Opinion
No. 05-16-00641-CR
05-22-2017
STEVEN JOSEPH EISELE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 3 Collin County, Texas
Trial Court Cause No. 003-83436-2015
MEMORANDUM OPINION
Before Justices Lang, Myers, and Stoddart
Opinion by Justice Lang
Following a plea of not guilty, appellant Steven Joseph Eisele was found guilty by a jury of assault causing bodily injury/family violence. Punishment was assessed by the trial court at confinement for one year, suspended for two years, and a fine of $750.
In a single issue on appeal, appellant contends the trial court "erred in admitting hearsay testimony under Texas Rule of Evidence 803." See TEX. R. EVID. 803. We decide against appellant on his issue. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL CONTEXT
Appellant was charged by information with intentionally or knowingly causing bodily injury to his wife, Carolyn Eisele ("Carolyn"), "by grabbing and pushing and striking Carolyn Eisele with defendant's hand and towel."
At trial, Carolyn testified that on the date of the events in question, she was married to appellant and worked as an elementary school teacher. While helping appellant wash the dinner dishes that evening, Carolyn placed a knife into a slot on the knife rack. Appellant pulled the knife out of the slot, flung it across the counter toward Carolyn, and said, "that's an old knife, that doesn't go here." He then picked up a glass and told her she had not rinsed it properly. According to Carolyn, appellant was "angry and frustrated" and "started criticizing various aspects of my life," including their marriage and her relationships with their children. She went into the master bedroom and appellant followed her. Appellant's face was "beet red" as he stood in close proximity, yelling at her. Carolyn put her hands in front of her face in "just kind of a natural response" and appellant "swatted my hands down, and then with an open palm he took his right hand and with an upper momentum, hit the base of my nose." Appellant had a kitchen towel in his hand and was "twirling it tight." He "proceeded to snap it at my torso, twirl and snap, twirl and snap . . . four or five times." Appellant told Carolyn to "Stop moving away from me." Carolyn then went into the living room, walked behind the sofa, and "braced" her hands. Appellant moved to "block" her, then put his hands around her neck. Carolyn "broke free" and moved away from him.
Carolyn testified the next day was a Wednesday and she woke up to get ready for work. Her face "felt weird or numb or something" and when she looked in the mirror she saw she "had two black eyes and a swollen nose." She wore sunglasses at work that day to hide "the condition that my face was in." Carolyn disclosed her injuries to the school principal and vice-principal, her coworker Pam Steinkirchner, and "Judy," a family counselor with the school's parish. The vice-principal and Steinkirchner accompanied her to her home that evening to retrieve some clothes and belongings, then took her to the police station. Carolyn gave a statement to police about the previous night and her injuries were photographed. Those photographs were admitted into evidence and published to the jury. Carolyn stated she had bruises on her face and other parts of her body, including her arms.
After speaking to the police, Carolyn went to the hospital emergency room, where she was treated for "contusions and concussion." Over appellant's objection, hospital records from the emergency room were admitted into evidence.
Judy Clark testified she is a licensed professional counselor and the director of family and adult ministry and counseling services for St. Mark Evangelist Church. Clark stated that on April 14, 2015, Carolyn came into her office at approximately noon. Clark could see she was injured. She testified Carolyn's face was "very puffy" and her nose was "quite swollen and bruised." Carolyn's eyes were red and bruised. Her shoulder and one of her cheeks was bruised and her neck was "extremely red." Carolyn was "quite upset," crying, and appeared "to still be under the stress of what had happened to her the night before." When the State asked Clark what Carolyn said to her, appellant objected to hearsay. The trial court overruled appellant's objection, citing the "excited utterance" exception to the rule against hearsay. See TEX. R. EVID. 803(2). Clark then testified that Carolyn told her appellant "assaulted" her the night before, "screamed and yelled at her," and put his hands around her neck and struck her in the face.
Steinkirchner testified that at the time of the events in question, she was a teacher at the same school as Carolyn and they were friends. On April 14, 2015, she saw Carolyn in the afternoon and noticed she was wearing sunglasses. When they spoke a short time later, Carolyn removed the sunglasses. Steinkirchner testified Carolyn had bruises under her right eye, a red mark on her neck, and a swollen nose. Steinkirchner testified they spoke again at the end of the school day. She stated Carolyn was "confused, fearful, scared, [and] upset."
Officer Jonathan Hunter of the Murphy Police Department testified he spoke with Carolyn when she visited the police department to report the incident in question. He stated Carolyn arrived at the police station at approximately 5:28 p.m. and "asked to speak to an officer about an assault that occurred the day before." According to Hunter, Carolyn "looked very emotionally upset," was crying and trembling, "had visible swelling and bruising on the eyes and nose" and a bruise on her right shoulder, and complained of a headache and "pressure on her nose and eyes." Further, over a running objection by appellant on the ground of hearsay, Hunter testified Carolyn told him (1) her bruises resulted from being "struck in the face by her husband," (2) her husband "basically pushed her nose" with "an open palm" and "had actually popped her with a dinner towel," and (3) she couldn't recall how she had received the bruise on her shoulder, but she believed it occurred during the incident.
II. APPELLANT'S ISSUE
A. Standard of Review
We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court abuses its discretion if its decision is so clearly wrong as to lie outside the zone within which reasonable people might disagree. Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008).
Texas Rule of Appellate Procedure 44.2(b) provides that a nonconstitutional error that does not affect substantial rights must be disregarded. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002); see TEX. R. APP. P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence "if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect." Motilla, 78 S.W.3d at 355. In assessing the likelihood that the jury's decision was adversely affected by the error, the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case. Id. The reviewing court may also consider the jury instructions, the State's theory and any defensive theories, closing arguments, and even voir dire, if applicable. Id. at 355-56. Further, "[t]hough not dispositive, the evidence of the defendant's guilt is a relevant factor in conducting a harm analysis under Rule 44.2(b)." Id. at 357.
B. Applicable Law
Hearsay is defined as a statement, other than one made by the declarant while testifying at the current trial or hearing, offered into evidence to prove the truth of the matter asserted. TEX. R. EVID. 801(d). Although hearsay is generally inadmissible, certain exceptions may apply. TEX. R. EVID. 803. The "excited utterance" exception provides that "[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused," is not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness. TEX. R. EVID. 803(2). That exception is based on the reasoning that when a person is in the instant grip of violent emotion, excitement, or pain, that person ordinarily loses capacity for the reflection necessary for fabrication and the truth will come out. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). In determining whether a hearsay statement is admissible as an excited utterance, the court may consider as factors the time elapsed and whether the statement was in response to a question. Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim. App. 2001). The focus, however, must remain on whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event at the time of the statement. Id.
Errors in the admission of hearsay evidence are typically nonconstitutional in nature and therefore will be disregarded unless a defendant's substantial rights are affected. See TEX. R. APP. P. 44.2(b); Garcia v. State, 126 S.W.3d 921, 927-28 (Tex. Crim. App. 2004); Shaw v. State, 329 S.W.3d 645, 653 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd).
C. Application of Law to Facts
In his issue on appeal, appellant asserts the trial court "erred in admitting hearsay testimony under Texas Rule of Evidence 803." Specifically, appellant contends Clark's testimony respecting Carolyn's statements to her was inadmissible hearsay and did not fall under the excited utterance exception because Carolyn's statements "were not made in reacting to a startling event."
The State argues "[a]ny error in admitting the testimony was harmless" because "[t]he victim gave detailed testimony about the assault and her testimony was corroborated by photographic evidence and testimony from other witnesses describing her visible injuries." We agree.
In the case before us, the record shows (1) Carolyn testified in detail as to how the incident occurred and specifically stated her husband hit her in the face; (2) two additional witnesses other than Clark, i.e., Hunter and Steinkirchner, testified Carolyn told them her husband hit her in the face; and (3) numerous photographs and medical records respecting Carolyn's injuries were admitted into evidence. Appellant does not complain on appeal as to the admissibility of any of that evidence. We need not decide whether the trial court erroneously denied appellant's hearsay objection because, even assuming the trial court erred by permitting Clark to testify as to Carolyn's statements in question, we conclude appellant was not harmed by this testimony. Anderson v. State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986) ("If the fact to which the hearsay relates is sufficiently proved by other competent and unobjected to evidence, as in the instant case, the admission of the hearsay is properly deemed harmless and does not constitute reversible error."); accord Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999); see also Bourque v. State, 156 S.W.3d 675, 676-77 (Tex. App.—Dallas 2005, pet. ref'd) (declining to address whether admissibility was error where record demonstrated no harm).
On this record, we conclude we have "fair assurance that the error did not influence the jury, or had but a slight effect." See Motilla, 78 S.W.3d at 355; TEX. R. APP. P. 44.2(b); see also Bourque, 156 S.W.3d at 676-77 (concluding record demonstrated no reversible harm where testimony of therapist respecting what victim told him, even if admitted improperly at trial, proved substantially same facts as other properly admitted evidence).
We decide appellant's issue against him.
III. CONCLUSION
We decide against appellant on his sole issue. The trial court's judgment is affirmed.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE Do Not publish
TEX. R. APP. P. 47.2
160641F.U05
JUDGMENT
On Appeal from the County Court at Law No. 3, Collin County, Texas
Trial Court Cause No. 003-83436-2015.
Opinion delivered by Justice Lang, Justices Myers and Stoddart participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 22nd day of May, 2017.