Opinion
No. 05-03-01137-CR
Opinion Filed September 1, 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 DO NOT PUBLISH.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
We withdraw our August 30, 2004 opinion and vacate our judgment issued on that date. We issue this opinion and judgment in their place. 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. Taking Wineinger with him, Newton went to the house to investigate any signs of struggle or damage to the residence. He found a hole where appellant had put her fist through the sheetrock. During his investigation, appellant returned to the house. 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." Finally, when appellant "slung" water onto Wineinger, 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 Wineinger had "cheated" on her. Angry and hurt, appellant said she punched the hole in the wall of the apartment, cussed Wineinger 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." She 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. 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. Even if we assume the Crawford test applies to this case and would result in a confrontation clause violation, our next step would analyze whether the error was harmful. 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); see also 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. After reviewing the record in this case, we conclude the error, if present, is harmless for two reasons. First, 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 him a couple of times," on the face because she was angry that he had cheated on her; she agreed that she initiated the physical violence. Appellant's testimony is the equivalent of an admission of guilt and was overwhelming proof that she struck Wineinger in the head with her hand as alleged in the information. Second, an audiotape made by Wineinger regarding the incident was admitted at trial. Appellant did not object to the tape on confrontation grounds; rather, she only objected to "any statements on this tape that purport to state what [appellant] said as being hearsay." In other words, she never sought, on evidentiary grounds, to prevent the entire tape from being admitted, only Wineinger's statements about what she said. On the audiotape, Wineinger said he was on the telephone when appellant came in, was out of control, accused Wineinger of cheating on her, and began assaulting him. In particular, he said appellant "punched" him on the head, scratched his arm, punched him in the ribs, kicked him in the stomach, bit and choked him. This evidence is even more detailed than the challenged testimony of the police officer. More importantly, it was Wineinger's own oral statement, made on the day of the assault, which is at least as compelling as the police officer testifying as to what he remembered Wineinger telling him more than two years earlier. Essentially, the audiotape allowed jurors to hear from Wineinger, even if they did not see him in person, yet this evidence is not the subject on appeal of any complaints raised below. Because we conclude the evidence of guilt was overwhelming, that evidence including appellant's own admission of guilt at trial, and because the detailed audio statement given by Wineinger was admitted into evidence, but was not challenged on appeal for any reason raised below, we conclude any error in admitting the police officer's testimony concerning Wineinger's out-of-court statements and the written statement was harmless beyond a reasonable doubt. 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 and the second assault allegation that appellant kicked Wineinger in the stomach with her foot. 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. Further, no evidence supports a charge on self-defense based on the other allegation that appellant kicked Wineinger in the stomach with her foot after the initial slapping but while Wineinger was restraining appellant, and that she was acting in self-defense when the kicking took place. Although the jury heard by audiotape that appellant kicked Wineinger in the stomach with her foot during the incident, during her testimony, appellant said, "I don't recall actually kicking him in the stomach, that could have happened, I mean, when two people are fighting do you remember everything that took place[?]" Appellant said she did "remember being restrained by him against my will" but "didn't really recall" initiating other physical force against Wineinger. The failure to remember kicking Wineinger or engaging in any other physical acts in response to being held down during the incident supports the trial court's denial of a charge on self-defense. 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.