Opinion
14-23-00508-CR
12-10-2024
LAVONNE SHANTE BATEMAN, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish - Tex.R.App.P. 47.2(b).
On Appeal from the 25th District Court Guadalupe County, Texas Trial Court Cause No. 21-0436-CR-B
Panel consists of Chief Justice Christopher and Justices Spain and Poissant.
MEMORANDUM OPINION
Margaret "Meg" Poissant Justice
Appellant LaVonne Shante Bateman appeals her conviction for assault family violence by impeding breath or circulation. See Tex. Penal Code Ann. § 22.01(b)(2)(B). In three issues, appellant argues (1) there was legally insufficient evidence that she impeded the complainant's breath, (2) the trial court erred in excluding defendant's exhibit four, and (3) defense counsel rendered ineffective assistance of counsel. We affirm.
This case is before this Court on transfer from the Fourth Court of Appeals in San Antonio pursuant to a docket-equalization order issued by the Supreme Court of Texas. See Tex. Gov't Code Ann. §§ 22.220(a), 73.001. Because this is a transfer case, we will apply the precedent of the Fourth Court to the extent it differs from our own. See Tex. R. App. P. 41.3.
In March of 2021, appellant was indicted for causing bodily injury to the complainant, a member of appellant's family or household or a person with whom she had a dating relationship, by impeding the normal breathing and circulation of blood of the complainant by applying pressure to the complainant's throat or neck. See id. Appellant pleaded not guilty and proceeded to trial.
At trial, evidence was presented that appellant and the complainant were in a romantic relationship; and that they were involved in a verbal argument that escalated into a physical altercation during which appellant sat on top of the complainant and choked the complainant around the neck with her hands. The jury found appellant guilty of the offense, and the trial court assessed punishment at seven years' incarceration, suspended for four years of community supervision, and a $1,000.00 fine. This appeal followed. See Tex. Code Crim. Proc. Ann. art. 42A.755(e).
II. Sufficiency of the Evidence
In her first issue, appellant argues "[a] neutral review of the evidence reveals that it was legally insufficient to prove that Appellant applied pressure to the complaining witness's throat or neck or blocked her nose or mouth."
A. Standard of Review & Applicable Law
Legal sufficiency is measured by the elements of the offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009). "Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theory of liability, and adequately describes the particular offense for which the defendant was tried." Id.
In a legal sufficiency review, we consider the evidence in the light most favorable to the verdict to determine whether any rational finder of fact could have found the essential elements of the offense beyond a reasonable doubt. Chambers v. State, 580 S.W.3d 149, 156 (Tex. Crim. App. 2019); see Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In our analysis, we defer to the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19). When the record contains conflicting inferences, we presume that the trier of fact resolved any such conflicts in favor of the prosecution, and we must defer to that resolution. Padilla v. State, 326 S.W.3d 195, 200 (Tex. Crim. App. 2010) (citing Jackson, 443 U.S. at 326).
B. Analysis
Here, a hypothetically correct charge would instruct the jury to find appellant guilty of the offense if the State established that: (1) appellant (2) intentionally, knowingly, or recklessly (3) caused bodily injury to the complainant, (4) a member of her household or person with whom she had a dating relationship, and (5) appellant intentionally, knowingly, or recklessly impeded the normal breathing or circulation of the blood of the complainant by applying pressure to the complainant's throat or neck. See Tex. Fam. Code Ann. §§ 71.0021, 71.005; Tex. Penal Code Ann. § 22.01(a)(1), (b)(2)(B). Appellant only challenges the sufficiency of the evidence supporting the jury's finding that she impeded the complainant's normal breathing or circulation of her blood by applying pressure to the complainant's neck.
At trial, the complainant testified that:
[State]: Where were y'all whenever this conversation was happening?
[Complainant]: In the bedroom, in her bedroom.
[State]: In what part of the room?
[Complainant]: She was on one side, and I was on the other.
[State]: Okay. Now, what happened right after that?
[Complainant]: After that it set her off, and she just started coming towards me. And from what I remember, she just pushed me on the floor and got on top of me and started choking me.
[State]: What was she using to choke you?
[Complainant]: Her hands.
. . .
[State]: What did it feel like?
[Complainant]: I remember my -- my vision going blurry, and it kind of felt like a dream. And I had a lot of pressure in my head, and I couldn't really scream. And I think I even tried to cry, and there was just -- nothing would come out.
[State]: Did you try to fight back?
[Complainant]: I briefly remember trying to get my hands, but she was on top of me, and it was such a tight space.
[State]: What were you trying to do with her hands?
[Complainant]: Take them off of my neck.
[State]: How long do you think she sat there with her hands on your neck?
[Complainant]: Probably for 20 to 30 seconds.
[State]: Were you able to breathe?
[Complainant]: No. [State]: Did it hurt?
[Complainant]: Yes.
Viewing this evidence in the light most favorable to the verdict, we conclude that a rational finder of fact could have found that appellant impeded the complainant's breath or circulation beyond a reasonable doubt. See Chambers, 580 S.W.3d at 156 (Tex. Crim. App. 2019); Brooks, 323 S.W.3d at 895; see also Philmon v. State, 609 S.W.3d 532, 537 (Tex. Crim. App. 2020) ("We have interpreted 'impeding' under Texas Penal Code § 22.01(b)(2)(B) to include any degree of impediment to one's normal breathing or circulation of blood flow."); Marshall v. State, 479 S.W.3d 840, 845 (Tex. Crim. App. 2016) ("An impediment to normal breathing does not necessarily prevent breathing altogether because an impediment is merely a hindrance or obstruction. Shawne's testimony that she was never entirely unable to breathe does not foreclose the possibility that her normal breathing was hindered."). Therefore, we conclude the evidence is legally sufficient and overrule appellant's first issue.
III. Evidentiary Ruling
In her second issue, appellant argues the trial court erred in excluding defendant's exhibit four, which is a photograph of the complainant's neck showing bruises or "hickeys."
A. Standard of Review & Applicable Law
We review a trial court's evidentiary rulings for an abuse of discretion. See Inthalangsy v. State, 634 S.W.3d 749, 754 (Tex. Crim. App. 2021). A trial court abuses its discretion if its ruling was so clearly wrong as to be outside the zone of reasonable disagreement. See id.
"Irrelevant evidence is not admissible." Tex. R. Evid. 402. Evidence is relevant if (1) it has any tendency to make a fact more or less probable than it would be without the evidence; and (2) the fact is of consequence in determining the action. Tex. R. Evid. 401. "A 'fact of consequence' includes either an elemental fact or an evidentiary fact from which an elemental fact can be inferred." Henley v. State, 493 S.W.3d 77, 84 (Tex. Crim. App. 2016). "An evidentiary fact that stands wholly unconnected to an elemental fact, however, is not a fact of consequence." Id. A court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence. Tex. R. Evid. 403; Buzby v. State, 480 S.W.3d 113, 116 (Tex. App.-Houston [14th Dist.] 2015, no pet.).
The erroneous exclusion of evidence is nonconstitutional error. Melgar v. State, 236 S.W.3d 302, 308 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd). A nonconstitutional error that does not affect the appellant's substantial rights must be disregarded. Tex.R.App.P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). In assessing the likelihood that the jury's decision was adversely affected by the error, the appellate court should 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 it might be considered in connection with other evidence in the case. Id.
B. Analysis
At trial, the trial court admitted into evidence photographs of the complainant from the day of the assault taken by Officer Sarah Wallace, which show yellow bruising on the complainant's neck area. On the stand, Officer Wallace testified that she noticed red marks around the complainant's neck, as well as "slightly yellow bruising" which the complainant told her were hickeys. Officer Wallace testified the red marks were consistent with someone putting something around the complainant's neck, and that complainant was swollen in the front lower base of the neck. During cross-examination of Officer Wallace, appellant questioned her extensively about the yellow bruises in the photographs, that the complainant told Wallace they were hickeys, that based on coloration the yellow marks had been there for some time and appeared to be there before the incident because they were healing, whether the complainant enjoyed "the administration of hickeys," and whether the red marks alleged to have been caused by the choking could have been hickeys.
After Wallace's testimony, Officer Jose Zapata also testified concerning the hickeys. Forensic nurse Christie McGuire testified next about the differences between a hickey or a sign of strangulation. Finally, the complainant testified that she had hickeys that were healing, and the trial court admitted the defense's exhibit two, which is a photograph of appellant and complainant in which red marks can be seen in the area around the complainant's neck. It was at this point that the trial court sustained the State's relevance objection to defense's exhibit four and excluded it from evidence.
Assuming, without deciding, that the trial court erred when it excluded appellant's exhibit four, we nevertheless conclude that any such error was harmless because the exhibit was cumulative of other exhibits in evidence and of testimony elicited at trial. See Bleimeyer v. State, 616 S.W.3d 234, 253 (Tex. App.-Houston [14th Dist.] 2021, no pet.) ("Often error in the exclusion of evidence is harmless if the evidence is cumulative of other evidence or the nature of the evidence is established through other means."); see, e.g., Jefferson v. State, 900 S.W.2d 97, 102 (Tex. App.-Houston [14th Dist.] 1995, no pet.) (concluding that exclusion of police report was harmless because the contents of the report had already been established through live testimony of witnesses). We overrule appellant's second issue.
IV. Ineffective Assistance of Counsel
In her third issue, appellant argues that defense counsel rendered ineffective assistance.
A. Applicable Law & Standard of Review
A defendant in a criminal prosecution has a Sixth Amendment right to the effective assistance of counsel. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing U.S. Const. amend. VI; Tex. Const. art. I, § 10). We employ the United States Supreme Court's two-pronged Strickland test to determine whether counsel's representation was inadequate in violation of a defendant's Sixth Amendment right. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); see Strickland v. Washington, 466 U.S. 668, 687 (1984).
Under that test, to prevail on a claim of ineffective assistance of counsel, appellant must prove by a preponderance of the evidence that: (1) counsel's performance fell below the standard of reasonableness under prevailing professional norms; and (2) there is a reasonable probability that, but for counsel's deficiency, taking into account the totality of the evidence before the jury, the result of the trial would have been different. Ex parte Martinez, 330 S.W.3d 891, 900-01 (Tex. Crim. App. 2011); see Strickland, 466 U.S. at 687; Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009). Failure to show either deficient performance or sufficient prejudice under Strickland defeats a claim for ineffective assistance. Thompson, 9 S.W.3d at 813.
The burden is on the defendant to prove ineffective assistance of counsel by a preponderance of the evidence, and we review counsel's effectiveness by the totality of the representation, not by isolated acts or omissions. Id.; Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). To show deficient performance, the defendant must overcome the strong presumption that the challenged action "might be considered sound trial strategy." Strickland, 466 U.S. at 689 (citing Michel v. Louisiana, 350 U.S. 91, 100-101 (1955)); see State v. Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) ("[U]nless there is a record sufficient to demonstrate that counsel's conduct was not the product of a strategic or tactical decision, a reviewing court should presume that trial counsel's performance was constitutionally adequate"). If there is any basis for concluding that counsel's conduct was strategic, then further inquiry is improper. See Morales, 253 S.W.3d at 696; Busby v. State, 990 S.W.2d 263, 268 (Tex. Crim. App. 1999) ("Judicial scrutiny of counsel's performance must be highly deferential"). "[W]e commonly assume a strategic motive if any can be imagined and find counsel's performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it." Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).
Normally, the presumption of a sound trial strategy cannot be overcome absent evidence in the record of the attorney's reasons for his conduct. Thompson, 9 S.W.3d at 813-14; Busby, 990 S.W.2d at 269; see Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The Texas Court of Criminal Appeals has stated numerous times that "a reviewing court on direct appeal will rarely be able to fairly evaluate the merits of an ineffective-assistance claim, because the record on direct appeal is usually undeveloped and inadequately reflective of the reasons for defense counsel's actions at trial." Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallet v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Thompson, 9 S.W.3d at 813- 14. "The lack of a clear record usually will prevent the appellant from meeting the first part of the Strickland test, as the reasonableness of counsel's choices and motivations during trial can be proven deficient only through facts that do not normally appear in the appellate record." Mata, 226 S.W.3d at 430. Thus, claims of ineffective assistance of counsel are better suited to an application for writ of habeas corpus or motion for new trial where the record can be developed to include defense counsel's insight into his decisions. Jackson, 877 S.W.2d at 772 & n.3; see Mata, 226 S.W.3d at 430.
B. Analysis
Appellant argues that "trial counsel failed to take steps to properly introduce the post featuring the video to refresh the complaining witness's memory as to whether she made such a social media post." Appellant bases this argument on a social media post by the complainant alleged to have been filmed shortly after the assault and in which the complainant is alleged to appear "jovial and joking about the situation."
Here, defense counsel questioned the complainant about the video, and the complainant did not deny making the video, that it existed, or that it showed what appellant alleged.
[Defense Counsel]: So, Ms. Castillo, you had -- on the date of the incident, you actually rode back with your sisters, correct?
[Complainant]: Yes.
[Defense Counsel]: And y'all had conversations, correct?
[Complainant]: Yes.
[Defense Counsel]: Some of them jovial?
[Complainant]: Sure.
[Defense Counsel]: Laughing?
[Complainant]: Trying to make me feel better, yes.
[Defense Counsel]: Did you do any social media posts at that time?
[Complainant]: I honestly -- probably taking pictures of my neck.
[Defense Counsel]: Did you do any social media posts at that time?
[Complainant]: I'm sure. It's been a while. I don't remember.
"Extrinsic evidence of a witness's prior inconsistent statement is not admissible unless the witness is first examined about the statement and fails to unequivocally admit making the statement." Tex. R. Evid. 613(a)(4). Here, the complainant did not unequivocally fail to admit that she made the video or that it showed her jovial and laughing. See id. Accordingly, we cannot conclude that defense counsel was ineffective by not seeking to refresh the complainant's memory with the video.
Appellant also argues that defense counsel was ineffective because defense counsel failed to lay the proper foundation to have a photograph of the complainant allegedly using drugs admitted into evidence. Appellant argues this was ineffective assistance because the evidence was needed "to impeach the complaining witness's credibility as to drug use . . . ." However, Texas Rule of Evidence 608(b) prevents the admission of the complained-of exhibit under these circumstances. See Tex. R. Civ. P. 608(b) ("Except for a criminal conviction under Rule 609, a party may not inquire into or offer extrinsic evidence to prove specific instances of the witness's conduct in order to attack or support the witness's character for truthfulness."); Tex. R. Evid. 401, 402; see also Gonzales v. State, 929 S.W.2d 546, 549 (Tex. App.-Austin 1996, pet. ref'd) ("The rules of evidence grant a party greater latitude to prove a witness's bias than to prove a witness's untruthful character. For the purpose of impeaching his credibility, a witness's character may be attacked by opinion or reputation evidence and by proof of certain criminal convictions. Other than conviction of a crime, a witness's character for truthfulness may not be impeached by proof of specific instances of conduct."). Therefore, we cannot conclude that defense counsel was deficient based on this complaint.
We overrule appellant's third issue.
V. Conclusion
The trial court's judgment is affirmed.