Opinion
NO. 09-11-00183-CR
03-07-2012
OLIVIA BERRY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 09-06749
MEMORANDUM OPINION
A jury convicted appellant Olivia Berry of aggravated assault with a firearm. See Tex. Penal Code Ann. § 22.02 (West 2011). The jury assessed a punishment of five years of imprisonment, but recommended the sentence be probated. The trial court placed appellant on community supervision for ten years. On appeal, Berry argues the evidence is legally and factually insufficient to support her conviction, and that the trial court committed reversible error in excluding testimony regarding oral statements she made to an officer at the crime scene. We find appellant's issues are without merit and affirm the trial court's judgment.
BACKGROUND
On June 27, 2009, Shiquita Howard attended a child's birthday party at Takeisha Martin's house. Takeisha is a friend of Shiquita's sister, Virginia. Shiquita testified that people were drinking alcohol at the party. After they had been at the party for a while, Virginia and appellant's cousin, Markeshia Stagg, began to argue. Shiquita testified that appellant was present when this argument began. At some point, appellant and Markeshia returned to their home, which is a couple of houses down from where the party was held. Takeisha and Virginia followed them. Shiquita recalled that appellant and Markeshia were standing on the front porch, and while Takeisha and Virginia initially remained on the street, they eventually entered the property. Shiquita agreed that everyone was yelling and wanting to fight. Shiquita initially remained on the side of appellant's yard, but later decided to enter the yard to attempt to convince Virginia to leave. Shiquita testified that someone other than appellant initially fired three shots in the air. Virginia continued fighting after the initial gunfire and refused to leave. Shiquita testified that she had decided to leave, but while leaving the property, heard more shots fired and began to feel pain and burning in her chest. Shiquita denied that she was personally involved in the altercation, or that she possessed a weapon of any kind. Shiquita testified that she saw appellant walk inside the house and return with a gun. While she testified she saw appellant point the gun in her direction, she could not recall if that happened before or after she had been shot. Shiquita was hospitalized for three weeks for her gunshot wound.
Skye Kasper, a Beaumont Police Department crime scene technician, testified that she is responsible for photographing and collecting evidence at crime scenes. She testified that based on the evidence she obtained from the crime scene, particularly the blood trail, she believed that Shiquita was standing outside of the home, a couple of feet from the front door, when she was shot.
When Beaumont police officer, Jeff Manzer, arrived at the scene, he witnessed Shiquita lying in the street with a bleeding chest wound. He testified there was "a bunch of people hollering and screaming at each other . . . ." He explained that the disturbance seemed centered in front of three houses and involved about a hundred people. Everyone's attention seemed to be focused on one house. Manzer witnessed four people exit the front door of that house, including, appellant, Quarissia Allen, Markeshia Stagg, and Joycelyn Marshall. Because he considered appellant to be a suspect in the shooting, he detained her. He entered the house they had just exited and found a firearm and ammunition. He testified that he noticed a small amount of blood on the sidewalk leading to the house. He testified that after detaining appellant, he placed her in the custody of Officer Harold Humble. Manzer stated that people were hollering profanities at appellant and attempting to get to her physically, but that officers prevented their attempts.
Officer Humble testified that when he arrived at the scene, he noted a large group of hysterical people, and found Shiquita lying in the street, with a gunshot wound. He testified that people from the crowd started yelling at him that appellant "did it" and pointed in the direction of the house. He observed appellant exit the house carrying a small child, and accompanied by two other women. He approached appellant, restrained her with handcuffs, took her to a patrol car, and read her the Miranda warnings. He testified that appellant indicated to him that she understood the warnings, and agreed to talk to him. Humble testified that he could not recall if appellant appeared excited when they spoke. Humble did not take a written or recorded statement from appellant because he anticipated that the detectives assigned to the case would do this. He testified that after he placed appellant in custody, no one attempted to reach her physically. After he received appellant's information, he placed her in another officer's custody, and had no further contact with appellant. During cross-examination, appellant attempted to elicit the oral statements made to Humble by appellant but the trial court sustained the State's objections as to hearsay.
Detective Darrell LeBeouf testified he took a written statement from appellant after she had been transported to the police station. He testified that appellant admitted to him that she fired at least two shots at a woman in a blue-green dress. Appellant told LeBeouf that she tried to fire another shot at this woman, but the gun was empty. Appellant's counsel introduced the written statement LeBeouf obtained from appellant into evidence, which the trial court admitted over the objection of the State. At the instruction of trial counsel for appellant, LeBeouf read appellant's statement to the jury in its entirety, and the statement was made part of the evidence the jury could consider during its deliberations.
Quarissia Allen testified she is appellant's cousin, and at the time of the shooting, she and appellant lived with Quarissia's sister, Markeshia. She testified that on the day of the shooting she was sleeping when her niece woke her up. Upon awakening, she heard screaming, went to the front door, and saw Markeshia, Markeshia's two-year-old child, appellant, and appellant's daughter standing on the porch. She testified that Markeshia had a gun, and fired it three times. She heard threats yelled back and forth and saw Shiquita come up to the porch to try to attack Markeshia and appellant. She testified that Markeshia and appellant tried to protect their children by returning to the inside of the house, and closing and locking the door. Someone from outside kicked the door, broke it, and entered the house. She testified that one of the women that entered the house carried an orange bat and started hitting the two children with the bat. Quarissia testified that she was afraid, and that Markeshia and appellant appeared afraid as well. She testified that when appellant's daughter was hit with the bat, appellant "went berserk" and obtained a gun. Quarissia testified that appellant essentially started waiving the gun around and randomly firing it, not aiming at anyone in particular. Quarissia recalled that she stayed in the house until the police arrived.
SUFFICIENCY OF THE EVIDENCE
Appellant contends the evidence is legally and factually insufficient to support her conviction for aggravated assault because the State did not produce sufficient evidence to prove beyond a reasonable doubt that appellant knowingly, intentionally or recklessly caused bodily injury. In Brooks, the Court of Criminal Appeals concluded that there is no meaningful distinction between legal sufficiency review and factual sufficiency review. Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010). The Court held that "the Jackson v. Virginia standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt." Id. at 912. To determine the sufficiency of the evidence, the appellate court must review all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The reviewing court gives deference to the jury's responsibility to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13.
A person commits the offense of aggravated assault if the person commits an assault and "causes serious bodily injury to another" or "uses or exhibits a deadly weapon during the commission of the assault." Tex. Penal Code Ann. § 22.02. A person commits an assault if the person "intentionally, knowingly, or recklessly causes bodily injury to another[.]" Tex. Penal Code Ann. § 22.01 (a)(1) (West 2011).
Shiquita initially testified that she was wearing a brown sundress the day she was shot, but later agreed that the sundress was a blue-green color. The State admitted a photograph of Shiquita's dress into evidence, which Shiquita identified as the dress she wore the day she was shot. The jury heard Officer LeBeouf read appellant's written statement into the court record, wherein appellant admitted to a fistfight with a woman wearing a blue-green dress. In her statement, appellant stated that while fighting, someone handed her a gun and she fired a shot in the air. She stated that the woman in the blue-green dress was still running towards her, so she ran towards the house, but "fired two more shots behind [her] at the [woman] in the blue-green dress." She stated that she turned around to face the woman in the blue-green dress and tried to shoot her again, but the gun was empty. In her statement, appellant indicates that she did not know if she hit the woman, but stated that as the woman in the blue-green dress was running towards the street, she fell onto the street. Viewing the evidence in the light most favorable to the jury's verdict, we conclude that a jury could have reasonably found beyond a reasonable doubt that appellant knowingly, intentionally, or recklessly caused bodily injury to Shiquita Howard. See Jackson, 443 U.S. at 318-19.
EVIDENTIARY ISSUE
Appellant complains that the trial court erred in excluding Officer Humble's testimony regarding her oral statements made to him at the crime scene. She argues these statements were admissible under the excited utterance exception to the hearsay rule. The State responds that appellant failed to meet the excited utterance criteria, but that even if the statements did qualify as excited utterances, exclusion of the statements was harmless error because of the admission of appellant's sworn written statement.
At trial, appellant did not deny that she shot Shiquita, but rather, challenged the State's theory that she shot her intentionally, knowingly, or recklessly. Appellant's trial counsel attempted to question Humble regarding oral statements appellant made to him when he first detained her at the scene of the crime. The State timely objected to this testimony as hearsay. Appellant's trial counsel argued that the testimony should come in as a present sense impression, an excited utterance, and as testimony against penal interest. The trial court sustained the State's objection. Appellant's trial counsel requested a bill of review. Appellant's trial counsel presented a bill of review regarding Officer Humble's testimony to support his defensive theory that appellant did not intentionally, knowingly, or recklessly shoot Shiquita.
Through his bill, appellant showed that Humble would have testified that within two to three minutes of arriving on the scene, he detained appellant and placed her in a patrol car. He asked appellant what had happened. Humble would have testified that appellant told him that she was sitting on the front porch when some people she did not know approached her residence and began to threaten her. She told him they called her by name and wanted to fight, but she went back inside with her children. She further told him that the people broke into her home and started fighting. Someone within the group possessed a bat and swung it at her, but missed and hit her small child in the head. After her child had been struck with the bat, she began to fight her attacker. He testified that she told him that the fight began in her residence and then continued to the street. She told him that she heard a couple of shots from a gun and thereafter the fight dispersed. In response to the State's questions, Humble explained that appellant did not seem highly excited or highly agitated. The information that he gathered from appellant was in response to questions that he had asked her.
On appeal, appellant only argues that the trial court should have allowed testimony regarding the oral statements under the excited utterance exception. Assuming, without deciding, that the trial court erred in excluding this testimony, we hold that appellant has failed to demonstrate harm. The admission or exclusion of evidence is generally not of constitutional dimension. See Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). Exclusion of evidence does not result in reversible error unless the exclusion affects a substantial right of the defendant. See Tex. R. App. P. 44.2(b). If we have a fair assurance that the error did not influence the jury, or had only a slight effect on the jury, then the error did not affect a substantial right. Solomon, 49 S.W.3d at 365. In evaluating the likelihood that the error adversely affected the jury's decision, we consider everything in the record, "including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case." Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
In the present case, the proffered testimony appears largely cumulative of appellant's written statement, which was read to the jury and entered into evidence. Appellant's oral statements made to Officer Humble did not include evidence that undermines the elements of the offense. Under these circumstances, we have a fair assurance that the exclusion of the evidence in question did not influence the jury or had only a slight effect. We overrule this issue.
Having overruled appellant's issues, we affirm the trial court's judgment.
AFFIRMED.
CHARLES KREGER
Justice
Do not publish Before Gaultney, Kreger, and Horton, JJ.