No. 05-02-01178-CR
Opinion Filed July 1, 2003. Do Not Publish
On Appeal from the County Court at Law No. 10, Dallas County, Texas, Trial Court Cause No. MA-00-21303-L. AFFIRMED
Before Justices JAMES, FRANCIS, and LANG.
Opinion By Justice Lang.
Charles Richard Taylor, Jr. appeals his conviction for assault. After a jury trial, the trial court assessed punishment at thirty days' confinement in the county jail, probated for twelve months, and a fine of $100. In three issues, appellant argues the evidence is factually insufficient to support the conviction because he was justified in using reasonable force to protect another, the trial court erred in excluding the divorce decree between appellant and the complainant, and the State made improper jury argument. We affirm the trial court's judgment.
Factual and Procedural Background
Appellant was charged with assaulting his ex-wife, Brenda Kay Taylor. At the time of the incident, appellant lived with Taylor and their then six-year old daughter in an apartment complex. Elaine Davis, appellant's neighbor, testified that one evening appellant's daughter came over to her apartment and said, "Mommy's hurt." Davis could hear arguing next door. She walked across the hall, told the couple to stop fighting, separated them, and told her daughter to call 911. Davis saw the couple was fighting and "scuffling." Appellant was holding Taylor, and Taylor was swinging at him. Davis heard someone say, "You're hurting me." Davis testified she did not see appellant strike Taylor, but did see Taylor swing at appellant. She also testified appellant was trying to calm Taylor down. According to Davis, she then took Taylor over to her apartment. Taylor's cheeks were puffy and bruised, her mouth was swollen, and the injuries appeared to be fresh. Taylor was crying and upset. While they waited for the police after the call to 911, Taylor yelled across the hall to appellant, "We've called the cops." The police arrived within five to ten minutes of the call to 911 and questioned Taylor. Appellant left shortly after Taylor yelled across the hall and before the police arrived. Davis testified that Taylor had a drinking problem and would become agitated when she drank. She also testified Taylor had a violent temper. Officer Ronald Wilcots testified he arrived at the scene and questioned Taylor. She was upset, angry, and in tears. Taylor told Wilcots that appellant was mad at her because they were being evicted, appellant pushed or knocked her down, held her on the floor, and punched her in the face. Wilcots testified Taylor told him appellant punched her with a closed fist "a lot of times." Wilcots saw that her face and neck were red and she had a "big knot" on her head. He also saw that Taylor's left hand was bruised all over. Wilcots asked about her hand, and Taylor only said, "He was trying to break my hand." Taylor reported to Wilcots that when she told appellant he was hurting her hand, he responded that he did not care. Wilcots did not smell alcohol on Taylor. Appellant testified Taylor had a drinking problem and was intoxicated on the day of the incident. He and Taylor argued over being evicted due to an earlier altercation Taylor had with another lady at the swimming pool of the apartment complex. He testified Taylor telephoned him during the morning and he could tell from her speech she was intoxicated. She called him repeatedly at work during that day, arguing about the eviction. Appellant arrived home in the evening and found Taylor was intoxicated. He said she was angry and screaming and yelling at him. He tried to calm her down. They had a heated verbal argument and eventually appellant told her he was going to leave the apartment with their daughter. Taylor responded that she was going to leave with their daughter. She then took a spare car key and tried to leave. Appellant tried to stop Taylor from leaving because Taylor had previously had a car wreck when their daughter was a passenger. Appellant tried to stop Taylor from leaving and struggled with her to get the car keys. He testified Taylor tried to spray him with pepper spray and hit him in the face with her fist. Appellant stated he did not hit her back, but that they wrestled, both fell over on the floor, and Taylor hit her head on the floor. He claimed Taylor's face was injured when she fell after becoming entangled in her purse strap. Appellant testified that during the struggle Taylor told their daughter to go get help. He said that after Davis arrived, Taylor still had the keys in her hand when she went to Davis's apartment. He thought the police would probably be called, but stated his main concern was keeping the keys away from Taylor so she would not have a wreck with his daughter. He left in the car so she could not take it. He was not present when the police arrived. Appellant also testified Taylor was at home with him the day of trial and that she had been subpoenaed by the State to testify at trial. Taylor did not appear at trial and did not testify. The jury convicted appellant of assault. The trial court made an affirmative finding of family violence and sentenced appellant to thirty days' confinement in the county jail, probated for twelve months, and a fine of $100. Appellant's motion for new trial was overruled and this appeal followed. Discussion Factual Sufficiency of the Evidence
In his first issue, appellant argues the evidence is factually insufficient to show he was not acting in defense of a third person, his daughter, during the incident. The State responds that appellant did not request a jury instruction on defense of a third person and thus he cannot challenge the sufficiency of the evidence refuting the defense. The State also argues the evidence is factually sufficient to support all the elements of assault. A. Standard of Review
When reviewing the factual sufficiency of the evidence, we review all the evidence, but not in the light most favorable to the prosecution. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996) (en banc). In conducting this analysis, our duty is to examine the jury's weighing of the evidence. Scott v. State, 934 S.W.2d 396, 398-99 (Tex.App.-Dallas 1996, no pet.). We must, however, be appropriately deferential to the jury's findings to avoid substituting our judgment for that of the jury. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000) (en banc). Unless the record clearly reveals a different result is appropriate, we must defer to the jury's determination concerning what weight to give contradictory testimony. Id. at 8. We reverse only if: (1) the evidence is so weak that the verdict is clearly wrong and unjust, or (2) the verdict is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. See id. at 11. We apply both of these standards when a defendant challenges either the factual sufficiency of the elements of the offense or the factual sufficiency of the evidence negating a defense on which the State has the burden to disprove. Zuliani v. State, 97 S.W.3d 589, 593-95 (Tex.Crim.App. 2003). A decision is not clearly wrong and unjust merely because the fact finder resolved conflicting evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997) (en banc). Article 36.14 requires the trial court to submit a charge setting forth the "law applicable to the case." Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2003). However, a defensive issue does not become part of the law applicable to the case unless the defendant requests the instruction or objects to its omission. Posey v. State, 966 S.W.2d 57, 62 (Tex.Crim.App. 1998) (en banc). The trial court has no duty to sua sponte instruct the jury on a defensive issue raised by the evidence when the defendant does not request an instruction. Id. B. Application of Law to Facts
Appellant argues for application of the standard of review for defenses such as self-defense and defense of third persons set forth in Reaves v. State, 970 S.W.2d 111, 115-16 (Tex.App.-Dallas 1998, no pet.) (merging factual sufficiency standard from Clewis with legal sufficiency standard from Saxton v. State, 804 S.W.2d 910 (Tex.Crim.App. 1991) when reviewing implied finding against self-defense). The standard appellant asks us to apply is only applicable where the defensive theory was submitted to the jury. See Saxton, 804 S.W.2d at 913 n. 8 (trial court instructed jury on self-defense); Zuliani v. State, 52 S.W.3d 825, 830 (Tex.App.-Austin 2001) (trial court charged jury on self-defense), rev'd, 97 S.W.3d 589 (Tex.Crim.App. 2003); Reaves, 970 S.W.2d at 115 (defendant requested and received instructions on self-defense and defense of third person). However, in the case before us appellant did not request an instruction on defense of third persons, did not object to the omission of such an instruction, and the trial court did not instruct the jury on the defense. "A defendant is entitled, upon timely request, to an instruction on any defensive issue raised by the evidence, provided that: 1) the defendant timely requests an instruction on that specific theory; and 2) the evidence raises that issue." Rogers v. State, No. 1412-01, slip op. at 14 (Tex.Crim.App. May 21, 2003). Thus, even if raised by the evidence, appellant was not entitled to an instruction, and the jury was never asked to make an implicit finding against the defensive theory. Accordingly, we cannot perform a factual sufficiency review on a finding the jury never made. See Hernandez v. State, 10 S.W.3d 812, 822 (Tex.App.-Beaumont 2000, pet. ref'd) (issue of release alive and in a safe place not requested by appellant, thus, sufficiency review inappropriate). Appellant does not challenge the factual sufficiency of the evidence supporting the elements of the offense. He only challenges the sufficiency of evidence against his theory of defense of third persons. Accordingly, we resolve appellant's first issue against him. Exclusion of Evidence
In his second issue, appellant argues the trial court abused its discretion in excluding the certified copy of the final divorce decree between appellant and Taylor. The State argues appellant failed to preserve his complaint by failing to make a timely offer of proof, that the divorce decree was inadmissible character evidence, and that exclusion was harmless because the jury heard abundant evidence that Taylor was an alcoholic. A. Standard of Review
We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). Thus, absent an abuse of discretion, we do not disturb a trial court's ruling on the admissibility of evidence. Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994). As long as the trial court's ruling is within the zone of reasonable disagreement, an appellate court will not disturb that ruling. Feldman v. State, 71 S.W.3d 738, 755 (Tex.Crim.App. 2002). Error may not be predicated upon a ruling which excludes evidence unless a substantial right of a party is affected and the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. Tex.R.Evid. 103(a)(2); Warner v. State, 969 S.W.2d 1, 2 (Tex.Crim.App. 1998) (en banc). Evidence rule 103(b) states the offering party shall be permitted "as soon as practicable, but before the court's charge is read to the jury," to make its offer of proof. Tex.R.Evid. 103(b). B. Application of Law to Facts
Appellant offered a certified copy of the divorce decree at trial and the State objected to the relevance of the decree. The record indicates the trial court asked to see the document, reviewed it, and sustained the objection. Appellant did not make an additional offer of proof or bill of exception regarding the divorce decree. Appellant did not request the exhibit be included with the reporter's record on appeal. See Tex.R.App.P. 34.6(b)(1). However, appellant attached a copy of the exhibit to his motion for new trial, which is included in the clerk's record. The primary purpose of rule 103 is to enable an appellate court to determine whether the exclusion was erroneous and harmful. 1 Steven Goode et al., Texas Practice: Guide to the Rules of Evidence: Civil and Criminal, § 103.3 at 29 (3d ed. 2002). A secondary purpose is to permit the trial court to reconsider its ruling in light of the actual evidence. Id. The record indicates the substance of the excluded evidence was made known to the trial court when the exhibit was tendered to the judge and the court reviewed it. See Tex.R.Evid. 103(a)(2). The record includes a copy of the exhibit as an attachment to the motion for new trial. Neither party argues the copy is not a true and correct copy of the exhibit offered at trial. Both purposes of rule 103 appear to have been satisfied in this case. The trial court was informed of the substance of the divorce decree and we have a copy of the decree in the appellate record. Thus, assuming appellant's tender of the decree to the trial court and the court's review of the document was sufficient to preserve error, we must determine whether the trial court abused its discretion in excluding the decree. Appellant argues the divorce decree sets forth findings relevant to his reasonable belief that Taylor did not have a right to possession of the child (the State stipulated that appellant had custody of the child), and relevant to his reasonable belief that Taylor's alcoholism presented a grave danger to the child. Appellant does not cite to a specific portion of the twenty-two page decree supporting his argument. The only portion we can determine arguably supports his position is an order that Taylor "submit to psychological evaluation and testing to determine the existence of and the extent of alcohol or substance abuse by her." The trial court did not abuse its discretion in excluding the divorce decree. The decree merely ordered that Taylor be evaluated for the existence and extent of alcohol or substance abuse. Signed some four years before the incident, the decree does not tend to show Taylor was intoxicated at the time of the altercation or that she intended to drive while intoxicated with the child. See Tex.R.Evid. 401, 402. Any error in excluding the decree would also be harmless under rule 44.2(b). Tex.R.App.P. 44.2(b). Appellant developed other evidence through Davis and appellant's employer that Taylor had a serious drinking problem, a violent temper, and acted "bizarre" and "crazy" when she drank. Any error in excluding the decree did not affect appellant's substantial rights and must be disregarded. Id. We resolve appellant's second issue against him. Jury Argument
In his third issue, appellant argues the State improperly argued that the reason Taylor did not appear at trial was out of fear of appellant. The State responds that the argument was a reasonable inference from the evidence and a proper response to the argument of opposing counsel. A. Applicable Law
Permissible jury argument falls within one of four general areas: (1) summation of evidence; (2) reasonable deductions from the evidence; (3) answers to arguments of opposing counsel; and (4) pleas for law enforcement. Lagrone v. State, 942 S.W.2d 602, 619 (Tex.Crim.App. 1997). To constitute reversible error, jury argument must be extreme or manifestly improper or inject new and harmful facts into evidence. Dooley v. State, 65 S.W.3d 840, 843 (Tex. App-Dallas 2002, pet. ref'd). B. Application of Law to Facts
Appellant's counsel argued to the jury there was no evidence in the case and, "We don't have a complaining witness." The State argued that it was not sure why Taylor did not appear, but "it's a reasonable inference from what happened that she's still scared." Appellant objected that this argument was not in the record and "speculation." The trial court overruled the objection. Several cases have held it is improper to argue that a witness did not testify because they were afraid of the defendant when the evidence does not support the argument. See Johnson v. State, 662 S.W.2d 368, 369 (Tex.Crim.App. 1984); Thomas v. State, 519 S.W.2d 430, 431 (Tex.Crim.App. 1975); Person v. State, 706 S.W.2d 153, 154 (Tex.App.-Houston [1st Dist.] 1986, no pet.). For example, in Thomas, the court reviewed the testimony and found nothing to support a reasonable inference the witness was afraid of the defendant. Thomas, 519 S.W.2d at 431. Thus the argument was improper. Id. However, attorneys are allowed wide latitude in drawing inferences from the evidence so long as the inferences are reasonable, fair, legitimate, and offered in good faith. Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim.App. 1996); Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App. 1988). If there is evidence to support a reasonable inference, the argument would not be error. See De Los Santos v. State, 918 S.W.2d 565, 569-70 (Tex.App.-San Antonio 1996, no pet.) (argument that witnesses were afraid of drive-by shootings in general without referring to defendant was reasonable deduction from evidence of nine such shootings in the area within two years). Both Davis and Wilcots testified to Taylor's injuries immediately after the incident and that she was upset and crying. Appellant admitted he attempted to restrain Taylor and wrestled with her, trying to remove the keys and pepper spray from her hand. He testified he was upset with her because they were being evicted. Appellant also testified Taylor was at home with him the morning of trial. She did not appear despite being subpoenaed. While there was other evidence tending to support appellant's theory of the case, the "purpose of closing argument is to assimilate the evidence to assist the fact-finder in drawing proper conclusions from the evidence. The jury is then free to accept or reject such conclusions and inferences." Gaddis, 753 S.W.2d at 400. Given the wide latitude appropriate for jury argument, we conclude the brief statement by the prosecutor was a reasonable deduction from the evidence. Finally, even if the argument was improper, we conclude it was not extreme or manifestly improper and did not inject new and harmful facts into evidence. See Dooley, 65 S.W.2d at 843. In both Johnson and Thomas, the prosecutors continued to emphasize the point that the witnesses did not testify out of fear after the defendants' objections were overruled. See Johnson, 662 S.W.2d at 369-70; Thomas, 519 S.W.2d at 431. Here, the prosecutor did not pursue or emphasize the argument about why Taylor did not testify after the objection was overruled. The State's brief comment about Taylor's fear did not affect appellant's substantial rights. See Tex.R.App.P. 44.2(b). We resolve appellant's third issue against him. The judgment of the trial court is affirmed.