Opinion
No. 05-02-01812-CR
Opinion issued October 14, 2003. DO NOT PUBLISH. Tex.R.App. P. 47
On Appeal from the County Court at Law No. 5, Collin County, Texas, Trial Court Cause No. 005-80430-02. AFFIRMED
Before Chief Justice THOMAS AND Justices JAMES and FITZGERALD.
OPINION
Eric Edward Esnard appeals his conviction for assault involving domestic violence. After the jury found appellant guilty, the trial court sentenced appellant to 200 days in jail, probated for eighteen months, and a $600 fine. In four points of error, appellant contends (a) the evidence is legally insufficient to support his conviction, (b) the trial court erred by admitting an unauthenticated audiotape, (c) appellant's right of confrontation was violated, and (d) the prosecutor made improper jury arguments. We affirm the trial court's judgment.
FACTUAL BACKGROUND
On August 12, 2001, Patricia Esnard and appellant, her husband, were spending the night with their children at the Plano home of Patricia's mother, Carol Griffis. Patricia and appellant had a dispute, culminating with appellant getting into their car to leave. Patricia tried to physically stop him, but appellant managed to drive away. After appellant left, Griffis called 911 and told the dispatcher that appellant had beaten Patricia, pushed her out of the car, dragged her with the car, and tried to run her over. Patricia also spoke to the dispatcher and did not deny anything Griffis told the dispatcher. Patricia told the dispatcher the incident had occurred about five minutes earlier and that appellant was then on his way to Houston. Two police officers arrived and photographed Patricia's injuries to her arm and leg, and Patricia gave them a written statement. In her written statement, Patricia said appellant grabbed her by the neck, pushed her down, hit her against the "driver's door," shoved her "very hard" to the ground, and hit her. On December 17, 2001, Patricia filed an affidavit of non-prosecution stating she no longer wished to prosecute; however, on January 24, 2002, the district attorney filed a charge of assault against a family member against appellant. On September 12, 2002, Patricia wrote the district attorney, stating the facts of the incident were not as they appeared in the police report and that the district attorney's time would be better spent on cases with real victims. At trial, Patricia testified under a grant of immunity. She testified that the statements made to the dispatcher and in her written statement describing appellant physically assaulting her were lies. Patricia testified the true facts were that she was angry with appellant and was pulling on his shirt to pull him out of the car when his shirt ripped and she fell. She testified he never struck her or shoved her, and he did not almost run over her. She testified she lied to the police in order to "get back at" appellant. Patricia's nine-year-old daughter, Ca., testified Patricia got hurt because she fell on the ground. Ca. said Patricia "kept hitting her head . . . [on] [t]he car door . . . [b]ecause of brakes kept stopping." Appellant testified he and Patricia had a dispute, and he told her he was taking his daughter and going to a hotel. Patricia did not want him to go and would not let him shut the car door. As he tried to drive out of the driveway, she grabbed his shirt and tried to remove the keys from the ignition. When appellant's shirt ripped, Patricia fell down, and appellant closed the car door and drove away. Appellant testified he never struck, pushed, punched, or kicked Patricia or pulled her hair. Appellant testified that all the statements to the dispatcher and in Patricia's written statement describing appellant assaulting her were lies.SUFFICIENCY OF THE EVIDENCE
In his second point of error, appellant contends the evidence is legally insufficient to support his conviction. When reviewing the legal sufficiency of the evidence, this Court must examine the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In making this determination, the reviewing court considers all the evidence admitted including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001); Holberg v. State, 38 S.W.3d 137, 139 (Tex.Crim.App. 2000). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998); Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim.App. 1998). Appellant contends the evidence is insufficient because: "The State wholly failed to prove that the injuries sustained by Patricia Esnard track the information in the manner and means of committing the crime." Patricia testified appellant did not strike her or push her. The indictment alleged appellant caused bodily injury to Patricia by "pushing the body of Patricia Esnard out of a vehicle with defendant's hand" and "by striking the body of Patricia Esnard with defendant's hand." However, the jury heard the 911 tape in which Griffis described appellant as having "knocked her out of the car" and his "beating on . . . her." In her written statement to the police, Patricia stated appellant shoved her and hit her. The jury was free to believe the statements made to the 911 dispatcher and in her written statement and conclude appellant's in-court testimony about having lied to the dispatcher and in her written statement was not credible. After considering all the evidence in the light most favorable to the jury's verdict, we conclude a reasonable juror could find appellant guilty of assault against a family member as alleged in the information beyond a reasonable doubt. We overrule appellant's second point of error.AUTHENTICATION OF THE 911 TAPE
In his first point of error, appellant contends the trial court erred in admitting an audio tape containing the contents of Griffis's and Patricia's conversation with the 911 dispatcher, Emily Scates. When the tape, State's Exhibit 9, was offered into evidence, appellant objected as follows: "First of all, it is not authenticated properly under 902 Texas Code [sic] of Evidence, Judge; and further, Judge, I don't believe that she [Scates] has been proven to be the custodian of records, and I am going to object under both bases." Rule of evidence 902 concerns self-authentication, and the State did not attempt to self-authenticate this tape. Under rule 901, "The requirement of authentication . . . as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Tex.R.Evid. 901(a). Telephone conversations may be authenticated by evidence that a call was made to the assigned number to a particular business "and the conversation related to business reasonably transacted over the telephone." Tex.R.Evid. 901(b)(6)(B). In this case, the evidence shows Griffis called 911, and their conversation related to the business of emergency dispatching. Scates testified all 911 calls are recorded, and State's Exhibit 9 was an exact duplicate of the original recording. We conclude Scates's testimony was sufficient to support a finding that State's Exhibit 9 was what the prosecutor claimed. As for appellant's objection to whether Scates was a custodian of records as required by rule of evidence 803(6), Scates testified that she was a custodian of records:Q. Are you one of the custodians of those records — you have access to and maintain those records?
A. I understand, sir, yes.Accordingly, we conclude the evidence shows appellant was a custodian of records as required by rule of evidence 803(6). We hold the trial court did not err in overruling appellant's objection to the admission of State's Exhibit 9. To the extent appellant's brief may raise other complaints about the admissibility of this exhibit, those complaints were not raised in the trial court and are not preserved for appellate review. Tex.R.App.P. 33.1. We overrule appellant's first point of error.
RIGHT OF CONFRONTATION
In his third point of error, appellant contends the trial court erred in precluding appellant from being able to exercise his constitutional right to confront his accusers. Appellant states in his brief that the State's failure to have Griffis testify denied appellant the opportunity to confront Griffis about the statements she made to the 911 dispatcher. Appellant never objected in the trial court that his right of confrontation was violated or objected to admission of the 911 tape on the ground that Griffis was not present to testify. Accordingly, appellant's argument is not preserved for appellate review. Tex.R.App.P. 33.1; Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App. 2000). We overrule appellant's third point of error.JURY ARGUMENT
In his fourth point of error, appellant contends the trial court erred in permitting the prosecutor to argue outside the record. The court of criminal appeals has defined the proper areas of jury argument to be: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) response or answer to argument advanced by opposing counsel; and (4) pleas for law enforcement. Holberg, 38 S.W.3d at 141; Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App. 2000). The State is not permitted to interject new facts during argument, but any error is not reversible unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts, harmful to the accused into the trial. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000). Appellant objected to the following argument by the prosecutor:[Prosecutor]: You can't hold it against him, that Carol Griffis is not here. Well, again, this is this pattern of trying to avoid testifying. Patricia tried —
[Defense Counsel]: I am going to object. There is no testimony as to her trying to avoid this prosecution.
The Court: Objection overruled. The jury will recall the evidence. Please continue. Patricia testified that Griffis told her she intended not to testify because she had not been served with a subpoena. We conclude the prosecutor's argument was a reasonable deduction from the evidence, and the trial court did not err in overruling appellant's objection. Appellant also argues the prosecutor made an improper argument that appellant had assaulted Patricia and their daughters on other occasions:
[Prosecutor]: We don't refuse to prosecute where all this happens before. It didn't happen in front of her mom before, but it happened before. We don't refuse to prosecute any more on that. We don't refuse to prosecute when [Ca., Ch., and J.] all have to go through this all the time.
[Defense Counsel]: I will object. I have not heard any testimony regarding that, and I object to counsel doing that.
The Court: The objection is sustained. Please continue with your argument.
[Prosecutor]: You will hear this tape and hear what she says about, No, this wasn't the first time. No, it didn't happen in front of my mom before. This wasn't the first time.
[Defense Counsel]: I don't think there is any testimony as to that, and I will object again.
The Court: The jury will recall the testimony. Please continue. To preserve error from jury argument, a party must object and pursue his objection to an adverse ruling.Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim. App. 1996). Here, the trial court sustained appellant's first objection and did not rule on appellant's second objection. Because appellant failed to pursue his objections to an adverse ruling, he has not preserved any error for appellate review. We overrule appellant's fourth point of error. We affirm the trial court's judgment.