Opinion
No. 05-14-01436-CR
01-28-2016
LEE JAROME LEWIS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 6 Dallas County, Texas
Trial Court Cause No. F-1452807-X
MEMORANDUM OPINION
Before Justices Francis, Evans, and Stoddart
Opinion by Justice Francis
A jury convicted Lee Jarome Lewis of aggravated assault with a deadly weapon, and the trial court assessed punishment, enhanced by a prior felony conviction, at forty years in prison. In one issue, appellant contends the trial court abused its discretion by admitting a portion of a 911 recording. In a cross-issue, the State requests that we modify the judgment to show the trial court assessed punishment. We overrule appellant's issue but sustain the State's cross-issue. We modify the trial court's judgment as requested and affirm as modified.
Melody Lewis was married to appellant. On the night of March 4, 2014, she was awakened by appellant, who was "in an uproar" because he believed she was "cheating on him." Appellant was "screaming and yelling," and Melody told him she was "tired" and was going to her mother's house in Tyler. Melody called her sister, who told her to call the police. When Melody tried to call the police, appellant snatched her phone from her hands and threw it against the wall. At one point, appellant pushed Melody back onto the bed and then walked into the living room. Melody followed because she believed he was leaving. Appellant continued to yell and scream before grabbing a lamp and hitting her with it on the back of the head, splitting the skin and causing "a lot of blood." Melody fell to the ground and screamed. Immediately remorseful, appellant told her he "messed up" and walked out of the apartment, where he was met by the police. Melody was taken to the hospital, where she received sutures to close the wound in her head. She denied that appellant pushed her causing her to fall into the lamp.
Tiawanna Richmonde, a 911 operator for the Dallas police, received a call from the Lewis's downstairs neighbor at 1:30 a.m. A portion of the call was played for the jury over appellant's hearsay objection. In the call, the neighbor said that Melody was "up there crying, begging him to stop."
Dallas police officer Michael Slay was dispatched to the Lewises' apartment complex and was waiting on a cover unit to arrive when he heard a female screaming for help from inside the apartment. Slay ran up the stairs and met appellant as he was coming out. Slay detained appellant and then banged on the apartment door. Melody answered. Slay said she had blood "all over the front of her" and was "shaking" and "frantic." Melody told Slay that appellant woke her up, accused her of cheating on him, and slapped her in the face. The argument continued into the living room, where he hit her on the back of the head with the lamp. Slay said the apartment living room was a "total wreck." He found a broken lamp base on the couch and the lamp shade across the room.
Appellant did not dispute that he awakened Melody because he believed she was cheating on him and was angry. He did, however, deny hitting her with the lamp, slapping her, or throwing her phone into the wall. He said he called her names and told her they were through. When he tried to leave, he said Melody wedged herself between him and the door. Appellant said he forcefully pushed her off of him, opened the door, and walked out outside, where he was met by the police officer. He testified the only physical contact was at the front door and said he had "no idea" Melody was injured. He did admit that in a call from the jail he told Melody he "lost control" and had an "anger problem," but he explained the comment was directed at the way he talked to her that night, not any physical violence.
In his sole issue, appellant argues the trial court abused its discretion by admitting, over his hearsay objection, the 911 call in which the neighbor reported Melody was "up there crying, begging him to stop." At trial, the State argued the comment was a present sense impression. Appellant argues on appeal that "[a] witness who restates what another person says, in this case, the complainant 'begging him to stop,' is not giving a present sense impression (or an excited utterance), but is providing hearsay."
We review the trial court decision to admit evidence under an abuse of discretion standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). We will uphold the trial court's decision unless it is outside the zone of reasonable disagreement. Id.
Hearsay is defined as "a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." TEX. R. EVID. 801(d). Generally, hearsay statements are inadmissible at trial. TEX. R. EVID. 802. An exception exists for statements that are present sense impressions. TEX. R. EVID. 803(1). A present sense impression is a "statement describing or explaining an event or condition, made while or immediately after the declarant perceived it." Id. The underlying rationale for this exception is that "contemporaneity of the statement with the event that it describes eliminates all danger of faulty memory and virtually all danger of insincerity." Fischer v. State, 252 S.W.3d 375, 380 (Tex. Crim. App. 2008).
Here, the evidence shows the caller was relating to the 911 operator what was currently happening in the apartment directly upstairs from her. Her statement that "she's up there crying, begging him to stop" indicates the neighbor was describing or explaining the event as she was hearing and perceiving it. Consequently, we conclude the trial court did not abuse its discretion in admitting the recording. See Reyes v. State, 314 S.W.3d 74, 78 (Tex. App.—San Antonio 2010, no pet.) (concluding statements made by defendant's minor son to 911 operator that mother was "limping" and "needs" an ambulance was admissible as present sense impression); Perry v. State, No. 08-12-00285-CR, 2014 WL 3051020, at * (Tex. App.—El Paso July 3, 2014, no pet.) (not designated for publication) (concluding child's statement to 911 operator that defendant locked his mother in bedroom and stabbed her, even though he did not actually witness the stabbing, was admissible as present sense impression). We overrule the sole issue.
In its cross-issue, the State asks us to modify the judgment to reflect that the trial court assessed punishment. The court reporter's record shows the jury was released after returning a guilty verdict. The next day, the trial court heard punishment evidence and then assessed punishment. The judgment, however, shows the jury assessed punishment.
We have the authority to correct a judgment to make the record "speak the truth" when we have the necessary data and information to do so. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref'd). Accordingly, we modify the trial court's judgment to show the trial court assessed punishment.
We affirm the trial court's judgment as modified.
/Molly Francis/
MOLLY FRANCIS
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
141436F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 6, Dallas County, Texas
Trial Court Cause No. F-1452807-X.
Opinion delivered by Justice Francis; Justices Evans and Stoddart participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
To reflect the trial court assessed punishment. As MODIFIED, the judgment is AFFIRMED. Judgment entered January 28, 2016.