of his disciplinary records. I have selected just one incident from that business record affidavit that I would like to submit into evidence.
Ortiz was the sergeant on duty who is responsible for assigning who searches cells and those individuals searched the cell of [appellant] and found two shanks and a razor blade. She will say that as the approving supervisor they have to bring her the shanks and razor blades to the supervisor. She does not know whether or not she personally went into the cell or was it they brought her -- well, would only have done that if she approved it out of having seen the shanks and razor blade. So, that's what I would like to offer into evidence.
THE COURT: So, there are two things then. You're offering a portion of the business records that have been on file with the Court for the requisite amount of time, correct?
[The State]: Correct.
THE COURT: In the form of an exhibit?
[The State]: Correct.
THE COURT: And you have live testimony with regards to the incident that is the subject of entry in the business record?
[The State]: That is correct.
[Appellant's counsel]: First part of my response is that the entry that [the State] -- to which [the State] refers is a report used for law enforcement purposes. So, it doesn't meet the business record exception under 806. It's specifically excluded.
THE COURT: It is excluded except for -- my understanding is it's jail records, correct?
[Appellant's counsel]: It's jail records from the detention officers who are stating things that they found in [appellant's] cell.
THE COURT: Okay.
[Appellant's counsel]: So, I guess my first objection is it's still hearsay because it's an out-of-court statement offered for the truth of the matter asserted. Their exception is 806 [sic]. The copy of the affidavit that I have received was signed August 4th of last week. August 4th was just last Thursday, which was eight days ago. . . .
. . . .
[Appellant's counsel]: And my point in that would be these records could not have been on file before the affidavit was signed.
[The State]: As the Court and I'm sure [appellant's] counsel knows, the records themselves no longer have to be on file, but they have to -- has to be served a copy; and the notice which has to be on file, that was done.
[Appellant's counsel]: My response would be you can't give notice of something that does not yet exist. This was not in existence until August 4th. I do have additional objections if you want me to get into those?
THE COURT: Sure.
[Appellant's counsel]: I also would object to, as [the State] just proffered to the Court, [that] Sergeant Ortiz, does not remember if she saw these events herself.
THE COURT: All right. You'll have an opportunity to cross-examine the witness. I'm going to allow her to testify. I heard the objections . . . .
[Appellant's counsel]: So, what she then has to do is everything she's testifying to she's relying on somebody else's statement, so it's hearsay within hearsay. We also have a confrontation clause under Smith v. State[,] 420 S.W.3d 207, I believe. It's a First Court of Appeals case that came out of the 179th. . . . Some jail disciplinary were allowed over objections. The First Court of Appeals reversed that portion because they were improperly allowed for the records to come in. And if these people who actually searched the cell are not here and she can't testify as to whether she personally observed it or not --
THE COURT: I'm going to allow her to testify to her personal observations.
[Appellant's counsel]: Okay.
THE COURT: Any specific objections that you have you can certainly make then while she's testifying.
[Appellant's counsel]: Thank you, Judge.
THE COURT: But she's going to be allowed to testify.
[Appellant's counsel]: Okay. Thank you.
Subsequently, during Sergeant Ortiz's testimony, the State sought to admit into evidence State's Exhibit 26, as follows:
[The State]: Your Honor, at this time offer into evidence State's Exhibit 26, a part of a larger business record affidavit that has -- notice has been on file since June, tender to opposing Counsel for any objections?(Emphasis added.)
(State's Exhibit No. 26 offered.)
[Appellant's counsel]: May I briefly review, Judge?
THE COURT: Yes.
[Appellant's counsel]: No objection, Your Honor.
THE COURT: State's Exhibit No. 26 is admitted without objection.
To preserve a complaint for appellate review, a defendant must show that he made his complaint to the trial court by a timely and specific request, objection, or motion and the trial court either ruled on the defendant's request, objection, or motion, or refused to rule, and the defendant objected to that refusal. TEX. R. APP. P. 33.1(a); Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007); Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003). The rationale of rule 33.1 is that if an objection is raised before the trial court as soon as error becomes foreseeable, it may be addressed and the error possibly corrected or avoided. Moore v. State, 295 S.W.3d 329, 333 (Tex. Crim. App. 2009). Almost all error, even constitutional error, may be waived by a defendant's failure to object at trial. Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008).
Here, prior to Sergeant Ortiz's testimony, appellant objected to the admission of State's Exhibit 26 on the grounds that the exhibit contained hearsay and violated his Sixth Amendment right to confrontation. However, the record does not indicate that the trial court ruled on appellant's objections to State's Exhibit 26; instead, the trial court stated, in regard to appellant's objections: "Any specific objections that you have you can certainly make them while [Ortiz is] testifying." See TEX. R. APP. P. 33.1(a); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011); see also Diamond v. State, 496 S.W.3d 124, 148 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd) (defendant did not preserve error through his objection where trial court did not rule on objection).
Further, during Sergeant Ortiz's testimony, when the State sought to admit State's Exhibit 26 into evidence, appellant's counsel, after reviewing the exhibit, stated: "No objection." The trial court then admitted State's Exhibit 26 "without objection." See TEX. R. APP. P. 33.1(a); Moody v. State, 827 S.W.2d 875, 889 (Tex. Crim. App. 1992); see, e.g., Alvarado-Gutierrez v. State, No. 01-16-00756-CR, 2017 WL 4413948, at *6 (Tex. App.—Houston [1st Dist.] Oct. 5, 2017, pet. ref'd) (mem. op., not designated for publication) ("When a defendant affirmatively states that he has 'no objection' at trial to the admission of the complained-of evidence, he waives any error in the admission of the evidence.").
Moreover, to the extent that appellant did preserve error by initially objecting to State's Exhibit 26 prior to Sergeant Ortiz's testimony, despite the fact that the trial court did not rule on his objections, appellant's subsequent statement of "[n]o objection" would have constituted an abandonment of any claim of error about State's Exhibit 26 that had been previously preserved. See Thomas v. State, 408 S.W.3d 877, 885-86 (Tex. Crim. App. 2013); see, e.g., Bustos v. State, No. 05-15-00809-CR, 2016 WL 1385732, at *2-3 (Tex. App.—Dallas Apr. 6, 2016, no pet.) (mem. op., not designated for publication) ("Because [defendant] specifically stated he had 'no objection' to the admission of the State's evidence, and because our review of the entire record does not plainly indicate an intention not to abandon the previous claim of error, we conclude his issues have not been preserved for review.").
Accordingly, we hold that appellant has not preserved for appellate review his complaint that the trial court erred in admitting into evidence, during the punishment phase of trial, State's Exhibit 26, "an inmate offense report and Disciplinary Committee Hearing and Determination Report generated by the Harris County Jail."
Modification of Judgment
We note that the trial court's written judgment does not accurately comport with the record in this case in that it states "N/A," meaning "not applicable," in regard to appellant's "[p]lea to 1st [e]nhancement [p]aragraph" and the jury's "[f]indings on 1st [e]nhancement [p]aragraph." See Dromgoole v. State, 470 S.W.3d 204, 226-27 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd) (judgment incorrectly reflected trial court's finding on enhancement paragraph was "n/a," meaning "not applicable" (internal quotations omitted)).
The record reveals that appellant actually pleaded "[n]ot true" to the allegation in the first enhancement paragraph that he had been previously convicted of a felony offense, and the jury found the allegation in the first enhancement paragraph to be "true."
"[A]ppellate court[s] ha[ve] the power to correct and reform a trial court judgment 'to make the record speak the truth when [they] ha[ve] the necessary data and information to do so, or make any appropriate order as the law and nature of the case may require.'" Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet ref'd)). Although neither party addresses the inconsistency between the trial court's written judgment and the record in this case, we, based on our review, conclude that the portion of the judgment regarding appellant's plea to the allegation in the first enhancement paragraph and the jury's finding as to the first enhancement paragraph do not accurately comport with the record. See Asberry, 813 S.W.2d at 529-30 (authority to correct incorrect judgment not dependent upon request of any party).
Accordingly, we modify the trial court's judgment to reflect that appellant pleaded "[n]ot true" to the "1st [e]nhancement [p]aragraph" and the jury found the allegation in the "1st [e]nhancement [p]aragraph" to be "true." See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Torres v. State, 391 S.W.3d 179, 185 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) (modifying judgment to reflect defendant pleaded "true" to allegations in enhancement paragraphs).
Conclusion
We affirm the judgment of the trial court as modified.
Terry Jennings
Justice Panel consists of Justices Jennings, Massengale, and Caughey. Do not publish. TEX. R. APP. P. 47.2(b).