Opinion
NO. 14-16-01023-CR
06-07-2018
SHAYLA AGBILBEAZU, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court at Law No. 8 Harris County, Texas
Trial Court Cause No. 2065931
MEMORANDUM OPINION
A jury convicted appellant Shayla Agbilbeazu of misdemeanor assault. The trial court sentenced appellant to confinement for one year, suspended, and placed her under community supervision for two years. Further, the trial court imposed a fine of $1,000 and ordered restitution in the amount of $350. Appellant filed a timely notice of appeal. We affirm.
BACKGROUND
Appellant's husband, Ugochukwu Agbilbeazu ("Ugo"), was formerly married to Pamela Agina and they had a daughter ("Camille"); she was five years old at the time of the incident. Emily Agina, the complainant, is Pamela's mother. On December 6, 2015, Ugo returned Camille to Pamela after weekend visitation. An altercation ensued over changes to Camille's hair.
The minor child is referred to by pseudonym.
As a result of the fight, appellant was charged with assault. Specifically, it was alleged that appellant unlawfully, intentionally and knowingly caused bodily injury to Emily by striking Emily with her hand, pulling Emily's hair, biting Emily, and dragging Emily. The jury found appellant guilty as charged.
In a single issue, appellant contends the trial court erred in excluding evidence. Specifically, appellant complains the trial court prohibited her from:
1. Eliciting her testimony about prior incidents;
2. Introducing Pamela's suit for full custody of Camille; and
3. Introducing photos depicting how appellant styled Camille's hair and Ugo's treatment in the emergency room.
For ease of reference, we treat each complaint as a separate issue and address them in turn.
PRIOR INCIDENTS
To preserve error on the ground that the trial court improperly excluded the testimony of a witness, a party must inform the trial court of the substance of the testimony by an offer of proof, unless the substance was apparent from the context. See Tex. R. Evid. 103(a)(2); Tex. R. App. P. 33.1(a). Alternatively, an appellant may file a formal bill of exception. See Tex. R. App. P. 33.2. In this case, although appellant made an offer of proof it did not concern the excluded testimony and the record reflects the substance of the excluded testimony was not apparent from the context:
[Appellant] Emily was still getting -- I guess, getting up off of the ground. And so I was, like, a little out of it. And when I saw Pam still coming towards me, I reached down to grab a brick.
[Defense Counsel] Why did you reach to get a brick?
[Appellant] Because immediately in my mind, I have to defend myself and my unborn child. I don't know what's going to happen next.
[Defense Counsel] Okay. So would you say you were still in fear of being further attacked?
[Appellant] Yes, ma'am.
[Defense Counsel] Okay. Has anything like this ever happened between you all before?
[Appellant] Almost.
[Defense Counsel] Can you elaborate?
Appellant made no effort, at that time or later, to make an offer of proof as to this testimony. Accordingly, nothing is presented for our review. See Tex. R. App. P. 33.1(a); Allen v. State, 473 S.W.3d 426, 443 (Tex. App.—Houston [14th Dist.] 2015, pet. dism'd) (holding complaint was not preserved regarding the exclusion of evidence of the complainant's prior criminal convictions because the defendant did not make an offer of proof regarding such testimony and the substance of the testimony was not otherwise apparent from the context of the defendant's redirect examination). Appellant's first issue is overruled.MS. NEYLAND: Objection. Relevance.
THE COURT: Sustained.
CUSTODY SUIT
Next, appellant contends it was erroneous to exclude evidence of the custody dispute between Pamela and Ugo. During appellant's testimony, Defendant's Exhibits No. 30, 31, 32 and 33 were offered into evidence, but excluded. Exhibit 31 is an affidavit by Pamela, signed on December 21, 2015, describing the altercation at issue in this case. Exhibit 30 is a suit affecting the parent-child relationship ("SAPCR") filed by Pamela on December 30, 2015. Exhibit 32 is an order entered August 20, 2016, modifying the parent-child relationship; it contains a provision that Pamela shall file a notice of nonsuit with prejudice on a pending motion for enforcement and order to appear against Ugo. Exhibit 33 is an order of dismissal signed September 12, 2016.
Appellant's sole argument on appeal is that the excluded exhibits would have informed the jury "that Emily and Pamela may have testified against [appellant] to gain an advantage against Ugo in family court." However, the trial in the case at bar took place in December 2016, months after the SAPCR was dismissed. Moreover, the record reflects the State objected on grounds of relevance and hearsay. The trial court sustained the objections. Before the charge was read to the jury, appellant made an offer of proof and again requested these exhibits be admitted. The State objected as to relevance and the trial court stated, "Same rulings as before. Not admitted into evidence." Appellant contends only that it was error to exclude this evidence on relevance grounds but does not address whether the trial court could have properly excluded the evidence based on hearsay.
If the trial court's adverse ruling can be sustained on more than one ground, a defendant must address and attack each independent basis for the ruling on appeal. Marsh v. State, 343 S.W.3d 475, 479 (Tex. App.—Texarkana 2011, pet. ref'd) (citing Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980) (defendant must challenge each ground supporting trial court's ruling against defendant, as any sufficient ground supports trial court's order)). We will not make a defendant's arguments for him. See Marsh, 343 S.W.3d at 479. If a defendant does not assign error on an independent ground that supports the complained-of ruling, it stands accepted and any error in the ground urged on appeal is harmless. Riley v. State, No. 06-15-00104-CR, 2016 WL 2997419, at *6 (Tex. App.—Texarkana May 25, 2016, pet. ref'd) (mem. op., not designated for publication) (citing Moore, 605 S.W.2d at 926; Marsh, 343 S.W.3d at 479; State v. Sandoval, 842 S.W.2d 782, 785 (Tex. App.—Corpus Christi 1992, pet. ref'd)). Because appellant failed to challenge the trial court's ruling on the basis of hearsay, issue two is overruled.
PHOTOGRAPHS
In her third issue, appellant complains the jury was not shown the photographs of Camille's hair, Defendant's Exhibits 3-5, or the Christmas photograph of Ugo and appellant with their son and Camille, Defendant's Exhibit 1. Appellant asserts these photographs would have supported appellant's and Ugo's testimony about what happened to Camille's hair. Further, appellant asserts Defendant's Exhibits 9 and 11, photographs of Ugo's treatment for a dislocated shoulder, would have supported Ugo's testimony that he was injured in the fight and given weight to appellant's testimony they left the scene of the fight because Ugo was in urgent need of medical attention. All of the photographs were excluded after the trial court sustained the State's objection based on relevance.
Assuming, without deciding, the trial court erred, we conclude appellant was not harmed by the trial court's ruling excluding the evidence. We evaluate harm in the admission or exclusion of evidence for non-constitutional error under Rule 44.2(b) of the Texas Rules of Appellate Procedure. Ray v. State, 178 S.W.3d 833, 836 (Tex. Crim. App. 2005); Tex. R. App. P. 44.2(b). Appellant was not harmed by the trial court's ruling because the information appellant sought to impart to the jury was admitted elsewhere. See Davis v. State, No. 77,031, 2016 WL 6520209, at *34 (Tex. Crim. App. Nov. 2, 2016), cert. denied, 137 S. Ct. 2240, 198 L. Ed. 2d 680 (2017); Gill v. State, 675 S.W.2d 549, 550 (Tex. App.—Houston [14th Dist.] 1984, no pet.) (concluding any error in the exclusion of the proffered evidence was harmless since the same evidence was introduced otherwise). The jury heard testimony about what happened to Camille's hair and regarding Ugo's dislocated shoulder and subsequent medical treatment. Because the jury had the evidence before it, we are fairly assured any error in excluding the photographs did not influence the jury or had but a slight effect. See Ray, 178 S.W.3d at 836. We therefore conclude the error, if any, was harmless. Appellant's last issue is overruled.
CONCLUSION
Having overruled all of appellant's issues, the judgment of the trial court is affirmed.
/s/ John Donovan
Justice Panel consists of Justices Christopher, Donovan, and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b).