Opinion
NO. 14-17-00456-CR
07-19-2018
ANTHONY AUZENNE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court Harris County, Texas
Trial Court Cause No. 1501641
MEMORANDUM OPINION
Appellant Anthony Auzenne was convicted by a jury of aggravated assault with a deadly weapon. He challenges his conviction in two issues. Appellant contends that the trial court abused its discretion by: (1) permitting a State's witness to testify after he heard testimony from another State's witness in violation of rule 614 of the Texas Rules of Evidence and (2) sustaining the State's objection to appellant's cross-examination of complainant regarding his alleged psychiatric treatment at the time of the incident. Finding no abuse of discretion, we affirm.
I. BACKGROUND
On March 6, 2016, complainant Gregory Singleton was visiting his aunt and uncle's house to retrieve his mail. While at the house, complainant approached appellant, his cousin, to inquire about some money that appellant had been holding for him. Appellant refused to return the money and accused complainant of "trying to mess with [his] girlfriend." Complainant began walking away when he "heard a loud noise like a gunshot." Complainant turned back around and saw appellant "standing with the gun." Appellant then said to complainant, "You didn't think I was going to do nothing?" Complainant noticed he was bleeding from his abdomen, so he got in his truck and drove to a nearby fire station. At the fire station, he was placed in an ambulance and taken to a hospital.
Appellant was indicted for aggravated assault with a deadly weapon, convicted by a jury, and assessed a punishment of fifteen years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant timely appealed.
Violation of the Rule. At the beginning of trial, the court invoked rule 614 of the Texas Rules of Evidence (the Rule) in order to exclude witnesses from the courtroom while other witnesses testified. See Tex. R. Evid. 614. Deputy M. Hines with the Harris County Sheriff's Office, a witness for the State, was in the courtroom for ten to fifteen minutes while another State's witness, paramedic K. Chain, testified. The bailiff noticed and alerted the trial court prior to Hines's testimony. Appellant then moved for the trial court to exclude Hines from testifying. The State argued that the testimonies of Chain and Hines would not overlap. The trial court denied appellant's motion.
Chain testified that she was the paramedic on duty when complainant arrived at the fire station. Chain's incident report stated that complainant had a bullet entry wound on his back and an exit wound on his stomach. Complainant claimed he was shot after an argument with appellant. On cross-examination, appellant questioned Chain about the whereabouts of complainant's clothes from the day of the incident. Chain testified that complainant's clothes were cut off and bagged, but she did not know whether they were given to the police.
Hines testified that he went to the hospital on the day of the incident to interview complainant. Hines found him in the emergency room, and complainant showed Hines the entry and exit wounds. On cross-examination, appellant asked Hines whether complainant's clothes were ever collected in this case. Hines did not recall.
Psychiatric questioning. Complainant also testified for the State. In response to a question from the State about whether he had any pain after the shooting, complainant stated, "I still go to the doctor right now. I had a lot of numbness in my abdomen, my stomach area. It's—I still experience numbness right now to this day; and I go to see a psychiatrist because of concentration, anxiety." On cross-examination, appellant asked complainant if he was in the care of a psychiatrist on the day of the incident. The State objected to the question based on relevance. Appellant argued that the questioning was relevant to complainant's mental state at the time of the incident. The trial court sustained the State's objection.
II. ANALYSIS
A. Hines's presence during Chain's testimony did not harm appellant.
In his first issue, appellant argues that the trial court abused its discretion by permitting Hines to testify after violating the Rule.
The purpose of rule 614 is to prevent a witness "from influencing the testimony of another." Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996). If a witness violates the Rule, the trial court has discretion to allow testimony from the witness. Id. We will not reverse a trial court's decision to allow witness testimony absent an abuse of discretion. Id. When determining if there was an abuse of discretion, we consider if the defendant was harmed. Id. Harm is established by showing that: (1) the witness actually conferred with or heard testimony of another witness and (2) the witness's testimony contradicted the testimony of a witness from the opposing side or corroborated testimony of a witness she had conferred with or heard. Id. Testimony is not harmful if it is based on the witness's own experience or investigation. See id. at 50-51. A trial court only abuses its discretion in permitting testimony if the violation of the rule improperly influenced or colored the witness's testimony. See id. at 51. Furthermore, testimony is not harmful if the testimony favored the defendant's proof or theory. See Gordon v. State, 796 S.W.2d 319, 323 (Tex. App.—Austin 1990, pet. ref'd).
It is undisputed that Hines heard Chain's testimony, so we consider the second prong. Appellant argues that Hines's testimony corroborated Chain's testimony in two ways: (1) how complainant was shot and (2) whether evidence was collected.
In his brief, appellant claims Hines heard Chain testify that complainant's cousin shot him, but what Chain actually stated was that complainant indicated he was arguing with his cousin before he was shot. Hines did not discuss either the context of the shooting or the identity of the shooter during his testimony.
First, both witnesses testified about the location of the bullet wounds. However, this overlap did not tend to harm appellant where he did not dispute the fact that complainant had been shot in the back. Even if this fact had been disputed, Hines's testimony involved his personal observation of the wounds during his investigation and was not colored by Chain's testimony. See Bell, 938 S.W.2d at 50-51 (violation of rule found not harmful where officer's "testimony and opinions clearly were based upon his own experiences and investigations in the instant case, as well as on his experiences as a police investigator in general").
Second, there was overlapping testimony from Chain and Hines that they did not know what happened to complainant's shirt. During closing, appellant highlighted that both Chain and Hines testified they did not collect this evidence to support appellant's argument that the State failed to fully investigate the shooting. Because this testimony favored appellant's theory that the State did not have enough evidence to prove its case, it did not tend to show harm. See Gordon, 796 S.W.2d at 323 (violation of rule found not harmful where challenged testimony did not contradict defendant's proof and "may have even reinforced it").
Under these circumstances, we cannot conclude that Hines's presence during Chain's testimony harmed appellant. The trial court did not abuse its discretion in permitting Hines to testify. We overrule appellant's first issue.
B. The trial court properly limited cross-examination of complainant.
In his second issue, appellant argues that the trial court abused its discretion by sustaining the State's objection to appellant's cross-examination of complainant regarding his psychiatric treatment at the time of the incident. Appellant argues that complainant's mental state could have affected his credibility as a witness.
The credibility of a witness, and the weight to be given to his or her testimony, is a matter for the jury to decide. See Tex. Code Crim. Pro. Art. 38.04 (West 2017). In considering "such testimony, the jury is entitled to hear evidence as to the mental status of the witness and the extent of his mental impairment." Scott v State, 162 S.W.3d 397, 401 (Tex. App.—Beaumont 2005, pet. ref'd) (citing Saucier v. State, 235 S.W.2d 903, 915-16 (Tex. Crim. App. 1950) (op. on reh'g)). Therefore, the right to cross-examination includes the right to impeach a witness with evidence that may affect the witness's credibility. Id.; see Tex. R. Evid. 608(b); State v. Moreno, 297 S.W.3d 512, 523 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd) ("[R]ule 608(b) permits the impeachment of a witness with evidence that might go to any impairment or disability affecting the witness's credibility"). "'Cross-examination of a testifying State's witness to show that the witness has suffered a recent mental illness or disturbance is proper, provided that such mental illness or disturbance is such that it might tend to reflect upon the witness's credibility.'" Scott, 162 S.W.3d at 401 (quoting Virts v. State, 739 S.W.2d 25, 30 (Tex. Crim. App. 1987)). However, "the right of cross-examination is not without limits and the trial judge retains wide latitude to impose reasonable constraints based upon concerns about harassment, prejudice, confusion of issues, and the witness's safety, among other things." Id. The trial court has "great deference" to decide whether evidence is admissible on an ad hoc basis; we cannot reverse the decision absent a clear abuse of discretion. Id.
Here, the trial court did not permit appellant to cross-examine complainant regarding his mental state and any psychiatric treatment he may have been undergoing on the day he was shot. That complainant stated he was undergoing psychiatric care at the time of trial after the shooting is not evidence that he had a mental issue or disturbance at the time of the shooting which adversely affected his perception of events or his credibility as a witness. Appellant did not otherwise attempt to prove or make an offer of proof to the trial court that complainant suffered from mental issues at the time of the shooting.
Cf. Virts, 739 S.W.2d at 28 (defendant "attempted to have placed into the record through an informal bill of exception" that codefendant had committed herself to hospital for six weeks and received eight months of outpatient treatment prior to offense for mental problems she was then undergoing); Moreno, 297 S.W.3d at 523-24 (defendant presented complainant's treatment-center records that "directly addressed her inability to separate fantasy from reality," possibly during alleged sexual assault at issue); Perry v. State, 236 S.W.3d 859, 866-67 (Tex. App.—Texarkana 2007, no pet.) (defendant proffered codefendant's long-time "history of visions and hallucinations" such as seeing "a monster with devil horns" and a "frog man"); Scott, 162 S.W.3d at 400-02 (defendant presented offer of proof that father of sexual-assault complainant had ongoing mental illness at time of offense); Saglimbeni v. State, 100 S.W.3d 429, 433, 435 (Tex. App.—San Antonio 2002, pet. ref'd) (defendant presented bill of exceptions that complainant experienced "another traumatic incident" during same time frame of alleged indecency offense that could explain negative behavior changes); Sidney v. State, 753 S.W.2d 410, 413 (Tex. App.—Houston [14th Dist.] 1986, pet. ref'd) (defendant presented report by clinical psychologist who concluded witness had "a long standing history of a serious mental illness").
In addition, on appeal appellant fails to explain what evidence of complainant's mental issues at the time of the shooting appellant would have used to impeach complainant's credibility. Even where a defendant offers proof that a witness suffered from a mental illness at the time of the offense, the trial court does not abuse its discretion in limiting cross-examination into such evidence if the defendant fails to demonstrate that the illness affected the witness's credibility or perception of events. See Scott, 162 S.W.3d at 401-02. Nor does appellant argue that he was harmed by such exclusion.
Further, without knowing what specific evidence appellant was precluded from presenting on cross, we would find it at best extremely difficult, if not impossible, to conduct a harm analysis. See Perry, 236 S.W.3d at 868-69 (harm analysis requires "assum[ing] that the damaging potential of the cross-examination [was] fully realized").
On this record, we cannot conclude that the trial court committed a clear abuse of discretion in sustaining the State's objection. We overrule appellant's second issue.
III. CONCLUSION
Accordingly, we affirm the trial court's judgment.
/s/ Marc W. Brown
Justice Panel consists of Justices Busby, Brown, and Jewell.
Do Not Publish — TEX. R. APP. P. 47.2(b).