Opinion
No. 05-08-01077-CR
Opinion Filed August 18, 2009. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the County Criminal Court Dallas County, Texas, Trial Court Cause No. MA06-34908-L.
Before Justices MORRIS, RICHTER, and LANG-MIERS.
OPINION
A jury convicted Carlos Enrique Juarez of misdemeanor assault. He now complains in two points of error that the evidence against him is factually insufficient to sustain the verdict and the trial court erred in admitting certain evidence. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
Factual Background
Appellant and the complainant were married for approximately one year, though they were together for five to six years. The complainant explained through an interpreter that, while they were married, appellant was controlling of her behavior. She had to ask permission for anything she wished to do. Appellant checked the mileage on her vehicle after she had traveled. He told her exactly what to prepare for meals, and if the meal was not prepared to his satisfaction, he "would destroy everything he would have in front of him." One August 2005 evening, the complainant returned home after a full day of cleaning houses. She sat on the couch beside appellant. Appellant asked her to massage his feet. She responded that she was very tired. Appellant started cursing at her, and the complainant asked him to calm down. Appellant then got up from the couch and spit in his wife's face. She shielded her face with her hands because she feared he was going to hit her. Instead, appellant kicked her on the side of her leg, leaving a bruise the size of a small orange. At the time of the assault, the complainant did not contact the police, although she threatened to do so, because she feared appellant would inform the police thAt she was in the country illegally. She eventually left the defendant later thAt month. She moved in with a friend, Maria Torres, who testified to appellant's controlling nature and confirmed the size of the bruise appellant had left on the complainant's leg. The complainant had told Torres when appellant kicked her. The complainant filed for a protective order against appellant in November 2005, and she told the officer about the kicking assault at that time. She initially believed a case was filed against appellant then. When she later learned the case had not been filed, she filed a separate report with the Grand Prairie Police Department. Although the complainant's statement to Grand Prairie police reported that the assault had occurred in August 2004, both the complainant and the officer taking the complainant's statement said the year in the report was simply an oversight and it should have read 2005. The complainant testified that she had become a legal resident of the United States through the Violence Against Women Act, which protects illegal immigrant women from being deported when they have been subject to domestic violence. She denied learning that her aunt had obtained legal residency through VAWA before she filed the assault charges against appellant. She claimed she learned her aunt had gotten her legal residency through VAWA from appellant's attorney after she pursued the protective order against appellant. In her previous dealings with police and in court, the complainant had not used an interpreter. She stated that she is more comfortable speaking in Spanish and said that she had not been offered an interpreter until appellant's trial. She has lived in the United States for approximately nineteen years, and she understands English fairly well, but she admitted she has some difficulty writing in English and explaining things in English. At a previous hearing, the complainant had testified thAt appellant had kicked her in her "lap." In a letter written in English to a detective in the case, the complainant had said appellant had "pushed" her, rather than kicked her, off the couch with his foot. She denied telling one officer thAt appellant had hit her with his fist. The officer testified thAt when he asked if appellant had hit her with his fist, she said yes. The officer clarified, "I think she was having a hard time understanding when I said how did he do it, so I just demonstrated something, and she said yes." The officer testified thAt before he wrote down the complainant's statement, he had her sign a blank statement, so she did not know how he had described the assault. In one affidavit the complainant stated thAt she was sitting on the right side of appellant, but she testified At trial thAt she had been sitting on his left side and he had kicked her left leg. Appellant elected to testify in his own defense. He denied kicking the complainant in the leg. He also denied that he had spat on the complainant. He admitted saying hurtful things to the complainant but noted that she had also said hurtful things to him. He admitted he had previously been convicted of auto theft in California. The State admitted into evidence letters appellant wrote to the complainant after the assault. In one, appellant wrote, "I want to ask you to forgive my past mistakes, angry outbursts, lies, all those things that may had [sic] hurt you. I'm a different man (albeit tonight I'm in a lot of pain) [redacted] and maybe I'm writing too much because of the pain." In another, he wrote, "I just need to beg your forgiveness for what I did to offend, hurt, humiliate, scorn you, for I recognize my faults." In yet another, he wrote, "I also of[f]er you my apologies . . . WITH ALL MY HEART I ASK YOU TO FORGIVE ME IF I HURT HUMILIATED OFFENDED YOU ETC." During his testimony, appellant admitted he had written the letters. He stated that he wrote them on the urging of his pastor so he could try to reconcile with the complainant. He explained that when he referred to hurting the complainant in the letters, he meant only that he had insulted her, not that he had physically hurt her. On cross-examination, he further admitted that he had written the letters to the complainant while he was in jail. Appellant testified that the complainant had been aware of VAWA before she left him. According to appellant, years before the complainant left him, the complainant's aunt in California told her she was able to receive a green card "basically on the family violence law."Discussion
In his first point of error, appellant complains the evidence against him is factually insufficient to support his conviction. He argues that the complainant's testimony was not consistent or believable and it was contradicted by his testimony. When considering the factual sufficiency of the evidence, we review the record in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008). Evidence may be factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust; or (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence, rendering the verdict clearly wrong and manifestly unjust. Id. Although we may second-guess the jury to a limited degree, our factual-sufficiency review should still be deferential, with a high level of skepticism toward reversal. See id. Here, the jury had to choose between the complainant's version of events and appellant's. The jury was also best able to determine the complainant's true ability to understand and express herself in English. After reviewing the entire record, we conclude the evidence is factually sufficient to support the conviction. We overrule appellant's first point of error. In his second point of error, appellant complains the trial court erred by permitting the State to elicit testimony from him that he wrote the letters to the complainant from jail. Appellant contends the evidence violated rule of evidence 403 because it had no probative value and it "directly violated his presumption of innocence." The State initially responds that appellant has failed to preserve this issue for appeal, and we agree. In a conference outside the presence of the jury, the parties addressed this topic as follows:THE COURT: . . . The State had asked the Court for permission to approach the bench. We had a brief conversation. Basically, the State is requesting that they be allowed to, on cross-examination of the defendant, ask him where he was when he authored certain letters that have already been introduced, I believe, as State's Exhibit No. 1.
Knowing that the answer is going to be that he was, I'm assuming in the Dallas County jail, but either way he was incarcerated at the time, the Court — we have had . . . discussions with the defense, myself, and the State all being present. I am going to allow that evidence, but I do want to give [defense counsel] an opportunity to voice his objections on the record.
[DEFENSE COUNSEL]: Thank you, Your Honor. The State is intending on opening a door that they've already opened. On direct examination they asked the complaining witness in this case, after this alleged assault where did she go, and she said she moved to a friend's house and later somewhere else, that there was a separation. They were not together.
The State believes that by me asking [appellant] when they were separated, what they've already brought out in direct examination with the complaining witness, when him and his wife were separated if he wrote her some letters. I believe it's — and I hope I'm not misstating the Court's opinion, but that I opened — the defense opened a door in some way of being able to bring in the fact that Mr. Juarez was in custody.
I'll bring it to the Court's attention that there is a presumption of innocence in Mr. Juarez on the cases that he was in custody for, a presumption of innocence that later was found innocent [sic], and it's well known in this trial that Ms. Juarez did not file this case or ask this case to be filed until March of `06.
The jury is going to be able — the jury may be able to infer that he was in jail on murder, and I believe this is totally improper. We did not open the door in any way, a door that was already open on direct examination through the complaining witness, that . . . [appellant] opened the door to where he was in custody, Your Honor. Whether him and his wife were separated, he was living in France or in Lew Sterrett, it's irrelevant, and I'd ask that you warn the State not to mention where these letters came from or where he was at when he wrote them.
THE COURT: Okay. That request will be denied, and I will allow the questioning.Cross-examination of appellant then continued. After questioning appellant about his criminal history and asking if he agreed he was a liar, the prosecutor asked appellant if he would "also agree" that he had hurt his wife before. A bench conference was held off the record. Following the conference, appellant requested a ruling on his objection. When asked what the objection was, defense counsel stated, "I objected — I'm making an objection to a prior Court's ruling in this case that the State's going into that area that the Court has had a prior ruling." The judge then commented, "My understanding is that the State is about to ask questions about some letters that have already been introduced into evidence. Do you still have an objection to that?" Defense counsel replied, "Not at this time, Judge." The prosecutor then questioned appellant about the subject matter of the letters. When the prosecutor eventually asked appellant if it was true that he was arrested and jailed at the time he wrote the letters, the defense did not object. Appellant replied to the question, "I was in Dallas County, yes." appellant failed to make a timely, specific objection to the evidence. Based on the record before us, we cannot conclude appellant has preserved his rule 403 complaint for appeal. See Tex. R. app. P. 33.1(a); Moody v. State, 827 S.W.2d 875, 889 (Tex. Crim. app. 1992). We overrule his second point of error. We affirm the trial court's judgment.