Opinion
NUMBER 13-15-00223-CR
02-18-2016
LEE SANCHEZ, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 28th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Perkes, and Longoria
Memorandum Opinion by Justice Longoria
Appellant Lee Sanchez challenges his conviction for assault involving family violence, a third-degree felony. See TEX. PENAL CODE ANN. § 22.01(a), (b)(2)(A) (West, Westlaw through 2015 R.S.). We affirm.
I. BACKGROUND
At all times relevant to this case, appellant and Christina Aparicio were dating and sharing a house together. Following a violent altercation in September of 2014, the State charged appellant by indictment with two counts of assaulting Aparicio.
The State alleged under Count 1 that appellant assaulted Aparicio by attempting to strangle her and that Aparicio was a person whose relationship or association with appellant was described by sections 71.0021(b), 71.003, or 71.005 of the Texas Family Code. See id. § 22.01(b)(2)(B). Under Count 2, the State alleged generally that appellant caused bodily injury to Aparicio and that her relationship or association with appellant was described by sections 71.0021(b), 71.003, or 71.005 of the Texas Family Code. See id. § 22.01(b)(2)(A). The State alleged under each count that appellant had twice been convicted of an offense involving family violence.
At the beginning of trial, appellant stipulated on the record but outside the presence of the jury to the two prior convictions. The jury was not informed of the stipulation during the trial, and the jury charge did not require the jury to find that appellant was previously convicted of any offenses.
The jury acquitted appellant of Count 1 but convicted him of Count 2. Appellant elected for the trial court to assess his sentence. Before pronouncing sentence, the court heard a victim impact statement from Aparicio. See TEX. CODE CRIM. PROC. ANN. art. 42.03, § 1(b) (West, Westlaw through 2015 R.S.). The trial court assessed punishment at ten years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice, court costs, and no fine.
II. ANALYSIS
Appellant asserts three issues on appeal: (1) the evidence is insufficient to convict him of felony assault because there was no evidence of his prior convictions for an offense involving family violence; (2) his substantial rights were harmed when the trial court permitted Aparicio to give a victim impact statement before the court pronounced sentence; and (3) the trial court should have granted his oral motion for mistrial when one of the jurors reported overhearing a witness discussing evidence that was not introduced at trial.
A. Sufficiency of the Evidence
1. Standard of Review and Applicable Law
Courts evaluate the legal sufficiency of the evidence by examining all the evidence in the light most favorable to the verdict and determining whether a reasonable trier of fact could have found all of the elements of the offense beyond a reasonable doubt. Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard gives full play to the trier of fact's responsibility "fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Id. (citing Jackson, 443 U.S. at 319). Each fact need not point directly and independently to the appellant's guilt so long as the cumulative force of all the evidence is sufficient to support a conviction. See Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011).
Courts review the sufficiency of the evidence presented by the State by measuring it against the hypothetically correct jury charge for the case. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). The hypothetically correct charge is authorized by the indictment, accurately sets out the law, does not unnecessarily increase the State's burden of proof or unnecessarily restrict its theories of liability, and adequately describes the particular offense for which the defendant was tried. Sanchez v. State, 376 S.W.3d 767, 772 (Tex. Crim. App. 2012). The hypothetically correct jury charge for this case required the State to prove that appellant: (1) intentionally, knowingly, or recklessly caused bodily injury; (2) to Aparicio, a person whose relationship or association with appellant was described by sections 71.0021(b), 71.003, or 71.005 of the Texas Family Code; and (3) was previously convicted of at least one offense involving family violence. TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2)(A); see Wingfield v. State, No. 07-13-00399-CR, ___ S.W.3d. ___, ___, 2015 WL 7567701, at *1 (Tex. App.—Amarillo Nov. 24, 2015, pet. ref'd). The prior conviction is an essential element of the offense as a felony and not an enhancement. Wingfield, 2015 WL 7567701, at *1; Reyes v. State, 314 S.W.3d 74, 81 (Tex. App.—San Antonio 2010, no pet.).
2. Discussion
Appellant argues that the evidence is insufficient because the State produced no evidence that he was previously convicted of an offense involving family violence, an essential element of the offense. Appellant admits that he stipulated to the two offenses but argues that the stipulation "must come before the jury to be effective," see Hollen v. State, 117 S.W.3d 798, 802 (Tex. Crim. App. 2003), the stipulation was not admitted, and there was no other evidence in the record supporting a finding on this essential element. The State agrees that the jury should have been informed of the stipulation but argues that appellant is barred from challenging the sufficiency of the evidence on that element of the offense.
We have found no case law addressing this situation under the felony assault statute, but it has been addressed under the felony driving while intoxicated (DWI) statute, which has the same structure as the statute at issue here. See TEX. PENAL CODE ANN. § 49.09(b)(2) (West, Westlaw through 2015 R.S.) (providing that driving while intoxicated "is a felony of the third degree if it is shown at trial" that the defendant had been convicted "two or more times" of misdemeanor driving while intoxicated); see also Barfield v. State, 63 S.W.3d 446, 448 (Tex. Crim. App. 2001) (observing that the requirement of two or more prior convictions in section 49.09(b)(2) is a jurisdictional element "which must be proved to obtain a conviction of felony DWI"). Hollen, appellant's primary authority, involved a different question under the felony DWI statute: whether the jury could be informed of the defendant's stipulation to previous DWI convictions and whether the stipulation itself was admissible. 117 S.W.3d at 799. The Hollen Court concluded the stipulation was admissible because the prior convictions were essential elements of the offense which must be proven to the factfinder. Id. at 801-02. The Court did not address the sufficiency of the evidence in Hollen, but addressed a case with an issue similar to appellant's in Bryant v. State, 187 S.W.3d 397, 399 (Tex. Crim. App. 2005). There, the charge of the court informed the jury that Bryant had stipulated to two prior convictions for DWI, but the stipulation itself was not entered into evidence. Id. Bryant argued on appeal that the evidence was insufficient because the stipulation was never admitted and there was no other evidence of his previous convictions before the jury. Id. at 399-400. The Texas Court of Criminal Appeals rejected Bryant's challenge, explaining that a stipulation has "the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact." Id. at 400 (citing 2 JOHN W. STRONG, et al., MCCORMICK ON EVIDENCE § 255 (5th ed.1999)). Thus, Bryant's stipulation had "waived any right to contest the absence of proof on the stipulated elements." Id. at 401 (quoting United States v. Harrison, 204 F.3d 236, 240 (D.C. Cir. 2000)); see Martin v. State, 200 S.W.3d 635, 640 (Tex. Crim. App. 2006) (explaining that under Bryant, "the evidence is sufficient to support a defendant's conviction even if the stipulation is not given or read to the jury").
The relevant facts in Bryant are effectively the same as the ones in this case. The appellant in both cases stipulated to prior convictions—which the governing statute made an element of the offense—but neither the stipulation nor any other evidence of the prior convictions were admitted into evidence. Based on Bryant, we conclude that while the jury in appellant's trial should have been informed of the stipulation, he may not challenge whether the State proved the element to which he stipulated beyond a reasonable doubt. See Martin, 200 S.W.3d at 640; Bryant, 187 S.W.3d at 401. We overrule appellant's first issue.
The Texas Court of Criminal Appeals has held under the felony DWI statute that the jury charge must inform the jury of the defendant's stipulation to prior convictions because of the requirement in the Texas Code of Criminal Procedure that the charge set out the law applicable to the case. Martin v. State, 200 S.W.3d 635, 639 (Tex. Crim. App. 2006) (citing TEX. CODE CRIM. PROC. ANN. art. 36.14 (West, Westlaw through 2015 R.S.)).
B. Improper Victim-Impact Testimony
Appellant asserts in his second issue that the trial court harmed his substantial rights by permitting Aparicio to give a victim impact statement before pronouncing appellant's sentence. The State responds that appellant waived this issue by failing to object at the time of the statement.
We agree with the State. After sentencing is complete, a victim may give a statement to the court regarding the offense, the defendant, and the effect of the offense on the victim. TEX. CODE CRIM. PROC. ANN. art. 42.03, § 1(b). Article 42.03 limits victim statements to after sentencing to guard against the possibility that the factfinder will be swayed by the statements, which the statute provides are unsworn and not subject to cross-examination. Johnson v. State, 286 S.W.3d 346, 349 (Tex. Crim. App. 2009). We agree that the trial court improperly heard Aparicio's victim statement before pronouncing sentence, but appellant did not object to her statement. To preserve a complaint for appeal, a litigant must make a timely and specific request, motion, or objection, and obtain an adverse ruling on it from the trial court. TEX. R. APP. P. 33.1; see Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014). We conclude that appellant has waived this issue by failing to object to Aparicio's statement at trial. See Mays v. State, 318 S.W.3d 368, 391-92 (Tex. Crim. App. 2010) (holding generally that failure to object to the admission of victim impact evidence waives error); see also Nieves v. State, No. 14-07-01039-CR, 2009 WL 280502, at *1 (Tex. App.—Houston [14th Dist.] Feb. 5, 2009, no pet.) (mem. op., not designated for publication) (holding that the defendant waived error by failing to object when the trial court heard two victim statements similar to the one in this case during the punishment phase but before pronouncing sentence). We overrule appellant's second issue.
We note that appellant does not argue the trial court committed fundamental error by hearing Aparicio's victim-impact statement before pronouncing sentence. See TEX. R. EVID. 103(e) (providing that an appellate court hearing a criminal case "may take notice of a fundamental error affecting a substantial right" even if the defendant did not properly preserve error).
C. Juror Misconduct
Appellant argues in his final issue that the trial court erred when it denied his motion for mistrial after Juror No. 8 reported that she overheard Aparicio and her friend discussing a portion of Aparicio's testimony, allegedly including a matter that was not in evidence. The State responds that we may not address this issue because appellant did not move for a mistrial on these grounds in the trial court.
We agree with the State. The trial court questioned Juror No. 8 when she reported that she briefly overheard Aparicio and a friend discussing Aparicio's testimony at a restaurant during the lunch break. During questioning by the court and the parties, Juror No. 8 mentioned she had begun to form an opinion on the case by the time she left the courthouse for lunch. Appellant's counsel moved for a mistrial on the ground that Juror No. 8 "claims to have formed an opinion" on the issue of guilt. Appellant's counsel made no mention of Juror No. 8 hearing extraneous evidence, which is the issue appellant asserts on appeal.
When questioned whether what she heard affected her opinion of the case, Juror No. 8 responded that "[i]t did not change any opinion I had leaving the courtroom here after hearing testimony this morning" and that she was "waiting to hear more" from the parties before making a final decision on appellant's guilt or innocence. Juror No. 8 also told the trial judge that she "absolutely" would keep an open mind until the jury retired to deliberate. --------
An objection on one basis may not be used to support a different legal issue on appeal. Yazdchi, 428 S.W.3d at 844; Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). A party forfeits an issue that does not comport with the basis for the objection at trial. Yazdchi, 428 S.W.3d at 844. We hold that appellant has forfeited this issue by not mentioning it in his motion for a mistrial. See id.; Castillo v. State, 319 S.W.3d 966, 970 & n.5 (Tex. App.—Austin 2010, pet. ref'd) (holding that the defendant's assertion of jury misconduct on appeal was forfeited because he did not move for a mistrial and his motion for new trial did not include the issue of misconduct). We overrule appellant's third issue.
III. CONCLUSION
We affirm the judgment of the trial court.
Nora L. Longoria
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 18th day of February, 2016.