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Cervantes v. State

Court of Appeals of Texas, Fifth District, Dallas
Aug 30, 2004
No. 05-03-01137-CR (Tex. App. Aug. 30, 2004)

Opinion

No. 05-03-01137-CR

Opinion Filed August 30, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the County Court at Law No. 2, Grayson County, Texas Trial Court Cause No. 2001-2-1074. Affirmed.

Before Justices MOSELEY, FITZGERALD, and FRANCIS.


OPINION


A jury convicted Shannon Anne Cervantes of misdemeanor assault and assessed punishment at sixty days in jail probated for one year. In two issues, appellant contends the trial judge (1) violated her constitutional right to confront witnesses by proceeding to trial without the complaining witness and allowing the investigating police officer to give hearsay testimony and (2) reversibly erred by refusing to include a self-defense instruction in the jury charge. We affirm. Appellant was accused of hitting her boyfriend, Frank Wineinger, in the head with her hand and kicking him in the stomach with her foot. Wineinger did not testify at trial. The State's sole witness was the investigating police officer, Kenneth Newton. Newton testified Wineinger came to the police station and was "crying and visibly upset." Newton said it looked as though Wineinger had been in a fight because he had a knot on his forehead, scratches on his left cheek, and red marks around his neck. Wineinger told Newton that appellant assaulted him at their home. Newton went to the house to investigate any signs of struggle or damage to the residence. Wineinger was with him. He found a hole where appellant had put her fist through the sheetrock. While investigating, appellant returned. Newton said appellant was upset and had a mark on her right arm and a "bloody spot" on her right knuckle. Appellant told Newton that she and Wineinger had an "altercation" and she had returned to the house to retrieve her belongings. To separate Wineinger and appellant, Newton had Wineinger go "out front" with him while appellant made trips in and out of the house with her belongings. Each time appellant passed, she would call Wineinger a name and the two would "mouth something at each other." At one point, appellant "slung" water onto Wineinger, and Newton arrested her. Newton tape-recorded Wineinger's statement describing the assault, took a written statement, and photographed Wineinger, appellant, and the damaged house. The photographs and Wineinger's audio and written statements were admitted as evidence. Appellant testified in her defense. She and Wineinger had apparently reconciled after the assault, at least briefly, because she was seven months' pregnant with his child at trial. On the day of the assault, appellant testified she learned Weininger had "cheated" on her. Angry and hurt, appellant said she cussed Weininger and slapped him twice on the face. Wineinger grabbed her and held her down, and she testified "that is probably when the kick in the stomach occurred, you know, in self-defense." Appellant said she feared what Wineinger could do to her because he had hit her numerous times in the past. Appellant admitted she initiated the physical violence during the incident here. In her first issue, appellant complains the trial court erred in admitting inadmissible hearsay statements to convict her in violation of her Sixth Amendment right to confront witnesses against her. In particular, she complains the State did not call Wineinger to testify, instead calling Newton to testify as to what Wineinger told him after the incident and using Wineinger's taped statement to the police. Appellant argues that, at a minimum, she should be allowed to confront and cross-examine the complaining witness against her. Otherwise, she contends, the Sixth Amendment guarantee is rendered "meaningless." The Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against him." U.S. Const. amend. VI. Admission of hearsay evidence against a criminal defendant implicates the Confrontation Clause because the defendant is denied the opportunity to confront the out-of-court declarant. Simpson v. State, 119 S.W.3d 262, 269 (Tex.Crim.App. 2003). At the time this case was briefed and submitted, our analysis was guided by the test set out in Ohio v. Roberts, 448 U.S. 56 (1980) and the cases that followed. Under Roberts, the right to confront witnesses did not bar admission of an unavailable witness's statement against a criminal defendant if the statement bore adequate indicia of reliability. In other words, Roberts conditioned the admission of all hearsay evidence on whether it fell under a "firmly rooted hearsay exception" or bore "particular guarantees of trustworthiness." Id. at 66. Later, the court concluded an unavailability analysis is necessary under the Confrontation Clause only when the challenged out-of-court statement was made in the course of a prior judicial proceeding. White v. Illinois, 502 U.S. 350, 354 (1992). Recently, however, the court rejected Roberts as a departure from the "historical principles" underpinning the right to confrontation and determined that "[w]here testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Crawford v. Washington, 124 S.Ct. 1354, 1374 (U.S. 2004). While the court did not define "testimonial," it explained the term "at a minimum" covers "prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Id. Assuming the Crawford test applies in this case and would result in a confrontation clause violation, reversal is not required because any error in admitting the evidence was harmless under the particular circumstances presented. In the case of constitutional error, we must reverse a judgment of conviction and remand for a new trial unless we determine beyond a reasonable doubt that the error did not contribute to the conviction. See Tex.R.App.P. 44.2(a); Muttoni v. State, 25 S.W.3d 300, 308 (Tex. App.-Austin 2000, no pet.). If, without the erroneously admitted evidence, the record contains overwhelming evidence of guilt, then the error is harmless beyond a reasonable doubt. Muttoni, 25 S.W.3d at 308. Here, the record contains overwhelming evidence of guilt. The charge allowed conviction if the jury found, beyond a reasonable doubt, that appellant either struck Wineinger's head with her hand or kicked him in the stomach with her foot. Appellant testified she slapped Wineinger twice on the face solely because she was angry that he had cheated on her. Appellant's testimony is the equivalent of an admission of guilt and was overwhelming proof that she struck Wineinger twice in the head with her hand as alleged in the information. We conclude any error in admitting Wineinger's out-of-court statements was harmless beyond a reasonable doubt. The first issue has no merit. In her second issue, appellant contends the trial court erred in refusing to instruct the jury on self-defense. An instruction on an affirmative defense raised by the evidence is required regardless of whether that evidence is strong, feeble, unimpeached, or contradicted, and even if the trial court is of the opinion that the testimony is not entitled to belief. Brown v. State, 955 S.W.2d 276, 279 (Tex.Crim.App. 1997). Texas Penal Code section 9.31(a) provides "a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force." Tex. Pen. Code Ann. § 9.31(a) (Vernon 2003). Here, the undisputed evidence was that appellant hit Wineinger on the face twice, not because she believed it was immediately necessary to protect herself against the use or attempted use of unlawful force, but because she was angry that he had cheated on her. While appellant argues in her brief that the record is replete with evidence that Wineinger had assaulted her in the past, there was no evidence that Wineinger provoked the attack at issue in this case. In fact, appellant admitted she initiated the physical violence. Appellant argues that, regardless of whether she provoked the attack, the statute justifies her use of force "if she abandons the encounter or clearly communicates to (Wineinger) (her) intent to do so reasonably believing (she) cannot safely abandon the encounter; and (Wineinger) nevertheless continues or attempts to use unlawful force against (her)." See Tex. Pen. Code Ann. § 9.31(b)(4)(A), (B) (Vernon 2003). This argument is apparently directed at Wineinger's act of holding down appellant after she hit him twice in the face. Assuming this provision would apply in such a situation, appellant does not point to any evidence to support this theory, other than her testimony that she was "frightened of what he might do to her and that she acted in self defense." She does not point to any evidence, nor could we find any, to show she either (1) abandoned the encounter or (2) clearly communicated her intent to do so and Wineinger continued or attempted to use unlawful force against her. Under these circumstances, the trial court did not err in refusing a self-defense instruction. The second issue is without merit. We affirm the trial court's judgment.


Summaries of

Cervantes v. State

Court of Appeals of Texas, Fifth District, Dallas
Aug 30, 2004
No. 05-03-01137-CR (Tex. App. Aug. 30, 2004)
Case details for

Cervantes v. State

Case Details

Full title:SHANNON ANNE CERVANTES, Appellant v. THE STATE OF TEXAS, Appellee

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

Date published: Aug 30, 2004

Citations

No. 05-03-01137-CR (Tex. App. Aug. 30, 2004)