Opinion
05-23-00303-CR
02-12-2025
GEORGE LAROY LIVSEY, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish TEX. R. APP. P. 47.2(b)
On Appeal from the Criminal District Court No. 7 Dallas County, Texas Trial Court Cause No. F22-23872-Y
Before Justices Rossini, Lewis, and Clinton
The Honorable Justice Gino J. Rossini succeeded the Honorable Justice Cory Carlyle, who was a member of the panel that originally decided this case. The Honorable Justice Jessica Lewis succeeded the Honorable Justice Robbie Partida-Kipness, who was a member of the panel that originally decided this case. The Honorable Justice Tina Clinton succeeded the Honorable Justice William Pedersen III, who was a member of the panel that originally decided this case. Justices Rossini, Lewis, and Clinton reviewed the record and all briefing for this case.
MEMORANDUM OPINION
TINA CLINTON JUSTICE
Appellant George Laroy Livsey was convicted of assault family violence by impeding breath or circulation after a jury trial and sentenced by the trial judge to five years in prison but suspended the imposition of the prison sentence and probated that sentence for five years. See Tex. Penal Code Ann. § 22.01(b)(2)(B). In two issues, appellant argues the evidence is insufficient to show that he was the actor described in the indictment and that the trial court erred in admitting hearsay evidence. We conclude the evidence was sufficient to establish identity and that error in admitting the objected-to testimony, if any, was harmless. Accordingly, we affirm the trial court's judgment as modified.
BACKGROUND
Margarita Livsey, appellant's wife, called 9-1-1 to report that appellant had poked her and put a pillow over her face. Margarita told public safety dispatcher Kaitlyn Hunt that when appellant placed the pillow over her head, she pushed off to get air but he kept pressing down on her face. She began screaming, but the louder she tried to scream, the harder it was for her to breathe. Margarita relayed the same testimony to Garland police officer Dan when police arrived on the scene; she also demonstrated the altercation and told Dan that it lasted about a minute or two. She told Dan that she felt dazed and saw sparkles, which he took to mean she was on the verge of passing out. She told the officer that she escaped by hooking her legs to the end of the bed to pull away from appellant. While Dan spoke with Margarita, Garland police officer Nelson interviewed appellant. Dan arrested appellant, who was later charged with assault family violence by impeding breath or circulation.
Appellant pleaded not guilty and elected to be tried by jury. Margarita did not appear in court or testify; however, Margarita's and appellant's son, James Livsey, testified for the State. The jury convicted appellant, and the trial court sentenced him to five years in prison but suspended the imposition of the prison sentence and probated that sentence for five years. This appeal followed.
DISCUSSION
A person commits assault family violence by impeding breath or circulation if the person intentionally, knowingly, or recklessly impedes the normal breathing or circulation of the blood of a person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth. See Tex. Penal Code Ann. § 22.01(b)(2)(B). For the offense to be a family violence offense, the victim under this subsection must be a person whose relationship to or association with the defendant is described by §§ 71.0021(b), 71.003, or 71.005 of the Texas Family Code, which includes, as relevant here, a defendant's spouse. See Tex. Fam. Code Ann. §§ 71.0021(b), 71.003, 71.005.
Issue 1: Sufficiency of the Evidence
In his first issue, appellant argues that the evidence is insufficient to show that he was the actor described in the indictment. Specifically, appellant argues that the evidence is insufficient because no one ever identified him as the actor committing the offense.
Standard of Review
In determining whether the evidence is sufficient to support a criminal conviction, we apply well-established standards. See Jackson v. Virginia, 443 U.S. 307, 316 (1979). We view the evidence in the light most favorable to the verdict and determine whether a rational jury could have found all the elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 313; Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). The jury, as the fact-finder, may make reasonable inferences from the evidence presented at trial in determining appellant's guilt. Hooper v. State, 214 S.W.3d 9, 14-15 (Tex. Crim. App. 2007). When there is conflicting evidence, we presume the fact-finder resolved those conflicts in favor of the verdict and defer to that resolution so long as it is supported by the evidence. Jackson, 443 U.S. at 326; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
We also defer to the trier of fact's determinations of witness credibility and the weight to be given their testimony. Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899. Our role as an intermediate appellate court is restricted to guarding against the "rare occurrence when a factfinder does not act rationally." Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) (quoting Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009)).
Discussion
The State must prove beyond a reasonable doubt that appellant committed the offense charged. Miller v. State, 667 S.W.2d 773, 775 (Tex. Crim. App. 1984); McCullen v. State, 372 S.W.2d 693, 695 (Tex. Crim. App. 1963). Evidence as to the identity of the perpetrator of an offense can be proved by direct or circumstantial evidence. Worsham v. State, No. 05-93-00261-CR, 1994 WL 395074, at *4 (Tex. App.-Dallas July 29, 1994, no pet.) (not designated for publication) (citing Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986); Munoz v. State, 763 S.W.2d 30, 34 (Tex. App.-Corpus Christi-Edinburg 1988, pet. ref'd)). The test for sufficiency of identification evidence is whether we can conclude from a totality of the circumstances that the finder of fact was adequately apprised that the evidence referred to appellant. Id. (citing Rohlfing v. State, 612 S.W.2d 598, 601 (Tex. Crim. App. [Panel Op.] 1981)).
Appellant notes that
[a]t some point in every trial there is a witness who identifies the accused in open court as the actor responsible for the allegations in the indictment. After the witness identifies the defendant, the prosecutor then asks the trial court to have the record reflect the defendant has been identified. That did not happen in this case.And while appellant is correct that no formal in-court identification occurred in this case, the lack of formal, in-court identification does not necessarily render the evidence on identity insufficient. See, e.g., Worsham, 1994 WL 395074, at *5 (citing Purkey v. State, 656 S.W.2d 519, 520 (Tex. App.-Beaumont 1983, pet. ref'd)); Alexander v. State, No. 05-93-01953-CR, 1996 WL 743787, at *6 (Tex. App.- Dallas 1996, no pet.) (not designated for publication) (citing Purkey, 656 S.W.2d at 520). In cases where there is no formal, in-court identification, circumstantial evidence may be legally sufficient to establish identity. Worsham, 1994 WL 395074, at *5 (citing Purkey, 656 S.W.2d at 520).
Here, both State's Exhibit 3 (the 9-1-1 call) and State's Exhibit 7 (Officer Nelson's body cam footage) were admitted without objection In the 9-1-1 call, Margarita can be heard telling the dispatcher that she was located at 2350 Lakeside Drive, that her "husband" placed a pillow over her head, and that her husband's name was "George Livsey." She described him as a white male and noted that he was still in the house and that he was in the bathroom about to take a shower. She told the dispatcher that the parties did not have a working vehicle and that if her husband were to leave, it would be on foot. On Officer Nelson's body cam, an older white male referred to as "Mr. George" and "Mr. Livsey" can be seen outside a home with the number "2350" and admits that he had put a pillow over his wife's face. The man can be seen and heard responding to both "Mr. George" and "Mr. Livsey." Officer Nelson's trial testimony further supports appellant's identification by confirming that the home in the camera footage is the same one mentioned by Margarita on the 9-1-1 call and that he asked "Mr. Livsey" to step outside the home to separate him from the victim.
Jurors are routinely tasked with making their own identifications of parties based on reviewing surveillance videos and circumstantial evidence. See Stone v. State, 635 S.W.3d 763, 768 (Tex. App.-Houston [14th Dist.] 2021, pet. ref'd). Further, courts have found the evidence of a defendant's identity to be legally sufficient when jurors could compare the defendant's likeness to the perpetrator shown on video footage. See id., 635 S.W.3d at 768 (sufficient evidence of the defendant's identity as the perpetrator because the jury could compare the defendant's likeness to surveillance videos). We conclude that jury in this case had legally sufficient evidence on the issue of appellant's identity because they could compare his likeness to Officer Nelson's body camera footage. See id.
Issue 2: Hearsay
In his second issue, appellant argues that the trial court erred in admitting the testimony of appellant's son, James Livsey, over counsel's hearsay objection. Specifically, appellant argues that the trial court should not have allowed James to testify that his mother told him "that my dad had attempted to-to smother her with a pillow, and so she was scared and didn't know what to do." The State responds that the complained-of testimony was admissible hearsay under the "excited utterance" exception contained in rule 803(2), and in the alternative, any error in admitting the testimony was harmless because other evidence proved the same facts without objection.
Standard of Review
We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). An appellate court will not reverse if the decision to admit is within the zone of reasonable disagreement. Tillman v. State¸ 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). The erroneous admission of evidence is non-constitutional error. Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2016). We may not reverse for nonconstitutional error if, after examining the record as a whole, we have fair assurance the error did not have a substantial and injurious effect or influence in determining the jury's verdict. Id. Where the challenged evidence is cumulative of other evidence that was properly admitted, any error in admission is harmless. Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999); Infante v. State, 404 S.W.3d 656, 663-64 (Tex. App.-Houston [1st Dist.] 2012, no pet.).
Discussion
Assuming-without deciding-the trial court erred by admitting the complained-of statement, we conclude any error is harmless. The erroneous admission of evidence is non-constitutional error. Foster v. State, 525 S.W.3d 898, 909 (Tex. App.-Dallas 2017, pet. ref'd) (citing Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010)). Accordingly, any error must be disregarded unless it affected appellant's substantial rights. See Tex. R. App. P. 44.2(b). Substantial rights are not affected if, after examining the record as a whole, we have fair assurance that the error did not influence the jury or had but a slight effect. Foster, 525 S.W.3d at 909 (citing Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)). In assessing the likelihood the jury's decision was adversely affected by the error, 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 the error might be considered in connection with other evidence in the case. Foster, 525 S.W.3d at 909 (citing Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002); Schutz v. State, 63 S.W.3d 442, 444-45 (Tex. Crim. App. 2001)). We examine the entire trial record and calculate, as much as possible, the probable impact of the error upon the rest of the evidence. Foster, 525 S.W.3d at 909 (citing Coble, 330 S.W.3d at 280).
We have examined the record and have a "fair assurance" the admission of the complained-of evidence did not influence the jury or had but a slight effect. Appellant complains the admission of this evidence is in effect, "asking the jury to believe complainant's story because she said it to her son." But, as appellant implicitly concedes in his brief, the State presented other properly admitted evidence such as the 9-1-1 call and the testimony of both officers that conveys an identical story. More importantly, on the body cam footage admitted without objection, appellant can be heard telling Officer Nelson that he "put a pillow over [Margarita's] face," as well as providing other details of the altercation. Because the objected-to evidence was cumulative of other evidence properly admitted, any error in admitting the statement was harmless. See Brooks, 990 S.W.2d at 287; Infante, 404 S.W.3d at 663-64. Accordingly, we conclude any error did not affect the jury or had but slight effect on its verdict. We overrule appellant's second issue.
State's Cross-Issue: Modification
In its sole cross-issue, the State contends this Court should modify the trial court's judgment to include a special, affirmative finding of family violence. See Tex. Code Crim. Proc. Ann. art. 42.013. Appellate courts may modify a trial court's judgment and affirm it as modified. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). This Court "has the power to correct and reform the judgment of the court below to make the record speak the truth when it has the necessary data and information to do so." Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, writ ref'd). Appellate courts may reform trial court judgments where "the evidence necessary to correct the judgment appears in the record." Id. Here, the record contains all the necessary information required to modify the judgment. Therefore, we modify the judgment as required under Tex. Code Crim. Pro. Ann. Art. 42.013 to include an affirmative finding of the fact that the offense involved family violence
CONCLUSION
Having concluded the evidence was sufficient to establish appellant's identity and that error in admitting the objected-to testimony, if any, was harmless, we affirm the trial court's judgment as modified.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
Add an affirmative finding that the offense involved family violence. As REFORMED, the judgment is AFFIRMED.