No. 05-07-00730-CR
Opinion issued April 10, 2008. DO NOT PUBLISH.Tex. R. App. P. 47
On Appeal from the County Criminal Court Number Two Dallas County, Texas, Trial Court Cause No. MA05-41858-B.
Before Justices MORRIS, FITZGERALD, and LANG.
Opinion By Justice LANG.
A jury found the appellant, Ernest Ray Thrower, guilty of misdemeanor assault, assessed punishment at ninety days confinement and a fine of $300, suspended the confinement portion of the sentence, and placed appellant on community supervision for one year. In two issues, appellant asserts: (1) the trial court abused its discretion by refusing to strike inadmissible hearsay about the conclusions of a non-testifying officer, and (2) the evidence is factually insufficient to establish that appellant did not act in self-defense. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The trial testimony reflects that on June 17, 2005, there was a pool party attended by residents and employees of the apartment complex where appellant and complainant worked. Appellant was employed as the maintenance supervisor and complainant was employed as a leasing agent at the apartment complex. Complainant alleged he was assaulted by appellant during the pool party. Appellant is six-feet, two inches tall and weighs approximately 205 pounds. Complainant is five-feet, five inches tall and weighs 140 pounds. Appellant and complainant each allege the other became intoxicated at the party. They both admit to drinking beer or wine at the party, but each one asserts he was not "drunk." The alleged assault occurred after complainant attempted to use the apartment complex's golf cart to give a ride to some of the residents. When complainant took the golf cart out of the garage where it is stored and prepared to drive the residents to their apartment, appellant demanded the keys from him. Appellant did not believe complainant should be driving the cart while intoxicated. Appellant called his supervisor and reported complainant's actions to her. The supervisor told appellant to take the keys from complainant. Complainant refused to give appellant the keys to the golf cart. Appellant threatened to have complainant fired. Complainant then drove the golf cart back to the maintenance garage where it is stored. Appellant and complainant gave materially different accounts of what happened in the garage. Appellant asserts he "snatched" the keys from the golf cart when complainant was plugging the cart into the charger. According to appellant, complainant, whose body is adorned with Confederate tattoos, said "I'm fucking tired of you nigger," tried to get the keys back from appellant, and pushed appellant twice. Appellant admits to pushing complainant down, but claims he only pushed complainant each time complainant pushed him and he was not trying to fight with complainant. Appellant asserts he did not strike, slap, or kick complainant and only acted in self-defense. After appellant pushed complainant down the second time, he called the supervisor who told him to "just go home." According to complainant, as he was putting the golf cart in place, appellant pulled up to the garage in his truck, jumped out of the truck and yelled, "Do you have a fucking problem with me?" Complainant "just froze" and "didn't do anything" as appellant approached him. Complainant responded, "No, I don't have a problem." Appellant then picked complainant up by his armpits and threw him across and into the rear portion of the garage. Complainant tried to cover himself with his hands after he hit the wall. Appellant kicked him and hit him in the ribs and face. After appellant got in his truck and left, complainant ran back to the pool to tell everyone what had happened. Complainant called the Mesquite Police Department. Officers McNair and Sullivan arrived at the scene around midnight. The officers interviewed complainant and Officer Sullivan wrote a report of the incident. Officer McNair listened to complainant's statements about what occurred, observed complainant's demeanor at the scene, and noticed that the left side of complainant's face was red, he appeared to be upset, and he was holding his ribs. Officer McNair also observed that appellant was not available at the scene to make a statement to the officers about the incident. Complainant was seen at the emergency department of Presbyterian Hospital of Plano on June 20, 2005. He underwent a CT scan of his head and x-rays of his ribcage and right foot. The medical records reveal a diagnosis of clinical rib fracture and closed head injury. The records also note that complainant had shallow breath movement and minor bruising to the underarms, but "no obvious bruising" to the trunk. Officer Sullivan was unavailable to appear for testimony, so Officer McNair testified. He stated he had personal knowledge of the facts and circumstances about which he was to testify. Based on his seven years of experience as a police officer and his observations at the scene, which included listening to complainant's report of the incident at the scene, Officer McNair said he formed the opinion that an assault had occurred. On cross-examination, Officer McNair testified he had reviewed Officer Sullivan's report prior to testifying and the incident was fresh in his memory after reading the report. According to Officer McNair, each time he had prepared to go to court on this case, he remembered the incident because he read over the report. The defense moved to exclude Officer McNair's testimony on hearsay grounds. The trial court overruled the objection. Subsequent to his conviction for misdemeanor assault, appellant filed a timely appeal. II. REFUSAL TO EXCLUDE OFFICER MCNAIR'S TESTIMONY
In his first issue, appellant argues the "trial court abused its discretion by refusing to strike inadmissible hearsay about the conclusions of a non-testifying officer." Appellant argues Officer McNair's testimony is based on Officer Sullivan's report, not his own personal knowledge, and is thus inadmissible hearsay. Further, appellant argues the failure to strike the testimony he claims is based on Officer Sullivan's report denied appellant his right to confront the officer who wrote the report, citing Crawford v. Washington, 541 U.S. 36, 42 (2004). The State responds the trial court did not err because Officer McNair's testimony was based on his own personal knowledge and Officer Sullivan's report was permissibly used to refresh his recollection prior to testimony. A. Standard of Review
A trial court's decision to exclude evidence is reviewed under an abuse of discretion standard. McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 2005); Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002). A trial court does not abuse its discretion as long as the decision to admit evidence is within the "zone of reasonable disagreement." Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (en banc). The appeals court may not substitute its own decision for that of the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003). If evidence exists supporting the decision to exclude evidence, there is no abuse of discretion, and the decision of the trial court will not be reversed. Osbourn v. State, 92 S.W.3d 531, 537 (Tex.Crim.App. 2002); Montgomery, 810 S.W.2d at 379. B. Applicable Law 1. Confrontation Clause and Preservation of Error
Under the Confrontation Clause of the Sixth Amendment of the United States Constitution, applicable to the states by virtue of the Fourteenth Amendment, in all criminal prosecutions an accused shall have the right to be confronted with the witnesses against him. Bratton v. State, 156 S.W.3d 689, 693 (Tex.App.-Dallas 2005, pet. ref'd) (citing U.S. Const. amends. VI, XIV, and Shelby v. State, 819 S.W.2d 544, 546 (Tex.Crim.App. 1991)). The primary interest protected by the Confrontation Clause is the right of cross-examination. Id. This right is fundamental and applies not only to in-court testimony but also to out-of-court "testimonial" statements introduced into evidence at trial. Id. (citing Crawford, 541 U.S. at 53-54). Under the Confrontation Clause, testimonial statements may be introduced at trial only when the declarant is unavailable and the accused has had a prior opportunity for cross-examination. Id. (citing Crawford, 541 U.S. at 68). The right to confront and cross-examine may be waived if the accused does not object at trial. See Potter v. State, 74 S.W.3d 105, 115 (Tex.App.-Waco 2002, no pet.); Deener v. State, 214 S.W.3d 522, 527 (Tex.App.-Dallas 2006, pet. ref'd) (citing Tex. R. App. P. 33.1). To preserve error on appeal, a party must present to the trial court a timely request, motion, or objection, state the specific grounds therefore, and obtain a ruling that appears in the record. Tex. R. App. P. 33.1(a); Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App. 2000) (hearsay objection at trial did not preserve error on Confrontation Clause grounds). 2. Hearsay
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. Crim. Evid. 801(d). The critical question is whether there is an inescapable conclusion that a piece of evidence is being offered to prove statements made outside the courtroom. Thornton v. State, 994 S.W.2d 845, 854 (Tex.App.-Fort Worth 1999, pet. ref'd). 3. Memory Refreshed
Texas evidentiary rules allow a witness in a criminal case to refresh his or her memory either while testifying or before testifying. Tex. R. Crim. Evid. 612. A police officer may review written reports to refresh his or her memory, then testify from a "refreshed memory." McCoy v. State, 877 S.W.2d 844, 845 (Tex.App.-Eastland 1994, no pet.). As long as the witness had personal knowledge at some time in the past and that memory has been refreshed by review of the writing, the testimony itself is received as substantive evidence. See Young v. State, 891 S.W.2d 945, 951 (Tex.Crim.App. 1994). C. Application of Law to Facts
First, appellant asserts the trial court's failure to exclude Officer McNair's testimony, which appellant claims was based on statements made by Officer Sullivan in the incident report, violated his constitutional right to confront and cross-examine the testimonial statements under Crawford. See U.S. Const. Amends. VI and XIV; Crawford, 541 U.S. at 42. To the extent that appellant complains on appeal that he was denied his Sixth Amendment right to confront and cross-examine witnesses against him, he has not preserved error. At no time before the trial court did appellant object that his rights under the Sixth Amendment or Crawford had been violated. Appellant waived any objection based on the right to confront and cross-examine when he failed to object on that basis before the trial court. See Potter v. State, 74 S.W.3d at 115; Tex. R. App. P. 33.1. Second, appellant complains the trial court abused its discretion by refusing to strike as inadmissible hearsay the testimony of Officer McNair, which appellant says is based on the conclusions of a non-testifying investigating officer, Officer Sullivan. Appellant represents that Officer McNair's testimony contained statements that "appellant did not act in self-defense" and that appellant had "`indeed' deliberately assaulted complainant," and these statements are actually based on Officer Sullivan's report. However, the citations to the record in appellant's brief do not support his claim. Rather, the record reveals Officer McNair made no statements in his testimony regarding whether appellant had acted in self-defense or that appellant acted deliberately in assaulting complainant. Further, there is nothing in the record to indicate the non-testifying officer, Officer Sullivan, made such conclusions or statements in his report. Officer McNair simply testified that in his opinion, based on his personal observations, an assault had taken place and stated he "just saw the one side" because appellant had not been present to give a statement. Finally, appellant argues that Officer McNair's testimony of the incident was not based on personal knowledge, but was based on the report written by Officer Sullivan, which appellant claims is an out-of-court statement constituting inadmissible hearsay. Appellant contends Officer McNair's testimony should be stricken from the record as inadmissible hearsay. However, Officer McNair testified he had personal knowledge of the events of which he testified. Officer McNair did not say that his testimony was based on Officer Sullivan's report, nor did he quote or read from Officer Sullivan's report or testify to any conclusions made by Officer Sullivan. Rather, the record reflects Officer McNair refreshed his memory about his personal observations by reviewing Officer Sullivan's report, then testified from his own memory of those observations. See McCoy, 877 S.W.2d at 845; Young, 891 S.W.2d at 945. We cannot conclude the trial court abused its discretion in refusing to exclude Officer McNair's testimony. We decide appellant's first issue against him. III. FACTUAL SUFFICIENCY
In his second issue, appellant argues the evidence is factually insufficient to establish that appellant did not act in self-defense. Appellant asserts that "besides complainant's testimony, the only evidence that appellant did not act in self-defense was inadmissible hearsay" and "appellant's testimony about acting in self-defense overwhelmingly contradicted the questionable claims made by complainant." The State responds that the evidence is sufficient to support the jury's verdict. A. Standard of Review
In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007), cert. denied 128 S.Ct. 282 (2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). Reversal for factual insufficiency occurs only when: (1) the evidence supporting the verdict is so weak the verdict seems clearly wrong and manifestly unjust; or (2) there is some objective basis in the record that shows the great weight and preponderance of the evidence contradict the jury's verdict. See Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 417; see also Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). When conducting a factual sufficiency review, an appellate court considers all of the evidence, both direct and circumstantial. See Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006); see also King v. State, 29 S.W.3d 556, 565 (Tex.Crim.App. 2000); Lee v. State, 186 S.W.3d 649, 655 (Tex.App.-Dallas 2006, pet. ref'd). Also, an appellate court gives due deference to the findings of the fact-finder, but the appellate court may substitute its judgment for the jury's credibility and weight determinations to a very limited degree. See Roberts, 220 S.W.3d at 524; Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 416-17; see also Johnson, 23 S.W.3d at 9 (factual sufficiency review requires reviewing court to afford "due deference" to jury's determinations); Clewis, 922 S.W.2d at 135 (factual sufficiency review requires "deferential standards of review applied" to jury verdicts). However, "the existence of contrary evidence is not enough to support a finding of factual insufficiency." Lee, 186 S.W.3d at 655 (citing Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001)). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight is given to contradictory testimony. Johnson, 23 S.W.3d at 8. In conducting a factual sufficiency review when the issue of self-defense has been raised, the appellate court "reviews all of the evidence in a neutral light and asks whether the State's evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence." Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003) (citing Johnson, 23 S.W.3d at 11); Williams v. State, 226 S.W.3d 611, 617 (Tex.App.-Houston [1st Dist.] 2007, no pet.). Self-defense is an issue of fact for the jury to decide. Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App. 1991) (en banc). Only the jury decides whether to reject or accept a properly raised defensive theory. Sparks v. State, 177 S.W.3d 127, 131 (Tex.App.-Houston [1st Dist.] 2005, no pet.); Saxton, 804 S.W.2d at 913. "A jury verdict of guilty is an implicit finding rejecting the defendant's self-defense theory." Saxton, 804 S.W.2d at 914; Zuliani, 97 S.W.3d at 594. B. Applicable Law
A person commits the offense of assault if the person intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Penal Code Ann. § 22.01(a)(1) (Vernon Supp. 2007). A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force. Tex. Penal Code Ann. § 9.31(a) (Vernon Supp. 2007). When the defendant introduces evidence that he acted in self-defense, the State then bears a burden of persuasion to disprove the raised defense and does not have a burden of producing evidence to affirmatively refute self-defense. Saxton, 804 S.W.2d at 913; Zuliani, 97 S.W.3d at 594. The "State is not obligated to offer evidence refuting a claim of self-defense, but rather, the State is required merely to prove its case beyond a reasonable doubt." Saxton, 804 S.W.2d at 914; Zuliani, 97 S.W.3d at 595. C. Application of Law to Facts
Appellant does not challenge the sufficiency of the evidence to support the jury verdict in general. Rather, he focuses on the sufficiency of the evidence to support the jury's failure to find appellant acted in self-defense. Appellant characterizes complainant's claim that appellant assaulted him as "questionable" and argues his own testimony "overwhelmingly contradicted" complainant's claim. The record reflects complainant's testimony about the incident does, in fact, contradict appellant's testimony that he acted in self-defense. Complainant testified he froze in place when appellant approached him and he did not push appellant. Appellant claims complainant uttered a racial slur and pushed him first, and appellant pushed back only to defend himself. Appellant claims he merely "pushed" complainant away in self-defense. The existence of this contrary evidence is "not enough to support a finding of factual insufficiency." Lee, 186 S.W.3d at 655. Additional evidence demonstrates that appellant picked complainant up by the armpits to throw him, threw him, and then repeatedly struck and kicked him. Further, complainant sustained injuries consistent with his account of the incident, including a closed head injury, bruising of the underarms, and a fractured rib. The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Johnson, 23 S.W.3d at 8. The jury was free to believe complainant's testimony and reject appellant's claim that he merely pushed complainant away in self-defense. See Sparks, 177 S.W.3d at 131; Saxton, 804 S.W.2d at 913. We give deference to the jury on its determinations regarding the credibility and weight of this evidence. See id. Viewing the evidence in a neutral light, we cannot conclude the evidence presented by the State is too weak to support the jury's implied finding against appellant on the self-defense issue and the finding that appellant assaulted complainant. See Zuliani, 97 S.W.3d at 595. Moreover, the jury's implied rejection of self-defense and finding of guilt are not against the great weight and preponderance of the evidence. See id.; Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 417. Therefore, we conclude the evidence is factually sufficient to support the jury's implied rejection of appellant's claim of self-defense and finding of guilt. We decide appellant's second issue against him. IV. CONCLUSION
The trial court did not abuse its discretion in refusing to exclude Officer McNair's testimony. Further, the evidence is factually sufficient to support the conviction for misdemeanor assault. The judgment of the trial court is AFFIRMED.