Edwards v. State

Full title: ARTHUR RAY EDWARDS, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Apr 27, 2009

No. 05-08-00489-CR (Tex. App. Apr. 27, 2009)

Opinion

No. 05-08-00489-CR

Opinion Filed April 27, 2009. DO NOT PUBLISH Tex. R. App. P. 47.

On Appeal from the 283rd Judicial District Court Dallas County, Texas, Trial Court Cause No. F07-55417-T.

Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.

MEMORANDUM OPINION

ELIZABETH LANG-MIERS, Justice.

The State indicted Arthur Ray Edwards on two cases of aggravated assault with a deadly weapon allegedly committed against his wife on July 19, 2007 and July 31, 2007. The jury acquitted appellant on the first case and convicted him on the second case. The trial court set punishment, enhanced by two prior felony convictions, at 45 years in prison. Appellant raises seven issues on appeal complaining about rulings on evidentiary matters and motions for mistrial, the jury charge, factual insufficiency, and cumulative error. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm.

Background

Appellant was convicted of assaulting his wife, Mary Edwards, with a meat cleaver. Edwards testified that she and appellant had been married for 14 years and that she had four children, none of whom were fathered by appellant. She and her daughter, Raven Gray, who was 18 years old at the time of trial, lived with appellant. On July 19, 2007, Edwards told appellant that she wanted a divorce. Edwards testified that appellant became angry, they argued, and appellant held a small steak knife to her throat and told her he would kill her before he would allow her to divorce him. That night and the next day, appellant did not allow Edwards to leave or contact anyone. Two days later, appellant went to work. After he left, Edwards packed appellant's things into his vehicle and moved it across the street. She and Gray boarded up the windows of the apartment, which was in Edwards's name only, and changed the locks. Edwards told Gray that they were leaving and that she was going to get away from appellant "because of what was going on." She and Gray packed their things and took a bus to a friend's house. Edwards learned that her apartment had been broken into three different times after she moved out. She went back to the apartment several times to talk to the maintenance department, but never stayed the night. However, about ten days after she moved out, Edwards and Gray returned to the apartment complex for a mandatory resident council meeting (Edwards was a member of the council) and stayed with the next-door neighbor. The next day, July 31, 2007, Edwards and Gray went to Edwards's apartment to retrieve Edwards's hair mousse. Edwards took a cordless telephone with her. When they entered the apartment, Edwards told Gray to lock the door. As Gray turned to do so, she saw appellant standing inside and screamed, "Mama, he's here. He's here." Edwards asked Gray what she meant, and Gray said, "Mama, turn around. He's here." When Edwards saw appellant in the apartment, she turned her back on him, walked into the kitchen, and dialed 9-1-1. Appellant told her to put the telephone down, but she refused, and as she turned to face him, she saw him standing over her with a meat cleaver. He began swinging the meat cleaver at her and she raised her arms to protect her head. Appellant struck her in the forearms and left breast twelve times with the meat cleaver. She grabbed a wooden ax handle from the ironing board and hit appellant in the temple. Gray also hit appellant in the head with an iron and then ran next door for help. Appellant ran out the front door. The neighbor called 9-1-1. Edwards was taken to a hospital. The main artery, nerve, ligaments, and tendons in her left forearm were damaged and she was in surgery for over six hours.

Evidentiary Rulings

In his first issue, appellant argues that he was denied the right to confront a witness when the trial court did not allow him to cross-examine Edwards about her mental condition. In his fourth issue, he argues that the trial court erroneously admitted hearsay testimony. We review rulings on evidentiary matters for an abuse of discretion. Cameron v. State, 241 S.W.3d 15, 19 (Tex.Crim.App. 2007). We will uphold the ruling if it lies within the zone of reasonable disagreement. Id.

A.

Denial of Right to Confront Witness At trial, appellant proffered evidence in a hearing outside the presence of the jury that Edwards had attempted suicide, but that appellant had prevented it. He also proffered testimony that Edwards had sought mental health treatment during the marriage. He could not be specific about the time frame, and the evidence appeared to indicate that the attempted suicide was eight to ten years earlier. Appellant argued that the evidence of the attempted suicide was "highly relevant." The trial court stated that if he allowed appellant to cross-examine Edwards about the suicide attempt, he would also allow her to testify about why she attempted suicide and asked appellant whether he was "sure [he wanted] to get into this area." Appellant's attorney responded, "If it's going to open the door to extraneous offenses, no, Your Honor." The trial court said that he was "not going to make a ruling on that" and then concluded that the evidence of the attempted suicide was not relevant "[a]t this point." When the jury returned, defense counsel did not question Edwards about the attempted suicide or whether she received mental health services during her marriage to appellant. On appeal, appellant argues that the trial court denied his right to confront Edwards about the attempted suicide. But appellant's argument on appeal is different from his objection at trial. At trial, appellant's proffer was based solely on the ground that the evidence was "highly relevant." To preserve error on confrontation clause grounds, appellant must raise that ground below. His failure to do so did not preserve this constitutional issue for appeal. See Tex. R. App. P. 33.1(a)(1); Reyna v. State, 168 S.W.3d 173, 179 (Tex.Crim.App. 2005) (constitutional error waived by failure to raise at trial); Deener v. State, 214 S.W.3d 522, 527 (Tex.App.-Dallas 2006, pet. ref'd) (confrontation clause issue not preserved by failure to raise at trial). We resolve appellant's first issue against him.

B.

Hearsay Testimony During the State's examination of Edwards about her decision to leave the apartment, the following exchange occurred:

Q. Did your daughter ever ask you what you were doing with [appellant's] things? Was she awake?

A. She was awake. She asked me a little bit about what was going on and I told her that we were going to leave and I was going to get away from my husband because of what was going on. I didn't go into technicalities of what was going on.

Appellant objected to the answer as hearsay. The State responded, "She's talking about what she said to her daughter." The trial court overruled the objection.

On appeal, appellant contends that Edwards's answer regarding "what was going on" constituted inadmissible hearsay. He contends that the statement does not qualify as an excited utterance, ¹ but he does not address any other theory under which the trial court may have overruled his objection.

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). A prior out-of-court statement by a witness offered for its truth is not hearsay if the declarant testifies at trial, is subject to cross-examination, and the statement meets certain other criteria. See Tex. R. Evid. 801(e)(1)(A)-(D).² The State does not contend that Edwards's testimony was admissible under rule 801(e) as a prior statement of the witness. Instead, it argues that the testimony qualifies as a statement of Edwards's then existing state of mind under rule 803(3). See Tex. R. Evid. 803(3).³ A statement that would otherwise be admissible under the state of mind exception to the hearsay rule is inadmissible if it is a statement explaining the reason for that state of mind. See id. (state of mind exception does not include statement of memory or belief to prove fact remembered or believed unless relates to execution, revocation, identification, or terms of declarant's will); Delapaz v. State, 228 S.W.3d 183, 206-07 (Tex.App.-Dallas 2007, pet. ref'd); Menefee v. State, 211 S.W.3d 893, 906 (Tex.App.-Texarkana 2006, pet. ref'd). Additionally, as we have stated, an out-of-court statement is hearsay unless its relevance does not depend upon the statement being true. Delapaz, 228 S.W.3d at 211; Bell v. State, 877 S.W.2d 21, 24 (Tex.App.-Dallas 1994, pet. ref'd).

In this case, Edwards's testimony that she told her daughter that she was leaving appellant because of what was going on is a statement explaining the reason why she was leaving appellant. Its relevance also depends upon the statement being true. As a result, the out-of-court statement was inadmissible hearsay and the trial court erred by overruling appellant's objection. See Delapaz, 228 S.W.3d at 206-07; Menefee, 211 S.W.3d at 906. We now must determine whether the error resulted in harm to appellant.

Appellant argues that the admission of this testimony harmed him "because this goings-on evidence reiterated the impression of underlying domestic abuse and strife evidence upon which the State erected its cases against Appellant." We disagree.

The admission of inadmissible hearsay is non-constitutional error. See Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). Non-constitutional error that does not affect appellant's substantial rights are disregarded. Tex. R. App. P. 44.2(b). We examine the record as a whole to determine whether the error influenced the jury's verdict. Johnson, 967 S.W.2d at 417. The error is harmless if we determine that the error did not influence or had only a slight influence on the verdict. Fowler v. State, 958 S.W.2d 853, 865 (Tex.App.-Waco 1997), aff'd, 991 S.W.2d 258 (Tex.Crim.App. 1999).

The complained-of testimony was a nonresponsive answer to the State's question. Edwards testified that she did not go into detail about "what was going on" when her daughter asked her what she was doing with appellant's things. And Edwards did not testify about what she meant by "what was going on." Earlier in her testimony, however, Edwards testified at length, without objection, about the incident on July 19 when appellant held a steak knife to her throat, forced her to have intercourse, and refused to let her leave the apartment for two days. This was the incident that led Edwards to decide to leave the apartment. The jury acquitted appellant of this offense. Additionally, Edwards testified at length about the incident on July 31 during which appellant cut her twelve times with a meat cleaver. Edwards's daughter was an eyewitness to this assault and corroborated Edwards's testimony. We conclude that the complained-of testimony did not influence or had only a slight influence on the verdict for aggravated assault on July 31.

We resolve appellant's fourth issue against him.

Motions for Mistrial

In his second issue, appellant argues that the trial court abused its discretion by not granting a mistrial after Edwards testified about appellant's prior incarceration. In his fifth issue, he contends that the court should have declared a mistrial sua sponte when the State asked Edwards to exhibit her scars to the jury. We review the denial of a motion for mistrial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). In so doing, we view the evidence in the light most favorable to the trial court's ruling and uphold the ruling if it is within the zone of reasonable disagreement. See Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App. 2004). We do not substitute our judgment for that of the trial court, but instead decide whether the trial court's decision was arbitrary or unreasonable. See Webb v. State, 232 S.W.3d 109, 112 (Tex.Crim.App. 2007). A mistrial is only appropriate for highly prejudicial and incurable errors. Ladd, 3 S.W.3d at 567. It may be used to end trial proceedings when faced with error so prejudicial that expenditure of further time and expense would be wasteful and futile. Id.

A.

Testimony of Prior Incarceration During defense counsel's cross-examination of Edwards, the following exchange occurred:

Q. All right. Now, you and [appellant] have been living together since 2000, have you not, off and on?

A. Off and on. The only time we've been separated is when he was incarcerated.

Q. Okay.

[Defense counsel]: Your Honor, I object to that. That's irrelevant.

Following a bench conference, appellant objected, asked for an instruction to the jury to disregard the statement, and moved for a mistrial. The trial court sustained appellant's objection, instructed the jury to "disregard that last comment and not consider it for any purpose," and denied appellant's motion for mistrial.

On appeal, appellant argues that the evidence was not relevant and its probative value was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. Initially, we note that appellant did not raise a rule 403 objection below and may not assert it for the first time on appeal. See Tex. R. App. P. 33.1(a)(1); Mendez v. State, 138 S.W.3d 334, 342 (Tex.Crim.App. 2004). Additionally, appellant contends that the jury struggled with the issue of guilt-innocence because a dynamite charge⁴ had to be submitted, and that the State's evidence was so weak that the jury acquitted appellant of one of the two charges. Based on this, appellant argues that the instruction to disregard could not have been effective.

Because a defendant may not be tried for collateral consequences or transactions, testimony that the defendant was previously incarcerated is generally inadmissible. Fuller v. State, 827 S.W.2d 919, 926 (Tex.Crim.App. 1992). However, appellant notes that a prompt instruction to disregard will generally cure the prejudicial effect of a reference to a defendant's prior incarceration. Id.; Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000). Only in extreme cases where the evidence is clearly calculated to inflame the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on the jurors' minds will an instruction to disregard not cure error. Russeau v. State, 171 S.W.3d 871, 885 (Tex.Crim.App. 2005). Appellant has not presented such a case here. Our review of the record reveals that the complained-of testimony was non-responsive to the question asked, was vague, and did not refer to any particular offense. The record also reflects that the complained-of testimony was not embellished in any manner and was not subsequently referred to. Although the testimony informed the jury that appellant had been incarcerated before, we cannot, given the record before us, conclude that it was "clearly calculated to inflame the jury" and was "of such character" that the instruction to disregard was insufficient and a mistrial should have been granted. The trial court instructed the jury to disregard the testimony, and we presume the jury followed the trial court's instruction. See Ladd, 3 S.W.3d at 567. And, as appellant has noted, the jury acquitted him of one of the charges of aggravated assault despite the reference to a prior incarceration.

We resolve appellant's second issue against him.

B.

Exhibition of Scars

Appellant next complains that the trial court should have sua sponte declared a mistrial when the State asked Edwards to exhibit her permanent scars to the jury. Appellant relies on the 1938 case of Kazee v. State, 134 Tex. Crim. 485, 488, 116 S.W.2d 731, 732-33 (Tex.Crim.App. 1938). However, in 1972, the Texas Court of Criminal Appeals addressed whether the exhibition of scars is admissible in a trial proceeding and held "that such evidence was competent, material, and relevant to the issue of an assault. Such evidence is admissible during the trial, either on the issue of guilt or punishment. A verbal description of an assault is admissible; therefore an exhibition of the scars resulting therefrom is admissible." Lydia v. State, 486 S.W.2d 791, 794 (Tex.Crim.App. 1972). Appellant has not shown error.

We resolve appellant's fifth issue against him.

Factual Insufficiency

In his sixth issue, appellant argues that the evidence is factually insufficient to support the conviction. A person commits assault if that person intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse. See Tex. Penal Code Ann. § 22.01(a)(1) (Vernon Supp. 2008). A person commits aggravated assault if the person commits assault as defined in section 22.01 and the person uses or exhibits a deadly weapon during the commission of the assault. See id. § 22.02(a)(2). In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Grotti v. State, 273 S.W.3d 273, 283 (Tex.Crim.App. 2008); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). Evidence is factually insufficient when the evidence supporting the conviction is so weak that the verdict seems clearly wrong and manifestly unjust, or when the evidence supporting the conviction is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Grotti, 273 S.W.3d at 283. In reviewing witness testimony, we "consider only those few matters bearing on credibility that can be fully determined from a cold appellate record." Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). While this approach occasionally permits some credibility assessment, we may not substitute our judgment for that of the jury merely because we would have reached a different result. Grotti, 273 S.W.3d at 283. We defer to the jury's determination about the weight to be placed on contradictory testimony because the jury is able to examine "tell-tale signs of credibility-such as the physical appearance, demeanor, and cadence of speech of the witness-which are unavailable" to this Court. Johnson, 23 S.W.3d at 8 n. 9 (quoting Commonwealth v. Williams, 554 Pa. 1, 720 A.2d 679, 684 (1998)). Appellant argues that the evidence is factually insufficient because Edwards and Gray testified inconsistently about where appellant was standing when they entered the apartment on July 31, 2007 and the attack ensued. He also points to inconsistencies within Edwards's own testimony, and he argues that Edwards "was not possessed of the truth" because she admitted lying to the landlord and her behavior was "devoid of logic." Finally, he contends that the incident was not completely investigated because the State did not test the blood found on the ax handle. He contends that "the jury was not presented with a full and accurate presentation of the knowable facts and the search for truth that a trial is was compromised." Appellant's factual insufficiency argument is an attack on the credibility of the witnesses. But as we have noted, evaluating the credibility of the witnesses is the function of the jury, which we must give great deference. See Johnson, 23 S.W.3d at 8. The jury was in the best position to judge the testimony of Edwards and Gray, and we have found nothing in the record to undermine the jury's verdict. Additionally, whether the State conducted a complete investigation and presented all of the "knowable facts" is inconsequential in a factual insufficiency review because we review only the evidence that was actually presented to determine whether it is factually insufficient. See Grotti, 273 S.W.3d at 283. Having viewed the evidence under the appropriate standard, we cannot conclude that it is factually insufficient. We resolve appellant's sixth issue against him.

Jury Charge Error

In his third issue, appellant argues that the trial court erred by refusing to instruct the jury on the issue of self-defense. To justify the use of deadly force against another, an actor must first show that he reasonably believed the force was immediately necessary to protect the actor against the other's use or attempted use of unlawful force and that a reasonable person in the actor's situation would not have retreated.⁵ See Act of May 23, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 901, amended by Act of March 20, 2007, 80th Leg, R.S., ch. 1, § 3, 2007 Tex. Gen. Laws 1, 1-2 (current version at Tex. Penal Code Ann. § 9.31(a) (Vernon Supp. 2008)); Act of May 16, 1995, 74th Leg., R.S., ch. 235, § 1, 1995 Tex. Gen. Laws 2141, 2141, amended by Act of March 20, 2007, 80th Leg, R.S., ch. 1, § 3, 2007 Tex. Gen. Laws 1, 1-2 (current version at Tex. Penal Code Ann. § 9.32 (a) (Vernon Supp. 2008)). The use of force against another is generally not justified if the actor provoked the other's use or attempted use of unlawful force. See Tex. Penal Code Ann. § 9.31(b)(4) (Vernon Supp. 2008). When evidence from any source raises a defensive issue and the defendant properly requests a jury instruction on that issue, the trial court must submit the issue to the jury. Muniz v. State, 851 S.W.2d 238, 254 (Tex.Crim.App. 1993). The defendant is entitled to the instruction regardless of whether the evidence justifying it is weak or contradicted and regardless of what the trial court may think of the evidence. Id. But when the evidence fails to raise a defensive issue, the trial court does not commit error by refusing a requested instruction. Id.; Ford v. State, 112 S.W.3d 788, 793 (Tex.App.-Houston [14th Dist.] 2003, no pet.). Appellant did not testify. However, he argues that Edwards and Gray each testified that they struck him with "particularly vicious implements, an axe handle and an iron." He argues that it is possible that he "acted to repel a vicious attack by two people" and was entitled to the instruction on self-defense. But both Edwards and Gray testified that appellant was the aggressor and that they were defending themselves against his attack. And there is no evidence that Edwards and Gray used unlawful force against appellant to justify his need to act in self-defense. See Gibson v. State, 150 Tex. Crim. 401, 404, 202 S.W.2d 236, 237 (1947). Appellant cannot avail himself of a necessity which he has knowingly and willfully brought upon himself. Id. We resolve appellant's third issue against him.

Cumulative Error

In his seventh issue, appellant argues that the cumulative effect of the errors in issues one and two requires reversal. Because we have found no errors, we resolve this issue against appellant.

Conclusion

We affirm the trial court's judgment.