Opinion
No. 05-14-01175-CR
01-21-2016
CHRISTOPHER GERALD PRICE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3 Dallas County, Texas
Trial Court Cause No. F13-58588-J
MEMORANDUM OPINION
Before Justices Evans, Whitehill, and Schenck
Opinion by Justice Evans
Christopher Gerald Price appeals his conviction for aggravated assault asserting six issues. Appellant contends the trial court abused its discretion by: (1) limiting defense counsel's cross-examination of the complainant (issue 1); (2) denying defense counsel's request to re-open for purpose of additional cross-examination of complainant (issue 2); and (3) sustaining the State's objection to defense counsel's jury argument (issue 3). Appellant also argues that the trial court erroneously included the full definitions of intent, knowledge, and recklessness in the jury charge (issues 4-6). We affirm.
I. BACKGROUND
Leslie Warren, the complainant, lived with appellant. On the evening of July 29, 2013, Warren had friends over at their apartment to smoke methamphetamine. Appellant's friend, Chivo, also came over to the apartment and he sold them more drugs. Warren and appellant argued on and off during the evening. Warren's friends and Chivo left the morning of July 30, 2013, and Warren and appellant continued arguing. Appellant pushed Warren into the bathroom and poured a bottle of rubbing alcohol on her head. He lit something with a lighter and threw it at Warren's head. Warren heard a "poof" and put her head under the tub faucet as her hair came out in clumps. Warren then testified that appellant brought a fan and its extension cord into the bathroom, tied her legs together, and then tied her arms to her legs. Warren was very scared and begged for her life while trying to free herself from the restraints. Appellant left the bathroom and returned with charcoal lighter fluid which he poured on Warren. Warren was able to undo the extension cord and jumped into the shower to rinse off the lighter fluid. She removed her clothes except for her bra and underpants and ran from the bathroom. Appellant continued to squirt lighter fluid on her and around the bedroom. Appellant got a piece of toilet paper, lit it and threw it on the bed setting it on fire. Warren jumped over the bed to get away but fell into appellant's arms. Appellant hit her on the back of the head. Warren lost consciousness and woke up in the hallway of her apartment. Warren walked outside where she ran into a friend who called the paramedics. Warren spent twenty-four days in the hospital being treated for burns. Appellant was convicted of aggravated assault with a deadly weapon and sentenced to seventy-five years' imprisonment.
II. ANALYSIS
A. Cross-examination and jury argument issues (Issues 1-3)
In issues one and two, appellant asserts that the trial court abused its discretion by preventing appellant's counsel from cross-examining Warren about records from Child Protective Services (CPS). In issue three, appellant asserts that the trial court abused its discretion by sustaining the State's objection to appellant's counsel's jury argument regarding Warren's alleged lack of honesty to law enforcement.
1) Standard of review
A trial court's decision to admit or exclude evidence or to limit cross-examination is reviewed under an abuse of discretion standard. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011) (admit or exclude evidence); Walker v. State, 300 S.W.3d 836, 843 (Tex. App.—Ft. Worth 2009, pet. ref'd) (limit cross-examination). In addition, a trial court's ruling on an objection to jury argument is reviewed on appeal for an abuse of discretion. See York v. State, 258 S.W.3d 712, 717 (Tex. App.—Waco 2008, pet. ref'd). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996).
2) Additional facts
Warren testified on direct about her drug use before the fire. In addition, Dr. Brett Arnoldo, a burn surgeon at Parkland Hospital, testified that Warren disclosed her recent drug use and that she and appellant had been using amphetamines prior to the attack. During cross-examination, appellant's attorney (Edwin King) began questioning Warren about a CPS investigation and drug testing. The following exchange took place between King, Warren and the State's attorney (Cresta Garland):
King: You've had -- you've had periods where your children would have to go live with other relatives.
Warren: Correct.
King: And you haven't always been honest about whether or not you've used drugs when -- when people have questioned you about whether you've -- were using drugs; is that fair to say?
Warren: No. I'm honest.
King: Well, when CPS investigated you back in 2008 --
Garland: Object to relevance, your Honor.
Court: Objection overruled at this point. Go ahead and ask your question.
King: -- you were pregnant and you lied about using drugs.
Warren: I told the truth.
King: When you were pregnant in 2008 and CPS came and talked to you and Scott, you lied about whether or not you had been using drugs.
Warren: And I told them the truth.
King: You went to take a hair follicle test, and you and Scott, when you found out you had to take a follicle test, you both bolted out of the place and, ultimately, you did take the test which showed you had been positive for drugs. But you initially told CPS that you had lied -- that you had not been using drugs while you were present -- pregnant, excuse me -- and that was not true. That was a lie. You don't recall that?
Warren: I did tell them the truth. I told them that I had been using for the first five months of my pregnancy; I didn't know I was pregnant until the fifth month; so I told her I would be dirty.
King: You didn't tell them that until after you had tested positive for drugs.
Warren: Not correct.
King: Okay. So if the CPS records reflect that's the -- that's the sequence of events, they're just wrong?
Warren: Hmmm, it shouldn't even be there like that.
King: Okay.
Warren: I told them the truth.
King: Would it help you -- have you ever seen the CPS records?
Warren: Yes.
King: All right. Would it help you to review any of that, just to see what -- what their interviews reflect?
Warren: I mean, no.
King: Do you recall in 2008 -- or 2006 --
Garland: Your Honor, may we approach at this time?
Court: Yes.The court then held a hearing outside of the presence of the jury and appellant's attorney continued his cross-examination of Warren. Warren admitted that CPS came in August 2008 after someone contacted CPS regarding Warren's children and her drug use. Warren admitted that she may have initially denied using drugs to CPS and noted that she had tested positive for drugs at that time.
Warren also admitted that she was investigated by CPS in 2005 following the death of her five-month old son. The autopsy report could not determine whether the child had died from SIDS or homicidal violence. King argued that Warren had initially told police that she had not been using drugs and that she had just fallen asleep, but that Warren failed to take a drug test. Warren denied these allegations. King also asked Warren about an event in January 2008 when a baby was dropped on its head and neck but not taken to the hospital because Warren was allegedly high and drunk. King then argued that these were the types of questions that he would like to ask in presence of the jury. The Court then made this ruling:
The Court, after having listened to arguments of both counsel and, also, having heard the proposed questions that Mr. King would like to -- to ask the witness, the Court is of the -- the Court is ordering that the defense attorney is not to go into any CPS involvement.
These cases are too remote. We're talking about November 2005, we're talking about August 2008. They are not relevant to the case presently before the defendant [sic]. The issue before the defendant [sic] is whether she was using drugs or high or intoxicated on the night of July the third -- July the 29th and 30th of 2013, which clearly is five years or if not more time past the time that the CPS involvement has -- has happened.
She's already admitted she was using drugs that night. Her CPS involvement has no relevance whatsoever in regards to whether or not she was a victim of an aggravated assault. For that reason, the Court is not going to allow you to go into any testimony regarding that.
It does not even -- it is not even relevant for the purpose of impeachment at this point. So my ruling is very clear. You are not to go into anything having to do with any CPS involvement. You are not to go into anything having to do with her
making misrepresentations to CPS at any point regarding her drug usage unless it's near the time of 2013.Appellant's attorney then proffered the CPS records as Defense Exhibit A and that he would renew his offer at an appropriate time during cross-examination. The court responded:
I just want to make it clear that the jury should not have evidence that leads them to believe that she is not credible as a victim of an offense based upon the fact that she may or may not have been a good mother.When the jury returned, the trial court instructed them to disregard the last line of questioning by the defense.
After the State rested its case, appellant's counsel again requested—outside the presence of the jury—that he be allowed to question Warren about the various CPS investigations. Appellant's attorney argued that it was their position that appellant did not set Warren on fire and they wanted to get into the prior CPS investigations because "when she's high, trauma follows her" and that Warren may be trying to avoid another investigation by blaming appellant to avoid responsibility for setting the apartment on fire by smoking in bed. The State argued that the defense was trying to assassinate Warren's character. Defense counsel argued that the State opened the door for this questioning by stating in its opening argument that Warren "is a very honest person." The trial court then held:
The Court has previously made a ruling that the Defense would not be allowed to go into any testimony regarding CPS involvement by the complainant. The Court is sticking to that ruling. I have not changed my mind regarding that. The Court is taking the position that it is not admissible in this trial.
At the conclusion of the evidence and just prior to jury argument, appellant's counsel moved to reopen for the purpose of calling Warren back to the stand to ask her about the CPS records. The trial court denied the motion.
During final jury argument, appellant's counsel argued that Warren had "a history of not being honest with law enforcement when it comes to important matters in her life and responsibilities, and she didn't want CPS crawling back over her." The trial court sustained the State's objection and instructed the jury to disregard that statement.
3) Confrontation clause
The Confrontation Clause of the Sixth Amendment, applicable to the states through the Fourteenth Amendment, provides that, "[i]n all criminal prosecutions, the accused shall [have the right] to be confronted with the witnesses against him." U.S. CONST. amend. VI; see Pointer v. Texas, 380 U.S. 400, 403 (1965). The Sixth Amendment right to confront witnesses includes the right to cross-examine witnesses to attack their general credibility or to show their possible bias, self-interest, or motives in testifying. See Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009). This right is not unqualified as the trial judge has wide discretion in limiting the scope and extent of cross-examination. Id.; Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) ("[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant."). The Supreme Court has held that while the Confrontation Clause guarantees an opportunity for effective cross-examination, it does not guarantee cross-examination that is "effective in whatever way, and to whatever extent, the defense might wish." Van Arsdall, 475 U.S. at 679 (citing Delaware v. Fensterer, 474 U.S. 15, 20 (1985)). In addition, the right to present evidence and to cross-examine witnesses under the Sixth Amendment does not conflict with the corresponding rights under state evidentiary rules. Id. Thus, most questions concerning cross-examination may be resolved by looking to the Texas Rules of Evidence. Id.
4) Texas Rule of Evidence 608
The Texas Rules of Evidence provide that, in a criminal case, a defendant may offer evidence of a victim's pertinent trait. TEX. R. EVID. 404(a)(3)(A). Rule 608, however, provides that a witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. TEX. R. EVID. 608(a) (emphasis added). Further, a party may not inquire into or offer extrinsic evidence about the witness's conduct in order to attack or support the witness's character for truthfulness. TEX. R. EVID. 608(b). The Court of Criminal Appeals has explained Rule 608 as follows:
[U]nder Rule 608 the witness's general character for truthfulness may be shown only through reputation or opinion testimony. A witness's general character for truthfulness or credibility may not be attacked by cross-examining him (or offering extrinsic evidence) concerning specific prior instances of untruthfulness. For example, the defense may not ask the witness: Didn't you cheat on your income tax last year? Didn't you lie on Tuesday about having an affair with your boss? Didn't you steal five dollars from the church collection plate last week and then lie to the priest about it? While all of those questions attack the witness's general character for truthfulness, that mode of impeachment is specifically barred by Rule 608(b). Our state evidentiary rules frown on unnecessary character assassination.Hammer, 296 S.W.3d at 563. The Court of Criminal Appeals went on to note that "the Texas Rules of Evidence [do] permit the defendant to cross-examine the witness for his purported bias, interest, and motive without undue limitation or arbitrary prohibition." Id.
5) Analysis
Appellant argues that Warren's credibility was the entire case that the State had against appellant and that the CPS records were critical to demonstrate that Warren had lied on prior occasions about the extent of her drug use to avoid negative consequences. Although it is undisputed that Warren testified about her drug use before the fire, appellant wanted to argue that because in 2005 and 2008 Warren had lied to CPS about her drug use she could have lied when she accused appellant of intentionally setting the fire. Based on this argument, appellant contends the trial court abused its discretion by disallowing this line of questioning. We disagree.
As stated above, rule 608 precludes an inquiry into specific instances of a witness's conduct for the purpose of attacking or impeaching that witness's credibility. TEX. R. EVID. 608(b). However, the Texas Court of Criminal Appeals has recognized that an exception exists to demonstrate bias, motive or interest. See Hammer, 296 S.W.3d at 563. In this case, however, the fact that Warren may or may not have lied to CPS about her drug use in 2005 and 2008 does not demonstrate any bias, motive or interest on Warren's part to make a false accusation against appellant in this 2013 case. As the trial court itself noted, Warren's prior CPS involvement has no relevance whatsoever to whether or not she was a victim of an aggravated assault. Based on the record before us, we cannot agree that the trial court abused its discretion by excluding such evidence and sustaining the State's objection during closing argument. Accordingly, we overrule appellant's first, second, and third issues.
B. Jury Charge Issues (Issues 4-6)
Appellant asserts that the trial court committed reversible error by including the full definitions for the culpable mental states of intentional, knowing and reckless in the jury charge. We disagree.
1) Standard of review
When we review claims of jury charge errors, we first decide whether there was error in the charge. Ferguson v. State, 335 S.W.3d 676, 684 (Tex. App.—Houston [14th Dist.] 2011, no pet.). If there was error and appellant objected to the error at trial, then only "some harm" is necessary to reverse the trial court's judgment. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g).
Appellant objected to the full definitions of culpable mental states requested by the State in the jury charge. Accordingly, the analysis in this case is subject to a "some harm" standard. --------
2) Analysis
The offense in this case, aggravated assault by causing serious bodily injury or by causing bodily injury by use of a deadly weapon, is a result-oriented offense. See Johnson v. State, 271 S.W.3d 756, 761 (Tex. App.—Waco 2008, pet. ref'd) ("Therefore, we hold that aggravated assault by causing bodily injury, accompanied by the use or exhibition of a deadly weapon, is a result-oriented offense . . . ."). Thus, the culpable mental state definitions in the jury charge should have solely referenced the result of appellant's conduct. In this instance, however, the abstract portion of the jury charge included not only the results of conduct but the nature and circumstances:
A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.See TEX. PEN. CODE ANN. § 6.03(a)-(c) (West 2011) (emphasis added). However, the application paragraphs of the charge connected intentional, knowing, or reckless mental states solely to the results of appellant's conduct when it instructed the jury that they could convict appellant only if they found he "did . . . intentionally, knowingly or recklessly cause serious bodily injury to LESLIE WARREN . . . by setting fire to complainant using an ignitable liquid or an ignition source . . . ."
A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial risk that the circumstances exist or the result will occur.
The application paragraph applies the pertinent penal law, abstract definitions, and general legal principles to the particular facts and the indictment allegations. See Vasquez v. State, 389 S.W.3d 361, 367 (Tex. Crim. App. 2012). "'It is the application paragraph of the charge, not the abstract portion, that authorizes a conviction.'" Yzaguirre v. State, 394 S.W.3d 526, 530 (Tex. Crim. App. 2013) (quoting Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012)). The application paragraph "explains to the jury, in concrete terms, how to apply the law to the facts of the case." Id. Accordingly, to resolve a harm analysis we should look to the application paragraph to determine whether the jury was correctly instructed. Id. With these principles in mind, we conduct a harm analysis using the Almanza factors. See Doughtery v. State, PD-1411-05, 2006 WL 475802, at *1 (Tex. Crim. App. March 1, 2006) (per curiam) (not designated for publication) (reversing appellate court that did not conduct analysis using all Almanza factors).
The first Almanza factor requires consideration of the entire jury charge. See Almanza, 686 S.W.2d at 171. As we explained above, the abstract portion of the jury charge included additional language regarding the conduct of appellant in regard to the culpable mental states. However, the application paragraphs of the charge correctly instructed the jury that they could convict appellant only if they found he "did . . . intentionally, knowingly or recklessly cause serious bodily injury to LESLIE WARREN . . . by setting fire to complainant using an ignitable liquid or an ignition source . . . ." Accordingly, the charge as a whole does not weigh in favor of some harm.
The second Almanza factor involves the state of the evidence, including the contested issues and weight of the probative evidence. See Almanza, 686 S.W.2d at 171. In this case, the jury heard Warren explain how she and appellant were arguing on the morning of July 30, 2013, and how appellant pushed her into the bathroom and told her that she was a "dumb bitch" and that she was "gonna be a dead dumb bitch." Warren further testified that appellant poured rubbing alcohol over her head, lit something and threw it on her head. Warren testified that she heard a "poof" and put her head under the tub as appellant yelled "stop putting it out, don't touch it." Warren then testified that appellant brought a fan and its extension cord into the bathroom, tied her legs together, and then tied her arms to her legs. Warren stated that she was very scared and begging for her life while trying to free the restraints. Warren testified that appellant then returned with lighter fluid that he poured on her and she jumped in the shower and wrapped the shower curtain over herself. Warren stated that she tried to rinse the lighter fluid off and she took off her clothes and pushed him with the shower curtain rod. Warren testified that appellant continued to squirt lighter fluid on her as she ran into the bedroom to the bed to grab a blanket. Warren stated that appellant got a piece of toilet paper and threw it on her bed and she was overcome with flames. Warren testified that the last thing she remembered was jumping over the bed, landing in appellant's arms, and appellant hitting her in the back of the head.
Robert Holzheuser testified that he came by Warren's apartment between noon and 1:00 p.m. on July 30, 2013, to exchange cars with Warren. Holzheuser testified that he saw Warren exiting her apartment in her bra and panties with her hair still smoking and blood running down her face. Holzheuser further testified that Warren's skin was blistered and big pieces of skin were coming off her back.
Shane Cooper, a paramedic with the Dallas Fire Department, testified that he was dispatched to Warren's apartment and provided medical attention to Warren. Cooper testified that the following information was recorded in the patient narrative taken by himself and another paramedic:
EMS arrived to find patient sitting in a bystander vehicle. Patient appears to have burns on her right hand, top part of her head, upper back from left shoulder to right shoulder. Patient states she was tied up by her ex-boyfriend, Christopher Gerald Price, last night and left in the bathroom. Patient states this afternoon her ex-boyfriend poured lighter fluid on her and set her on fire. Bystander states patient was walking out of her apartment with no clothes on. He states he immediately put her in his vehicle. Patient monitored and transported with no change in condition.
Dr. Arnoldo testified about Warren's injuries and the initial assessment of Warren which stated:
Trauma protocol initiated trauma team members at bed side [sic] primary secondary survey in progress. Patient placed on continuous cardiac monitoring, pulse oximetry, and serial vital signs report received from EMS. Patient stated that it was her boyfriend, Christopher Price, that assaulted her, poured alcohol and lighter fluid on her, and then proceeded to light her on fire. Dallas Police to be notified. Patient reports being tied up in the bathroom by her boyfriend and he then poured alcohol and lighter fluid on her, lit the lighter fluid on fire.
Captain Marcus Stephenson, an arson investigator with the Dallas Fire Department, testified that it appeared that the fire started in the master bedroom. He observed that the shower curtain rod was lying on the floor of the master bathroom along with a fan with an extension cord. Captain Stephenson testified that he uses a dog trained in accelerants in his investigations and that the dog alerted him to two areas including the master bathroom and the master bedroom. Captain Stephenson ultimately concluded that the damage caused to the apartment was the result of arson. Captain Stephenson also testified that charcoal lighter fluid is considered an ignitable liquid, a lighter is considered an ignitable source, and either one could be considered a deadly weapon.
Emerald Nazareno, a forensic scientist at the state fire marshal's arson laboratory, testified about the analysis she conducted on the samples from the apartment in this case. Nazareno testified that one sample tested positive for a medium petroleum distillate such as charcoal lighter fluid.
Based on the evidence presented to them, the jury could rationally believe that appellant did intentionally, knowingly or recklessly cause bodily injury to Warren by setting fire to her using an ignitable fluid or ignition source.
The third Almanza factor involves the argument of counsel. See Almanza, 686 S.W.2d at 171. In closing argument, the State addressed the seriousness of Warren's physical injuries but did not mention appellant's culpable mental states. Accordingly, the State's argument does not favor a finding of some harm.
The final Almanza factor addresses any other relevant information revealed by the record of the trial as a whole. See Almanza, 686 S.W.2d at 171. Appellant points to nothing in the record as a whole, and we are aware of none, regarding the culpable mental states at issue.
Thus, in light of the Almanza factors, we are unable to conclude that appellant suffered some harm from the definitions in the abstract section of the jury charge that failed to limit the culpable mental states to the result of appellant's conduct. Accordingly, we overrule appellant's fourth, fifth and sixth issues.
III. CONCLUSION
We resolve appellant's issues against him and affirm the trial court's judgment.
/ David Evans/
DAVID EVANS
JUSTICE Do Not Publish
TEX. R. APP. P. 47
141175F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 3, Dallas County, Texas
Trial Court Cause No. F13-58588-J.
Opinion delivered by Justice Evans. Justices Whitehill and Schenck participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 21st day of January, 2016.