Opinion
No. 14-03-01229-CR
Opinion filed April 12, 2005.
On Appeal from the County Court at Law No. 3, Fort Bend County, Texas, Trial Court Cause No. 106,348.
Reversed and Remanded.
Panel consists of Justices ANDERSON, HUDSON, and FROST.
OPINION
Appellant, John Lowell Bufkin, was charged by information with the misdemeanor offense of assault. See Tex. Pen. Code Ann. § 22.001 (Vernon Supp. 2004-2005). Appellant entered a plea of "not guilty," but a jury convicted him as alleged in the information. The court sentenced him to 365 days' confinement in the Fort Bend County jail and assessed a fine of $250 plus costs of court. Pursuant to appellant's request, the court agreed to alter the sentence to twenty-four (24) months' probation with thirty (30) days of that time in jail. In three points of error, appellant contends: (1) the evidence was factually insufficient to support his conviction; (2) the trial court erred in allowing inadmissable hearsay; and (3) the court improperly denied his request for a jury instruction on the issue of consent.
Appellant was granted thirty (30) days credit for time already served, effectively requiring appellant to satisfy only the remaining time on probation.
The record reflects that appellant and the alleged victim, Shelby Hooper, were living together as a couple at the Sun Suites hotel in Stafford, Texas. On August 9, 2003, an altercation arose between appellant and Hooper in their hotel room. An unidentified third party placed a 9-1-1 call alerting police that a fight was occurring between a man and a woman. Three officers from the Stafford Police Department were dispatched to the hotel, and upon arrival, found Hooper hysterical and crying. After pacifying the situation, the officers obtained statements from Hooper indicating that appellant had pinned her against the bathroom wall, struck her with his fists, and bit her. Consistent with Hooper's statements, the officers observed that she had a cut on her lip and found bite marks on her back and buttocks. After questioning the two individuals further and hearing appellant admit that he hit Hooper in the head with a closed fist, the officers arrested appellant for assault.
Factual Sufficiency
In his first point of error, appellant contends the evidence is factually insufficient to support his conviction. Specifically, appellant argues the State did not present any evidence to rebut his theory of self-defense. Therefore, he claims the State failed to prove beyond a reasonable doubt that he did not act in self-defense.
To disprove a defendant's claim of self-defense, the State bears only a burden of persuasion. Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991); Hull v. State, 871 S.W.2d 786, 789 (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd). This means 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; Hull, 871 S.W.2d at 789.
Moreover, self-defense is a fact issue to be determined by the jury. See Saxton, 804 S.W.2d at 913-14. As the trier of fact, the jury is the sole judge of the credibility of the witnesses and is free to believe or disbelieve all, or part, or none of any witness' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). "A jury verdict of guilty is an implicit finding rejecting the defendant's self-defense theory." Saxton, 804 S.W.2d at 913-14. In conducting a factual sufficiency review, we view the evidence in a neutral light and will set aside the verdict only if the jury was not rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim App. 2004). If there is evidence that establishes guilt beyond a reasonable doubt which the trier of fact believes, the judgment cannot be reversed on sufficiency of the evidence grounds. See Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App. 1984).
Here, the record indicates that when police officers arrived at the scene, they found Hooper extremely agitated. Hooper explained that appellant pinned her against the bathroom wall with his arm on her neck, assaulted her, and then locked her in the bathroom for about an hour to "calm her down." She further stated that the assault involved appellant striking her with his hand and biting her. She also responded affirmatively when officers asked if she wanted a protective order to prevent appellant from using any further violence against her. Confirming her story about the assault, officers observed Hooper's lip was cut and found bite marks on her back and buttocks. Color photographs were taken to document the injuries. These pictures were admitted into evidence and provided to the jury for consideration in reaching their verdict. Officers also used an audio recorder to tape record the events at the scene. The tape recordings included Hooper's description of the assault and an admission by appellant that he struck Hooper with his fist. These tapes were also admitted into evidence and provided for the jury's consideration.
Appellant's sufficiency argument relies almost exclusively on the fact that Hooper recanted her story about the assault. In fact, Hooper was the only defense witness at trial, testifying that appellant never struck her and that the bite marks on her body were from "love bites" received during consensual sexual foreplay the night before the altercation. Hooper also explained that she was the one who struck appellant first and admitted that she actually struck appellant various times. She further stated that appellant's actions towards her involved only pushing and that he only did so in self-defense. Officers did, in fact, observe that appellant had two knots on his forehead, scratches on his neck and waist, and bite marks on his chest. However, on cross-examination the State pointed out the inconsistencies between Hooper's testimony at trial and the statements she made, both oral and written, to officers on the evening of the alleged assault.
It is important to point out that simply because the alleged victim recanted her story about the assault does not necessarily mean an assault did not occur. Often in abusive relationships, a victim will repudiate his or her own earlier claim that an assault took place. See generally Fielder v. State, 756 S.W.2d 309, 321 (Tex.Crim.App. 1988) (admitting testimony which explained behavioral inconsistencies typical of battered women); Scugoza v. State, 949 S.W.2d 360, 363 (Tex.App.-San Antonio 1997, no pet.) (recognizing the expert opinion of a battered women's shelter director, who explained why some victims of spousal abuse eventually recant their accusations).
The jury was entitled to believe Hooper's story at trial and was instructed by the trial court that it could consider appellant's self-defense theory. The jury was equally free to disbelieve Hooper's trial testimony, and instead, rely on the evidence presented by the State. See Sharp, 707 S.W.2d at 614. The jury apparently gave no credence to appellant's claim of self-defense, but rather, found him guilty as charged. See Saxton, 804 S.W.2d at 913-14. Based on our own review of the record, we believe the jury was rationally justified in finding guilt beyond a reasonable doubt. Therefore, we overrule appellant's first point of error.
Excited Utterance
In his second point of error, appellant complains that the trial court erred in permitting inadmissible hearsay to be introduced at trial. Specifically, appellant argues that the State failed to establish that Hooper's statements describing the alleged assault were the result of a startling event. Appellant suggests, therefore, that the statements were hearsay and should not have been admitted under the excited utterance exception to the general hearsay rule.
The admissibility of an out-of-court statement under the exceptions to the hearsay rule is within the trial court's discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). A trial court's decision to admit or exclude hearsay will not be reversed absent a clear abuse of this discretion. Id. An abuse of discretion occurs "only when [the] decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree." Id. (quoting Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1992)).
Hearsay is a statement, other than one made by the declarant while testifying at trial, offered into evidence to prove the truth of the matter asserted. TEX. R. EVID. 801(d). Hearsay is generally inadmissible unless a statute or the Texas Rules of Evidence provide a specific exception which allows the statement to be admitted. See TEX. R. EVID. 802. An excited utterance is one exception provided by the Rules of Evidence and is described as "a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." TEX. R. EVID. 803(2); Salazar v. State, 38 S.W.3d 141, 154 (Tex.Crim.App. 2001).
The test to determine whether a statement falls under the excited utterance exception requires the court to find that: (1) the statement was the product of a startling event that produced a state of nervous excitement; (2) the declarant was dominated by the excitement of the event; and (3) the statement related to the circumstances of the startling event. Jackson v. State, 110 S.W.3d 626, 633 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd); see also McFarland v. State, 845 S.W.2d 824, 846 (Tex.Crim.App. 1992). The court may also consider other factors such as the amount of time elapsed and whether the statement was in response to a question. Salazar, 38 S.W.3d at 154. However, these factors are not dispositive. See Lawton, 913 S.W.2d 542, 553 (Tex.Crim.App. 1995). "[T]he pivotal inquiry is `whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event.'" King v. State, 953 S.W.2d 266, 269 (Tex.Crim.App. 1997) (quoting McFarland, 845 S.W.2d at 846).
Here, the record reflects the following exchange:
Q. [by Mr. Bridges, the State's attorney]: Now, when you came into this location in this hotel room, did you start talking to Shelby [Hooper] about what had happened?
A. [by Officer Rodriguez]: Yes, I did.
Q. And when you talked to her, did you notice anything about her emotional state?
A. She was very upset. She was hysterical. She was crying.
Q. And while she was under the stress — or while she was in this heightened, excited emotional state, did she make any statements to you?
[Mr. Ashford, defense counsel]: Objection, hearsay.
[The Court]: Sustained.
[Mr. Bridges]: Judge, I'm not asking her to say what she said, just if she made any statements at that point.
[The Court]: That's fine.
[Mr. Bridges]: Let me rephrase that.
Q. [by Mr. Bridges]: While she was in that heightened emotional state, without saying what she said, did she make any statements to you? Did she say anything to you, ma'am?
A. She did, but I couldn't understand her. I couldn't understand what she was saying.
Q. At a certain point, did she calm down enough to the point that she could actually articulate words?
A. Yes, she did.
Q. When she was in that state where she was speaking, was she still under the excitement and stress of an ongoing — of a startling event that had been done on her?
A. Yes, she was.
Q. And did she give you a time frame of how long it had been since these events had occurred?
A. Well, one hour.
Q. Now when she was talking and while she was in this excited state, did she make statements to you about what caused her excited state, the startling event that caused her excited state?
[Mr. Ashford]: Objection, that calls for hearsay, Your Honor.
[The Court]: I'll overrule it under the Excited Utterance Rule.
* * *
Q. Did she say that the events — did she tell you whether or not the events that had caused her emotional state happened there in that hotel room?
[Mr. Ashford]: Your Honor, I'm going to object, again. I don't feel that it's been shown that the witness was — did not have sufficient time to reflect on these events. So, her statements would not be mere narrative of a past event and not necessarily under any excited event of an alleged event.
[The Court]: I'll overrule that objection.
Q. Go ahead, ma'am.
A. Can you repeat the question?
Q. While she was there and while she was discussing something that put her in that excited state, did she talk about what happened to her?
A. Yes, she did.
Officer Rodriguez went on to testify that Hooper said appellant's actions were the cause of her excited emotional state. Hooper continued by describing the assault and even agreed that she needed a protective order to prevent further violence. Another officer later reiterated at trial that Hooper appeared scared when he arrived at the scene.
Based on the testimony presented at trial, the State laid the necessary foundation to prove Hooper's statements were excited utterances. The trial court heard testimony that Hooper was extremely agitated when officers arrived at the scene. In fact, she was so upset that officers initially could not understand her. The State repeatedly asked whether the alleged assault caused Hooper's excited state and whether she was still under the stress of that exciting event when she was describing what occurred. Only after the officer affirmatively answered these questions did the trial court allow the officer to testify about what Hooper actually said. Therefore, the trial court properly considered the requisite factors and determined that Hooper's statements were excited utterances. Based on our own review of the record, we cannot say the trial court's admission of these statements was outside the zone of reasonable disagreement. Accordingly, we overrule appellant's second point of error.
Jury Instruction on Consent
In his third point of error, appellant complains that the trial court improperly refused to provide a jury instruction on the issue of consent. Specifically, appellant argues there was some evidence that Hooper consented to appellant's actions. Therefore, he avers that the court should have instructed the jury to consider consent as a defense to the assault charge.
Section 22.06 of the Texas Penal Code provides that consent can be a defense to prosecution for assault. See Tex. Pen. Code Ann. § 22.06(1) (Vernon 2003). A defendant is entitled to a jury instruction on any theory of defense supported by the evidence. Granger v. State, 3 S.W.3d 36, 38 (Tex.Crim.App. 1999); Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App. 1996). This is true whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court believes about the credibility of the evidence. See Granger, 3 S.W.3d at 38; Hamel, 916 S.W.2d at 493. Even if the issue is supported only by the defendant's own testimony, he is entitled to a requested instruction. See Miller v. State, 815 S.W.2d 582, 585 (Tex.Crim.App. 1991). This rule is designed to insure that the jury, not the judge, will decide the relative credibility of the evidence. Id. at 585. In reviewing a trial court's refusal to provide an instruction, we view the evidence in the light most favorable to the defense. See Preston v. State, 756 S.W.2d 22, 24 (Tex.App.-Houston [14th Dist.] 1988, pet. ref'd). Therefore, the issue before us is whether the evidence, viewed in the light most favorable to appellant, is sufficient to raise the issue of consent. See Miller, 815 S.W.2d at 585.
To support his argument, appellant relies on Hooper's testimony at trial whereby she recanted her story about the alleged assault. On direct examination, Hooper explained that she provided a misleading picture to police officers about what occurred on the evening of the alleged assault. Contrary to her statements to the officers, Hooper testified that the bite marks were the result of consensual sexual activity that occurred the night before the alleged assault. Based on this testimony, appellant argues he was entitled to a jury instruction on consent regarding his actions in biting Hooper. Appellant also points out that Hooper testified at trial that she was the one who initially became physically violent and that she actually struck appellant first. Therefore, appellant suggests he was entitled to an instruction on consent in hitting Hooper as well.
The State first claims that appellant's requested instruction on the biting allegation is moot. The State further argues that there was no evidence that Hooper consented to being hit, and contends that Hooper's testimony regarding her being the initial aggressor lends no support to appellant's consent theory. Instead, the State points out that a person does not consent to being hit simply because that person strikes another individual first. While the State's theory may be persuasive as to "hitting," it has no application to alleged "love bites."
Specifically, the State explains that appellant was charged with two manner and means of committing the assault — biting and striking by the appellant's hand. The State contends that because it was only required to prove one method of committing the assault, the lack of evidence on consent with regards to the hitting renders any discussion on the biting moot. The argument would be compelling if the issue before us was one of legal sufficiency. However, the issue presented here is whether the trial court erred in failing to give a properly requested instruction on the defense of consent.
Looking at the jury's verdict, we cannot determine whether appellant was convicted for the assault based on hitting or biting. Particularly because the jury was charged in the alternative, i.e., it was asked whether appellant was guilty of biting or hitting, it is plausible that the jury convicted him based solely on the biting. Hooper's testimony is some evidence that she consented to appellant's actions in biting her. As such, the trial court should have instructed the jury on the issue of consent and provided the jury with the opportunity to decide whether that theory had any credibility. See Miller, 815 S.W.2d at 585. The court's refusal to provide the requested instruction constituted error.
It is, of course, equally plausible, even probable, that the jury convicted appellant based solely on the hitting. However, our responsibility on appeal is to review the evidence supporting appellant's requested instruction in the light most favorable to him. See Miller, 815 S.W.2d at 585.
After finding error in the court's refusal to submit appellant's requested instruction, we must next determine whether that error requires reversal. See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981); Miller, 815 S.W.2d at 585-86 (citing Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1984)). The Court of Criminal Appeals has explained that if the charge contains error, and that error has been properly preserved by an objection or requested instruction, reversal is required as long as the error is not harmless. See Almanza, 686 S.W.2d at 171. This means we must determine whether appellant suffered "some harm." Trevino v. State, 100 S.W.3d 232, 242 (Tex.Crim.App. 2003) (quoting Almanza, 686 S.W.2d at 171). "Unless all harm was abated, appellant suffered `some' harm." Miller, 815 S.W.2d at 586 n. 5 (emphasis in original).
As explained above, we cannot determine whether the jury convicted appellant based on the biting or the hitting allegation. Had the jury believed appellant was guilty only on the biting charge and received an instruction on consent, it is possible that they would have found him not guilty of committing assault. While the evidence in this case seems to indicate the contrary, we again note that was a determination for the jury to make. See Miller, 815 S.W.2d at 585. Without "fair assurance" that the error did not have an "injurious effect or influence in determining the jury's verdict," we cannot conclude that there was no harm to appellant. See Trevino, 100 S.W.3d at 243 (quoting King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997)); see also Miller, 815 S.W.2d at 586 (finding "some harm" existed where the court refused to provide an instruction on mistaken consent). Accordingly, we sustain appellant's third point of error.
The judgment of the trial court is reversed, and the cause is remanded for a new trial.