No. 01-04-00733-CR
Opinion issued October 6, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 177th District Court, Harris County, Texas, Trial Court Cause No. 988554.
Panel consists of Justices TAFT, KEYES, and HANKS.
TIM TAFT, Justice.
A jury convicted appellant, Henry Lee Conley, of felony assault upon a family member. See Tex. Pen. Code Ann. § 22.01(a)(1), (b)(2) (Vernon 2003). After having found true two enhancement paragraphs alleging prior felony convictions for delivery and possession of a controlled substance, the jury assessed punishment at 25 years and six months in prison. We determine (1) whether the trial court erred in denying appellant's cross-examination of a witness and (2) whether the evidence was legally and factually sufficient to convict appellant of the offense. We affirm.
Facts
Christina Lott and appellant were married, but separated. On December 24, 2003, appellant and Lott argued about their relationship and respective infidelities. During the argument, appellant caused Lott pain by striking her on the side of the head with a cordless phone and punching her in the face with his fist so that her nose bled profusely. After appellant had apologized to Lott, he begged her not to call the police. Lott complied. Later that night, appellant called Lott from his sister's house, requesting that Lott pick him up. Lott drove to appellant's sister's house, where she and appellant argued again. Lott and appellant's sister, Tiffany Conley, also argued, and Lott left without appellant. After another call from appellant, Lott agreed to pick him up at a gas station and allowed him to spend the night at her house. On the morning of December 25, 2003, appellant and Lott began arguing again after the children had begun opening presents. Appellant became angry and cursed at Lott when he realized that she had not purchased a present for his biological daughter. Lott cursed back and took some of appellant's belongings outside to the trash, which incited appellant to follow her, to punch her in the arm, and to choke her to the ground. Lott ran into the house, dialed 9-1-1, and then hung up. Lott told appellant to leave, but he refused, saying that the police would get him if he left. He threatened to tear up Lott's car if she did not take him to his sister's house, which Lott refused to do, although she did drive him to his cousin's house. After having been choked again by appellant in front of his cousin's house, Lott returned to her own house to find several deputy constables waiting, including Deputy Charles Gore. The constables photographed Lott's visible facial injuries, took her written statement, concluded their investigation, and left Lott's house. The same afternoon, Deputy Gore received a call from appellant. Appellant told Deputy Gore that he had not assaulted Lott, but that another family member had done so. Appellant refused Deputy Gore's request for a written statement. Cross-Examination
In his first point of error, appellant contends that the trial court violated his right to confrontation by limiting his right to cross-examine Lott regarding messages that she had left on appellant's mistress's telephone answering machine. Appellant claims that he was entitled to delve into the voice-mail messages to show that Lott was familiar with intimate aspects of the relationship between appellant and his mistress that had to have predated the alleged offense, thereby impeaching Lott's testimony that she became aware that appellant had been cheating on her only on the day of the offense. A. The Law
"The Sixth Amendment provides in part that `in all criminal prosecutions, the accused shall enjoy the right to be confronted with witnesses against him.'" Ellis v. State, 99 S.W.3d 783, 789 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd) (quoting U.S. Const. amend. VI). The United States Supreme Court has recognized that a primary interest secured by the Confrontation Clause is to give a criminal defendant an opportunity to cross-examine the witnesses against him. Id. (citing Pointer v. Texas, 380 U.S. 400, 406-07, 85 S. Ct. 1065, 1069 (1965)). A defendant's "constitutional right of confrontation is violated when appropriate cross-examination is limited." Crenshaw v. State, 125 S.W.3d 651, 654 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd) (citing Carroll v. State, 916 S.W.2d 494, 497 (Tex.Crim.App. 1996)). The right to cross-examination is subject to the trial court's broad discretion to set reasonable limits "to avoid, inter alia, harassment, prejudice, confusion of the issues, endangering the witness, and the injection of cumulative or collateral evidence." Lagrone v. State, 942 S.W.2d 602, 613 (Tex.Crim.App. 1997). A trial court must weigh each Confrontation Clause issue on a case-by-case basis, so that both the defendant's right to cross-examine and the risk factors associated with the admission of the evidence are carefully taken into account. Hoyos v. State, 951 S.W.2d 503, 510 (Tex.App.-Houston [14th Dist.] 1997), aff'd, 982 S.W.2d 419 (Tex.Crim.App. 1998). Generally, specific examples of misconduct are inadmissible for the purpose of attacking a witness's character for truthfulness. Crenshaw, 125 S.W.3d at 654 (citing Tex. R. Evid. 608(b)). However, specific examples of misconduct are admissible to show a witness's bias or motivations. Id. (citing Tex. R. Evid. 613(b) and Dixon v. State, 2 S.W.3d 263, 271 (Tex.Crim.App. 1999)). "While great latitude should be allowed in cross-examining witnesses to reveal possible bias, prejudice, or self-interested motives to falsify testimony, appellant bears the burden of demonstrating the relevance of the proffered evidence to the issue of bias or prejudice." Id. (citing Chambers v. State, 866 S.W.2d 9, 26-27 (Tex.Crim.App. 1993)). B. Application to the Facts
Appellant claims that the trial court sustained the State's objection to his line of questioning and that Lott never answered appellant's question. Appellant also claims that he made an offer of proof regarding the contents of the voice-mail recording and the purpose of his cross-examination, after which the trial court ruled the questioning improper. What the record actually reflects is not as clear as appellant claims. On cross-examination, defense counsel asked Lott if she had ever called and left her voice-mail message for Dee, appellant's mistress. The prosecutor objected on the basis of relevance, and the trial court sustained the objection, telling defense counsel to be more precise as to the time frame. The trial court then heard the matter outside the presence of the jury. The State's position was that phone calls made after the offense were irrelevant. Defense counsel argued that he had a right to impeach Lott's credibility and that that was his purpose. The trial court invited defense counsel to specify what matters he thought were relevant. Defense counsel stated that Lott, on or about March 17, 2004 and even before, had made several telephone calls, leaving voice-mail messages on appellant's mistress's answering machine. Defense counsel opined that such statements were consistent with Lott's knowing who appellant's mistress was long before the time that she had claimed to have found out. Defense counsel also opined that this evidence was illustrative of Lott's vindictiveness because Lott had said in the messages that she would see appellant go away for 25 years. After further discussion, defense counsel offered to limit his cross-examination to questions about only one call. When the trial court asked again about the relevance of this call, defense counsel replied that it indicated that Lott was aware who the mistress was long before she claimed to have known. Defense counsel said that it would also be relevant to show that Lott's intent from the beginning was to make sure that appellant spent time in the penitentiary. The trial court then stated that appellant's theme that Lott was a scorned woman seeking to get appellant into trouble had already been very capably demonstrated by the defense. The trial court ruled that appellant could not play the voice-mail recordings and could not ask Lott if she had ever cussed at appellant's mistress just so that he could then impeach her with a recording of that nature. Assuming without deciding that this last ruling could be construed as a refusal to allow appellant to impeach Lott concerning the calls, the basis for the trial court's ruling was clearly that the timing of the voice-mail messages, made months after the offense, did not show Lott's familiarity with appellant's mistress before the offense. As for any probative value of Lott's wanting appellant to spend time in the penitentiary, the trial court could have found that, due to the evidence's being cumulative of other efforts that defense counsel had already ably made, the unfair prejudice of the inflammatory language would have substantially outweighed its probative value. We see no abuse of discretion in the trial court's ruling. Moreover, the record shows that appellant later recalled Lott to the witness stand and was allowed to question her about her having left a voice-mail message for appellant's mistress stating that, if Lott could not have appellant, then nobody was going to have him. When the State objected to relevance based on the time of the voice-mail message in regard to the time of the offense, the trial court called a bench conference. Lott, the trial court, and counsel for both parties all tried to listen to the recordings, but found them virtually inaudible. The trial court asked defense counsel for a proffer of what he wanted to ask Lott. The initial proffer was: (1) Lott left the messages and (2) Lott said in the messages that appellant would get aggravated time because of her testimony against him. Appellant then offered Lott's testimony outside the jury's presence. In response to defense counsel's questions, Lott agreed that she had called appellant's mistress on or about March 17 and had left messages on the voice-mail system. Lott testified that the taped messages, however, had come from appellant's sister's house before the date of the alleged offense. Lott admitted using the word "aggravated" in the first and third messages, but denied that she had ever said anything about being in love with appellant. Lott admitted that she had said that appellant was always going to come back to her and "eat her p _____ y" and that appellant's mistress felt threatened because appellant's mistress was the one paying for appellant's lawyers. After some discussion about the exact proffer that defense counsel had made, the trial court ruled that defense counsel would be allowed to ask exactly what he had proffered and nothing more. Defense counsel agreed to the trial court's ruling. When the jury returned, defense counsel got Lott to admit that she had been mistaken earlier when she had testified that she had not left messages on the voice recorder of appellant's mistress. Lott admitted that she had left messages, but claimed that her use of the term "aggravated" in those messages did not refer to appellant's getting aggravated time, but instead to the belief that he would be mad or angry. Defense counsel stated that he had no further questions. We hold that the trial court did not abuse its discretion because it fully accommodated appellant's request to impeach Lott in exactly the manner that defense counsel had proffered his questions. Under these circumstances, the record simply does not support appellant's contention that he was denied his constitutional right to cross-examine Lott. Accordingly, we overrule appellant's first point of error. Sufficiency of the Evidence
In his second and third points of error, appellant claims that the evidence was legally and factually insufficient to prove that he committed felony assault upon a family member. Specifically, appellant complains that Lott was not a credible witness and that his witness contradicted Lott's testimony that appellant had assaulted her. In our legal-sufficiency review, we view the evidence in the light most favorable to the verdict and ask whether any rational fact finder could have found the crime's essential elements beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979)). In our factual-sufficiency review, we examine all of the evidence neutrally and ask whether proof of guilt is so obviously weak as to undermine confidence in the jury's determination or so greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. See Zuliani v. State, 97 S.W.3d 589, 593-4 (Tex.Crim.App. 2003). We must consider the most important evidence that appellant claims undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). However, we do not intrude on the fact finder's role as the sole judge of the weight and credibility of witness testimony. Johnson, 23 S.W.3d at 7. To prove the felony offense of assault upon a family member, the State must show that a person intentionally, knowingly, or recklessly caused bodily injury to another family member and that the defendant had previously been convicted of assault against a member of the defendant's family or household. Tex. Pen. Code Ann. § 22.01(a)(1), (b)(2). Appellant challenges the sufficiency of the evidence showing that he intentionally, knowingly, or recklessly caused bodily injury to Lott. The evidence set out above, when viewed in the light most favorable to the verdict, shows that appellant assaulted Lott several times on December 24 and 25, 2003. Viewing this evidence in the light most favorable to the jury's verdict, we hold that the evidence is legally sufficient to prove that appellant assaulted Lott, a family member. In his factual-sufficiency challenge, appellant contends that Lott's testimony was not credible and that her testimony that appellant had struck her and caused her injuries was rebutted by testimony from his sister. Although appellant's sister testified that she was the one who had struck Lott and caused her injuries, the jury, as the sole judge of the weight and credibility of the witness testimony, could disbelieve any or all of the testimony proffered and weigh the evidence in the manner that it chose. See Bruno v. State, 922 S.W.2d 292, 293 (Tex.App.-Amarillo 1996, no pet.). We hold that the evidence is factually sufficient to support appellant's conviction. We overrule appellant's second and third points of error. Conclusion
We affirm the judgment of the trial court.