Opinion
No. 05-19-00625-CR
08-25-2020
JAMES WILLIAM DAVIS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 1 Kaufman County, Texas
Trial Court Cause No. 19-00133-CC-F
MEMORANDUM OPINION
Before Justices Whitehill, Osborne, and Carlyle
Opinion by Justice Osborne
Appellant, James William Davis, was convicted of continuous violence against the family, in violation of TEX. PENAL CODE ANN. § 25.11, and sentenced to twenty years' imprisonment. On appeal, appellant raises four issues: (1) the trial court abused its discretion when it failed to sever a paragraph of the indictment; (2) the trial court abused its discretion when it permitted a sexual assault nurse examiner (hereinafter SANE nurse) to testify as an expert witness on family violence; (3) the trial court erred by denying appellant's motion for directed verdict; and (4) appellant's sentence is disproportionate and therefore constitutes cruel and unusual punishment. We affirm.
Background
Appellant was alleged to have committed continuous violence against the family by assaulting Jessica Marical twice, i.e., on or about August 1 and 2, 2017, and by assaulting Trina McNew on or about May 1, 2017.
Between May and August of 2017, Marical had a dating relationship with appellant and lived with him in his house in Terrell, Texas, in Kaufman County. The relationship soured as appellant kept Marical isolated and secluded, not allowing her to leave his home or have access to a telephone. On two successive days, appellant struck Marical in the face with his fist. On August 6, after being able to break away from appellant at her mother's church, she was treated for a broken nose. She also had a contusion on her head as well as swelling and tenderness in her jaw.
McNew testified that in December of 2017 she and appellant were engaged. They had been together for almost four years at that time. On December 15, 2017, the police were dispatched to appellant's home in Kaufman County where Deputies Dillon Roberts and Ryan Rigsby conducted an investigation into appellant and McNew. During the course of that investigation, Rigsby asked McNew about assaults that had occurred prior to December 15th, 2017. McNew admitted that she called the police and spoke to them on that day. She also admitted that she may have told the police appellant had last assaulted her the preceding May. However, McNew also testified that appellant had never assaulted her and everything she told the deputies that day was a lie.
Body camera footage from this investigation was introduced for record purposes only at the guilt/innocence stage of the trial but for all purposes at the punishment phase of the trial.
Issue 1: Severance
In his first issue, appellant claims the trial court abused its discretion when it failed to sever paragraph three of the indictment from the remaining allegations. The State claims that, because appellant was only charged with one offense, i.e., continuous violence against the family, he did not qualify for a severance. We agree with the State.
The Indictment
The indictment charging appellant with this offense reads as follows:
[I]ntentionally, knowingly, and recklessly cause bodily injury to Jessica Marical, a person with whom the defendant has or has had . . . a dating relationship, by striking Jessica Marical's head with his hand,
and/or on or about the 1st day of August, 2017 the defendant did intentionally, knowingly, and recklessly cause bodily injury to Jessica Marical, a person with whom the defendant has or has had a dating relationship, by striking Jessica Marical's head with his hand,
and/or on or about the 1st day of May, 2017 the defendant did intentionally, knowingly, and recklessly cause bodily injury to Trina McNew, a person with whom the defendant has or has had a dating relationship, by striking Trina McNew's body with his hand, and the
conduct by the defendant occurred during a period that was 12 months or less in duration.
The indictment originally contained a fourth paragraph which read as follows:
and/or on or about the 15th day of December, 2017 the defendant did intentionally, knowingly, and recklessly cause bodily injury to Trina McNew, a person with whom the defendant has or has had a dating relationship, by striking Trina McNew's head with his hand.
There are indications in the record that this paragraph was removed from the indictment. The clerk's record does not contain an amended indictment, or an altered indictment. However, the jury was not charged under this fourth paragraph.
Continuous Violence against the Family
The Penal Code proscribes the offense of continuous violence against the family:
A person commits an offense if, during a period that is 12 months or less in duration, the person two or more times engages in conduct that constitutes an offense under Section 22.01(a)(1) against another person or persons whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code.PENAL § 25.11(a). The definition of "family" under this statute extends to those persons in a dating relationship. TEX. FAMILY CODE ANN. § 71.0021(b) (defining "dating relationship" as a "relationship between individuals who have or had a continuing relationship of a romantic or intimate nature"). The degree of the offense, either a misdemeanor assault or third-degree felony assault of a family member, turns on whether there is sufficient evidence of a "dating relationship" between the accused and the complainant. PENAL § 22.01(b)(2); Edward v. State, 599 S.W.3d 69, 75 (Tex. App.—Houston [14th Dist.] 2020, no pet. h.). There was no dispute at trial that appellant had been in dating relationships with both Marical and McNew.
Appellant's Request to Sever
At a pre-trial hearing, appellant made the following request:
Our other issue, I guess, is going to relate to how Section 25.11 really envisions prosecuting this type of offense. It's our position that this envisions prosecuting and obviously as it's stated in the Ellison case, the unit of prosecution for this particular offense is multiple assaults over a 12-month period of time against a single victim.The trial court allowed both the defense counsel and the prosecutor time to provide the court with any research or case law to support their arguments with respect to this issue. The trial court overruled appellant's request, saying as follows: "I believe that 25.11 tracks person or persons, so I am going to allow more than one person be alleged in the indictment. I believe that's the way the statute tracks, and I did not find any case law stating otherwise."
It's our proposition that this entails prosecuting for a single victim, so as it relates to Jessica Marical, paragraph 1 and paragraph 2 would be the allegations that would support a conviction in this case. We do not believe that the legislature intended to pull any assault against any person that may have a dating relationship with that individual and compiling it into one prosecution.
The statute does particularly state that person or persons, it's our position that persons in plural is related to members of the household, which I believe was the intention of the legislature when they put that persons in plural in the statute. Therefore, if the State wants to pursue a third-degree felony against Mr. Davis for a continuing family violence case, that would be multiple acts of domestic violence over a 12-month period of time against a single, complaining witness.
We just like to have kind of an idea of what we're trying before we start on Monday. This is going to be three acts of family violence against two different complaining witnesses to support a third-degree felony or if the Court grants our objection to paragraph 4, we're trying a class A misdemeanor for the May 1st allegation and third-degree felony as it relates to any type of domestic violence to Ms. Marical.
Ellison v. State, 425 S.W.3d 637 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The Ellison case is distinguishable because it evaluated the offense of continuous violence against the family for allowable units of prosecution for double jeopardy purposes as opposed to a severance claim. Id. at 644-48.
Appellant's Allegations
Appellant claims that the third paragraph of the indictment, i.e., the allegation that he assaulted McNew on or about May 1, 2017, should have been severed from the remaining two paragraphs because those paragraphs involve a different complainant, a different set of circumstances, and did not arise out of the same criminal transaction. Appellant also claims that, because he requested the paragraph be severed, severance was mandatory under PENAL § 3.04(a). Further, appellant claims that he was harmed because Section 25.11 does not require jury unanimity on the alleged illegal conduct and it therefore cannot be concluded that the jury did not rely on the evidence submitted to support the allegation in paragraph three in reaching its verdict.
The State responds that appellant was charged with a single offense of continuous violence against the family, as opposed to multiple offenses of family violence, and hence was not entitled to a severance.
The Law of Severance
The State is allowed to prosecute a defendant for all offenses arising out of the same criminal episode in a single trial. PENAL § 3.02(a). If the State consolidates multiple offenses and the defendant is found guilty, the sentences must generally run concurrently. Id. § 3.03(a), (b) (listing the offenses which may run consecutively). A defendant has a right to sever any joined offenses. Id. § 3.04 (a), (c) (requiring the defendant to show unfair prejudice by the joinder before a court may sever certain offenses).
Analysis
Here, appellant was not indicted and tried for multiple offenses arising out of a single transaction. To the contrary, appellant was indicted and tried for the single offense of continuous violence against the family. The allegations of violence against Marical and McNew were not separate offenses consolidated for trial but rather were the predicate acts constituting that single offense. See, e.g., Sumlin v. State, No. 07-19-00036-CR, 2020 WL 2786836, at *3 (Tex. App.—Amarillo May 28, 2020, no pet. h.) (mem. op., not designated for publication) (holding that, in a prosecution for continuous trafficking of persons, the allegations of acts of trafficking of two persons were not separate offenses consolidated for trial but were predicate acts that constituted a single offense). Because the State did not consolidate multiple offenses for trial, there were no offenses to sever. Id., see also, e.g., Wages v. State, 573 S.W.2d 804, 806 (Tex. Crim. App. 1978) (holding that a charge of aggregated theft constitutes a single offense and the underlying criminal acts constituting aggregate theft cannot be severed). Consequently, the trial court did not abuse its discretion in denying appellant's request to sever paragraph three.
Because we find no abuse of discretion in the trial court's denial of appellant's motion to sever, we need not consider the issue of harm. We overrule appellant's first issue.
Issue 2: Expert Testimony
In his second issue, appellant claims the trial court abused its discretion when it permitted a SANE nurse, Elizabeth Wolf, to testify as an expert witness on family violence. Specifically, appellant claims that Wolf was not qualified as an expert in family violence and notes she had never before testified as an expert on family violence. The State responds that (1) as a SANE nurse Wolf saw many cases of family violence or violence connected to sexual assault; (2) her testimony discussed human behavior and was not complex; and (3) her opinion was not conclusive as she was unfamiliar with the facts of the case and had not spoken with either of the victims or with law enforcement.
Standard of Review
We review a trial court's decision to admit or exclude expert testimony for an abuse of discretion. Wolfe v. State, 509 S.W.3d 325, 335 (Tex. Crim. App. 2017). We uphold a trial court's ruling if it is within the zone of reasonable disagreement. Id.
Admissibility of Expert Testimony
The Texas Rules of Evidence provide that a witness "who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." TEX. R. EVID. 702. Before admitting expert testimony under Rule 702, a trial court must determine that (1) the witness is qualified as an expert by reason of her knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact-finder in deciding the case. Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006). These requirements are commonly referred to as qualification, reliability, and relevance. Id. Each requirement raises distinct questions and issues, and an objection based on one requirement does not preserve error as to another. Shaw v. State, 329 S.W.3d 645, 655-56 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd).
A trial court's admission of expert testimony will rarely be disturbed on appeal because "the possible spectrum of education, skill, and training is so wide, a trial court has great discretion in determining whether a witness possesses sufficient qualifications to assist the jury as an expert on a specific topic in a particular case." Rodgers v. State, 205 S.W.3d 525, 527-28 & n.1 (Tex. Crim. App. 2006). In determining whether a trial court abused its discretion in evaluating a witness's qualifications as an expert we consider (1) whether the field of expertise is complex; (2) whether the expert's opinion is conclusive and (3) how central the area of expertise is to the resolution of the lawsuit. Vela, 209 S.W.3d at 131 (citing Rodgers, 205 S.W.3d at 527-28). Pre-Trial Hearing , Objection and Ruling
At a pre-trial hearing held on Wolf's qualifications as an expert witness, Wolf testified she was a registered nurse, a board certified woman's health nurse care practitioner, and a sexual assault nurse examiner certified both by the State of Texas and internationally. She detailed her educational background which qualified her in these fields. Throughout her years of practice she developed, gained and obtained further education both through formal training and on the job experience.
Wolf had been an emergency room nurse in 1994. In that capacity, she "experienced domestic violence, personal violence, in seeing patients there. As a sexual assault nurse examiner, I see sexual assault and family violence, which is violence against persons in general." She had cared for victims of family violence "many, many, many" times. She estimated that, as a forensic nurse and sexual assault nurse, she had "seen over 250 cases, I believe, as family violence or violence connected to sexual assault." She had noticed definite patterns of abuse and cycles of violence that were consistent:
It can be something, like, just power of control, isolation. It seems to escalate from slap, kick, punch, up to strangulation or murder. Sometimes, it's cyclic most of the time. The power of control goes
through the honeymoon phase and it goes to repeat itself through the calm down phase, and they get shorter and shorter as it intensifies.
Wolf had taught classes about family violence and provided training for individuals and organizations apart from the patients she had cared for. As the co-owner of a company called Forensic Nurse Experts, she helped educate other nurses and first responders on recognizing the signs of strangulation and human trafficking. Wolf had also served as an educator about the signs of domestic violence, the power of control, strangulation and human trafficking at different organizations; there was a family violence component to these classes. Wolf had recently attended a week-long training conference about crimes against women.
Wolf had previously testified in court approximately eight times and had been qualified as an expert. She was of the opinion that her training, education and experience would assist the Court and the jury in understanding the dynamics observed in a family violence case or setting.
Wolf admitted that she had not reviewed anything about appellant's case and had no personal knowledge about appellant or any of the specific facts surrounding this prosecution. She would be, as defense counsel termed it, testifying as a "blind expert."
Appellant's Objections and State's Response
At the conclusion of the hearing, defense counsel objected to Wolf's qualifications vis-à-vis a continuous violence against the family case. Defense counsel stated that, while family violence may be a component of what Wolf had seen professionally or "either taught or set in a lecture on," she could not demonstrate for the Court of how large a component that is or what percentage of patients she had seen that had been subject to the power of control wheel. Defense counsel noted that nothing in Wolf's curriculum vitae established that Wolf had either been on the board of, or participated in, a battered women's shelter. Defense counsel also objected on grounds of relevancy:
However, as defense counsel stated: "I have no qualms about Ms. Wolf's qualifications as a SANE nurse. Obviously, this is not a sexual assault case."
We would also object to this type of testimony as it relates to relevancy. Obviously, talking to this jury about strangulation, I don't think is going to be relevant, and some of the things that she was talking about just simply are either not listed in the indictment or really supported with the evidence that we have as it relates to this Jessica Marical and I'm not aware of her recanting her statement or anything of that nature.
Obviously, it would be our position that this type of testimony would be entirely more prejudicial and (sic) probative as it relates to giving it to the jury, so we would object to Ms. Wolf's testimony on all three of those different issues.
The State responded that Wolf was a degreed and certified health care professional with "extraordinary experience in providing medical care for injured persons and, in the context of this case, persons who are victims of domestic violence or interpersonal violence." The State noted that Wolf had explained her extensive experience with, and her observations of, common patterns that were consistent with her training, education, and experience. The prosecutor stated that Wolf could deliver testimony to assist the jury in understanding a variety of issues, including the cycle of violence and the behavior of victims of that violence, particularly how a victim could stay with their batterer despite repeated assaults.
Defense counsel reiterated that, while Wolf was "well-credentialed and has a tremendous amount of experience," she was not qualified to testify in the capacity of a family violence expert.
Trial Court's Ruling
The trial court overruled appellant's motion to disqualify Wolf as an expert witness. The trial court stated: "I'm going to allow the testimony as it relates to family violence and what she's qualified and testified that she is qualified to testify to."
Objection Re-Urged and Additional Rulings
Prior to Wolf's testimony before the jury, defense counsel renewed his objections:
[DEFENSE COUNSEL]: Judge, we'd just like to renew the objections raised by the Defense during the 705 hearing. Those are all still our position as far as whether or not this is relevant evidence. The qualifications of Ms. Wolf, as it relates to the domestic violence case,
as well as all other objections made during that hearing. And, obviously, we request a ruling from the Court on that.
And as it relates to Ms. Wolf's testimony and prior testimony, I know that she likes to talk about strangulation and things of that nature. We would request if the Court is going to allow her testimony over our objection that she not get into those issues. It's our position that there's no application or even mention of strangulation in any of the evidence, and I believe all that would effectively do is prejudice the jury, as well as confuse them.
The trial court judge responded: "I did find and I do still find that her testimony as to the type of relationship that is being spoken about here would aid the jury in understanding something like that."
However, on representations from the prosecutor that the State did not intend to ask any questions about strangulation, the trial court judge said "let's keep strangulation and sex assault out of it." Upon further representations from the prosecutor, the court judge instructed the prosecutor to limit Wolf's testimony to "the cycle of abuse and the things that go on in relationships that have been depicted in court."
Testimony before the Jury
In testimony before the jury, Wolf detailed her education and experience. She also stated that she was not aware of any facts surrounding the case.
Wolf testified that she had specialized knowledge and experience which would assist the jury in understanding evidence regarding trauma family violence. As part of her testimony, Wolf explained the power and control wheel, a device used by psychiatrists, certain doctors and counselors:
It's something that is used throughout the medical field just to kind of explain. A lot of times, people don't understand why people just don't leave, you know, if that happened, why they didn't just walk out the door. There's actually a wheel that is used within . . . my profession that's called the power of control wheel.
It starts out with very slowly building up to where they, a lot of times the batterer may be a female or a male. They start to isolate the victim to where they are not allowed to go out with friends. They are very, very protective of their time, money, that increases up to threats passed through children. A lot of times they use deportation or maybe take something they did in the past and then they say, you're going to go to jail, too, because this happened.
Minimizing it. Then it escalates into hit, slap, punch, kick, on up to that and then there's a honeymoon phase afterwards, where it's more of the cycle of violence to where they are sorry and it's really kind of like the first of a relationship where it's really awesome, and you're getting everything you want out of the relationship. And then it kind of slowly builds up the tension again.
Wolf testified that batterers will tend to isolate their victims from family, friends, finances, and other resources. With respect to technology, victims will often have their emails hacked into, their text messages will be read, they will not be allowed to have a pass code or will have to share their pass code on their phones and other devices. They may not be able to have a car to drive or money of their own. An abuser may also use something other than money to obtain and retain control and power: "Any type of something that is important to them. You know, clothes, getting to get their nails done, anything that is important to them they can take away or control and they get this or that."
With respect to the cycle of violence, Wolf testified that a lot of psychological abuse may occur before a relationship "goes down to the honeymoon phase where . . . everything is kind of perfect, and then it will slowly go back around:"
He's sorry. He didn't mean to. He also tries to put the blame off on the victim. You know, if you would have just had dinner ready or had the kids ready for bed, or if you just would have come home when you said you would be home, whatever it was that was the trigger to set things off.She explained one of the factors that helps women stay is that the batterer knows exactly what the victim desires and will provide that.
Wolf further explained that within the cycle of violence there is also denial on the part of the victim who may blame themselves: "The person being battered loves their batterer, and they want to please them and so they place the blame on themselves."
Wolf stated that a victim's demeanor before a police officer can present in a variety of ways including hostility, minimizing, combativeness or lying. Victims often do not want to pursue charges against their batterers and can recant their initial complaints for a variety of reasons:
One reason may be that nothing happened. One of the other reasons could be that just like the things that are spoken about, you know, they are afraid and have nowhere else to go. They are threatened in some way. They've been conditioned. A lot of times, the batterer will threaten
suicide or threaten to take the children or to out a secret or revenge porn, different types of things like that.
The defense made it clear on cross-examination that Wolf was testifying as a "blind expert" who had no knowledge specific to this case. She stated she was "just here to provide education." It was not her testimony that any of the things about which she testified were "going on in this case."
Expert Testimony on Family and/or Domestic Violence
Texas courts have routinely found expert testimony concerning the dynamics of a relationship involving family and/or domestic violence admissible under Rule 702. See Fielder v. State, 756 S.W.2d 309, 319-21 (Tex. Crim. App. 1988); Brewer v. State, 370 S.W.3d 471, 474 (Tex. App.—Amarillo 2012, no pet.); Dixon v. State, 244 S.W.3d 472, 480 (Tex. App.—Houston [14h Dist.] 2007, pet. ref'd).
Courts have specifically permitted the use of expert testimony on the cycle of family violence and its dynamics of power and control to help juries understand a victim's delay, reluctance, and inconsistencies in reporting abuse as well as other behavior, including recanting a report of abuse, consistent with that of family violence victims. See Scugoza v. State, 949 S.W.2d 360, 363 (Tex. App.—San Antonio 1997, no pet.) (allowing a witness to testify about general domestic violence behaviors, including that recantation of an initial accusation was consistent with the behavior of the typical battered woman, despite having no personal knowledge of defendant and victim); see also Brewer, 370 S.W.3d at 474 (upholding admission of general expert testimony on domestic violence cycle to assist the jury in understanding the victim's delay in calling the police); Young v. State, No. 09-17-00374-CR, 2019 WL 1647679, at *2 (Tex. App.—Beaumont Apr. 17, 2019, no pet.) (mem. op., not designated for publication) (holding that testimony about the cycle of violence was admissible to explain text messages in which the defendant apologized for his violent actions and the complainant expressed forgiveness and a desire to maintain their relationship and drop criminal charges); Lessner v. State, No. 02-15-00400-CR, 2016 WL 4473263, at *3-6 (Tex. App.—Fort Worth Aug. 25, 2016, no pet.) (per curiam) (mem. op., not designated for publication) (upholding the admission of expert testimony about the dynamics of family violence and typical behavior of victims in relation to their abusers to explain a victim's recanting testimony); Mendoza v. State, No. 08-13-00293-CR, 2015 WL 5999596, at *4-5 (Tex. App.—El Paso Oct. 14, 2015, pet. ref'd) (not designated for publication) (holding that testimony regarding the cycle of family violence was relevant when the assault was witnessed by third party but the victim refused to cooperate with police and testified for defense); Capello v. State, No. 03-05-00553-CR, 2006 WL 2453021, at *4 (Tex. App.—Austin Aug. 25, 2006, pet. ref'd) (mem. op., not designated for publication) (upholding the admission of expert testimony on the cycle of domestic abuse because it assisted jury in understanding why the victim initially lied to the police).
Witnesses from a variety of backgrounds have been allowed to testify as experts regarding family violence. See, e.g., Brewer, 370 S.W.3d at 474 (allowing a counselor in the family violence section of a police department to provide expert testimony regarding the three stage cycle of violence); Dixon, 244 S.W.3d at 480 (holding that a police officer was qualified to express an expert opinion as to the behavior of victims of family violence); Coker v. State, No. 05-17-00782-CR, 2019 WL 3406629, at *2 (Tex. App.—Dallas July 29, 2019, no pet.) (mem. op., not designated for publication) (permitting a counselor and social worker at a women's shelter to testify about the cycle of violence); Runels v. State, No. 03-18-00036-CR, 2018 WL 6381537, at *6 (Tex. App.—Austin Dec. 6, 2018, pet. ref'd) (mem. op., not designated for publication) (holding a counselor's testimony based on concepts of the cycle of violence and the power and control wheel was sufficiently reliable to allow the counselor to testify as an expert); Nwaiwu v. State, No. 02-17-00053-CR, 2018 WL 3763899, at *2, *3 (Tex. App.—Fort Worth Aug. 9, 2018, pet. ref'd) (mem. op., not designated for publication) (determining that testimony from a licensed marriage and family therapist, including portions explaining the power and control wheel, was admissible); Booker v. State, No. 05-08-00699-CR, 2009 WL 2006428, at *6 (Tex. App.—Dallas Jul. 13, 2009, no pet.) (not designated for publication) (holding the victim services coordinator at a police department qualified as an expert witness in domestic violence).
Wolf was Qualified as an Expert
On appeal, appellant reiterates his objections to Wolf testifying as an expert due to her alleged lack of qualifications. He does not further argue that her testimony was irrelevant. Nor does appellant challenge the reliability of Wolf's testimony.
The trial court conducted a meaningful inquiry into Wolf's qualifications to testify as an expert witness. The trial court heard that Wolf was a registered nurse and a board certified woman's health nurse care practitioner, as well as a sexual assault nurse examiner. The trial court also heard testimony regarding Wolf's practical experience working with patients, which began in 1994 when she was working as a nurse in the emergency room. As a forensic nurse and sexual assault nurse examiner, Wolf estimated that she had seen over 250 cases of family violence or violence connected to sexual assault. From that experience, she was able to identify definite patterns including the power and control wheel and the cycle of violence.
The trial court also heard that Wolf was an educator and that her teaching included the field of family violence. Not long before testifying before the jury, Wolf attended a week long training conference about crimes against women and personal violence.
Although this was her first time to testify as an expert in a family violence case, Wolf had previously qualified as an expert and had testified in court eight to ten times.
We also note that Wolf's testimony concerned family violence which is not an overly complex subject and is considered "within or close to the jury's common understanding." Booker, 2009 WL 2006428, at *6. In cases where the expert's evidence is close to the jury's common understanding, the witness's qualifications are less important than when the evidence is well outside the jury's own experience. Rodgers, 205 S.W.3d at 528.
Given her training and experience, we conclude that the trial court did not abuse its discretion by finding that Wolf was qualified to offer her expert opinion regarding general issues relating to domestic violence, including the cycle of violence, and the power and control wheel, and why some victims either do not report abuse and/or recant their reports of abuse.
Any Error is Harmless
Even if we were to find that the trial court abused its discretion by allowing Wolf to testify as an expert, we would not reverse.
The erroneous admission or exclusion of evidence is nonconstitutional error. See TEX. R. APP. P. 44.2(b). For nonconstitutional errors in criminal cases, the error must be disregarded unless it affected the defendant's substantial rights. Id. A substantial right is not affected when, after examining the record as a whole, we have "fair assurance that the error did not influence the jury or had but a slight effect." McDonald v. State, 179 S.W.3d 571, 578 (Tex. Crim. App. 2005). We consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). Additionally, we may examine whether the State emphasized the errors. Id. at 356.
Wolf made it clear to the jury that she knew nothing about the facts of this case. As a result, her testimony was not conclusive with respect to whether either of the alleged victims was, in fact, assaulted by appellant.
Further, the trial court gave the jury a limiting instruction regarding Wolf's testimony, emphasizing that she had no knowledge of the facts of the case and instructing the jury not to draw any inference from her testimony regarding the facts or circumstances of this case. And while the trial prosecutor mentioned Wolf's testimony in closing jury argument, she did so, without objection, to focus on why victims of family violence may behave in ways that can seem irrational, such as not attempting to escape their abuser or denying that an act of abuse occurred. The prosecutor also emphasized that Wolf knew nothing about the facts of the case.
Wolf's testimony did not affect appellant's substantial rights and, accordingly, did not result in harm warranting a reversal of his conviction. See e.g., Coker, 2019 WL 3406629, at *5. We overrule appellant's second issue.
Issue 3: Directed Verdict/Sufficiency of the Evidence
In his third issue, appellant claims that the trial court erred by denying his motion for a directed verdict. Motion , Response and Ruling
At the conclusion of the State's case-in-chief, counsel for appellant made the following motion for a directed verdict:
[DEFENSE COUNSEL]: Judge, at this point, we move for directed verdict as it relates to the indictment. Trina McNew has alleged in paragraph 3 that the State's indictment her testimony was that this was not true. She made it all up. As it relates to the testimony of Jessica Marical, it's our position that their testimony is not credible, that basically there is no evidence before the Court of any kind of assault occurring to either of these individuals by my client and we'd move for directed verdict.The State responded as follows:
[THE PROSECUTOR]: Your Honor, with respect to Trina McNew, there is her statement that, yes, she did tell officers on December 15th, 2017, that she had previously been assaulted to where last time my eye was protruding out. He knocked me to the ground. He almost knocked me out.The trial court found there was "at least a scintilla of evidence as to each of those three paragraphs" and overruled the motion for a directed verdict.
Then, that's corroborated by her brother and her actually she admitted leaving in May. Her brother said she went back home to live and that he observed marks on her face that he had concern for. So it's corroborated and with respect to Jessica Marical, she testified as to acts of the defendant striking her head on two or more occasions, and she said one was on or about August 2nd and one was about the day before and that both caused her pain. It just simply is a fact issue for the jury.
Standard of Review
A challenge to the denial of a motion for directed verdict is a challenge to the sufficiency of the evidence. Canales v. State, 98 S.W.3d 690, 693 (Tex. Crim. App. 2003).
In reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and then determine whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). We assume the fact-finder, in this case the jury, resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).We defer to the fact-finder's determinations of witness credibility and the weight to be given their testimony. Brooks, 323 S.W.3d at 899. The standard of review is the same for direct and circumstantial evidence. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).
Continuous Violence against the Family
As detailed above, a person commits the offense of continuous violence against the family if: (1) during a period that is 12 months or less in duration; (2) the person two or more times; (3) engages in conduct prohibited by Section 22.01(a)(1) by intentionally, knowingly, or recklessly causing bodily injury to another person or persons; (4) whose relationship to or association with is described by Section 71.0021(b) of the Family Code, which includes a dating relationship. PENAL §§ 22.01, 25.11; FAMILY § 71.0021(b). Section 22.01 of the Penal Code provides that a person commits an offense if he intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse. PENAL § 22.01(a)(1). "Bodily injury" is defined as "physical pain, illness, or any impairment of physical condition." Id. § 1.07(a)(8).
The Evidence: Offense against McNew
On December 15, 2017, the police were dispatched to a house in Kaufman County where Deputies Dillon Roberts and Ryan Rigsby conducted an investigation into appellant and Trina McNew.
The 911 call and body camera footage from this investigation was introduced for record purposes only at the guilt/innocence stage of the trial but for all purposes at the punishment phase of the trial.
McNew testified that in December of 2017 she and appellant had been together for almost four years and were engaged. McNew admitted that she spoke to the deputies that day, and may have told them appellant had assaulted her the preceding May. However, she also denied that appellant had ever assaulted her and testified that everything she told the officer that day was a lie:
[BY THE WITNESS]: On that day, I called him out because I was mad at him and frustrated at him. I didn't know how to get to him to hurt him, so that's why I did that. And now, y'all have put him pretty much for the rest of his life and give him charges that he doesn't even deserve or nothing on a lie that I told.
*
[BY THE PROSECUTOR]. So you're saying that if you said there was a prior assault in which your eye was protruding out that he knocked you to the ground. He almost knocked you out, you think that would have been a lie?
A. Yes.
*
Q. Do you recall that same day in that same place with that same officer, in response to his question, when was the last assault, and you responded the last assault was about eight or nine - you said the last assault was about eight or nine months ago in May?
A. No, I don't remember dates, May or anything happening. We did argue like normal couples do, and I did leave on May 10th.
When McNew left appellant in May, she went to the home where her mother and brother, Jerry Huskey, lived. Huskey testified that she had "some marks on her," i.e., bruises on her chin and around her neck area. He spoke with her about these marks and was concerned for her.
On appeal, appellant claims that, because McNew testified any statements she made to the police were false, there was no evidence to show that appellant was the person who assaulted McNew. The State responds that the evaluation of McNew's testimony was a credibility question for the jury.
Even when a statement is recanted by the victim, the fact-finder, as the sole judge of the credibility of the witnesses, is still entitled to determine whether to believe either a prior statement or the recantation. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); Jimenez v. State, 507 S.W.3d 438, 442-43 (Tex. App.—Fort Worth 2016, no pet.); Varelasida v. State, No. 05-18-00187-CR, 2019 WL 1760301, at *2 (Tex. App.—Dallas Apr. 22, 2019, no pet.) (mem. op., not designated for publication). A recantation does not destroy a statement's probative value. See Chambers, 805 S.W.2d at 461 (concluding complainant's recantation did not destroy probative value of evidence of abuse, stating "[t]he jury observed the complainant's demeanor and was entitled not only to reconcile any such conflicts, but even to disbelieve her recantation"); Saldana v. State, 287 S.W.3d 43, 60 (Tex. App.—Corpus Christi 2008, pet. ref'd) (stating a fact-finder is "fully entitled to disbelieve a witness's recantation"); Hernandez v. State, 280 S.W.3d 384, 387 (Tex. App.—Amarillo 2008, no pet.) (concluding the evidence was sufficient to support a family violence conviction because the jury heard the victim's statements made on the night the defendant assaulted her and could have disregarded her in-court recantation). Here, the jury was entitled to believe from the evidence that appellant struck McNew, thereby causing her bodily injury, and could determine McNew's recantation at trial was not credible.
In convicting appellant of continuous violence against the family, the jury resolved any conflicting evidence in this case and made a credibility determination to disbelieve McNew's trial testimony that appellant never assaulted her. Affording almost complete deference to this determination, we conclude the evidence was sufficient to support a finding that appellant struck McNew.
The Evidence: Offense Against Marical
Jessica Marical testified that she began dating appellant in May of 2017 and moved into his house in Terrell, Texas, in Kaufman County. She also stored a number of her belongings at his house.
About two weeks after she moved in, appellant began making it difficult for her to leave his home. Appellant did not work at the time because he did not want to leave Marical by herself. Appellant took Marical's phone from her; he would not allow her access to her phone and she had no way to get in touch with anyone. Appellant kept her isolated and secluded:
I couldn't leave. There was no way of trying to get away because I had no car. He had done something to my car. I couldn't start it. I had no phone access. I tried to run out the door many a time. He used a screw gun to drill me in the house where I couldn't get out. He kept me in the room.Marical was afraid of appellant. However, she did not call the police or attempt to escape because "he'd chase after me. He's chased me with a gun before."
On August 1, 2017, appellant hit Marical in the face with his fist, almost breaking her jaw.
On August 2, 2017, appellant and Marical were watching television when appellant, after looking at her phone, became angry and struck her again:
He got into my Facebook. He seen messages from my daughter's father asking how we were, and then another one from like probably months ago that somebody, a man, a friend of mine, was asking how I was doing if I was okay and because I was secluded. I wasn't allowed
to have a phone or anything, and he gets up and just starts hitting me in my face and he breaks my nose, and blood is everywhere.Choking on her own blood and in pain, Marical asked appellant to take her to either the hospital or a doctor. Appellant told her she could not go to the hospital because he would get arrested and he'd go to prison. Appellant told her if she had him arrested he'd "make my life a living hell and he said he'd kill me."
Marical admitted that both she and appellant were using drugs, i.e., methamphetamine, during the time they were together. She testified, however, that when appellant hit her he was sober.
On August 6, Marical was able to convince appellant to take her to church where she knew her mother and her children would be in attendance; she planned to try to escape. She applied some makeup to her face in an effort to disguise the injuries appellant had inflicted on her. Once at the church Marical refused to leave with appellant. Someone called the police, who showed up at the church. Thereafter, Marical went to the county sheriff's office and filed a report.
The deputy who took Marical's report testified that she had a lot of makeup on her face: "I guess she was trying to hide the bruising under her eyes but the room was so dark she couldn't cover it up." Marical advised the deputy that she thought her nose might have been broken. The deputy took photographs as documentation of what Marical reported and these photographs were admitted into evidence. The deputy specifically observed bruising under Marical's left eye, a little bruising under her right eye, and some minor swelling to her face.
Later that same day, Marical was treated at Texas Health Kaufman Emergency Department by January Jones, a physician's assistant. Marical complained of nose and jaw pain. Jones examined Marical and documented nasal deformity, tenderness, and pain as well as bruising to her face. Jones determined that Marical suffered a broken nose and had a contusion on her head as well as swelling and tenderness in her jaw.
The defense sought to impeach Marical with work records showing that she had reported for her job as a home health care provider on August 3 and 4, 2017. The defense established that she used her own car to get to her job and that the Sheriff's office was "just down the street" in Kemp, Texas. When asked why she did not go to the sheriff's office after work on those days, Marical replied as follows:
Because I was scared of him. He threatened me and there was a lot of other things. I was just scared. There's no other way to put it. I was just scared. If I went to the police, I thought he would harm my kids, me or somebody because he is crazy.Marical also admitted that, either the day after she made the police report or shortly thereafter, she returned to appellant's house to reclaim some of her belongings.
In making the motion for directed verdict, defense counsel argued that Marical was not credible. While appellant does not reiterate this argument on appeal, the same rules with respect to credibility apply to the evaluation of Marical's testimony as to McNew's testimony. The jury was entitled to believe from the evidence that appellant struck Marical, on two occasions, with his hand, thereby causing her bodily injury. In convicting appellant, the jury made a credibility determination to believe Marical's trial testimony that appellant assaulted her. Affording almost complete deference to this determination, we conclude the evidence was sufficient to support a finding that appellant struck Marical twice.
Conclusion
Even if we found the evidence that appellant assaulted McNew was insufficient, which we do not, a jury could have found the essential elements of continuous violence against the family beyond a reasonable doubt based upon appellant's two assaults on Marical. After viewing the evidence in light of the verdict, we conclude the trial court did not err by denying appellant's motion for directed verdict. We overrule appellant's third issue.
Issue 4: The Sentence is neither Cruel nor Unusual
In his fourth issue, appellant claims that the sentence assessed by the trial court is disproportionate and therefore constitutes cruel and unusual punishment under the 8th Amendment and the Texas Constitution. U.S. CONST. amend VIII; TEX. CONST. art. I §13. Specifically, appellant claims that the trial court abused its discretion when it sentenced appellant to the maximum term of years for a second degree felony and ordered appellant's sentence to be served after the completion of his twenty-five year sentence in Cause Number 18-00392-422-F. The State responds that appellant has not preserved this complaint for appellate review or, in the alternative, that the sentence assessed was not unconstitutional. We agree with the State.
Preservation
To preserve error, a defendant must make a timely request, objection, or motion in the trial court. See TEX. R. APP. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.). Constitutional rights, including the right to be free from cruel and unusual punishment, may be waived by a failure to raise those issues in the trial court. Castaneda, 135 S.W.3d at 723. Here, at the time the trial court pronounced appellant's sentence, appellant did not object to the term of years assessed on any grounds, much less that the sentence violated his constitutional rights. Nor was this issue raised in appellant's motion for new trial. Consequently, appellant has waived any complaint as to the term of years assessed.
Appellant claims that an objection to the cumulation order was unnecessary because trial counsel specifically requested a concurrent sentence in final argument on punishment: "Whatever sentence that the Court imposes, we're requesting that you run it concurrently with the sentence." Appellant asserts that this request "alleviates the need for a specific objection and preserves the issue for appellate review." We do not agree.
While appellant requested a concurrent sentence, he did not object when the trial court ordered a consecutive sentence. Nor did appellant raise this issue in his motion for new trial. As a result, appellant has not preserved this issue for appellate review.
The only legal ground asserted in appellant's motion for new trial was that the verdict was contrary to the law and the evidence. This does not preserve a complaint that punishment was disproportionate or excessive. Garza v. State, No. 05-11-01626-CR, 2013 WL 1683612, at *2 (Tex. App.—Dallas Apr. 18, 2013, no pet.) (mem. op., not designated for publication).
The Sentence is Not Excessive or Constitutionally Disproportionate
Even if appellant had preserved this issue for review, we would not find that the sentence assessed was excessive or constitutionally disproportionate to the offense for which appellant was convicted.
The concept of proportionality in sentencing is embodied in the Eighth Amendment's prohibition of cruel and unusual punishment. U.S. CONST. amend. VIII, XIV; State v. Simpson, 488 S.W.3d 318, 322 (Tex. Crim. App. 2016); see also TEX. CONST. art. I §13. This is a narrow principle that does not require strict proportionality between the crime and the sentence imposed. Simpson, 488 S.W.3d at 322 (citing Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J. concurring)). Rather, it forbids only those rare and extreme sentences that are so "grossly disproportionate" to the crime as to amount to cruel and unusual punishment. Id. (citing Ewing v. California, 538 U.S. 11, 23 (2003)). Generally, punishment assessed within the statutory limits is not considered excessive, cruel, or unusual. Id. at 323; see also Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (stating it is "the general rule that as long as a sentence is within the proper range of punishment it will not be disturbed on appeal"); Foster v. State, 525 S.W.3d 898, 911 (Tex. App.—Dallas 2017, pet. ref'd) (same).
The offense for which appellant was convicted - continuous violence against the family - is a third degree felony subject to a range of punishment of between two and ten years. PENAL §§ 12.34(a), 25.11(e). However, when it is shown that a defendant has previously been convicted for another felony, other than a state jail felony, the defendant can be punished for a second degree felony, i.e., a term of imprisonment between two and twenty years. PENAL §§ 12.33(a), 12.42(a).
Here, the indictment contained an enhancement paragraph alleging a prior felony offense of engaging in organized criminal activity, a first degree felony. While appellant entered a plea of not true and contested the enhancement at trial, the State offered proof of that prior conviction, in the form of a penitentiary packet, and the trial court's written judgment reflects a finding of true on that enhancement allegation. Appellant was therefore subject to punishment for a second degree felony. As appellant concedes in his brief to this Court, his twenty year sentence is within the statutorily approved range of punishment, albeit the maximum possible term of years. Because the punishment assessed was within the statutory range, it is not excessive or unconstitutionally cruel and unusual.
We note that the trial court did not specifically state on the record that it was finding the enhancement paragraph true. However, absent direct proof to the contrary, the recitations in a formal, written judgment are presumed to be correct. Breazeale v. State, 683 S.W.2d 446, 450-51 (Tex. Crim. App. 1985). Further, appellant does not challenge the recitation of "true" to the enhancement paragraph in the judgment and no contrary evidence appears in the record before us. As a result, we conclude that the presumption of sufficient proof controls. Armstrong v. State, 781 S.W.2d 937, 943 (Tex. App.—Dallas 1989), aff'd, 805 S.W.2d 791 (Tex. Crim. App. 1991). Because this presumption has not been rebutted, the judgment reflecting a finding of "true" to the enhancement paragraph is presumptively correct. Huitt v. State, No. 05-06-00632-CR, 2007 WL 1192266, at *6 (Tex. App.—Dallas Apr. 24, 2007, no pet.) (not designated for publication).
The Trial Court had Discretion to Order a Consecutive Sentence
As state above, in assessing punishment, the trial court ordered that appellant's sentence was to "run consecutive with Cause Number 18-00392-422-F."
Texas trial courts have wide discretion to order cumulative sentences in virtually every case and we review a trial court's decision to cumulate sentences for an abuse of discretion. See TEX. CODE CRIM. PROC. ANN. art. 42.08(a); Byrd v. State, 499 S.W.3d 443, 446 (Tex. Crim. App. 2016). A trial court abuses its discretion only if it imposes consecutive sentences where the law requires concurrent sentences. Byrd, 499 S.W.3d at 446-47; see also McDaniel v. State, No. 10-18-00353-CR, 2020 WL 1429675, at *10 (Tex. App.—Waco March 23, 2020, no pet.) (mem. op., not designated for publication).
The principal exception to this rule is found in Section 3.03(a) of the Penal Code which provides that when a defendant is found guilty at a single trial of more than one offense arising out of the same criminal transaction, the sentences for each offense must run concurrently. PENAL § 3.03(a).
Here, in argument to the trial court, defense counsel stated that this case and Cause 18-00392-422-F are companion cases and were originally planned to be tried together. Defense counsel, however, requested a severance of those two cases as part of his trial strategy; that severance was granted. If these cases had been tried together, it would have been mandatory for any sentences arising from that joint prosecution to run concurrently. PENAL § 3.03. However, they were not tried together. Because this case was tried separately from Cause Number 18-00392-422-F at appellant's request, the trial court had the discretion to order either a concurrent or a consecutive sentence. Id. § 3.04. We conclude there was no abuse of discretion in ordering appellant's sentence to run consecutively to that ordered in another case for which he was tried separately. We overrule appellant's fourth issue.
Conclusion
The trial court's judgment is affirmed.
/Leslie Osborne/
LESLIE OSBORNE
JUSTICE DO NOT PUBLISH
TEX. R. APP. P. 47.2(b)
190625F.U05
JUDGMENT
On Appeal from the County Court At Law No. 1, Kaufman County, Texas
Trial Court Cause No. 19-00133-CC-F.
Opinion delivered by Justice Osborne. Justices Whitehill and Carlyle participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered August 25, 2020