Summary
concluding that any error from admission of expert testimony regarding "power-and-control wheel" was harmless where victim testified about assault and injuries and where photographs of victim's injuries were admitted into evidence
Summary of this case from Runels v. StateOpinion
NO. 03-14-00530-CR
06-16-2016
Graham Jay Sonnenberg, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 427TH JUDICIAL DISTRICT
NO. D-1-DC-14-904026, HONORABLE JIM CORONADO, JUDGE PRESIDINGMEMORANDUM OPINION
A jury found Graham Jay Sonnenberg guilty of aggravated assault and of assault strangulation enhanced. For these offenses, the jury assessed sentences of 16 and 20 years that are set to run concurrently. On appeal, Sonnenberg contends that the convictions constitute double jeopardy because they punish the same instance of conduct against the same victim. He also contends that the trial court erred by permitting a family-violence expert to testify that his conduct was consistent with that of an abuser as reflected on a power-and-control wheel and by denying his request to poll the jury. Sonnenberg contends and the State agrees that the judgment misstates the statute under which he was convicted for aggravated assault. We will modify the judgment to reflect the correct subsection for the aggravated-assault conviction and will affirm the judgment as modified.
BACKGROUND
Alexis Manley testified that, after she had dated Sonnenberg for several months, he came to her house late one night and committed various violent acts including strangling her with his hands and standing on her throat while wearing boots. She testified that he kicked her in various parts of her body, tore some of her hair out, threw her jewelry at her, slapped her, punched her, bit her, and broke her arm. She hit Sonnenberg during the encounter, and testified that he banged his own head against a doorframe. Manley said she escaped the apartment when he went to the bathroom.
A neighbor awakened by Manley's "horrific, blood-curdling scream" looked outside, saw a woman lying limp on the ground, and called 911. Manley met the police at the front of the apartment complex. Officers found Sonnenberg in Manley's apartment, naked (which is how he typically slept) and bleeding. They arrested him. Austin Police Officer Anthony Nolen responded to the scene and photographed Manley's injuries. He testified that she was very upset. He noted little spots of blood in her eyes and that her eyes, nose, and lips were swollen. She eventually accepted transport to the hospital.
Emergency-room triage nurse Jamie Bertsch testified that Manley said that her boyfriend kicked her and held her on the ground with his boot on her neck until she passed out. Bertsch testified that she saw multiple bites on Manley's body, abrasions on her arms and upper back, and a fractured arm.
The jury found Sonnenberg guilty of aggravated assault and of assault strangulation enhanced. The jury assessed sentences of 16 and 20 years for these offenses, set to run concurrently.
DISCUSSION
Double-jeopardy claim is barred
Sonnenberg contends that the convictions and punishments for aggravated assault and assault strangulation enhanced constitute double jeopardy. A double-jeopardy claim can arise when the same criminal act is punished twice under distinct statutes under circumstances in which the Legislature intended the conduct to be punished only once. Shelby v. State, 448 S.W.3d 431, 435 (Tex. Crim. App. 2014); see also U.S. Const. amend. V. We conclude that, based on the nature of the charge, appellant has not shown he is entitled to relief on this claim.
Under the facts of this case, Sonnenberg did not timely raise this complaint. The court of criminal appeals has held that "[w]hen offenses, one of which could give rise to a multiple-punishment double-jeopardy violation, are listed disjunctively in a jury charge, the burden is upon the defendant to 'preserve, in some fashion a double jeopardy objection at or before the time the charge is submitted to the jury.'" Langs v. State, 183 S.W.3d 680, 687 (Tex. Crim. App. 2006) (emphasis added). Sonnenberg complained at sentencing that punishing him for both aggravated assault and assault strangulation enhanced constituted double jeopardy. But the charge he complains of had been administered at the guilt/innocence phase without him raising the double-jeopardy complaint. The complaint two days later at sentencing was untimely.
Parties may raise a double-jeopardy complaint for the first time on appeal if the undisputed facts show that the violation is clearly apparent on the face of the record and when enforcement of the usual rules of procedural default serves no legitimate state interest. Id. When separate theories of an offense are issued to the jury disjunctively, a double-jeopardy violation is not clearly apparent on the face of the record if one of the theories charged would not constitute a double-jeopardy violation and there is sufficient evidence to support that valid theory. Id. "The fact that the jury's verdict could have relied on a theory that would violate the Double Jeopardy Clause, is not sufficient to show a constitutional violation 'clearly apparent on the face of the record.'" Id. (emphasis added).
Error is not clearly apparent on the face of this record. In the aggravated-assault charge, the jury was instructed to convict if it found beyond a reasonable doubt that Sonnenberg intentionally, knowingly, or recklessly caused bodily injury while using or exhibiting a deadly weapon—here his hand or foot—that in the manner of its use or intended use was capable of causing death or serious bodily injury. See Tex. Penal Code § 22.02(a)(2). The charge permitted conviction upon sufficient proof that he seized her neck with his hand and applied pressure, applied pressure to her neck with his foot, or struck her with his foot. Under the assault-strangulation-enhanced offense, the jury was instructed to convict if it found beyond a reasonable doubt that Sonnenberg intentionally, knowingly, or recklessly caused bodily injury to Manley in several alternative ways as well as that Sonnenberg committed the offense by intentionally, knowingly, or recklessly impeding the normal breathing and circulation of Manley's blood by (a) seizing her on and about the neck with his hand, (b) applying pressure to her neck with his hand, or (c) applying pressure to her neck with his foot. See id. § 22.01(b-1). The first two modes of the enhancement essentially track the aggravated assault charge, but do not contain a parallel with the third alternative mode of aggravated assault—striking Manley with his foot. That mode of aggravated assault, unlike the three assault strangulation enhancement options, does not require a showing of anything resembling pressure to her neck. Accordingly, the jury might have convicted Sonnenberg of an aggravated assault that is factually distinct from the assault strangulation offense and does not evoke double-jeopardy concerns.
These modes included some like those alleged in the aggravated assault (seizing Manley on and about the neck with his hand, applying pressure to her neck with his hand, applying pressure to her neck with his foot, striking her with his foot) and several other ways (striking, throwing, pulling, or grabbing her with his hand, seizing her hair with his hand, or biting her with his mouth).
The record contains sufficient evidence on which the jury could have convicted Sonnenberg for aggravated assault based on his striking Manley with his foot. Manley testified that Sonnenberg kicked her in the stomach and back so hard that she felt like her body was moving across the floor. She said that the kicks hurt. She testified that she did not remember telling hospital personnel that he kicked her in the head, but evidence showed that she did. An emergency-room physician testified that a foot kicking a person in the head in the circumstances described would be considered a deadly weapon. Manley's EMS report showed that she had contusions on her head and was slurring her speech. The jury saw pictures of her injuries, including bruising on her face. Because the jury might have convicted Sonnenberg for aggravated assault under the foot-striking theory that addresses different conduct than the assault-strangulation offense, we conclude that a double-jeopardy violation is not clearly apparent on the face of the record. See Langs, 183 S.W.3d at 687.
Sonnenberg failed to object to the disjunctive jury charge before it was presented at trial and failed to show a double-jeopardy violation clearly apparent on the face of the record. See id. at 689. He is thus barred from raising his double-jeopardy claim in this appeal. See id. We overrule issue one.
Admission of power-and-control-wheel testimony was harmless
By issue two, Sonnenberg contends that the court erred by admitting expert testimony regarding the power-and-control wheel, which the expert testified was a model describing tactics used by abusers and experienced by victims. The expert testified about the dynamics of abusive relationships, including tactics of the abuser and counterintuitive responses by victims such as self-blame, refusal to leave the abuser, and return to the abuser. Sonnenberg contends that this evidence should have been excluded as irrelevant and that any probative value was substantially outweighed by the risk of unfair prejudice. Sonnenberg asserts that the testimony may have caused the jury to impute the general behaviors of abusers to him, unfairly tipping the balance in their decision on the credibility of Manley's testimony.
Even if the trial court abused its discretion by admitting the testimony, we conclude that any error was harmless. For non-constitutional errors, we must disregard any error that does not affect substantial rights. Tex. R. App. P. 44.2(b). Manley testified about Sonnenberg's assault on her and the nature of her injuries. While Sonnenberg attempted to highlight inconsistencies in Manley's previous statements, her testimony coupled with the corroborative testimony about her demeanor and the injuries others observed that night, plus the photographs of her injuries and of the scene, were strongly compelling evidence of guilt without the power-and-control wheel. We conclude that the admission of the expert's general testimony did not affect Sonnenberg's substantial rights. We overrule issue two.
Denial of request to poll the jury was not error or harmful
By issue three Sonnenberg contends that the trial court erred by denying his request to poll the jury. Two statutes relate to the right to poll the jury:
When the jury agrees upon a verdict, it shall be brought into court by the proper officer; and if it states that it has agreed, the verdict shall be read aloud by the judge, the foreman, or the clerk. If in proper form and no juror dissents therefrom, and neither party requests a poll of the jury, the verdict shall be entered upon the minutes of the court.Tex. Code Crim. Proc. art. 37.04. Article 37.05 sets out how to conduct a jury poll. Id. art. 37.05. Read together, these statutes indicate that any jury polling occurs before the verdict is entered into the minutes.
After argument in the guilt/innocence phase, the jury notified the court that it had reached a verdict, the foreperson stated that the verdict was unanimous, the court read the verdict aloud, no dissent was heard, no request for polling was made, and the court released the jurors for the evening, reminding them to obey his previous instructions. When jurors returned the next day for the punishment phase of trial, Sonnenberg requested they be polled regarding their guilty verdict. The court denied the motion.
Sonnenberg contends that the jury was still subject to being polled despite separating overnight because it was still under the trial court's admonitions and was returning for the punishment phase. See Jones v. State, Nos. 01-10-00821-CR & 01-10-00822-CR, 2011 Tex. App. LEXIS 7971, at *16-17 (Tex. App.—Houston [1st Dist.] Oct. 6, 2011, pet. ref'd) (mem. op., not designated for publication). The Jones court held that the trial court erred by denying the defendant's request for polling after the jury had returned to the jury room without being dissolved. Id. at *16-17. Though the jurors in this case separated overnight, Sonnenberg notes that they were not discharged, were returning for the punishment phase, and were reminded by the court before they separated that they were still bound by the court's instructions. He argues that the jury here similarly retained its unity of "identity as a jury." Id.
We do not find error in the trial court's denial of the polling request. We assess the decision for an abuse of discretion. Adair v. State, No. 03-11-00318-CR, 2013 Tex. App. LEXIS 14923, at *17 (Tex. App. —Austin Dec. 12, 2013, no pet.) (mem. op., not designated for publication) (trial court would not abuse discretion in concluding that jury poll would be improper and untimely if conducted on Monday after verdict was accepted on Friday) (not designated for publication)); see also Wood v. State, 87 S.W.3d 735, 739 (Tex. App.—Texarkana 2002, no pet.) (jury cannot reconvene for further deliberation after verdict is accepted and jury separates overnight). Here, when the foreperson presented the unanimous verdict, no one requested a poll, and the jury dispersed out of the court's supervision for the night. Under similar circumstances, the Houston First District Court of Appeals—the court that decided Jones—held that when a jury renders a guilty verdict and separates for the night before the punishment phase, it would be improper to poll them the next day. See Jones, at *16 (citing Phan v. State, No. 01-96-01228-CR, 2000 Tex. App. LEXIS 3771, at *6-7 (Tex. App.—Houston [1st Dist.] June 8, 2000, no pet.) (not designated for publication)). In Phan, the court held that polling would have been improper when the foreperson of the jury declared the day after announcing the unanimous verdict that he wanted to change his vote. 2000 Tex. App. LEXIS 3771, at *6. We have no such attempted recantation in the record before us, which makes this court's exercise of discretion still more reasonable. Even so, the key events in the timeline in this case are aligned with those in Phan. See id. at *4-7. We find no abuse of discretion in the denial of the day-after-verdict request for polling.
Even if the refusal to poll the jury were error, we find no harm. The denial of the right to poll is non-constitutional error. See Jones, 2011 Tex. App. LEXIS 7971, at *18; see also Tex. R. App. P. 44.2(b). "The purpose of the jury poll is to ensure that 'one of the prerequisites of a valid verdict[,] unanimity[,] has been achieved.'" Ex parte Aviles, 78 S.W.3d 677, 683 (Tex. App.—Austin 2002, no pet.) (quoting United States v. Love, 597 F.2d 81 (6th Cir. 1979)). The only indicator of non-unanimity Sonnenberg cites is a pre-verdict note from the jury asking "If we find the defendant 'guilty' of aggravated assault and 'not guilty' of 'assault strangulation enhanced' (or vice versa) do we need to consider any of the other counts?" Sonnenberg contends that this shows the jury was having trouble coming to a unanimous decision and, further, that there is a "legitimate question whether the ultimate verdicts of guilty constituted the unanimous decision of the jurors." However, the only evidence in the record is that, after sending the note, the jury reached a verdict convicting Sonnenberg on both counts. The court asked the foreperson if the verdict was unanimous, the foreperson responded, "Yes, Your Honor." The foreperson's response was unequivocal and unchallenged. There is no note, comment, or other indicator from any juror that the verdict reached was not unanimous. Sonnenberg has not shown harm from the failure to poll. We overrule issue three.
Even if the failure to poll the jury implicates a constitutional right, we conclude beyond a reasonable doubt based on the record before us that any error in denying the request to poll the jury at the guilt/innocence phase did not contribute to Sonnenberg's conviction or punishment. See Tex. R. App. P. 44.2(a). --------
The judgment states the incorrect subsection under which Sonnenberg was convicted.
In issue four, Sonnenberg contends and the State agrees that the judgment misstates the portion of the aggravated-assault statute under which he was convicted. Instead of reciting that he violated Texas Penal Code section 22.02(b)(1) (making the offense a first-degree felony upon a showing of serious bodily injury to a family member), the judgment should show that he was convicted for violating section 22.02(a)(2) (using or exhibiting a deadly weapon while committing an assault). We sustain issue four.
CONCLUSION
We modify the "Statute for Offense" section of the aggravated-assault judgment of conviction to recite that Sonnenberg was convicted under section "22.02(a)(2) Penal Code" rather than "22.02(b)(1) Penal Code." We affirm the judgment as modified.
/s/_________
Jeff Rose, Chief Justice Before Chief Justice Rose, Justices Pemberton and Field Modified and, as Modified, Affirmed Filed: June 16, 2016 Do Not Publish