Opinion
No. 14-07-01048-CR
Memorandum Opinion filed December 4, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the County Criminal Court at Law No. 8, Harris County, Texas, Trial Court Cause No. 1486366.
Panel consists of Chief Justice HEDGES and Justices GUZMAN and BROWN.
MEMORANDUM OPINION
Appellant, Bruce Lee Scott, Jr., appeals from his conviction for misdemeanor assault on a person with whom he had a dating relationship. A jury found appellant guilty, and the trial court assessed punishment at one year probation and a $500 fine. In thirteen issues, appellant attacks the trial court's rulings on several evidentiary matters. Appellant also complains that the complaining witness, Felicia Hobbs, was allowed to remain in the courtroom over objection during appellant's testimony. We affirm.
I. Background
Felicia Hobbs testified that by April 2005, she had been dating appellant off and on for six years. On Saturday, April 9, 2005, appellant was living at Hobbs' apartment. That afternoon, appellant borrowed a vehicle that Hobbs' mother had bought for Hobbs' use. Around 10 o'clock that night, Hobbs contacted appellant to ask when he was going to bring the vehicle back. According to Hobbs, appellant responded that he would bring it back once he "ran all the gas out of it." The couple argued, and Hobbs asked appellant to spend the night at his mother's house instead of at Hobbs' apartment. Nonetheless, around 2 a.m., after Hobbs had gone to bed, appellant entered the apartment, and the two again began to argue. At some point, appellant got into bed with Hobbs, and she tried unsuccessfully to push him out, telling him he should go to the living room because she did not want him in her bed. Hobbs then decided to leave the apartment herself and got out of the bed. When Hobbs was standing on one side of the bed and appellant on the other, appellant leaned across the bed and slapped Hobbs across her face. Hobbs said that the slap was "very hard" and that it hurt and made her stumble back. She ran to the living room to call 9-1-1 on a land line, but appellant pulled the telephone cord out of the wall. Hobbs then grabbed her cell phone, but appellant took it from her. Finally, Hobbs grabbed her car keys, exited the apartment, and ran to her car barefoot and in her night clothes. Upon leaving the apartment complex in her vehicle, Hobbs spotted and "flagged-down" a deputy constable. She told the deputy what had happened and led him back to the apartment complex where she discovered appellant had left in her other vehicle. Hobbs spent the remainder of the night at a friend's residence. The next day, Hobbs discovered appellant was back at her apartment, so she had the deputy constable assist in removing appellant from the premises. Hobbs said that after that night she no longer had a romantic relationship with appellant, but she still saw him occasionally on a social basis. On cross-examination, defense counsel attempted to ask Hobbs about prescription drug use. The prosecutor objected to the relevance of this line of questioning, and the trial court explained that defense counsel could elicit testimony regarding the time of the incident at issue but not otherwise. Defense counsel also attempted to ask Hobbs about her alleged "anger problem" and marijuana use and about allegations that she routinely contacted appellant to ask if he had "some weed," apparently referencing marijuana. The trial court, however, sustained objections to the relevance of each of these questions and again admonished counsel "to focus on the incident." Given the opportunity to make a bill of exception, defense counsel stated that he wanted to elicit information regarding Hobbs' prescription drug use because it was relevant to her state of mind at the time of the offense. He further indicated that he wished to ask Hobbs about her continued relationship with appellant after the incident. Specifically, he wanted to ask her if she sent appellant a text message on August 4, 2007, which read: "Got weed. I'm at The Sportsman." The court reiterated that counsel could ask Hobbs questions regarding her state of mind at the time of the offense and at the time of trial but not otherwise. During renewed cross-examination, Hobbs denied that she had drunk alcohol or smoked marijuana on the day of the incident with appellant. Hobbs also described an argument that she and appellant had earlier in the day regarding picking up his nephew. Hobbs then reiterated that appellant started the confrontation later that evening. She said that she did not recall throwing a candle holder at appellant and hitting him in the back of the head. When defense counsel asked Hobbs whether appellant told her on the day of the incident that she had an anger problem, the trial court sustained the prosecutor's relevance objection. After a recess for lunch, counsel attempted to ask Hobbs what she was able to recall after the recess that she could not recall before the recess. The prosecutor objected that the question assumed facts not in evidence, and the court sustained the objection, advising defense counsel to "ask a straight question . . . who, what, when, where, how . . . [g]ive her the subject matter. You know, give her something to respond to." Hobbs then testified that she recalled having thrown a candle at appellant at the time of the incident and that he slapped her four additional times after she did so. She said that she recalled these facts after thinking about the questions asked before the recess and after having talked with the prosecutor during the recess. She also stated that she had trouble remembering throwing the candle because the questions regarding the incident were out of chronological order. On re-direct, Hobbs testified that she did not recall whether she had taken an anti-depressant on the day of the incident. She said that when she did take the medication, it made her feel more relaxed, not agitated. Deputy Constable Jason Reese testified that a little after 3 a.m. on April 10, 2005, he was driving down a street when he saw a vehicle's headlights flashing. He stopped and exited his vehicle, and Hobbs got out of the other vehicle wearing pajamas. She seemed upset, even frantic, was bleeding from her mouth, and told Reese that she had just been assaulted. He accompanied Hobbs back to her apartment, but the assailant was no longer there. She was bleeding from her lip and appeared to have been hit on the side of her head as well. According to Reese, he did not discern any signs that Hobbs was intoxicated or "high" on marijuana. On cross-examination, defense counsel asked Reese whether in his investigative experience, he had ever taken information from one party to a dispute only to later find out that the information was not accurate. The prosecutor objected to the relevance of the question, and the trial court sustained the objection. Also during cross-examination, Reese acknowledged writing in his incident report that Hobbs said appellant slapped her while they were both in bed, as opposed to standing on either side of it as she testified in court. At the conclusion of Reese's testimony, the prosecutor requested permission for Hobbs to be present in the courtroom for the remainder of the testimony. Defense counsel objected, but the trial court overruled the objection and permitted Hobbs to remain. Appellant testified that he and Hobbs had an on-again, off-again relationship over several years and on two occasions lived together. He stated that Hobbs took the prescription medications Paxil and Zoloft and drank alcohol. He also detailed an argument the two had, which began on April 9 when Hobbs refused to attend a family function with appellant and then started calling him to return with the vehicle he borrowed to go to the function. Appellant acknowledged that at some point he told her he was going to drive all the gas out of the vehicle before returning it. Appellant testified that when he did return to the apartment around 3 a.m., he got into bed, and Hobbs reinitiated the argument. She tried to push him out of the bed then started kicking him. They both got out of the bed, and when appellant started walking toward the kitchen, Hobbs tried to scratch his face. Appellant grabbed the land-line phone and threatened to call 9-1-1, but Hobbs disconnected the cord from the wall outlet. Then, as appellant walked toward his cellular telephone, Hobbs hit him on the head with a candle, dropping him to his knees. Appellant got back to his feet, went into the bedroom, and got Hobb's cell phone. Hobbs then ran at appellant, trying to get her phone away from him. The two fell onto "the back of the bed," and Hobbs hit her chin and bit her lip. Regarding Hobbs' contention that appellant reached across the bed to slap her, appellant testified that it was a queen-sized mattress, and it would have been impossible to simply lean across it to slap someone on the other side. Appellant denied hitting or otherwise assaulting Hobbs during the incident. On cross-examination, appellant denied offering Hobbs money to drop the charges against him. After the defense rested, the prosecutor announced that he wanted to call Hobbs back to the stand as a rebuttal witness. Defense counsel then renewed his argument that Hobbs should not have been allowed to remain in the courtroom during appellant's testimony. The trial court, however, permitted Hobbs' additional testimony. Hobbs testified in rebuttal that she tried to push appellant out of the bed but did not kick him. She further stated that appellant leaned over the bed to slap her and that is when her lip got hurt. Lastly, she insisted that appellant had indeed offered her money to drop the charges. On cross-examination, defense counsel attempted to ask Hobbs about how her testimony had changed during the trial, saying, among other similar things: "you understand that there has been at least three occasions now that your testimony has either changed or more has been added to it?" The prosecutor objected that the method of questioning was argumentative and that the questions had already been asked and answered. The trial court sustained the objections. The jury found appellant guilty, and the trial court assessed punishment at one year probation and a $500 fine.II. Issues on Appeal
Appellant raises thirteen issues on appeal. Appellant contends that the trial court erred in sustaining objections to defense counsel's questioning Hobbs about her use of the prescription drug Paxil (issues 1, 2, and 3), about her alleged "anger problem" (issue 4), about her marijuana use (issue 5), about her asking appellant for marijuana (issues 6 and 7), about her prescription drug use and the nature of her relationship with appellant (issue 8), and about what caused her sudden change in testimony (issue 9). Appellant additionally contends that the trial court erred in sustaining the prosecutor's objection when defense counsel attempted to ask Deputy Reese about his investigative experience (issue 10). Appellant further contends that the trial court erred in permitting Hobbs to remain in the courtroom during appellant's testimony (issue 11), permitting Hobbs to testify on rebuttal after having remained in the courtroom for appellant's testimony (issue 12), and again sustaining the prosecutor's objection when defense counsel inquired about a change in Hobbs' testimony (issue 13).III. Evidentiary Rulings During State's Case in Chief A. Standards of Review
We review a trial court's evidentiary rulings for abuse of discretion. Martin v. State, 173 S.W.3d 463, 467 (Tex.Crim.App. 2005). A trial court abuses its discretion when its decision is outside the zone of reasonable disagreement or if it acts without reference to guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380, 391 (Tex.Crim.App. 1990). If the ruling under review is correct under any theory of law applicable to the case, we must uphold the judgment. Martin, 173 S.W.3d at 467. In order to preserve error regarding the exclusion of evidence, the offering party must make an "offer of proof" conveying the substance of the proffered evidence unless it was apparent from the context of the questions asked. Tex. R. Evid. 103(a)(2); Tex. R. App. P. 33.2; Roberts v. State, 220 S.W.3d 521, 532 (Tex.Crim.App. 2007); Fairow v. State, 943 S.W.2d 895, 897 n. 2 (Tex.Crim.App. 1997). An offer of proof can either be made in question and answer form or in the form of a concise statement by counsel. Tex. R. Evid. 103(b); Love v. State, 861 S.W.2d 899, 901 (Tex.Crim.App. 1993). When the concise statement method is utilized, the statement must include a reasonably specific summary of the proposed testimony. Love, 861 S.W.2d at 901.B. Rulings During Hobbs' Testimony
In his first three issues, appellant contends that the trial court erred in sustaining the prosecutor's relevance objections when defense counsel asked Hobbs (1) whether she was taking the prescription drug Paxil "for [her] mood swings," (2) whether Paxil could be used to treat "obsessive/compulsive disorder," and (3) whether the side effects of Paxil included "agitation and anxiety." Texas Rule of Evidence 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." TEX. R. EVID. 401. Relevant evidence is generally admissible, while irrelevant evidence is inadmissible. Id. 402. Appellant argues that the sought-after testimony was relevant to Hobbs' state of mind at the time of the offense and offered relevant background evidence regarding the incident for which appellant was charged. The flaw in appellant's argument is that none of the questions, to which the court sustained a relevancy objection, were limited in scope to the period of time surrounding the incident for which appellant was charged. Furthermore, the latter two questions — whether Paxil could be used to treat "obsessive/compulsive disorder" and whether its side effects included "agitation and anxiety" — were asked in a general fashion, not about Hobbs' own experience on the medication. The Texas Court of Criminal Appeals has indicated that evidence of things such as drug use that might mentally impair a witness is relevant and admissible only if the thing at issue is shown to have caused impairment at the time the witness observed the crime. See Lagrone v. State, 942 S.W.2d 602, 612-13 (Tex.Crim.App. 1997); see also Turner v. State, 762 S.W.2d 705, 707-08 (Tex.App.-Houston [14th Dist.] 1988, pet. ref'd). Because counsel did not limit his questions specifically to Hobbs' experience during the period surrounding the incident in question, the trial court did not err in sustaining the relevancy objections. We overrule appellant's first three issues. In his fourth issue, appellant contends that the trial court erred in sustaining the prosecutor's objection that the question was vague when defense counsel inquired whether Hobbs' had an "anger problem." Again, appellant contends that the question went to Hobbs' state of mind at the time of the incident and offered relevant background evidence. However, as asked, defense counsel's question presented neither a time frame for the response nor a definition of what was meant by "anger problem." Defense counsel also did not subsequently attempt to clarify the question. Under the circumstances, we conclude that the trial court did not abuse its discretion in sustaining the vagueness objection. We overrule appellant's fourth issue. In his fifth issue, appellant contends that the trial court erred in sustaining the prosecutor's relevancy objection when defense counsel inquired whether Hobbs had used marijuana during the time of the incident. Again, appellant contends that the question went to Hobbs' state of mind at the time of the incident and offered relevant background evidence. The question at issue asked: "[D]uring the time of this particular incident, on or around this particular period of time, have you ever smoked marijuana?" As can be seen, the question actually posits three periods of time: (1) "during . . . this particular incident," (2) "on or around this particular period of time," and (3) "ever." Under the Lagrone case, discussed above, marijuana use during the incident itself might be relevant if shown to have impaired Hobbs' ability to observe and recall the events themselves, but marijuana use at other times would not be relevant. 942 S.W.2d at 612-13. Regardless, Hobbs subsequently testified that she did not smoke marijuana on the date of the incident for which appellant was charged. Any error in excluding evidence is rendered harmless if the sought-after evidence is later admitted. Khoshayand v. State, 179 S.W.3d 779, 784 (Tex.App.-Dallas 2005, no pet.). Accordingly, we overrule appellant's fifth issue. In his sixth issue, appellant contends that the trial court erred in sustaining a relevancy objection when defense counsel inquired whether Hobbs had asked appellant for marijuana during the time of the incident. Appellant contends that the question went to Hobbs' state of mind at the time of the incident and offered relevant background evidence. The question at issue asked: "During the time of this particular incident, or thereabouts or any time thereafter, have you ever asked [appellant] for marijuana?" This question posits four periods of time: (1) "[d]uring the time of this particular incident," (2) "thereabouts," (3) "any time thereafter," and (4) "ever." Because of the extended time frame presented, this question was improper under Lagrone. 942 S.W.2d at 612-13. Furthermore, the question asks about a request for drugs, not actual drug use. Appellant offers no explanation as to how this would be relevant to Hobbs' state of mind at the time of the offense. Accordingly, we overrule appellant's sixth issue. In his seventh issue, appellant contends that the court erred in sustaining a relevancy objection when counsel inquired whether Hobbs had asked appellant "for some weed" during the time of the incident. Appellant contends that the question went to Hobbs' state of mind at the time of the incident and offered relevant background evidence. At the record citation provided by appellant, however, defense counsel asked Hobbs about her relationship with appellant after the incident for which appellant was charged. Therefore, when counsel asked Hobbs, "[a]nd as part of that friendship, you routinely text Mr. Scott and ask him, Do you have some weed [sic]?" the time frame inquired about was clearly post-incident. This conclusion is supported by the fact that during his offer of proof, counsel mentioned only one such text message, coming over two years after the incident. Under Lagrone, the question is clearly not relevant to Hobbs' state of mind at the time of the incident. 942 S.W.2d at 612-13. Accordingly, we overrule issue seven. In his eighth issue, appellant contends that the trial court erred in not allowing counsel to elicit testimony from Hobbs regarding her prescription drug use and state of mind as well as the nature of her relationship with appellant. Appellant argues that such evidence was relevant to Hobbs' state of mind at the time of the offense and as background evidence. The record citation offered by appellant is to the offer of proof defense counsel made in response to the sustaining of the objections made the basis for issues one through seven discussed above. Neither the record citation nor the appellate arguments under issue eight offer any material or analysis not already discussed. Accordingly, for the reasons stated in the preceding issues, we overrule issue eight. In his ninth issue, appellant contends that the court erred in sustaining an objection when counsel asked Hobbs what caused her to "suddenly change her testimony and recall facts after a break." There are two problems with appellant's complaint. First, defense counsel asked Hobbs what happened during the break that caused her to recall information before Hobbs testified regarding the additional information. The prosecutor objected that the question assumed facts (i.e., Hobbs' recalling of additional facts) that were not in evidence. Given that Hobbs had not provided any new testimony before defense counsel asked how she recalled the information, the objection and the sustaining of the objection were both proper. Second, subsequent to the sustaining of this objection, Hobbs testified that she recalled the additional facts after thinking about the questions asked before the recess and after having talked with the prosecutor during the recess. Thus, defense counsel ultimately managed to elicit the information he was seeking and has no basis for complaint. See Khoshayand, 179 S.W.3d at 784 (holding any error in excluding evidence is rendered harmless if the evidence is subsequently admitted). Accordingly, we overrule issue nine.C. Ruling During Reese's Testimony
In his tenth issue, appellant contends that the court erred in sustaining a relevancy objection when counsel asked Deputy Reese regarding his experience in investigating assault cases. Specifically, counsel asked Reese whether in any other cases, he had taken information from one party to a dispute and later discovered that the information was not true. Appellant, however, offers no explanation as to how the fact a party in a wholly unrelated case may have fabricated information tended to make the existence of any fact that is of consequence to the present action more or less probable. See TEX. R. EVID. 401 (defining "relevant evidence"), 402 (providing that irrelevant evidence is not admissible). The evidence sought was simply not probative of any issue in the case, including whether Hobbs had fabricated information. See Miller v. State, 36 S.W.3d 503, 507 (Tex.Crim.App. 2001); 1 Steven Goode et al., Guide to the Texas Rules of Evidence § 401.1 (3d ed. 2002). Accordingly, we overrule appellant's tenth issue.IV. "The Rule"
In his eleventh issue, appellant contends that the trial court violated Texas Rule of Evidence 614 (known colloquially as "the Rule") by permitting Hobbs to remain in the courtroom after her case-in-chief testimony and during appellant's testimony. In his twelfth issue, appellant contends that the trial court also violated Rule 614 by permitting Hobbs to testify on rebuttal after having heard appellant's testimony. Appellant argues that he was irreparably harmed because Hobbs' presence in the courtroom during appellant's testimony had a material effect on her rebuttal testimony. Rule 614 is designed to prevent witnesses from altering their testimony, consciously or not, based on other witnesses' testimony. Webb v. State, 766 S.W.2d 236, 239 (Tex.Crim.App. 1989). It reads in relevant part as follows:Rule 614. Exclusion of Witnesses
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of:
. . . .
(4) the victim in a criminal case, unless the victim is to testify and the court determines that the victim's testimony would be materially affected if the victim hears other testimony at the trial.Tex. R. Evid. 614; see also Tex. Code Crim. Proc. art. 36.03 (containing substantially similar provisions to those in Rule 614(4)). In short, Rule 614 permits a victim in a criminal case to remain for the testimony of other witnesses unless the judge determines that the victim's testimony would be materially affected by hearing the other testimony. The trial court has discretion to decide if a witness fits under this exception to exclusion under Rule 614. Peters v. State, 997 S.W.2d 377, 384 (Tex.App.-Beaumont 1999, no pet.). The rule does not, however, provide any specific criteria to guide the court's discretion. 1 Goode et al. § 614.2. Apart from making the general statement that hearing appellant testify would affect Hobbs' rebuttal testimony, appellant does not identify any specific factors suggesting Hobbs' testimony would have been, or indeed was, so affected. Generally, in circumstances such as are present here, where the victim has already testified in the case-in-chief, the danger that her testimony would be materially affected by hearing other testimony is much reduced. See id. To begin with, in most such cases, the majority of the victim's testimony would already be completed and thus could not be materially affected by the victim's hearing other testimony. Additionally, the trial judge would have already heard the victim's testimony, so he would have substantially more information on which to determine whether additional or rebuttal testimony might be materially affected. Furthermore, the jury would have already heard the victim's case-in-chief testimony, thus making it much more difficult for the victim to adjust any rebuttal testimony in response to other testimony. If the victim changed his or her testimony after having heard others testify, it could have serious credibility consequences. Here, after appellant testified, the prosecutor called Hobbs to the stand in rebuttal. She then testified that on the night in question, she tried to push appellant out of the bed but did not kick him. She stated that appellant leaned over the bed to slap her, cutting her lip. She also denied that she was the one who disconnected the land line telephone. All of this testimony was in keeping with Hobb's case-in-chief testimony and thus was not materially affected by having heard appellant testify. Lastly, in her rebuttal testimony, Hobbs asserted that appellant offered her money to drop the charges against him. Although there was no antecedent for this testimony in Hobbs' case-in-chief testimony, it is likely that Hobbs was the catalyst for the prosecutor's embarking on this line of questioning. Therefore, there is no indication that Hobbs' testimony was materially affected by having heard appellant testify. Because of the circumstances under which Hobbs testified and the absence of any factors suggesting that Hobbs' testimony was materially affected by remaining in the courtroom during appellant's testimony, we find that the trial court did not abuse its discretion by permitting Hobbs to remain in the courtroom and then testify in rebuttal. We overrule appellant's eleventh and twelfth issues.