Opinion
No. 05-04-00632-CR
Opinion Filed August 18, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 10, Dallas County, Texas, Trial Court Cause No. MA03-56055-L. Affirm.
Before Justices WRIGHT, BRIDGES, and FITZGERALD.
OPINION
Albert James Lynn ("Husband") appeals his conviction for assault-domestic violence. Husband argues that insufficient evidence supports the jury's rejection of his defensive theories, that newly discovered evidence merits a new trial, and that erroneously admitted hearsay evidence made his conviction more likely. For the reasons discussed below, we affirm the trial court's judgment.
Background
Witnesses for the State described receiving and responding to a 911 call from Margie Lynn ("Wife") late on the night of the events at issue. Then Husband and Wife both testified for the defense.911 Operator
The 911 operator testified that she remembered Wife calling, upset and crying. Wife reported that Husband had thrown her out of the car in which they were riding and that her nose was bleeding. The operator asked if Wife wanted an ambulance sent, but Wife said no. Dallas police officers Susan Smith and Jacob Alanis responded to the call.Officer Smith
Smith testified that they found Wife in the dark, sitting on a curb by a school. She was curled up in a ball with her knees to her chest and her hands in her face; she was crying. Smith testified that Wife told the officers that she had been in a fight with her husband and that she had been thrown out of the car. She looked "very bloody" and appeared to be bleeding from the nose and lip. Smith was worried about Wife because of the large amount of blood, and Smith called the fire department to come and check her out. Smith testified further that Wife told her this was not the first time that she had been left out somewhere like this, and this was not the first time that Husband had hit her. Wife explained that the couple had been out to dinner and had gotten into an argument about a friend of theirs. On the way home, Wife told Smith, Husband had become more and more angry. Wife made another comment about the friend, and Husband began to hit her. At this point, Smith testified, the ambulance came and cleaned Wife up and checked her cuts. Smith testified, however, that Wife was still shaking and crying. When Smith asked Wife to continue relating what had happened, Wife said that Husband started hitting her with an open hand. Wife could not tell how many times he hit her. She knew she started bleeding, she was crying, and she wanted out of the car. According to Smith, Wife first reported that Husband threw her out of the car, but later said she just wanted out and that she got out of the car. Smith agreed that Wife "changed her story" about getting thrown out of the car. But Smith also testified she had no reason to believe Wife was lying when she said Husband hit her. Smith identified photographs of Wife and of the area where the officers found her. Blood is visible in the photographs, although Smith testified that they were taken after Wife had been cleaned up. Originally, according to Smith, Wife had even more blood on her face. Wife filled out a family violence packet at the scene. Smith testified that she did not recall Wife at any time telling the officers that Wife had hit Husband. The officers took Wife home. Wife had told Smith that Husband had probably gone there. Officer Smith entered the house with Alanis and another pair of officers who had been called there. She did not stay inside but returned to stay with Wife in the patrol car. The couple's daughter came outside to be with Wife. The other officers arrested Husband for family violence. Husband declared it was self-defense. Smith testified that she did not observe any wounds on Husband that might indicate he had been struck. Finally, Smith testified that she did not observe any physical indication that Wife had been thrown from the car.Officer Alanis
Smith's partner, Officer Alanis, also described the events of that evening. His description of Wife when they found her matched Smith's: Wife was crouched, crying, and seemed afraid. Wife said she had been thrown out of a vehicle. The officers called an ambulance because Wife had blood on her face, her arms, her blouse, and her trousers. Alanis testified that he thought "obviously something bad had happened." He testified that Wife said Husband had gotten upset at a party about a comment Wife had made about a friend. When she brought the matter up in the car on the way home, her husband became upset and struck her in the face. Alanis testified Wife did not say how many times Husband hit her, but Alanis saw that she was extremely bloody and looked as if someone had hit her in the face. Wife continued crying as she related these facts, and Alanis was worried for her safety. She told him Husband had done this before. Alanis formed an opinion that night, based upon his experience and training, that Wife had been assaulted in some fashion. He further believed that the officers needed to take Wife home and, if Husband was there, arrest him. When they arrived at the couple's house, Alanis went into the house with the other officers that had arrived to assist Smith and him. He saw the couple's daughter come out to be with her mother. The officers put Husband under arrest and transported him to jail. Alanis testified that Wife never said that she had hit Husband at all, and Husband had no marks on him. Alanis agreed that he saw no obvious signs Wife had been thrown out of a car. But he testified that "there is one thing for sure, she got beat down." Alanis explained that meant Wife had been physically beaten by another human being. Following Officer Alanis's testimony, the State rested.Wife
Wife testified that she and Husband have been married 25 years, and were still married at the time of the trial. She testified that Husband did leave her out someplace once before, but it was normal procedure when the couple was arguing for one of them to break from the situation and leave until they could cool down. Wife asserted that Husband had never touched her before this incident. As to the events of the evening of the arrest, Wife testified that she listened quietly to Husband's saying derogatory things to her for thirty minutes on the way home from dinner. Finally, she testified, she reached out, told him to stop it, and hit him with her hand, knocking his glasses off. After Wife hit Husband, he hit her back with his flat palm, causing her nose to bleed. She testified he was just trying to keep his hands on the wheel, get his glasses back, and keep her from "tangling" with him anymore. When asked whether Husband threw her out of the car, Wife said he had not. Instead, she told Husband to stop and let her out of car; then he came to a complete stop and let her get out. Wife acknowledged she called the police. She testified she did not remember the police asking her who or what started the fight. Nor does she remember anyone cleaning her up. She testified she believes that what Husband did that night in responding to her actions was reasonable under the circumstances. She believes he had to use force to keep her off of him. Wife stated she signed an affidavit of non-prosecution and tried to drop the case, but the State prosecuted anyway. Wife testified that she first talked to someone about self defense when she talked to her daughter and friends about what happened. She agreed that she did not tell the police she had hit Husband; she was emotionally distraught at the time because of the events of the night. She testified that she does not worry about harm from Husband and she never had taken any precautions from him on account of his anger. But when she was shown the victim's assault statement she filled out the night of the incident, she remembered writing that she was tired of his angry episodes and that she had been seeing a counselor because of his anger. Wife admitted at trial that she might have told the police Husband became so angry he just punched her in the nose. But, she stated, that was because of the emotional situation that was occurring at the time; when she calmed down she remembered things she did not tell the police. Wife testified Husband hit her five or six times that night. Wife described his action as "almost a very strong push" while he was trying to watch the road. She admitted that she would never want to see Husband in trouble.Husband
Husband was the final witness, and he also described the events leading up to his arrest. He testified that he was driving south on Abrams Road at "about 47 miles an hour." He and Wife were exchanging words when she hit him, knocking his glasses off. Husband could not see without his glasses, so he reached down with one hand to try to find his glasses while steering with the other hand. He testified there were cars in front of him and pedestrians on the side. Wife then hit him again. Husband described his hand coming out to get Wife away from him. He testified that at that point his hand "made contact with her face." His reaching for the glasses and she continued hitting him. As Wife hit Husband, he used the back part of his hand to keep her back; this happened about three or four times. When Husband got his glasses back on, he pulled over to the side of the road. The incident lasted only about three seconds. Husband admits that he "made contact" with Wife several times in an attempt to get her off him. He testified he did not throw Wife out of the car; he let her out after she asked so they could "disengage." Husband knew at the time that Wife had a cell phone with her, and he thought he would drive home and wait for her to call. Instead, the police came and arrested him. Husband described striking his Wife as "an involuntary reaction" that occurred while he tried to maintain control of the car. He testified he may have hit Wife four or five times. According to Husband, the experience was traumatic for him. Later, he voluntarily went to counseling to analyze what had gone wrong. He and Wife have been to counseling from time to time over the years, primarily because of issues that arise from their working together every day. Husband acknowledged being ashamed of the way Wife looked in the police photographs. But he testified that, under the circumstances, he did what was necessary to control the car and keep them and others from being killed. Husband stated he never saw Wife bleeding before they "disengaged." The jury found Husband guilty of the Class A misdemeanor of assault by causing bodily injury and found further that the assault was committed against a member of Husband's household. The trial court assessed Husband's punishment at 210 days' confinement and a fine of $500.Sufficiency of the Evidence
Husband's first issue argues that the evidence is insufficient to support the jury's implicit rejection of his defenses of necessity and self-defense. Husband contends that he introduced evidence supporting these defenses and there was no evidence to the contrary. Accordingly, we understand this issue to be a challenge to the legal sufficiency of the jury's implicit finding. When a defendant challenges the legal sufficiency of the rejection of a defense, we view all the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt and also could have found against the appellant on the defense beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). As a threshold matter, we conclude the defense of necessity is not before this Court. The jury was not instructed on that defense. In Husband's motion for new trial, he argues that the trial court should have instructed the jury on necessity, but the record of the charge conference does not indicate Husband requested such an instruction. Nor has Husband assigned error in this Court to the trial court's failure to give the instruction. Thus, we will not address arguments based on the defense of necessity. Our inquiry is whether — viewing all the evidence in the light most favorable to the prosecution — any rational trier of fact (1) could have found the essential elements of assault — domestic violence beyond a reasonable doubt, and (2) also could have found against Husband on self defense beyond a reasonable doubt. See id. As to the first question, Husband candidly admits that he caused bodily injury to his wife by striking her head with his hand. Viewing the evidence in the light most favorable to the State, he did so intentionally. Accordingly, a rational jury could certainly have found the essential elements of assault-domestic violence beyond a reasonable doubt. As to the second question, a rational trier of fact could have believed Wife's initial report to the police that Husband struck her repeatedly with no more than verbal provocation. It could have rejected Wife's testimony at trial that she had first used force against Husband and that he responded in kind only to prevent an accident. Both officers testified that Wife did not tell them she struck Husband at any time. And Wife testified she did not want to see Husband in trouble. We conclude the evidence was legally sufficient to support the jury's implicit rejection of the self-defense theory. We decide Husband's first issue against him.Newly Discovered Evidence
In his second issue, Husband contends that the trial court committed error by not ordering a new trial when Husband informed the court of evidence discovered after trial. Husband contends he learned after the trial that Wife had confided to the couple's daughter soon after the incident that Wife had initiated the physical confrontation between the couple. Husband argues this was material evidence because the daughter's testimony could have rebutted the State's implied argument of recent fabrication by the Wife. Husband's motion for new trial addressed several topics. On this issue, the motion stated in its entirety:Subsequent to trial, Defendant has learned that witness-spouse admitted to the daughter of Defendant and witness-spouse within several hours of the incident that witness-spouse repeatedly struck Defendant first. This new information is very relevant in that [it] supports Defendant[']s version of the facts, contradicts any allegation that witness-spouse's trial testimony was faborciated [sic] (as the State alleged), and deals with the credibility of the Defendant and witness-spouse. A new trial must be granted the defendant if material evidence favorable to the accused is discovered after the trial. Texas Code of Criminal Procedure § 40.00.No evidence was attached to the motion for new trial or proffered to the trial court. Motions for new trial based on newly discovered evidence are not favored by the courts and are viewed with great caution. Drew v. State, 743 S.W.2d 207, 225-26 (Tex.Crim.App. 1987). The trial court has discretion to decide whether to grant a new trial based upon newly discovered evidence, and its ruling will not be reversed absent an abuse of discretion. Keeter v. State, 74 S.W.3d 31, 37 (Tex.Crim.App. 2002). In this case, Husband did not submit the proposed testimony to the trial court for evaluation; he proffered nothing more than the one-sentence summary reproduced above. Husband did request an evidentiary hearing as an alternative remedy in his motion for new trial. However, as a prerequisite to obtaining a hearing, motions for new trial must be supported by affidavit, either of the accused or of another witness, specifically showing the truth of the grounds of attack. Rodriguez v. State, 82 S.W.3d 1, 2 (Tex.App.-San Antonio 2001, pet. dism'd) (citing Reyes v. State, 849 S.W.2d 812, 815 (Tex.Crim.App. 1993)). We cannot say the trial court abused its discretion by denying the motion for new trial when Husband gave the court no evidence supporting his claim. Moreover, even if the trial court did consider Husband's brief summary of his newly discovered evidence, it was not an abuse of discretion to deny the motion unless the evidence met four conditions:
(1) the newly discovered evidence was unknown or unavailable to the movant at the time of his trial;
(2) the movant's failure to discover or obtain the evidence was not due to a lack of diligence;
(3) the new evidence is admissible and is not merely cumulative, corroborative, collateral, or impeaching; and,
(4) the new evidence is probably true and will probably bring about a different result on another trial.Keeter, 74 S.W.3d at 36-37. The State argues that the proposed testimony of the couple's daughter is merely cumulative of the testimony of the couple at trial. We agree. Husband and Wife had already testified that Wife was the aggressor in the altercation. Moreover, Wife had also testified that she told her daughter that Husband had hit her in self-defense:
Q. Did you tell the officers that you hit him first?
A. I don't believe I did.
Q. When is the first time you talked about the self-defense alibi?
A. Alibi? When I talked to my daughter, I told her what happened.(Emphasis added.) Yet another recitation of the same version of the facts would be merely cumulative. Because the proposed testimony fails to meet the four-part test, we cannot say the trial court abused its discretion in denying the motion for new trial. We decide Husband's second issue against him as well.