Opinion
No. 05-07-00431-CR
Opinion Filed January 29, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the County Criminal Court No. 10 Dallas County, Texas, Trial Court Cause No. MA-0634536-L.
Before Justices MOSELEY, RICHTER, and FRANCIS. Opinion By Justice RICHTER.
MEMORANDUM OPINION
Eric Jay Hecht appeals his jury conviction for the assault of his wife, Melissa. See Tex. Penal Code Ann. § 22.01(a)(1) (Vernon Supp. 2008). In eleven points of error, he contends the trial court reversibly erred in (a) admitting, over objection, certain evidence and (b) denying his motion for mistrial after instructing the jury to disregard a hearsay statement that he had murdered a third party. We disagree and affirm the trial court's judgment.
Background
Hecht was charged with assaulting Melissa at their home on two separate occasions-November 18, 2005 and November 20, 2005. According to the November 18 charging instrument, Hecht struck Melissa in her head "with [his] hand," choked her "with [his] hand," and forced her up against the wall "with [his] hand." No third-party witnessed the assault but a neighbor, Christopher Nins, heard Melissa scream for help and saw her outside the house trying to break away from Hecht. Moments later, Melissa was at Nins's door seeking help. Nins called 9-1-1 and Melissa was treated at the scene and taken to the hospital for injuries consistent with the alleged-assaultive acts. Against medical advice, Melissa left the hospital before treatment had been completed and returned home. Two days later, Hecht allegedly assaulted her again. According to the charging instrument for that assault, Hecht struck Melissa on her head and torso with his hand and pulled an earring from her ear. No third-party witnessed this assault either and it was Melissa who called 9-1-1 after Hecht left the house. Melissa was again treated at the scene and taken to the hospital for injuries consistent with the alleged assaultive acts, but this time she moved out of the house after leaving the hospital. Melissa also sought an emergency protective order from Hecht. Six months after the assault, however, she signed an affidavit of non-prosecution seeking to have both cases dismissed. A month later, she died from a methadone overdose. Hecht was brought to trial on both charges in April 2007. With no eye-witness to either assault, the State relied heavily on evidence developed after the assaults. As to the November 18th assault, that evidence included:*a one-page report from the responding paramedic, Joe Crowder, stating he had found Melissa "laying on floor at . . . neighbor's house" after running from her house "[secondary] to assault," she complained her "abs hurt" and of pain in her back, neck, and "all over," and she had "many bruises" on her arm;
*Crowder's testimony that Melissa was "laying in the living room or in the entryway . . in a fetal position," was "very emotional . . . upset," complained her stomach "was sore," and looked "like she had been beat up" with bruises on her arm, upper body, and left cheek;
*testimony from Nins that he heard Melissa scream, saw her struggling with Hecht, and heard Hecht yell to her "get back in the house," that she stated to Nins when she got to his house that "he"-Hecht-had hit her, and she was "in shock," was bruised on her arm, stomach, and face, complained of abdominal pain, and was "in and out of consciousness;"
*testimony from the responding police officer, Steven Courson, that he first spoke to Nins when he arrived at the scene, that Nins told him what he had seen and heard outside the Hecht house, that Melissa told him Hecht had choked her, "punched" her in the stomach, and "knocked her into a wall," that she complained her ribs and back were bothering her, that she appeared scared, that he observed injuries consistent with Melissa's description of the assault, and that he believed Hecht had in fact assaulted Melissa;
*testimony from the investigating officer, Joe Wood, that he had reviewed the hospital records and the records showed Melissa reported that Hecht had punched her in the stomach, head, and face, she complained of pain in her stomach and shoulder, and she thought she had lost consciousness; and,
*the hospital records which, in addition to what Wood testified, showed that Melissa also reported she had been choked and that she had a CT scan of her abdomen and head and numerous x-rays of her upper body, all of which were normal.As to the November 20th assault, the evidence included
*testimony from the responding paramedic, Jeff Grey, that Melissa was upset and crying when he arrived at the scene and that she reported she had been assaulted and hurt in her upper body and right arm;
*Grey's one-page report indicating that Melissa stated she had been "assaulted and hurt all over," had been assaulted "yesterday as well," and complained of upper and lower abdominal pain and right arm pain;
*testimony from Wood that he investigated this assault also;
*the hospital records which showed Melissa reported that Hecht had hit her in the stomach and head and she had again left against medical advice before treatment had been completed;
*testimony from Melissa's friend, Natalie Jessup, that she received a voice message from Melissa on November 20th and that in the message, Melissa stated she had been beaten up "again," was at the hospital, and wanted to be picked up; and
*a tape containing the message Melissa left Jessup. Hecht, who did not testify, unsuccessfully objected on hearsay grounds to Crowder's written report, Courson's testimony about what Nins and Melissa had told him, the hospital records, Grey's written report, and Jessup's tape. He also unsuccessfully objected on confrontation clause grounds to Courson's testimony about what Melissa had told him, on relevancy and unfair prejudice grounds to Jessup's tape, and to Courson's opinion testimony. Finally, he unsuccessfully moved for a mistrial after the jury heard, but was instructed to disregard, testimony from Nins that Melissa had told him Hecht "had murdered someone." The jury acquitted him of the November 20th assault but found him guilty of the November 18th assault. The trial court then made an affirmative finding of family violence, see Tex. Code Crim. Proc. art. 42.013 (Vernon 2006), and assessed punishment at 365 days in jail, suspended for one year, and a $700 fine. Hecht's eleven points of error stem from the trial court's evidentiary rulings and denial of his motion for mistrial.
Denial of Motion for Mistrial
In his seventh point of error, Hecht complains of the denial of his motion for mistrial following Nins's extraneous offense testimony that he "had murdered someone." In arguing this point, Hecht notes that an accused is entitled to be tried on the conduct charged, not for a collateral crime, and as such, extraneous offense evidence is generally inadmissible at the guilt-innocence stage of trial. See Tex. R. Evid. 404(b); Campos v. State, 589 S.W.2d 424, 427 (Tex.Crim.App. [Panel Op.] 1979); DeLeon v. State, 77 S.W.3d 300, 310 (Tex.App.-Austin 2001, pet. ref'd). He also notes that a trial court generally does not err in denying a motion for mistrial after instructing the jury to disregard improperly admitted extraneous offense evidence because the instruction cures any improper impression created by the evidence. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000); Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). Hecht maintains, however, that the trial court abused its discretion here because the State's case was comprised of "a lot of inadmissible evidence" and was "so weak" that the instruction to disregard could not cure the impression created by Nins's testimony. We disagree. Whether a witness's improper reference to an extraneous offense warrants a mistrial depends on the particular facts of the case. Ladd, 3 S.W.3d at 567. Because a mistrial is an extreme remedy, a trial court should declare a mistrial only when the error or misconduct is "highly prejudicial and incurable." Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003); Hudson v. State, 179 S.W.3d 731, 738 (Tex.App.-Houston [14th Dist.] 2005, no pet.). In determining whether a trial court abused its discretion in denying a motion for mistrial, we consider three factors: (1) the severity of the underlying misconduct, (2) any curative measures adopted, and (3) the certainty of the conviction absent the misconduct. Archie v. State, 221 S.W.3d 695, 700 (Tex.Crim.App. 2007). Here, nothing in the record suggests Nins's testimony was "so highly prejudicial and incurable" that the court erred in denying the motion for mistrial. First, the complained-of statement came in during the middle of Nins's testimony, was not repeated or emphasized, and was not "tied" or "connected" in any manner to the assault of Melissa. The record further reflects the court instructed the jury to disregard the statement and Hecht did not then, nor does he now, complain about the wording of the instruction. Finally, the weight of the State's unchallenged evidence, detailed above, was significant and nothing in the record suggests the jury would have come back with a different verdict without the complained-of statement. Indeed, the jury acquitted Hecht of the November 20th assault in spite of Nins's statement. Hecht's contention that the court abused its discretion in denying his motion for mistrial is without merit. We overrule his seventh point of error.Evidentiary Rulings
In his remaining ten points of error, Hecht complains of the trial court's rulings on his objections to evidence showing Hecht assaulted Melissa on November 18th. Specifically, he challenges the trial court's rulings on his hearsay objections to*Crowder's written report, specifically Melissa's statements that her "abs hurt" and she had pain "all over;"
*the hospital records, specifically all references by Melissa that Hecht was the assailant and that Hecht choked her and "punched" her in the head, face, and stomach;
*Nins's statements to Courson that he had seen Melissa struggling with Hecht and Hecht had yelled at Melissa to "get back in the house;"
*Grey's written report, specifically the statement that Melissa had told him she had been assaulted "yesterday as well."He also challenges the court's rulings on his
*hearsay and confrontation clause objections to Melissa's statements to Courson that Hecht had choked her, "punched" her in the stomach, and "knocked her into a wall" and that she complained her ribs and back were bothering her;
*hearsay, relevance, and unfair prejudice objections to Jessup's tape-specifically Melissa's statement that Hecht had assaulted her "again;" and,
*Courson's opinion testimony that Hecht had assaulted Melissa.Hecht maintains the court reversibly erred in overruling his objections because it allowed the jury to consider improper evidence that "bolstered the State's weak case." Again, we disagree. No reversible error occurs in the improper admission of evidence where the same facts are shown by other evidence admitted without objection elsewhere at trial. Leday v. State, 983 S.W.2d 713, 717 (Tex.Crim.App. 1998); see also McNac v. State, 215 S.W.3d 420, 424-25 (Tex.Crim.App. 2007) (evidence admitted in violation of confrontation clause); Chapman v. State, 150 S.W.3d 809, 814 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd) (hearsay evidence); Harnett v. State, 38 S.W.3d 650, 657 (Tex.App.-Austin 2000, pet. ref'd) (opinion testimony). Here, the complained-of evidence is cumulative of other evidence admitted at trial without objection showing that Hecht assaulted Melissa on November 18th:
*Crowder's testimony detailing what Melissa told him;
*Nins's own testimony about what he saw and heard outside the Hecht's home; and,
*Wood's testimony that Melissa reported that Hecht had "punched" her in the stomach, head, and face.Accordingly, we overrule Hecht's remaining ten points of error. We affirm the trial court's judgment.