Opinion
NO. 01-14-00849-CR
05-03-2016
ALICIA CORREA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 4 Harris County, Texas
Trial Court Case No. 1922160
MEMORANDUM OPINION
Appellant Alicia Correa was convicted by a jury for the Class A misdemeanor offense of assault by causing bodily injury. The trial court assessed punishment at one-year's confinement, suspended that sentence, and placed appellant on community supervision for 18 months. On appeal, appellant contends that the trial court erred in (1) limiting admission of evidence demonstrating complainant's bias against appellant and her family, (2) allowing the State to cross-examine a defense witness regarding the fact that the witness first told her exculpatory version of events at trial, and (3) denying her motion for a mistrial following purportedly improper closing argument from the State. We affirm.
Background
Appellant was charged with assault following a physical altercation with Anna Ponce, the complainant, on October 3, 2013. The altercation occurred outside the complainant's father-in-law's home, which is next door to appellant's grandparents' home. At trial, the jury heard testimony from a responding officer, complainant, appellant, and several family members.
Complainant's Testimony
Complainant testified that around 4:00 p.m. on October 3, 2013, she was driving her children home from school when she saw appellant walking with her younger brother. According to complainant, appellant was standing at an intersection, waved complainant through the intersection, and yelled, "go, bitch, go." When complainant began driving through the intersection, appellant walked in front of and hit her car and said "Stupid bitch. You almost hit me, you stupid bitch." Appellant continued walking and complainant proceeded to drive her children home.
Complainant testified that, after dropping her children at home, she went to her father-in-law's home to talk with him about appellant's behavior in the hope that he might in turn talk with appellant's grandparents, his next-door neighbors. While complainant was talking with her father-in-law outside his home, appellant walked past yelling profanities and questioning complainant about why she would not fight appellant's mother or aunt. Complainant testified that, as she started to leave, appellant approached, punched her in the face, and grabbed her hair with both hands. Complainant grabbed appellant's hair, and the two struggled. Complainant recounted appellant kicking her and scratching at her face, "try[ing] to gouge at [her] eye." Complainant testified that, when she fell to her knees, appellant dragged her by her hair.
Complainant testified that her father-in-law and niece were eventually able to pull appellant away from complainant. As complainant was dusting herself off, appellant's aunt, Amanda Correa, arrived. Complainant testified that she heard appellant say to her approaching aunt, "I got her for you, I got her for you." She also recounted hearing appellant's aunt saying that she was going to kill complainant. Once inside, complainant called 911 to report the assault. The recorded call was played for the jury.
Officer Cristerna's Testimony
Officers Rudd and Cristerna with the Houston Police Department ("HPD") responded to the 911 call. Officer Cristerna testified that the scene was chaotic when they arrived, with people screaming and yelling. He explained that it was necessary to isolate certain people and to contain members of complainant's family who were a "little bit irate." Though his testimony acknowledged that there were a number of people at the scene, Officer Cristerna's report of the incident identified no witnesses.
Officer Cristerna testified that no injuries were observed on appellant. However, he did observe that her hands and knuckles were red and that her hair was "a little bit messy." He opined that, based on his training and experience, appellant's red hands indicated that "she was using her hands to assault." During cross-examination, Officer Cristerna testified that he did not recall whether appellant was wearing long pants at the time and had no recollection of asking her whether she had injuries on her legs or asking her to pull up her pant legs.
Officer Cristerna testified that he observed scratches and bruises on complainant, including scratches above and around complainant's eyes and a scraped up knee. He further observed a "big knot" on complainant's forehead that started to swell as he interviewed her. Officer Cristerna did not take any photographs at the scene, but at trial, he identified photographs of complainant's injuries taken sometime later as consistent with each physical injury he observed at the scene.
Officer Cristerna testified that although complainant and appellant offered conflicting statements at the scene "it was clear that the complainant was assaulted by the [appellant], and the [appellant] didn't show many signs of being dragged or hit or -- she had a little -- no signs." Having concluded that appellant was "more the wrongdoer," the responding officers took her into custody.
Epifanio Ponce's Testimony
Epifanio Ponce, complainant's father-in-law, testified that he was at his home the day of the incident and witnessed the altercation. He testified that complainant had just arrived when appellant approached and said, without provocation, "Hi, bitch." He then watched appellant grab complainant by her hair with both hands and drag her behind the car. He testified that he saw appellant hitting complainant's face on the floor, and he tried to separate the two women.
Epifanio testified that Amanda Correa, appellant's aunt, came to his fenceline afterwards, asked who had hit appellant, and said that she would kill complainant if anything happened to appellant.
Epifanio testified that he saw scratches on complainant's face after the altercation. He also testified that the photographic evidence of complainant's injuries was consistent with what he saw that day.
Appellant's Testimony
Appellant testified on her own behalf. Appellant testified that, on October 3, 2013, she had picked up her brother from school and was walking him to her grandmother's house when complainant drove by. According to appellant, complainant rolled down her window and started insulting appellant, and appellant responded in kind. Appellant testified she continued walking, and complainant "threw her car" at appellant in a crosswalk. Appellant denied complainant's statement that appellant had waved her through the crosswalk and then stepped into the path of her car.
Appellant testified that by the time she was approaching her grandmother's house, complainant was outside next door talking with Epifanio. Appellant explained:
And they were, like, having a conversation. They were looking straight at me. She continued insulting me; I insulted her, as well. And she grabbed my hair and, you know; and we were both on the ground.Appellant denied complainant's statement that appellant initiated the altercation and testified that it was complainant who grabbed appellant's hair first. According to appellant, appellant and complainant were on the ground and appellant tried to protect herself as complainant grabbed her hair and unsuccessfully tried punching her while appellant blocked the punches with her hands. Appellant testified that she never dragged, hit, punched, scratched, or kicked complainant and that Epifanio was holding her as he tried to make the two let go of one another's hair.
Appellant testified that she called 911 to report the incident, but that call was not admitted into evidence. Appellant testified that she took photographs of bruises on her legs the following day after being released from jail. According to appellant, she did not have the bruises prior to the incident with complainant and was not injured at any point while in custody.
Amanda Correa's Testimony
Amanda Correa, appellant's aunt, also testified. Amanda explained that she has had past problems with complainant for "years and years." Amanda testified that she went to her parent's house that afternoon, and upon arriving, saw Epifanio Ponce holding appellant by the hair while complainant assaulted her. She immediately parked and got out of her truck, and as she did so, complainant ran inside. She testified that she asked Epifanio to release appellant, and that Epifanio released appellant roughly 30 seconds later. Amanda denied threatening complainant, and testified that complainant verbally threatened her following the assault.
Amanda Correa left before the police arrived at the scene. She was never subsequently contacted by the police nor did she contact the police to recount the events she witnessed.
Evidentiary Issues
In her first and second issues, appellant complains of the trial court's evidentiary rulings: (1) limiting cross-examination of complainant with respect to her bias against appellant and her family; and (2) allowing the State to cross-examine Amanda Correa about whether she had reported her account of the incident to the police before she testified at trial.
A. Standard of Review
We review a decision to admit or exclude evidence for an abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010) (citing Green v. State, 934 S.W.2d 92, 104 (Tex. Crim. App. 1996)). A trial court abuses its discretion only if its decision is "so clearly wrong as to lie outside the zone within which reasonable people might disagree." Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008) (citing Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003)). In contrast, a trial court does not abuse its discretion if any evidence supports its decision. Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002) (citations omitted). We uphold a trial court's evidentiary ruling if it was correct on any theory of law applicable to the case. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009) (citing Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App. 1982)).
B. Extrinsic Evidence of Complainant's Bias
In her first issue, appellant challenges, as violative of her Sixth Amendment right to confrontation, the trial court's exclusion of evidence that complainant allegedly (1) flattened the tires on Amanda Correa's car 15 years before the assault, (2) sent an insulting letter to appellant's mother eight months before the assault, and (3) blocked appellant's mother from driving in the street a year before the assault.
1. Applicable Law
"The Sixth Amendment right to confront witnesses includes the right to cross-examine witnesses to attack their general credibility or to show their possible bias, self-interest, or motives in testifying." Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009) (citing Davis v. Alabama, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110 (1974)). The Texas Rules of Evidence generally allow a defendant to "cross-examine a witness for his purported bias, interest, and motive without undue limitation or arbitrary prohibition." Id. at 563; see also TEX. R. EVID. 613(b); Billodeau v. State, 277 S.W.3d 34, 42 (Tex. Crim. App. 2009) ("The possible animus, motive, or ill will of a prosecution witness who testifies against the defendant is never a collateral or irrelevant inquiry, and the defendant is entitled, subject to reasonable restrictions, to show any relevant fact that might tend to establish ill feeling, bias, motive, interest, or animus on the part of any witness testifying against him."); Carpenter v. State, 979 S.W.2d 633, 634 (Tex. Crim. App. 1998) ("Exposing a witness' motivation to testify for or against the accused or the State is a proper and important purpose of cross-examination."). "A defendant is entitled to pursue all avenues of cross-examination reasonably calculated to expose a motive, bias or interest for the witness to testify." Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996).
This is not to say that every possible line of questioning may be developed on cross-examination. Smith v. State, 352 S.W.3d 55, 64 (Tex. App.—Fort Worth 2011, no pet.) (citing Walker v. State, 300 S.W.3d 836, 844 (Tex. App.—Fort Worth 2009, pet. ref'd)). Rather, "the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294 (1985). "[T]rial judges retain wide latitude . . . to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435 (1986); Hammer, 296 S.W.3d at 561 ("This right is not unqualified, however; the trial judge has wide discretion in limiting the scope and extent of cross-examination."); Recer v. State, 821 S.W.2d 715, 717 (Tex. App.—Houston [14th Dist.] 1991, no pet.) ("[T]he trial court has considerable discretion in determining how and when bias may be proved, and what collateral evidence is material for that purpose." (citing Green v. State, 676 S.W.2d 359, 363 (Tex. Crim. App. 1984))). Such limitations do "not violate the accused's right to confront a witness so long as (1) the possible bias and motive of the State's witness is clear to the trier of fact and (2) the accused has otherwise been afforded an opportunity for a thorough and effective cross-examination." Stults v. State, 23 S.W.3d 198, 204 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd).
Under the Texas Rules of Evidence, a witness may be cross-examined on specific instances of conduct when used to establish the witness's specific bias, self-interest, or motive for testifying. TEX. R. EVID. 613(b). Under Rule 613(b), the opponent must first cross-examine the witness as to the circumstances surrounding the bias, interest, or motive. Id. Only if the witness denies the circumstances or the motive may the proponent then introduce extrinsic evidence to prove the motive or bias. Id.
2. Analysis
Defense counsel attempted to establish the complainant's bias against appellant's family by adducing examples of past altercations between the two families during cross-examination. Defense counsel questioned complainant: "You went to where Amanda Correa was working in downtown Houston and flattened her tires, correct?" The State objected on relevance and improper impeachment grounds. Defense counsel argued that the question was relevant to show complainant's bias against appellant and her family and to answer the question of who was the first aggressor. The trial court sustained the objection, explaining that specific events removed in time from the instant assault would not be permitted, though defense counsel would be afforded leeway to generally discuss past problems between the families.
Next defense counsel asked whether complainant had sent "anonymous letters to members of the [Correa] family, insulting them, calling them names, making --." The State objected, and the trial court allowed defense counsel to ask, "have you sent anonymous letters to [the Correa family]." Complainant responded, "no." Defense counsel later asked whether complainant had "ever blocked one of the [Correas] in the middle of the street with your vehicle." Complainant responded, "no." The trial court prohibited appellant from offering extrinsic impeachment evidence from other witnesses regarding these events.
Afforded an opportunity to do so, defense counsel would have introduced testimony from a family member of appellant to prove her receipt of the anonymous letter and the suspected sender. Defense counsel further would have presented testimony and photographs about an occasion when complainant and her husband blocked the same family member's vehicle on a public street. --------
On appeal, appellant contends that the trial court abused its discretion in limiting defense counsel's cross-examination of complainant in this way. In support, appellant directs our attention to Montemayor v. State, 543 S.W.2d 93 (Tex. Crim. App. 1976), overruled by Bates v. State, 587 S.W.2d 121, 143 (Tex. Crim. App. 1979), and Ballew v. State, 125 S.W.2d 295 (Tex. Crim. App. 1939). The holding relied upon from Montemayor—that "when a witness in a criminal case testifies about a specific fact or event, and that fact or event is more than a very minor detail of his testimony, then the opposing side may present evidence to rebut the testimony"—has been expressly overruled. Bates, 587 S.W.2d at 143 ("We have concluded that Montemayor . . . [was] not correctly decided. . . . The holding in Montemayor . . . that the defendant should have been permitted to elicit testimony on a collateral matter during cross-examination of a State witness and subsequently impeach that testimony through a different witness, is contrary to the well-established rule in this and other jurisdictions."). In Ballew, the Court of Criminal Appeals held that the trial court had erred in not allowing a witness to testify concerning statements made by another witness a week to ten days after the incident at issue. Ballew, 125 S.W.2d at 383-84. Ballew was decided in 1939—decades before the first codification of the Texas Rules of Evidence—and appears not to have been cited by any courts in the interim. We do not find either case instructive.
Texas Rule of Evidence 613(b) permits cross-examination about specific instances of conduct when used to establish bias, self-interest, or motive for testifying. TEX. R. EVID. 613(b). If the witness denies the circumstances or the motive when cross-examined, the opponent may introduce extrinsic evidence to prove the motive or bias. Id.; see also Hammer v. State, 296 S.W.3d 555, 563 (Tex. Crim. App. 2009). "However, the trial court has considerable discretion in determining how and when bias may be proved, and what collateral evidence is material for that purpose." Recer v. State, 821 S.W.3d at 717 (citing Green v. State, 676 S.W.2d 359, 363 (Tex. Crim. App. 1984). It is not error for a trial court to reasonably limit the introduction of cumulative evidence regarding collateral issues so long as the possible bias and motive of the State's witness is clear to the trier of fact and the accused is otherwise afforded an opportunity for a thorough and effective cross examination. See Stults, 23 S.W.3d at 204-05; Recer, 821 S.W.2d at 717.
Here, defense counsel was permitted to develop testimony from complainant and other witnesses demonstrating complainant's dislike of appellant and her family. Multiple witnesses consistently testified to the existence of longstanding animosity between appellant's and complainant's families. Defense counsel highlighted this animosity in closing argument: "what [appellant], what her family has been put through by [complainant] is a real life nightmare. . . [that] has been going on for over a decade." (3 R.R. 95-95). Thus, the possible motive or bias of complainant was made clear to the jury. See Stults, 23 S.W.3d at 204-05; Recer, 821 S.W.2d at 717. We further conclude that the trial court afforded the defense an opportunity for a thorough and effective cross-examination of the complainant. In limiting cross-examination of complainant by disallowing further questions on specific instances of conduct well removed in time from the instant assault, the trial court reasonably could have determined that such evidence would have been unduly time-consuming and cumulative. Accordingly, we conclude that the trial court did not abuse its discretion in excluding evidence regarding the details of collateral matters, including the flattened tires, anonymous letter, and driving incident. See Stults, 23 S.W.3d at 204-05.
We overrule appellant's first issue.
C. Cross-Examination of Amanda
In her second issue, appellant contends that the trial court erred in allowing the State to cross-examine Amanda, appellant's aunt, about whether she reported her account of the incident to authorities before she testified at trial.
Amanda testified as a witness for the defense. In essence, she testified that complainant was the aggressor and was assaulting appellant while Epifanio restrained appellant. During cross-examination, the State attempted to show that Amanda's recitation of the facts was untrue by, among other things, asking whether Amanda ever called the District Attorney to report matters she testified to during trial. Defense counsel objected and this exchange occurred:
Defense: Judge, it's not relevant to this lawsuit that this witness is facing charges by the DA's office. However, I think that if they are going into the question of why didn't you call the DA's office to tell them that you had seen this, then that's going to get into the point of why weren't you talking to the opposing party in a lawsuit while the case was pending. I think it's going to open an incredible can of worms and I think, therefore, the State is not going to meet any kind of balancing test and we would object to them trying to say, well, she's not believable because she didn't talk to the prosecutor about this.
State: If I can explain, Your Honor, to talk to the State about this particular case has no implications about her own case. And the State's only objective is to show that today, one year later, is the first time that anybody has heard this story. No police officer, no State --
Court: I will allow you to ask if she has ever told this story to the officials.
State: Okay.
Court: Because, I mean, she didn't wait and tell the police that. She could've waited and told the police that, and she didn't But coming does to the DA's, doing that --
State: Okay.
Court: I would say this is the first time you've told this story in 12 months. That part, I will allow. (3 R.R. 49-50).
The State later asked: "You did not tell anyone your version of events until today?" (3 R.R. 51). Amanda answered that she "told everybody about it," but did not tell the police. (3 R.R. 51).
Simply by testifying, a witness places her credibility in issue, and is thus subject to cross-examination concerning her credibility. See TEX. R. EVID. 611(b) ("A witness may be cross-examined on any relevant matter, including credibility."). Cross-examination of a witness may expressly or impliedly charge a witness of recent fabrication. See Hammons v. State, 239 S.W.3d 798, 806 (Tex. Crim. App. 2007). In such instances, a witness's prior consistent statement, which would ordinarily be inadmissible hearsay, becomes admissible "to rebut an express or implied charge against the declarant of recent fabrication." TEX. R. EVID. 813(e)(1)(B). Here, the State's cross-examination permissibly implied that Amanda's recounting of events was a recent fabrication because she had not previously relayed her exculpatory account to the authorities. After the State charged Amanda of recent fabrication, defense counsel would have been permitted to introduce evidence to rebut the State's charge. See TEX. R. EVID. 813(e)(1)(B). Defense counsel made a strategic decision not to rebut the State's charge of recent fabrication with evidence that Amanda did not talk to authorities due to her own pending criminal charge. That left the recent fabrication charge unrebutted, but it was not an abuse of discretion for the trial court to permit the State to expressly or impliedly charge a defense witness of recent fabrication as contemplated by Rule 813.
We overrule appellant's second issue.
Motion for Mistrial
In her third issue, appellant argues that the trial court erred in denying her motion for a mistrial during the State's closing argument, because the prosecutor made an improper comment on appellant's post-arrest silence.
A. Standard of Review and Applicable Law
A trial court's denial of a motion for a new trial is reviewed for abuse of discretion. Ocon v. State, 284 S.W.3d 880, 884-85 (Tex. Crim. App. 2009). An appellate court views the evidence in the light most favorable to the trial court's ruling, considering only those arguments before the court at the time of the ruling. Id. (citing Wead v. State, 120 S.W.3d 126, 129 (Tex. Crim. App. 2004)). The ruling must be upheld if within the zone of reasonable disagreement. Id.
"Because it is an extreme remedy, a mistrial should be granted 'only when residual prejudice remains' after less drastic alternatives are explored." Ocon, 284 S.W.3d at 884-85) (citing Barnett v. State, 161 S.W.3d 128, 134 (Tex. Crim. App. 2005)). "Less drastic alternatives include instructing the jury 'to consider as evidence only the testimony and exhibits admitted through witnesses on the stand,' and questioning the jury 'about the extent of any prejudice,' if instructions alone do not sufficiently cure the problem." Id. (citing Arizona v. Washington, 434 U.S. 497, 521-22, 98 S. Ct. 824 (1978) (White, J., dissenting)).
B. Analysis
Appellant contends that the trial court erred in denying a mistrial after the following comment by the State during closing argument:
State: And not only did you hear from Ms. Ponce herself, you heard from Officer Carlos Cristerna. Officer Cristerna, among other people, is the one completely neutral witness. I think we can all agree on that. Officer Cristerna, off working for HPD, is the one neutral witness who testified before you today. Had nothing to gain, had nothing to lose. He took the stand and simply told you what he observed and what he did. And what did he observe? He observed injuries on the defendant, he observed the redness on her knuckles, he observed the complainant to be injured, and he observed the defendant to not be having any problems.
They talk about, well, did the officer do this, did the officer do that? Never at any point did the defendant complain of injuries, never did the defendant -
Defense: Judge, I'll object.
Commenting on her post-arrest silence.
State: Brief response, Your Honor?
Court: Please.
State: This was all during -- before the arrest when the officer was conducting his investigation.
Defense: Judge, he said never did she complain.
Court: During his investigation, that he knows; and keep it to that.
But, again, ladies and gentleman, understand this is closing arguments. The evidence is before you, and whatever these attorneys say is not evidence.Appellant maintains that the trial judge's comments and instruction to disregard the State's comment were insufficient to remove the taint of the State's comment on appellant's post-arrest silence. We disagree.
Now proceed.
Defense: Ask that the jury be instructed to disregard the last statement from [the State].
Court: Disregard the last statement in regards to completely. But during his investigations, I'll allow.
You may proceed.
Defense: Request a mistrial.
Court: Denied.
State: During the investigation, at no point were those statements made. . . . (3 R.R. 106-08)
"The rule has been stated that prompt action of a trial judge in directing the jury to disregard improper argument will obviate a reversal except in extreme cases where the argument injected new facts of an obviously harmful nature, or where the language was so inflammatory in character that its harmful effect could not be remedied by withdrawal." Pimentel v. State, 710 S.W.2d 764, 775 (Tex. App.—San Antonio 1986, pet. ref'd). Here, read in context, the State's comment in closing reasonably could have been understood to point out appellant's failure to mention possible injury to her legs to Officer Cristerna at the scene. Moreover, the trial judge promptly reminded the jurors that closing argument is not evidence and instructed the jury to disregard the State's comment. In resuming argument, that State expressly cabined its comments to relate to the officer's investigation. Given the nature of the statement complained of and the trial judge's prompt response, we conclude that resort to the extraordinary remedy of a new trial was not necessary and the trial judge did not abuse his discretion in denying appellant's motion for a mistrial. See Ocon, 284 S.W.3d at 884-85 (explaining that mistrial is only an appropriate remedy in extreme circumstances for a narrow class of highly prejudicial and incurable errors).
We overrule appellant's third issue.
Conclusion
We affirm the trial court's judgment.
Rebeca Huddle
Justice Panel consists of Justices Jennings, Massengale, and Huddle. Do not publish. TEX. R. APP. P. 47.2(b).