Opinion
NO. 01-15-01108-CR
07-18-2017
ALAN NELSON CROTTS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 3 Fort Bend County, Texas
Trial Court Case No. 13-CCR-165781
MEMORANDUM OPINION
A jury found appellant, Alan Nelson Crotts, guilty of the misdemeanor offense of assault of a family member. The trial court, pursuant to appellant's post-verdict agreement with the State, assessed his punishment at confinement for 365 days, suspended the sentence, placed him on community supervision for twenty-four months, and assessed a fine of $2,000. In his sole issue, appellant contends that the trial court erred in denying his amended motion for new trial.
See TEX. PENAL CODE ANN. § 22.01(a)(1), (b) (Vernon Supp. 2016); see also TEX. CODE CRIM. PROC. art. 42.013 (Vernon 2006); TEX. FAM. CODE ANN. §§ 71.003 (Vernon 2014), 71.004 (Vernon Supp. 2016).
Appellant asserts that the trial court erred in denying both his motion for new trial and his amended motion for new trial. We only address appellant's complaint related to his amended motion for new trial because "[t]he moment [defendant] filed [his] amended motion, the original motion ceased to exist." Leal v. State, 469 S.W.3d 647, 652-53 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd) ("In the context of legal pleadings and motions, an amended instrument is a substitute for the original; the old and new instruments do not co-exist—the latter takes the place of the former.").
Further, as an initial matter, we note that appellant directs the Court to numerous exhibits and other documents attached to his appellate brief. The attachments of documents as exhibits or appendices to an appellate brief does not constitute formal inclusion of such documents in the record for appeal, and we cannot consider matters outside of the record in our review. See Garrett v. State, 566 S.W.2d 605, 608-09 (Tex. Crim. App. 1978); Robb v. Horizon Cmtys. Improvement Ass'n, 417 S.W.3d 585, 589 (Tex. App.—El Paso 2013, no pet.); Robertson v. State, No. 01-00-01310-CR, 2002 WL 1764864, at *1 (Tex. App.—Houston [1st Dist.] July 31, 2002, no pet.) (not designated for publication); see also Cooks v. State, 190 S.W.3d 84, 89 (Tex. App.—Houston [1st Dist.] 2005) ("An appellate court may not consider factual assertions that are outside the record."), aff'd, 240 S.W.3d 906 (Tex. Crim. App. 2007).
We affirm.
Background
Jessalyn Cole, the complainant, testified that appellant, with whom she was in a relationship, but never married, is the father of two of her children. She and appellant separated in September 2011, and a court entered a custody order concerning their children. The order provides that, when exchanging possession of the children, the complainant and appellant are to meet at the Needville Police Department ("NPD") station. On January 4, 2013, they complainant and appellant communicated by telephone and text message to set a time to exchange possession of the children that evening. The complainant noted that over the course of the day, their conversation "turned extremely angry and hateful." Appellant spoke to her with a "deep sense of hatred," expressed "a lot of negativity," and made disparaging remarks toward and about her. As a result of her conversation with appellant, the complainant felt scared and nervous and, thus, asked her father, Raymond Cole ("Raymond"), to accompany her to exchange possession of the children with appellant.
The complainant, Raymond, and the children arrived first at the NPD station, and when appellant arrived, he "pulled [his truck] along behind" the complainant's car. She then exited her car from the driver's seat and "walk[ed] around to the passenger-side . . . back door" to help her son get out of the car. The complainant "passed [her] son off" to appellant, who put him in his truck. She then returned to her car to "start unbuckling [her] daughter" from her car seat.
As the complainant stood at her car, appellant "walked up to [her] very fast," "spit in [her] face," and "hit [her] with his hand." His spit landed on the complainant's face and on her car, and he hit her with his open hand, striking her on the right side of her face. The complainant then yelled, "He hit me. He hit me," and Raymond told her to go inside the NPD station to ask for help. (Internal quotations omitted.) As appellant started "going toward" Raymond, the complainant went into the station and found a law enforcement officer.
The trial court admitted into evidence, as State's Exhibit 1, a photograph of appellant's spit on the complainant's car.
The trial court admitted into evidence, as State's Exhibit 2, a photograph of the complainant's face as it looked on January 4, 2013, after the incident.
The complainant further explained that she felt pain when appellant struck her in the face and he "knocked [her] back pretty good[,] . . . a couple feet." Moreover, this was not the first time that appellant had assaulted her.
Raymond testified that the complainant had asked him to accompany her on January 4, 2013 to exchange possession of the children with appellant. He and the complainant arrived at the NPD station before appellant. When he arrived, appellant, who was driving erratically, "pulled [his truck] up behind" the complainant's car. She then exited from the driver's seat of the car, helped her son get out of the backseat on the passenger's side of the car, and handed him over to appellant, who put him in the backseat of his truck.
As the complainant returned to her car, appellant "hit her." Raymond saw appellant "lunge[] forward," the complainant's entire body "go[] backward," and the complainant's "wrist hit the car." After the complainant said "[o]w," Raymond got out of the car. (Internal quotations omitted.) The complainant, who "st[ood] there holding her head," said, "He hit me, Dad." (Internal quotations omitted.) And Raymond told her to "go get the police." Raymond noted that he did not see the actual "point of impact," when appellant's hand struck the complainant's face. However, when asked at trial, "Did you see what [appellant] did?," Raymond testified, "Yeah, he hit her."
NPD Officer C. Rader testified that on January 4, 2013, he was on duty at the NPD station when the complainant, who was "very upset, crying, and kind of hysterical," came into the building. After speaking with the complainant, Rader went outside and detained appellant and Raymond. Upon investigating further, Rader learned that there had been "an assault, family violence." He noted that State's Exhibit 1 is a photograph of the complainant's car and in the center of the photograph "appeared to be saliva from [appellant]." And Rader testified that State's Exhibit 2 is a photograph of the complainant's face, showing that the right side of her face had "a bit of redness and swelling" around the "eye area" and "high cheekbone." From his experience and training as a law enforcement officer, Rader opined that the complainant "had been hit."
Officer Rader further testified that appellant initially told him that "he may have accidentally hit" the complainant as he was "trying to get a kid out of the car." And he admitted to spitting on the complainant's car. Rader also noted that the complainant told him that she had been "hit in the face" by appellant with his "open palm."
Sufficiency of Evidence
In a portion of his sole issue, appellant argues that the evidence is legally insufficient to support his conviction because the State did not establish that appellant "committed any crime or even that a crime was committed at all."
Although appellant frames his legally-insufficient-evidence complaint in the context of the trial court's denial of his amended motion for new trial, we review this issue regardless of whether appellant properly presented his motion to the trial court because a motion for new trial was not required to preserve error. See TEX. R. APP. P. 21.2; Landers v. State, 402 S.W.3d 252, 255 (Tex. Crim. App. 2013).
We review the legal sufficiency of the evidence by considering all of 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 crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role is that of a due process safeguard, ensuring only the rationality of the trier of fact's finding of the essential elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference to the responsibility of the fact finder to fairly resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from the facts. Williams, 235 S.W.3d at 750. However, our duty requires us to "ensure that the evidence presented actually supports a conclusion that the defendant committed" the criminal offense of which he is accused. Id.
A person commits an assault if he "intentionally, knowingly, or recklessly causes bodily injury to another." TEX. PENAL CODE ANN. § 22.01(a)(1) (Vernon Supp. 2016). As applicable here, a person commits the misdemeanor offense of assault of a family member if he commits an assault against a family member. See TEX. PENAL CODE ANN. § 22.01(b); TEX. FAM. CODE ANN. § 71.003 (Vernon 2014) (defining family); see also Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim. App. 2016) (aggravated assault of family member). "'Bodily injury' means physical pain, illness, or any impairment of physical condition." TEX. PENAL CODE ANN. § 1.07(a)(8) (Vernon Supp. 2016).
A person acts intentionally with respect to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. Id. § 6.03(a) (Vernon 2011). A person acts knowingly with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b). A person acts recklessly with respect to a result of his conduct when he is aware of but consciously disregards a substantial risk that the result will occur. Id. § 6.03(c).
Proof of a mental state almost always depends upon circumstantial evidence. Smith v. State, 56 S.W.3d 739, 745 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004); see Laster v. State, 275 S.W.3d 512, 524 (Tex. Crim. App. 2009) ("[O]ne's acts are generally reliable circumstantial evidence of one's intent."). A fact finder may infer intent or knowledge from any facts that tend to prove its existence, including the acts, words, conduct of the accused, and the method of committing the offense. Guevara, 152 S.W.3d at 50; Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002).
Here, the complainant testified that appellant is the father of two of her children. See TEX. FAM. CODE ANN. § 71.003 (defining family). On January 4, 2013, the complainant and appellant communicated about exchanging possession of the children later that evening. When she spoke with him, appellant was "extremely angry," spoke with a "deep sense of hatred," expressed "a lot of negativity," and made disparaging remarks toward and about the complainant. The complainant felt scared and nervous as a result of her conversation with appellant.
Further, the complainant testified that during the exchange of possession of the children at the NPD station, appellant, as the complainant stood at her car, "walked up to [her] very fast," "spit in [her] face" and "hit [her] with his hand." She explained that appellant hit her with his open hand, striking her on the right side of her face. The complainant felt pain when appellant struck her in the face with his hand, and he "knocked [her] back pretty good[,] . . . a couple feet."
Raymond testified that he accompanied the complainant to the NPD station to exchange possession of the children with appellant. When appellant arrived, he was driving his truck erratically. And during the exchange, appellant "hit" the complainant. Raymond saw appellant "lunge[] forward," the complainant's entire body "go[] backward," and the complainant's "wrist hit the car." The complainant said "[o]w" and "st[ood] there holding her head." (Internal quotations omitted.) When Raymond was asked at trial, "Did you see what [appellant] did?," he responded, "Yeah, he hit her."
Officer Rader testified that when the complainant entered the NPD station, she was "very upset, crying, and kind of hysterical." And during his investigation of the incident, Rader learned that there had been "an assault, family violence." Based on his experience and training as a law enforcement officer, he opined that the complainant "had been hit."
Further, in regard to State's Exhibit 2, a photograph of the complainant's face as it looked on January 4, 2013 after the incident, Rader testified that it showed "a bit of redness and swelling" around the "eye area" and "high cheekbone" on the right side. The complainant also told Rader that appellant had "hit" her "in the face" with his "open palm." And appellant stated that "he may have accidentally hit" the complainant.
To the extent that appellant complains that any of the witnesses lacked credibility or presented conflicting evidence, we note that, in regard to the testimony of witnesses, the jury is the sole judge of the credibility and weight to be attached thereto; when the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict; and we defer to that determination. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014); Merritt v. State, 368 S.W.3d 516, 525-26 (Tex. Crim. App. 2012). Further, we note that although appellant asserts that neither Raymond nor Officer Rader actually saw appellant "make any kind of contact with the complain[ant]," the complainant's testimony standing alone is sufficient evidence to support his conviction. See Shah v. State, 403 S.W.3d 29, 35 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd); Padilla v. State, 254 S.W.3d 585, 590 (Tex. App.—Eastland 2008, pet. ref'd).
Viewing the evidence in the light most favorable to the jury's verdict, we conclude that the jury could have reasonably found beyond a reasonable doubt that appellant "intentionally, knowingly, or recklessly cause[d] bodily injury" to the complainant, a family member. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b); TEX. FAM. CODE ANN. § 71.003 (defining family). Accordingly, we hold that the evidence is legally sufficient to support appellant's conviction for the misdemeanor offense of assault of a family member.
We overrule this portion of appellant's sole issue.
Improper Jury Argument
In another portion of his sole issue, appellant argues that the trial court erred in denying his amended motion for new trial because portions of the State's closing argument to the jury were improper.
We review this issue regardless of whether appellant properly presented his amended motion for new trial to the trial court because it was not required to preserve error. See TEX. R. APP. P. 21.2; Landers, 402 S.W.3d at 255.
Proper jury argument is generally limited to: (1) summation of the evidence presented at trial; (2) reasonable deductions drawn from that evidence; (3) answers to opposing counsel's argument; and (4) pleas for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000); Acosta v. State, 411 S.W.3d 76, 93 (Tex. App.—Houston [1st Dist.] 2013, no pet.). A trial court has broad discretion in controlling the scope of closing argument. Lemos v. State, 130 S.W.3d 888, 892 (Tex. App.—El Paso 2004, no pet.). The State is afforded wide latitude in its jury arguments, and it may draw all reasonable, fair, and legitimate inferences from the evidence. Allridge v. State, 762 S.W.2d 146, 156 (Tex. Crim. App. 1988).
Appellant complains about numerous statements made by the State during its closing argument. However, appellant also concedes that he did not object to any of the complained-of portions of the State's closing argument.
To preserve error regarding an allegedly improper jury argument, a party must object and pursue that objection to an adverse ruling by requesting an instruction for the jury to disregard, and if the instruction is given, moving for a mistrial. See Archie v. State, 221 S.W.3d 695, 698-99 (Tex. Crim. App. 2007); Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993); Brooks v. State, 642 S.W.2d 791, 798 (Tex. Crim. App. 1982); Washington v. State, 127 S.W.3d 111, 115-16 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Here, appellant did not object to the complained-of portions of the State's closing argument. See Archie, 221 S.W.3d at 698-99; Cook, 858 S.W.2d at 473; Brooks, 642 S.W.2d at 798; Washington, 127 S.W.3d at 115-16; see also TEX. R. APP. P. 33.1(a). And appellant's argument that an objection to the complained-of portions of the State's closing argument was not required because the State's statements "were so inflammatory in nature [that] no reasonable juror could disregard them" has been rejected by the court of criminal appeals. See Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010) (citing Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996)).
Accordingly, we hold that appellant has failed to preserve for our review his complaint regarding the State's closing argument.
Newly-Discovered Evidence and Prosecutorial Misconduct
In the remaining portion of his sole issue, appellant argues that the trial court erred in denying his amended motion for new trial because "he had new evidence to present to the [trial] [c]ourt" and "there is evidence of clear acts of prosecutorial misconduct."
We review a trial court's denial of a motion for new trial for an abuse of discretion. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). We view the evidence in the light most favorable to the trial court's ruling and uphold it if it is within the zone of reasonable disagreement. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007); Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). We do not substitute our judgment for that of the trial court; rather we decide whether the trial court's decision was arbitrary or unreasonable. Webb, 232 S.W.3d at 112; Biagas v. State, 177 S.W.3d 161, 170 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd).
It is well-established that a defendant, within ten days after filing a motion for new trial, must present the motion to the trial court. See TEX. R. APP. P. 21.6; Gardner v. State, 306 S.W.3d 274, 305 (Tex. Crim. App. 2009). "The purpose of the presentment rule is 'to put the trial court on actual notice that a defendant desires the trial court to take some action on the motion for new trial such as a ruling or a hearing on it.'" Stokes v. State, 277 S.W.3d 20, 21 (Tex. Crim. App. 2009) (quoting Carranza v. State, 960 S.W.2d 76, 78 (Tex. Crim. App. 1998)). The court of criminal appeals has acknowledged that "there are many ways to show presentment of a motion for new trial to the trial court," but "merely filing a motion is insufficient." Id. at 24. Nonetheless, "'[p]resentment' must be apparent from the record, and it may be shown by such proof as the judge's signature or notation on the motion or proposed order, or an entry on the docket sheet showing presentment or setting a hearing date." Gardner, 306 S.W.3d at 305.
The State asserts that the record does not reflect that appellant's amended-new-trial motion was "properly presented to the trial court and therefore [his] complaints regarding it should be overruled."
A motion for new trial is a prerequisite to raising an issue on appeal when the issue requires establishing facts that are not otherwise in the record. TEX. R. APP. P. 21.2; Landers v. State, 402 S.W.3d 252, 255 (Tex. Crim. App. 2013); see also Irvin v. State, No. 01-15-00139-CR, 2016 WL 3947085, at *6 (Tex. App.—Houston [1st Dist.] July 9, 2016, pet. ref'd) (mem. op., not designated for publication). Here, appellant's claims of newly-discovered evidence and prosecutorial misconduct, which he raised in his amended motion for new trial, rely on evidence that is not otherwise in the record. See TEX. R. APP. P. 21.2; see also Neal v. State, 150 S.W.3d 169, 175 (Tex. Crim. App. 2004) (holding defendant could not raise prosecutorial vindictiveness claim for first time on appeal); Vidal v. State, 418 S.W.3d 907, 911- 13 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd) (considering claim of prosecutorial misconduct in context of denial of new-trial motion and noting claim could not be raised independently for first time on appeal).
However, there is no indication in the record that appellant presented his amended motion for new trial to the trial court. See TEX. R. APP. P. 21.6; Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005) (reviewing court may not grant new trial if motion not presented or ruled upon by trial court). Thus, he has not preserved his complaints that the trial court erred in denying his amended motion for new trial on the grounds that "he had new evidence to present to the [trial] [c]ourt" and "there is evidence of clear acts of prosecutorial misconduct." See Carranza, 960 S.W.2d at 79-80; Irvin, 2016 WL 3947085, at *7; Garcia v. State, 291 S.W.3d 1, 8 (Tex. App.—Corpus Christi 2008, pet. ref'd) ("In order for an appellate court to address whether the trial court erred in denying . . . a motion for new trial, the defendant must present the motion for new trial to the trial court . . . .").
We overrule the remaining portion of appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice Panel consists of Justices Jennings, Higley, and Massengale. Do not publish. TEX. R. APP. P. 47.2(b).