Opinion
05-22-00483-CR
06-18-2024
RONALD KARL SHERMAN JR., Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish. Tex.R.App.P. 47.2(b).
On Appeal from the County Criminal Court No. 10 Dallas County, Texas Trial Court Cause No. M1970682
Before Justices Partida-Kipness, Reichek, and Garcia
MEMORANDUM OPINION
AMANDA L. REICHEK JUSTICE
Following a jury trial, Ronald Karl Sherman Jr. appeals his conviction for assault family violence. He contends the evidence is legally insufficient to prove he committed the offense and contends the trial court erred in admitting evidence of an extraneous offense that occurred about a week after the assault. We affirm.
Background
Appellant was charged with intentionally, knowingly, and recklessly causing bodily injury to Mary Depestre-Acres, a member of his household or a person with whom he had a dating relationship, by striking her with his hand on May 8, 2019. Acres and appellant met in high school and began dating several years later. They lived together for a time and have two young children. They separated in 2017 when their second child was four months old and did not have a formal custody agreement.
On May 8, 2019, Acres asked appellant to watch their children at her apartment so she could go out to dinner. He agreed. When Acres returned home from dinner, appellant became angry upon learning she had been out with Tony, who owned the sports bar where she worked. Appellant became aggressive; he started cursing and was very hostile. He hit Acres in the head with his hand, which caused her head to hit the wall. He hit her once more and then left the apartment. Acres testified that it hurt when appellant hit her; it felt like she was hit in the head with a brick. Her head throbbed, and her eye and face were swollen.
After appellant left, Acres called appellant's mother, who came over. Acres did not call 911 that night. She did not want to involve the police because appellant was the only person who helped her with the kids. Acres took pictures of her face after the incident, and they were admitted into evidence.
About a week after the assault, appellant came to Acres's workplace to pick up the kids. Acres brought the children out to the parking lot. As she was putting them in their car seats, appellant pulled out a gun. He put it in Acres's face and told her she was going "to learn the hard way." As she tried to remove one of the children from the car, appellant drove off with the car door open. Acres called appellant's mother again for help. After Acres learned appellant had taken the kids to his mother's house, she went back to work.
A couple of days later, on May 16, 2019, Acres decided to call the police. There was a shooting at her apartment complex, and it made her realize her children could have been hurt by appellant's actions in the parking lot. Two officers came to her apartment, and she told them about both incidents involving appellant.
Tony-Michael Anthony Wortham-testified that Acres worked for him at his sports bar. One day in May 2019, she called him to say she could not come to work because she had gotten beat up. Wortham saw her injuries over FaceTime and in pictures.
Dallas Police Officer Aaron Gajkowski was dispatched to Acres's apartment after she called the police on May 16. Acres's injuries were no longer visible, but she showed him pictures of them. He testified that family violence makes up a large portion of 911 calls. In his experience, it is common for people to wait to report an act of family violence. People are scared to get the police involved or scared of the outcome.
Kristie Apodaca, a victim advocate for the Dallas County District Attorney's Office, testified about the cycle of domestic violence and the types of behaviors that keep victims in abusive relationships.
Dallas Police Detective Detra Wilson, an investigator with the domestic violence unit, testified for the defense. She investigated this case and attempted to interview Acres. Wilson left Acres two voicemails and also mailed a card asking Acres to call her. Acres did not call Wilson. Even though she never spoke to Acres, Wilson filed a case against appellant. On cross-examination, Wilson acknowledged it was not uncommon for victims of domestic violence not to return her calls.
Appellant testified in his defense and denied hitting Acres on May 8. He said that when she returned home from her date, they made small talk and he gathered up his things and left within two minutes. He said they did not argue and he did not touch her. Appellant also denied pulling a gun on Acres in the parking lot of her work. Although he kept a gun locked in his glove compartment, he testified that it stayed in the glove compartment that day. The police never contacted him about this case. He learned there was a warrant out for his arrest in 2020 when he applied for a job, and he turned himself in. After May 8, 2019, he continued to watch the children as usual. Appellant testified that Acres filed a child custody case after the alleged incident and it was still pending.
The jury found appellant guilty as charged. The State and the defense reached an agreement about punishment. The trial court assessed punishment at 120 days in jail probated for 15 months, in accordance with the agreement. The court also made a finding of family violence.
Sufficiency of the Evidence
In his first issue on appeal, appellant challenges the legal sufficiency of the evidence to support his conviction. He argues the evidence is insufficient because Acres was not a credible witness. He contends she had a motive to lie about the assault. He claims she used the false allegations against him to break her apartment lease and to get custody of the children. He further relies on the fact that Acres did not immediately call the police after either the assault or the incident with the gun.
A person commits assault if he intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Penal Code Ann. § 22.01(a)(1). "Bodily injury" means physical pain, illness, or any impairment of the physical condition. Id. § 1.07(a)(8).
In assessing the sufficiency of the evidence to support a criminal conviction, we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational factfinder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Alfaro-Jimenez v. State, 577 S.W.3d 240, 243, 243-44 (Tex. Crim. App. 2019). This standard gives full play to the responsibility of the factfinder to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018). An appellate court cannot act as a thirteenth juror and make its own assessment of the evidence. Id. "A court's role on appeal is restricted to guarding against the rare occurrence when the factfinder does not act rationally." Id.
Acres testified that appellant hit her, and appellant testified that he did not hit her. It was the jury's role, not this Court's, to resolve conflicts of fact and evaluate the credibility of the witnesses. The jury was free to believe Acres and disbelieve appellant. Acres's testimony was sufficient to prove appellant committed assault, and thus a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We overrule appellant's first issue.
Extraneous Offense Evidence
In his second issue, appellant contends the trial court erred in admitting evidence of the extraneous offense involving the gun. He argues the evidence was inadmissible because it was used only to show character conformity and was not relevant under Rule of Evidence 404(b) to show a legitimate non-character-related purpose. He also argues that, even if relevant, the prejudicial effect of the evidence outweighed its probative value under Rule of Evidence 403.
Prior to trial, the State filed notice of its intent to introduce evidence of the gun incident. As requested by appellant in a motion in limine, the trial court held a hearing outside the presence of the jury on the admissibility of the evidence. The State anticipated that Acres's delay in reporting the assault would be used to attack her credibility. It argued evidence of the subsequent gun incident was admissible under Article 38.371 of the code of criminal procedure because it explained the nature of the relationship between appellant and Acres and under the rules of evidence to show why the police report was made when it was instead of on the day of the assault. When the judge asked the defense for its position, counsel argued it was "incorrect" to say the extraneous offense could be used under Article 38.371.
The judge's initial opinion was that the evidence was inadmissible, but he gave the State the opportunity to present Acres's testimony. After the parties' opening statements, in which the defense mentioned Acres's 8-day delay in calling police, Acres testified outside the presence of the jury about the gun incident. The State again argued the evidence was admissible to explain Acres's delay in reporting the assault; the gun incident solidified her need to contact the police. Defense counsel responded that Article 38.371 applied only to bad acts that become "filed offenses" and no charges had been filed regarding the gun incident. Counsel also argued that because Acres did not give a date when the gun incident occurred, the event was "too vague" to be used as a bad act. The trial judge ruled the evidence was admissible, stating it went to Acres's "motive for delayed - - for finally outcrying."
We conclude appellant has not preserved his second issue for appellate review. The reasons appellant gave when asked at trial why the extraneous offense should be excluded differ from the arguments he raises on appeal. To preserve a complaint for appellate review, a party must have presented a timely request, objection, or motion to the trial court stating the specific grounds for the ruling desired. Tex.R.App.P. 33.1(a)(1)(A). At trial, appellant's complaints did not involve Rules 403 or 404(b). He argued Article 38.371 did not apply because no charges were filed regarding the gun incident and argued Acres's testimony about the incident was too vague. Now he contends the evidence was inadmissible under Rule 404(b) because it was used only to show character conformity and under Rule 403 because its prejudicial effect outweighed its probative value. His only argument about Article 38.371 is that because the evidence was inadmissible under Rule 404(b), it could not come in under 38.371. Because the objections made at trial do not comport with the arguments made on appeal, appellant has not preserved error. See Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016).
Even if appellant had preserved error, his argument is without merit. Because trial courts are in the best position to decide questions of admissibility, we review the admission of extraneous offense evidence under an abuse of discretion standard. Rodriguez v. State, 678 S.W.3d 375, 385 (Tex. App.-Dallas 2023, pet. ref'd). An abuse of discretion occurs when the ruling was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Id.
Rule 404(b) precludes the admission of evidence of a crime, wrong, or other act to prove a person's character in order to show he acted in conformity with that character on a particular occasion. Tex. R. Evid. 404(b). The evidence may be admitted for other purposes, however, such as proving motive, opportunity, intent, preparation, plan knowledge, identity, absence of mistake, or lack of accident. Id. Rule 404(b) is a rule of inclusion rather than exclusion-it excludes only evidence that is offered solely for proving bad character and conduct in conformity with that bad character. Rodriguez, 678 S.W.3d at 386.
Article 38.371 of the code of criminal procedure provides another non-character-conforming purpose for admitting extraneous offense evidence. Id. It expressly allows, in dating and family violence cases, evidence of all relevant facts and circumstances that would assist the trier of fact in determining whether the actor committed the offense, including testimony or evidence regarding the nature of the relationship between the actor and the alleged victim. Tex. Code Crim. Proc. Ann. art. 38.371(b).
Regardless of admissibility under Rule 404(b) or Article 38.371, relevant evidence may be excluded under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence. Rodriguez, 678 S.W.3d at 386; see Tex. R. Evid. 403.
Appellant's defense was that the assault never happened. He argued Acres made it up to obtain custody of the children and child support. In opening and closing statements and in questions to witnesses, defense counsel emphasized the fact that Acres waited 8 days to report the assault. Evidence that appellant pulled a gun on Acres in the presence of her children days after the assault was relevant to explain why she called the police when she did. The trial court did not abuse its discretion in determining the evidence had relevance apart from character conformity under Rule 404(b) and was also admissible under Article 38.371 because it was relevant to show the nature of appellant and Acres's relationship.
In deciding whether relevant evidence should be excluded under Rule 403, the trial court must engage in a balancing process that considers: (1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and (4) the proponent's need for the evidence. Rodriguez, 678 S.W.3d at 386. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). Rule 403 should be used sparingly to exclude relevant, otherwise admissible evidence that might bear upon the credibility of either the defendant or complainant in "he said, she said" cases. See Hammer v. State, 296 S.W.3d 555, 561-62 (Tex. Crim. App. 2009).
Even though appellant did not mention Rule 403 when discussing the admissibility of the evidence at trial, the trial judge performed the balancing test and stated the evidence was more probative than prejudicial. Acres had photographs to show she was injured, but no one saw appellant cause her injuries. It was her word against his. Appellant claimed Acres was not telling the truth about the assault and pointed to her delay in calling the police as evidence she was lying. The extraneous offense evidence was highly probative to explain the timing of Acres's call to police about appellant's behavior. While the evidence was undoubtedly prejudicial to appellant, it was not unfairly prejudicial when compared to its probative value. See Hurst v. State, No. 05-19-00747-CR, 2021 WL 3233868, at *8 (Tex. App.-Dallas July 29, 2021, no pet.) (mem. op., not designated for publication) (in sexual assault trial, evidence that defendant was violent helped explain complainant's delayed outcry and was admissible under Rule 403). We conclude the trial judge did not abuse its discretion in determining that the probative value of the extraneous offense was not substantially outweighed by the danger of unfair prejudice. We overrule appellant's second issue.
We affirm the trial court's judgment.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 18th day of June, 2024.