No. 14-03-00452-CR
Memorandum Opinion filed August 17, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 339th District Court, Harris County, Texas, Trial Court Cause No. 919,251. Affirmed.
Panel consists of Justices FOWLER, EDELMAN, and SEYMORE.
CHARLES W. SEYMORE, Justice.
Appellant, Ahmad Peyravi, appeals his conviction for murder. In three issues, he contends (1) the evidence is factually insufficient to support the jury's verdict, (2) the trial court erred in denying appellant's motion for mistrial after a juror had unauthorized contact with a witness, and (3) the trial court erred in admitting hearsay testimony under the excited utterance exception. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See TEX. R. APP. P. 47.4.
BACKGROUND
On July 26, 2002, appellant and Teresa Gensemer were involved in a romantic relationship and lived together in an apartment in Houston. Throughout the day, they argued because Gensemer had taken $3,000 belonging to appellant and deposited it in her bank account. Appellant was demanding some of the money back. That evening, appellant called 911 several times as the argument persisted. Officer Ruben Pena responded to the calls. According to Officer Pena, appellant became agitated and argumentative after he explained that the dispute was a civil matter and suggested appellant consult an attorney. Officer Pena threatened to arrest appellant to encourage him to quit arguing. Officer Pena then left the apartment. Approximately five minutes later, Officer Pena was informed that appellant had again called 911 and stated that he had stabbed Gensemer. Officer Pena hurried back to the apartment where he met appellant coming out the front door. Appellant told Officer Pena that he was defending himself and stabbed Gensemer in the stomach. After Officer Pena placed appellant in his patrol car, appellant said Gensemer had tried to "zip" him and stab him with a knife. Paramedics and a crime scene unit arrived and found Gensemer in the apartment's kitchen/dining area dead from multiple stab wounds. A jury found appellant guilty of murder and assessed punishment at confinement for life in the Texas Department of Criminal Justice, Institutional Division, and a $2,000 fine. FACTUAL SUFFICIENCY
In his first issue, appellant contends thXe evidence is factually insufficient to support the jury's verdict. Specifically, he challenges the jury's implit rejection of his self-defense claim. When the defendant challenges the rejection of a defense on factual insufficiency grounds, we view all the evidence in a neutral light and determine whether (1) the evidence supporting the rejection of the defense, when considered by itself, is too weak to support the rejection beyond a reasonable doubt, or (2) contrary evidence, if present, is strong enough that the beyond-a-reasonable-doubt standard could not be met. Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim. App. Apr. 21, 2004); Roy v. State, Nos. 14-02-00909-CR, 14-02-00910-CR, 2004 WL 1607489, at *4 (Tex. App.-Houston [14th Dist.] July 20, 2004, no pet. h.); see Zuliani v. State, 97 S.W.3d 589, 593-95 (Tex.Crim.App. 2003). Although we review the fact finder's weighing of the evidence, and we are authorized to disagree with the fact finder's determination, our evaluation should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Appellant relied on his own testimony to support his self-defense claim. He initially testified he was not angry that evening. Instead, he claimed Gensemer was angry and violent because her ex-husband refused to allow her children to visit her. However, appellant ultimately admitted that he was angry over the $3,000 prompting his initial 911 calls. Nevertheless, he still characterized Gensemer as the aggressor. According to appellant, after Officer Pena left, appellant tried to calm Gensemer, but she cursed him and prepared to leave the apartment. Appellant followed Gensemer into the kitchen where she grabbed a brown-handled knife. When appellant attempted to take the knife away from her, she tried to stab him cutting his hand and arm. Appellant managed to take the knife away and place it on the counter. During this struggle, Gensemer kneed him in the groin. She then tried to grab the brown-handled knife again, so appellant grabbed a white-handled knife and stabbed her. Gensemer kept trying to grab the brown-handled knife, as well as a stun gun, so appellant continued stabbing her because he thought she would kill him. Conversely, the jury heard ample evidence supporting the State's contention that appellant was not acting in self-defense when he stabbed Gensemer. Officer Pena's testimony rebutted appellant's claim that Gensemer was the aggressor. Officer Pena testified that appellant was still agitated when he left the apartment just minutes before the stabbing. In fact, appellant was more agitated when Officer Pena left than when he had arrived. In contrast, Gensemer was not agitated or angry while Officer Pena was at the apartment. Instead, she merely sat in a chair and rolled her eyes to indicate Peyravi's complaints were nonsense. Officer Pena also testified that appellant appeared to be under the influence of alcohol. In addition, Steven Garcia, Gensemer's son who lived in the apartment at the time, confirmed that Peyravi initiated the argument over the $3,000. Garcia also testified that appellant had assaulted Gensemer on previous occasions, and the police had been called to the apartment to break up their arguments. Although Garcia admitted that he once saw Gensemer push appellant, he stated that Gensemer was never the aggressor. Instead, appellant became violent when he drank alcohol. Paul Shrode, the medical examiner who performed Gensemer's autopsy, also contradicted appellant's self-defense claim. Dr. Shrode testified that Gensemer sustained twelve stab wounds including six in her lower chest and abdomen, two in her head and neck area, and four in her legs. One of the stab wounds penetrated her heart and likely caused her death. She also had defensive wounds on her hands, arms, and legs. Dr. Shrode stated that it was impossible to determine the order in which Gensemer sustained her wounds; however, her defensive wounds indicated she fought off her assailant with her arms and legs to the point that she was finally overpowered and received the wounds to the chest and abdomen. Moreover, Mike Walker, a homicide detective with expertise in blood stain analysis, opined that Gensemer's wounds were not caused by any defensive actions on appellant's part for two reasons. First, the blood stains in the kitchen were at fairly low angles indicating that at some point, fairly quickly, the majority of action took place while Gensemer was on the ground. Second, Detective Walker characterized Gensemer's death as "overkill" meaning she received far more wounds than necessary to cause death. Detective Walker further explained that when he investigates whether a homicide involved self-defense, the first thing he looks for is injuries on the suspect. Although appellant claimed that Gensemer first cut him with the brown-handled knife, Detective Walker and the other investigating officers saw no injuries on appellant, and appellant did not complain of any injuries. Likewise, the nurse who screened appellant when he was booked into jail saw no injuries, and appellant did not complain of any injuries. The detectives did find a brown-handled knife on the counter; however, Detective Andrew Taravella explained that blood on the knife was consistent with blood spatter on the rest of the counter from Gensemer's arterial spurting. Further, although appellant claimed Gensemer had tried to grab a stun gun, Detective Taravella did not find a taser or stun gun anywhere in the apartment. Appellant introduced photographs purportedly showing injuries Gensemer inflicted on him. However, the photographs were taken five days after the stabbing. The jury was free to believe the witnesses who examined appellant shortly after the stabbing and conclude that he was not injured during the struggle. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). Finally, appellant's 911 call after the stabbing refuted his self-defense claim. When the 911 operator asked who stabbed Gensemer, appellant responded, "I did that because she don't want to give my $2,000." He did not mention self-defense as the reason he stabbed Gensemer until Officer Pena returned to the scene. After reviewing all the evidence, we conclude the State's evidence, when considered by itself, is not too weak to support the implicit rejection of appellant's self-defense claim beyond a reasonable doubt, and the contrary evidence is not so strong that the beyond-a-reasonable-doubt standard could not have been met. Accordingly, the evidence is factually sufficient to support the jury's verdict. Appellant's first issue is overruled. JUROR CONTACT
In his second issue, appellant contends the trial court erred in denying appellant's motion for mistrial after a juror had unauthorized contact with witness Steven Garcia. After Garcia testified, a juror approached him in the courthouse bathroom and said, "You did good on the stand" Garcia responded, "thank you" and left. On appeal, appellant complains that this exchange amounted to unauthorized juror contact under article 36.22 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 36.22 (Vernon 1981) (stating that no person shall be permitted to converse with a juror about the case on trial except in the presence and by the permission of the court). However, at trial, appellant moved for mistrial solely on the basis that the juror's comment to Garcia established the juror had already made up his mind concerning the case. Because appellant's objection in the trial court does not comport with his complaint on appeal, appellant has waived error on this complaint. See Guevara v. State, 97 S.W.3d 579, 583 (Tex.Crim.App. 2003); Jasso v. State, 112 S.W.3d 805, 812 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd). Appellant's second issue is overruled. EXCITED UTTERANCE
In his third issue, appellant contends the trial court erred in admitting hearsay testimony from Houston Police Officer Reynaldo Canales under the excited utterance exception. The trial court conducted a hearing outside the presence of the jury to determine the admissibility of Officer Canales's proffered testimony. At the hearing, Officer Canales testified that about a year before Gensemer's death, he responded to a domestic disturbance call at the couple's apartment at 4:43 a.m. When he arrived, Gensemer was in her sleepwear, and appellant was talking loudly and digging for his car keys in the laundry. Gensemer seemed upset, nervous, and a "little scared." She spoke in a soft voice so appellant would not hear her, and she hid behind Officer Canales to shield her from appellant. Gensemer told Officer Canales that appellant had awakened her. He was frustrated that he could not find his car keys. Although Gensemer did not have his keys, appellant kept insisting that she had them. Then, appellant whispered to Gensemer, "I feel like killing someone." Gensemer told Officer Canales that she felt scared for her life. Officer Canales attempted to speak with appellant, but appellant wanted only to look for his keys. Officer Canales arrested appellant for assault by threat. The trial court determined that Gensemer's statement relaying appellant's threat, "I feel like killing someone" qualified as an excited utterance and admitted Officer Canales's testimony during the punishment phase of the trial. The excited utterance exception to the hearsay rule provides that "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" is not excluded by the hearsay rule. TEX. R. EVID. 803(2). The critical factor to consider when determining if a statement is an excited utterance is "whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event." Zuliani, 97 S.W.3d at 596 (Tex.Crim.App. 2003) (quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex.Crim.App. 1992)). A court may also consider how much time elapsed between the startling event and the statement. See id. at 595. Whether an out-of-court statement is admissible under an exception to the hearsay rule is a matter within the trial court's discretion. Id. We should not reverse unless a clear abuse of discretion is shown. Id. Our role is limited to determining whether the record supports the trial court's ruling. Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994); see Zuliani, 97 S.W.3d at 596. Officer Canales's testimony supported the trial court's determination that Gensemer was "still dominated by the emotions, excitement, fear, or pain of the event" when she relayed appellant's threat to Officer Canales. The event triggering Gensemer's statement was appellant's frustration at being unable to find his keys and the associated verbal threat. Gensemer repeated the threat to Officer Canales shortly after it was made; Officer Canales arrived at the apartment only five minutes after being dispatched, and Gensemer was still in her sleepwear indicating appellant had recently awakened her. Further, when Gensemer repeated the threat to Officer Canales, appellant was still obsessed with finding his keys, and Gensemer was scared and used Officer Canales as a shield. Therefore, the trial court did not abuse its discretion in finding Gensemer's statement was an excited utterance and admitting Officer Canales's testimony. See Salley v. State, 25 S.W.3d 878, 881 (Tex. App.-Houston [14th Dist.] 2000, no pet.) (finding complainant's statement to police officer that her husband had hit her qualified as excited utterance because officer arrived at the scene less than ten minutes after complainant reported the assault, complainant was very upset, crying, and still in pain from the assault, and she volunteered that her husband hit her). Appellant's third issue is overruled. The judgment of the trial court is affirmed.