Booker v. State

Full title: DARRELL LATRONE BOOKER, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jul 13, 2009

No. 05-08-00699-CR (Tex. App. Jul. 13, 2009)

Opinion

No. 05-08-00699-CR

Opinion issued July 13, 2009. DO NOT PUBLISH. Tex. R. App. P. 47

On Appeal from the County Criminal Court No. 10, Dallas County, Texas, Trial Court Cause No. MA0642501-L.

Before Justices WRIGHT, BRIDGES, and FRANCIS.

MEMORANDUM OPINION

Opinion By Justice FRANCIS.

A jury convicted Darrell Latrone Booker of assault and made an affirmative finding that the victim, Nicole Jones, was a family member, a household member, or a person with whom appellant had a dating relationship. The trial court sentenced him to 365 days in jail, probated for twenty-four months, and a $1500 fine. In five issues, appellant claims the evidence is legally and factually insufficient to support his conviction, the trial court erred in admitting certain evidence, and the judgment should be reformed to reflect the sentence was probated. We reform the judgment, and as reformed, we affirm the trial court's judgment. After Jones and her husband, appellant's nephew, split up, Jones began dating appellant. She and her five-year-old daughter moved in with appellant and his seven-year-old son. Around 10 p.m. on October 20, 2006, appellant called Irving police to report that Jones had assaulted him with a knife. After several weeks of investigating the incident, Irving police determined appellant was not the victim but rather the aggressor. They then arrested appellant and charged him with assaulting Jones. In his first two issues, appellant contends the evidence is legally and factually insufficient to support his conviction. We disagree. On a legal sufficiency challenge, this Court reviews the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hooper v. State, 214 S.W.3d 9, 14 (Tex.Crim.App. 2007). The reviewing court must give deference 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, 214 S.W.3d at 14 (citing Jackson, 443 U.S. at 318-19). The jury is the sole judge of the witnesses' credibility and the weight to be given their testimony and, therefore, is free to accept or reject any or all evidence presented by either side. See Lancon v. State, 253 S.W.3d 699, 707 (Tex.Crim.App. 2008). When an appellant challenges the legal sufficiency of the evidence supporting a jury's rejection of self-defense, "we look not to whether the State presented evidence which refuted appellant's self-defense testimony, but rather we determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements" of assault "beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt." Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). On a factual sufficiency challenge, we view all the evidence from a neutral perspective. Watson v. State, 204 S.W.3d 404, 415 (Tex. 2006). The evidence, though legally sufficient, is factually insufficient if it is so weak that the jury's verdict seems clearly wrong and manifestly unjust, or if, considering conflicting evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Berry v. State, 233 S.W.3d 847, 854 (Tex.Crim.App. 2007). A clearly wrong and unjust verdict occurs where the jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. The difference between the two standards is that the former requires the reviewing court to defer to the jury's credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury on these questions but only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S. Ct. 87 (2007) (factual sufficiency jurisprudence still requires appellate court to afford "due deference" to jury's determination). A factual sufficiency review is "barely distinguishable" from a Jackson legal sufficiency review. Id. When an appellant challenges the factual sufficiency of the rejection of self-defense, we review all of the evidence in a neutral light and ask "whether the State's evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence." Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000)). A person commits assault if he intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Penal Code Ann. § 22.01(a)(1) (Vernon Supp. 2008). It is a defense under the Texas Penal Code that the conduct was justified. See Harrod v. State, 203 S.W.3d 622, 627 (Tex.App.-Dallas 2006, no pet.) (citing Tex. Penal Code Ann. § 9.02 (Vernon 2003)). The person may be justified in using force against another "when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force." Tex. Penal Code Ann. § 9.31(a) (Vernon Supp. 2008). The defendant has the initial burden of producing evidence to raise self-defense, and the State then has the final burden of persuasion to disprove it. Saxton, 804 S.W.2d at 914. The State is not obligated to offer evidence refuting a claim of self-defense; rather, the State is required to prove its case beyond a reasonable doubt. Id. When a factfinder determines that the defendant is guilty, there is an implicit finding against the defensive theory. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 914. The information alleged appellant intentionally, knowingly, and recklessly caused bodily injury to Jones by forcing her to and against a wall, a table, and the floor with his hand, by grabbing and pulling Jones's hair with his hand and dragging her across the floor, and by kicking Jones's torso with his foot. The evidence showed Jones was twenty-one years old when she and her husband, LaShawn, moved to Dallas from Nebraska. LaShawn is appellant's nephew. Problems arose between the couple, and LaShawn left. Jones became acquainted with appellant, a thirty-six-year old police officer, because he ate at the KFC restaurant where she worked. Jones and appellant began dating. Because Jones did not have enough money for rent and daycare for her daughter, she accepted appellant's offer of help and moved into his apartment in Irving. She put her daughter in the same school as appellant's son, and appellant picked up the children when he got off from work. He also got Jones a job interview at a constable's office; Jones was hired and had that job at the time of the offense and trial. Jones said that, in early October, she went to have her hair done. When she returned, her key to the apartment did not work. Appellant was inside so she knocked on the door. He came to the door, told her she was not coming in, and closed the door. She sat on the steps outside the apartment. While she was sitting there, a police car showed up. Appellant had called the police to report a disturbance. When asked what she was doing, Jones told the officers she was just trying to get some of her things. They checked her driver's license, and when the address matched the apartment address, they knocked on the door to talk to appellant. When appellant came out, he would not let Jones in. He told the officers he was leaving for work and Jones could wait till he got home around 11 p.m. Appellant then left. Later, a maintenance man walked by, and the officers convinced him to let Jones into the apartment to get a few things. She then went to her mother's house where she stayed. Because Jones was going to start her new job at the constable's office the following Monday, she called appellant several times, asking him to please talk to her and telling him that she had no money and no one to look after her daughter while she was at her new job. That Sunday night, appellant gave her a key to his apartment, and Jones moved back in. On October 20, Jones arrived home around 5 p.m. and knew appellant was not in a good mood. He told her some officers at work mentioned a story about a constable who beat up his girlfriend. According to appellant, the officers thought the story was about appellant. He told Jones she needed to keep her "damned mouth shut" and it did not matter if he beat her "ass black and blue or pour[ed] acid" on her, she was not to tell people what happened in his house. He called her stupid and used "the B word." When Jones started to stand up, appellant grabbed her by the shoulders and flung her to the other side of the table. She fell to the floor. He told her to stand up, grabbed her by her shirt, and pushed her face into the wall. He grabbed her hair and pulled her across the floor, banging her into the coffee table and the television. They ended up by the glass patio door where he banged her head and back against the door. He then dragged her to the front door and pushed her down on the floor where she curled up with her hands protecting her face and head. Appellant then kicked her legs and arms. Appellant's son and Jones's daughter were in the living room, watching. Appellant's cell phone rang, and he answered it. Jones went in the kitchen and got a knife. She told her daughter to stand behind her and backed away from appellant heading toward the front door. The door, however, was jammed and would not open. Jones grabbed her purse and, along with her daughter, walked backwards down the hall to her daughter's room. Once inside, Jones dropped the knife, opened the window, and, after lifting her daughter out, got out of the apartment. They got in the car, and Jones drove to her mother's house. She did not call the police or make a report because she "didn't have . . . a really huge trust for male police officers" at that time. Jones had bruises on her back, forearms, shins, ankles, and on her face. She also sustained a black eye and a few broken blood vessels. When she went to work, two coworkers asked what happened to her face. She told them she had played football with her brothers and got hit by the football. Jones said she is five feet, three inches tall and weights 120 pounds. She estimated appellant is 6 feet tall. Appellant called police about four hours later and reported he and Jones, who he identified as his girlfriend, had an argument. Officer Jessica Ryan responded to the call. Appellant told Ryan that Jones "became violent," grabbing a knife and jabbing it at him. He put his hand up in defense, and she cut him on the hand. Appellant told Ryan he grabbed Jones's hand and slammed it against the wall to get the knife away from her. The knife dropped, and he went down on his knees. Jones picked up the knife and was standing over him. He told her, "Look what you did. You cut my hand wide open." She apologized and said she did not mean to hurt him. He went to the kitchen, got a towel for his hand, and tried to exit the front door. The door was jammed so appellant went into his son's room, and the two exited the bedroom window. Appellant told Ryan he drove to his mother's house, left his son with her, and then drove himself to the hospital for treatment. Ryan thought it was "unusual" appellant did not call 9-1-1 first. Likewise, she thought is strange he said Jones punched and scratched him but Ryan could see no scratch marks, bruising, or redness. It did not make sense to Ryan that appellant, who was well trained in martial arts, could not defend himself against a "petite woman." Ryan went to the kitchen to see the knife and was further surprised to discover appellant had cleaned the knife and replaced it in the butcher's block. The knife had no blood on the blade although a couple of drops could have been on the handle. She bagged it as evidence. Ryan found it was "extremely unusual" for a "victim of a stabbing [to] take the knife, clean off the blade[,] and put it back up where it belongs." Detective Samuel Todd of the Irving Police Department began investigating the reported assault of appellant by Jones. He first spoke with appellant and asked if he had any conversations with Jones since the attack. Although appellant said he did not, Todd discovered a text message to Jones. Appellant told Todd he had a videotape that would show Jones was violent but the tape he gave Todd was "a snowy tape." The tape did contain a recording of a traffic stop but showed no evidence of acts of violence or threatening behavior by Jones. Todd then asked to speak with appellant's seven-year-old son. After this interview, Todd began to think appellant was the aggressor and not the victim. Todd interviewed Jones who was reluctant to talk to him because she did not trust police officers and felt they would not believe what she said. She answered Todd's questions, telling him about the assault; however, she did not tell him that she got the knife to protect herself. Although he repeatedly asked her if she had grabbed a knife, she denied it. He then asked to interview her five-year-old daughter. After doing so, he became more convinced appellant was the aggressor. Jones finally told Todd about grabbing the knife to defend herself and her daughter but she denied cutting appellant's hand. Todd reviewed photos appellant provided of the crime scene, several taken before appellant drove himself to the hospital. Todd thought it was not "normal" that someone who was "afraid for his life" would, after fleeing the apartment with a cut hand, return to take photos before getting medical attention. Appellant did not testify. His former wife, a former girlfriend, and his current girlfriend all testified he had not been physically abusive to them. After hearing the above testimony and other evidence, the jury found appellant guilty of assault of a family member, a household member, or a person with whom appellant had a dating relationship. After viewing all the evidence in the light most favorable to the prosecution, we conclude any rational trier of fact would have found the essential elements of assault and the same rational trier of fact would have found against appellant on the self-defense issue. See Saxton, 804 S.W.2d at 914. From a factual sufficiency viewpoint, the State's evidence was not so obviously weak that the convictions were clearly wrong and unjust, nor was the evidence, when considering conflicting evidence, against the great weight and preponderance of the evidence. Therefore, we conclude the evidence is legally and factually sufficient to support appellant's assault conviction. We overrule his first and second issues. In his third and fourth issues, appellant complains of the trial court's decision to allow the testimony of Heather Koval. In his third issue, appellant claims the trial court erred in finding Koval qualified to testify as an expert witness. In his fourth issue, he claims Koval's testimony was not relevant and was more prejudicial than probative. We review the decision to admit evidence under an abuse of discretion standard. McCarty v. State, 257 S.W.3d 238, 239 (Tex.Crim.App. 2008). We affirm the trial court's decision if it is within the zone of reasonable disagreement. McCarty, 257 S.W.3d at 239; Salazar v. State, 38 S.W.3d 141, 153-54 (Tex.Crim.App. 2001). Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

Tex. R. Evid. 702. Before admitting expert testimony under rule 702, the trial court must be satisfied (1) the witness qualifies as an expert by reason of her knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact finder in deciding the case. Rodgers v. State, 205 S.W.3d 525, 527 (Tex.Crim.App. 2006). A trial court does not need to exclude expert testimony "simply because the subject matter is within the comprehension of the average jury." Id. In fact, in Rodgers, the court of criminal appeals held that

If the witness has some special knowledge or additional insight into the field that would be helpful, then the expert can assist the trier of fact to understand the evidence or to determine a fact in issue. An expert "may add precision and depth to the ability of the trier of fact to reach conclusions about subjects which lie well within common experience." Because the possible spectrum of education, skill, and training is so wide, a trial court has great discretion in determining whether a witness possesses sufficient qualifications to assist the jury as an expert on a specific topic in a particular case.

Id. at 527-28. When addressing the qualification of the testifying witness, we consider whether the field of expertise is complex, how conclusive the expert's opinion is, and how central the area of expertise is to the resolution of the lawsuit. Vela v. State, 209 S.W.3d 128, 131 (Tex.Crim.App. 2006). At trial, the State sought to introduce Koval's testimony to refute the defensive theory that, because Jones continued to have contact with appellant after the assault and because she was not truthful with Todd about the knife, Jones was not assaulted by appellant nor was she a victim of domestic violence. Koval testified she is employed by the Irving Police Department as the Victim Services Coordinator. She contacts victims of violent crimes and provides information and resources to them. She has a bachelor's degree and a master's degree in social work with three years of supervised training; she also has a clinical license in social work. For three years, Koval has worked with victims at the local domestic violence shelter as a domestic violence counselor. In addition, she has performed on-scene crisis response on domestic violence offenses, developed domestic violence literature for victims, and done presentations and training on the issues and dynamics of domestic violence. Koval estimated she has had over 4500 phone contacts and over 1500 in-person contacts with domestic violence victims. Koval then testified that, in her experience, victims are reluctant to talk to law enforcement about the abuse they experience. In fact, they generally do not talk to family members or friends about the abuse because they are fearful or embarrassed. Victims are often fearful of what will happen to them if they make a police report, frequently because their abusers have threatened them with physical violence, retaliation, or death if they do so. It is also common for a victim to return to an abuser after the abuse has occurred. In fact, research shows a victim typically returns to her abuser an average of seven times before the victim terminates the relationship. Victims will often continue to contact and interact with abusers in spite of abuse. Most commonly, it is a means of attempting "to appease the offender and make sure that things are going to be okay." She noted it is typical to find victims hiding or covering up signs of abuse. Koval testified she did not have personal knowledge of the events that occurred between Jones and appellant, nor could she draw any conclusions about their relationship. She had spoken with Jones but could not recall the specifics of their conversations or how many times they had spoken. At trial, appellant objected on the grounds Koval was not qualified, her testimony was not relevant, and even if it were, it was more prejudicial than probative. We first address whether the trial court erred in concluding Koval was qualified. Our first consideration is whether Koval's field of expertise is complex. Appellant argues, and the State concedes, the "field of domestic violence is not complex." Because the evidence provided by Koval's testimony was within or close to the jury's common understanding, Koval's qualifications are less important than when the evidence is outside the jury's own experience. See Rodgers, 205 S.W.3d at 528. Regardless, Koval testified she has an undergraduate and masters degree in social work, logged over three years on-the-job experience, had thousands of interactions with victims, had developed publications, and had done trainings and presentations on issues and dynamics of domestic violence. Thus, the record shows Koval had the knowledge, skill, experience, training, interaction, and education necessary to give opinions on issues relating to domestic violence victims. Regarding the second consideration, the more conclusive the expert's opinion, the more important is her degree of expertise. Id. Koval testified she did not know the relationship between appellant and Jones nor did she have personal knowledge of what happened between them on October 20. Koval's testimony was not conclusive on the issue of whether appellant assaulted Jones and, therefore, did not require "a much higher degree of scientific expertise." Id. Finally, we consider how central the area of expertise is to the resolution of the case. Appellant argues, and the State agrees, that Koval's testimony was not dispositive of the disputed issues. Because it was not dispositive, "the reliability of the expertise and the witness's qualifications" are less crucial. Id. Under these facts and circumstances, we cannot conclude the trial court abused its discretion in determining Koval possessed sufficient qualifications to assist the jury to understand victims of domestic violence. Id. We overrule appellant's third issue. In his fourth issue, appellant claims the trial court erred in admitting Koval's testimony because it was not relevant and the probative value of the evidence was not outweighed by its prejudicial effect. Appellant does not analyze why he believes Koval's testimony was not relevant. Rather, after providing the applicable law regarding relevancy, appellant simply states, "Additionally, the State failed to prove that Koval's testimony regarding the `big picture' of domestic violence' [sic] was relevant." Failure to adequately brief an issue, either by failing to specifically argue and analyze one's position or provide authorities and record citations, waives any error on appeal. See Hankins v. State, 132 S.W.3d 380, 385 (Tex.Crim.App. 2004). Because appellant has not analyzed this complaint, he has waived it. Furthermore, even if we address appellant's complaint on relevancy, we conclude the testimony was admissible. Appellant's defensive theory was he did not assault Jones. In support of this, he claims Jones lied to police by not telling them about the knife and she continued to have contact with him after the offense, making it unlikely he assaulted her. In light of appellant's defensive posture, we conclude Koval's testimony of how victims of domestic violence interact with their abusers and why a victim might lie about an interaction was relevant to this case. A trial court is entitled to broad discretion in ruling on a rule 403 objection. State v. Mechler, 153 S.W.3d 435, 439 (Tex.Crim.App. 2005). When undertaking a rule 403 analysis, a trial court must balance (1) the inherent probative force of the proffered evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest a decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate its probative force, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 642 (Tex.Crim.App. 2006). As noted previously, appellant's defensive theory was Jones assaulted him, any injuries Jones sustained were caused by actions appellant took while acting in self defense, Jones lied repeatedly to the authorities throughout the investigation, and Jones was not a believable witnesses at trial. Koval's testimony was probative of whether Jones tended to act like other victims of domestic violence, specifically whether it was common for domestic violence victims to be reluctant to report their abusers and whether victims continued to have contact with their abusers. Moreover, it was the only testimony of this nature presented at trial. Koval's testimony before the jury was not inflammatory. It did not comprise a significant portion of the trial; likewise, the hearing outside the jury's presence was not lengthy. Nothing in the record suggests this evidence had any tendency to confuse or mislead the jury from the main issues or to suggest a decision on an improper basis. In fact, Koval testified she did not have specific knowledge of Jones's and appellant's relationship or of the events that occurred October 20. Considering all of the factors, we conclude the trial court did not err in concluding the probative value of Koval's testimony was not substantially outweighed by the prejudicial harm. See Gigliobianco, 210 S.W.3d at 642. We overrule appellant's fourth issue. In his fifth issue, appellant claims the trial court's judgment should be reformed because it does not reflect the sentence imposed by the trial court. Specifically, he claims the judgment does not show his sentence was probated for twenty-four months. The State concedes this issue. We have the authority to modify an incorrect judgment when we have the necessary data and information to do so. Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); McCoy v. State, 81 S.W.3d 917, 920 (Tex.App.-Dallas 2002, pet. ref'd). Here, the reporter's record shows the trial court probated appellant's sentence for twenty-four months. We sustain appellant's final issue. We modify the judgment to show appellant's sentence was probated for twenty-four months. We affirm the trial court's judgment as modified.