Opinion
13-23-00186-CR
08-30-2023
ISAAC MICHAEL LOPEZ, Appellant, v. THE STATE OF TEXAS, Appellee.
Do not publish. Tex.R.App.P. 47.2 (b).
On appeal from the County Court at Law No. 13 of Bexar County, Texas.
Before Chief Justice Contreras and Justices Benavides and Longoria
MEMORANDUM OPINION
NORA L. LONGORIA, JUSTICE
Following a jury verdict finding him guilty of assault causing bodily injury, a Class A misdemeanor, the trial court sentenced appellant Issac Michael Lopez to one year in jail. See Tex. Penal Code Ann. § 22.01(a)(1), (b). However, the trial court suspended the sentence and placed Lopez on community supervision for a term of one year. In his sole issue, Lopez contends that the trial court violated his Sixth Amendment right to confrontation when it admitted a video into evidence. We affirm.
This case is before this Court on transfer from the Fourth Court of Appeals in San Antonio pursuant to a docket-equalization order issued by the Supreme Court of Texas. See Tex. Gov't Code Ann. § 73.001.
The evidence at trial demonstrated that on July 16, 2021, Lucy Lynn Bauer called 9-1-1 to report an assault. An audio recording of the 9-1-1 call was admitted into evidence without objection. On the recording, Bauer stated to the dispatcher that she was being "abused" by her boyfriend, whom she later identified as Lopez, and that she was located at an address on Candlecrest Court. During the call, Bauer and Lopez are heard arguing. Bauer, audibly upset, yelled at Lopez, "[You] pushed me physically over and over." When asked by the dispatcher whether she needed EMS, Bauer replied, "Yeah. I'm hurt." In the recording, Bauer also screamed to Lopez "you push[ed] me into the f***ing stool." Bauer also informed the dispatcher that she was outside and stated, "He kicked me outside. He woke me up in my sleep[ ]attacking me" and "[h]e[ ]threw my face into a stool." Five minutes after initiating the 9-1-1 call, Bauer stated to the dispatcher that the "cops have arrived."
Deputy Gilbert Guzman of the Bexar County Sheriff's Office testified that he was dispatched at 6:45 a.m. to a residence located on Candlecrest Court in Bexar County. Immediately upon arrival, Guzman made contact with Bauer. Deputy Guzman indicated that at the time, "[Lopez] was on the balcony" "still arguing with [Bauer]."
Footage from Deputy Guzman's body worn camera was admitted into evidence over Lopez's hearsay and confrontation clause objections. The footage depicts Bauer standing outside and approaching Deputy Guzman as he walked up to the residence.Deputy Guzman asks Bauer "What is going on?", and Bauer, appearing visibly upset, tells Deputy Guzman that she wished to press charges "on this person here"-pointing to Lopez who was standing on a balcony-"for waking me up. I have bruises on my body." From the balcony, Lopez states he did not wake her up, and Bauer responds, "Yeah. You know what it doesn't matter. Why don't you come down here and have a conversation with the police." Deputy Guzman states to Lopez, "I'll talk to you in a minute, sir." Bauer then states that she had a bad night and that there was "too much drinking going on." Deputy Guzman then asks, "Both of you?" and Bauer replies, "Both of us." Bauer continues, stating, among other things, that she had gone to bed and woke up to Lopez screaming at her to get out of his house, and that Lopez had physically thrown her into a stool several times. Bauer also stated that her arm was swollen. Deputy Guzman then asked "Do you need medical? Do you need EMS?" Bauer replied that she had never been physically attacked before, that her neck hurt, and that she was not "going to evaluate how much help I might need right now." Deputy Guzman then asked "how much have you had to drink tonight?" Bauer indicated she had four beers earlier, but that it was almost daytime, she was "literally sleeping," and she was "really upset for being woken up." Deputy Guzman then stated, "Do you need EMS, so I can let my dispatcher know, or I can cancel them." The admitted footage ends with Bauer stating she was going to press charges.
We note that some of Bauer's statements heard in the 9-1-1 call can also be heard in the body worn camera footage, suggesting that Deputy Guzman arrived to the scene within five minutes of the 9-1-1 call.
Deputy Guzman made an in-court identification of Lopez and testified that Bauer "was very upset, very irate. I got the sense that she was very shocked by-She was woken up to something, which she described him assaulting her. Sort of freaked out because she didn't know where it came from or what happened." Deputy Guzman further testified that Bauer had refused EMS service. However, Deputy Guzman noticed a bruise under Bauer's chin and recalled that she was adamant that Lopez hit her there and that she complained of pain. Deputy Guzman stated that for these reasons, he called EMS anyway, and wanted Bauer to be evaluated.
Photographs of Bauer's injuries taken on the day of the incident were admitted into evidence without objection. The photographs depict a dark, discolored marking on Bauer's chin; a circular reddening of the skin below the right side of her neck and collar bone; and some reddening of the skin near her wrist.
Lopez testified in his own defense. According to Lopez, Bauer had woken him up, and he asked, "Hey, how are you doing, baby," and Bauer was very offended by that. Lopez testified that, after Bauer turned on the lights, he "tried to avoid this altercation," walked away to a different bedroom, turned off the lights, and got into bed. Lopez further testified that a minute later, "the door opens, the light comes on and the blanket flies off of me, and that's when I start to now engage in arguing back with her." Lopez denied pulling Bauer off the bed, throwing her to the floor or against a bar stool, grabbing her arms or wrists, or dragging her around the house. Photographs of injuries that Lopez stated were caused by Bauer were admitted into evidence. The photos depict marks on Lopez's arm and both of his arm pits, which Lopez testified showed "[Bauer's] nails tearing my skin." Lopez further testified that the police had come and arrested him. Lopez admitted he did not call the police about Bauer assaulting him and he had not informed the arresting officer of the injuries allegedly caused by Bauer because he was not asked.
Rena Joost, Lopez's roommate at the time of the incident, testified that Lopez and Bauer "had just come in from a gig" the night of the incident and that Lopez went to bed upstairs. Joost observed that Bauer was "really intoxicated" and testified that she and Bauer spent time in a hot tub until Bauer suddenly became belligerent, wanted to fight Joost, and pushed Joost three times. Joost left the hot tub and went to her bathroom, while Bauer stayed in the hot tub and continued to drink. According to Joost, she came out of her bathroom and heard a verbal altercation upstairs between Bauer and Lopez. Joost did not see what happened but testified that "you could clearly tell who the aggressor was," and alluded that Bauer was the aggressor. Joost also testified that she was not present when police arrived because she was asleep and that the police had never interviewed her about the incident.
Bauer did not testify at trial.
After deliberation, the jury found Lopez guilty of assault. The trial court sentenced Lopez to one year in jail, suspended the sentence, and placed Lopez on community supervision for a term of one year. This appeal followed.
II. Right to Confrontation
In his sole issue, Lopez argues that footage from Deputy Guzman's body worn camera contained out-of-court testimonial statements from Bauer, the victim of the assault. Lopez argues that, because Bauer did not testify at trial and he did not have an opportunity to cross examine her, admission of the footage containing her statements violated his Sixth Amendment right to confrontation.
A. Standard of Review & Applicable Law
The Confrontation Clause of the Sixth Amendment, made applicable to the states via the Fourteenth Amendment, guarantees an accused the right to confront and cross-examine adverse witnesses. U.S. Const. amends. VI, XIV; Vinson v. State, 252 S.W.3d 336, 338 (Tex. Crim. App. 2008); Clark v. State, 282 S.W.3d 924, 930 (Tex. App.-San Antonio 2009, pet. ref'd). The principal concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. Clark, 282 S.W.3d at 930 (citing Maryland v. Craig, 497 U.S. 836, 845 (1990)). Even when a statement offered against a defendant is admissible under evidentiary rules, the statement may implicate the Confrontation Clause. Id.
The Confrontation Clause bars admission of any "testimonial" out-of-court statement unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 59 (2004). A statement is testimonial if "the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Davis v. Washington, 547 U.S. 813, 822 (2006); see Burch v. State, 401 S.W.3d 634, 636 (Tex. Crim. App. 2013) (noting that testimonial statements are those which are "formal and similar to trial testimony"). Thus, testimonial evidence includes "prior testimony at a preliminary hearing, before a grand jury, or at a former trial," as well as "[s]tatements taken by police officers in the course of interrogations." Crawford, 541 U.S. 36, 52, 68 (2004).
The United States Supreme Court has defined the distinction between testimonial and nontestimonial statements in the context of police interrogations, holding that:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.Davis, 547 U.S. at 822 (2006). We consider the following nonexclusive factors when determining whether a statement is testimonial or nontestimonial:
1) whether the situation was still in progress; 2) whether the questions sought to determine what is presently happening as opposed to what has happened in the past; 3) whether the primary purpose of the interrogation was to render aid rather than to memorialize a possible crime; 4) whether the questioning was conducted in a separate room, away from the alleged attacker; and 5) whether the events were deliberately recounted in a step-by-step fashion.Vinson, 252 S.W.3d at 336 (citing Davis, 547 U.S. at 823-24). In addition to these nonexclusive factors, we also consider the totality of the circumstances. Clark, 282 S.W.3d at 931.
Generally, we review a trial court's ruling on the admission of evidence for abuse of discretion, giving deference to the trial court's findings of fact. See Wells v. State, 611 S.W.3d 396, 405 (Tex. Crim. App. 2020). However, a trial court has no discretion in determining what the law is or in applying the law to the facts. See State v. Kurtz, 152 S.W.3d 72, 81 (Tex. Crim. App. 2004). Accordingly, we review de novo the trial court's rulings on purely legal matters, such as whether a statement is testimonial for purposes of the Confrontation Clause. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006) (noting that whether a statement is testimonial is determined by the standard of an objectively reasonable declarant standing in the shoes of the actual declarant, and that trial courts are no better equipped than appellate courts to answer that question because "the ruling itself does not depend upon demeanor, credibility, or other criteria peculiar to personal observation"); Avant v. State, 499 S.W.3d 123, 128 (Tex. App.-San Antonio 2016, no pet.).
B. Preservation
In its brief, the State contends that Lopez failed to preserve his Confrontation Clause complaint. To preserve error for appeal, the complaining party must make a timely, specific objection. Tex.R.App.P. 33.1(a)(1); Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991) (en banc). An objection is timely if it is raised at the earliest opportunity or as soon as the ground of objection becomes apparent. See Martinez v. State, 867 S.W.2d 30, 35 (Tex. Crim. App. 1993) (en banc); see also Gonzalez v. State, 563 S.W.3d 316, 320 (Tex. App.-Houston [1st Dist.] 2018, no pet.).
In addition, the complaining party must obtain an adverse ruling from the trial court, expressly or implicitly, or object to the trial court's refusal to rule on the objection. See Tex. R. App. P. 33.1(a)(2). If the complaining party fails to obtain an adverse ruling from the trial court, then the complained-of error is not preserved. See id. R. 33.1(a). A ruling "need not be expressly stated" if the trial court's "actions or other statements otherwise unquestionably indicate a ruling." Rey v. State, 897 S.W.2d 333, 336 (Tex. Crim. App. 1995). A reviewing court will generally find that a trial court made an implicit ruling when "the objection was brought to the trial court's attention and the trial court's subsequent action clearly addressed the complaint." State v. Kelley, 20 S.W.3d 147, 154 n.3 (Tex. App.-Texarkana 2000, no pet.); see also Miller v. State, 83 S.W.3d 308, 319 (Tex. App.-Austin 2002, pet. ref'd) (finding trial court's ruling may be implied when court's actions or statements "unquestionably indicate a ruling").
Bauer, the declarant of the complained-of statements and the alleged victim of the assault, did not testify at trial. The State sought to admit footage from Deputy Guzman's body worn camera, which contained out-of-court statements made at the scene by Bauer. Outside the presence of the jury, the trial court asked defense counsel whether there was any specific portion of the video that he wanted the Court to review. Defense counsel stated,
[M]y concern is twofold. No. 1, I'm going to object to improper hearsay without a proper cross examination of this complainant . . . . There's no opportunity for the defense to be able to cross-examine [Bauer]. And the fact that [Lopez] does have a right to confront his witness in court, if she wants to testify.
Defense counsel then stated, "And No. 2 . . . is that the officers interview [Lopez] without reading him his Miranda rights" and that "the disk that the [State] tendered to me does not have redactions to take [Lopez's] testimony out of that body worn camera." The State then informed the trial court that it was only offering a certain portion of the footage. The trial court asked whether Lopez had objections to the portion of the footage being offered, and Lopez stated the following:
Well, I still want to object because there's hearsay from the dispatch on there. But additionally, Your Honor, they gave me an entire body cam, and I don't want that there's an issue [sic]. Normally you get a redacted copy that says, "This is what we're going to introduce." I was not tendered that.
But I don't want anything to go back to the jury that they can continue to play. And yet, [Lopez] was not advised of his Miranda [r]ights.
The trial court then denied the hearsay objections, explained what exceptions to the rule against hearsay applied, and ordered the State to redact the footage to include only the portion that was specifically admitted. After it pronounced its ruling, the trial court went into recess; neither the trial court nor the parties discussed the applicability of Crawford or the Sixth Amendment right to confrontation. After recess, back in the presence of the jury, defense counsel made an additional objection to the footage under Rule 403 of the rules of evidence, which was denied by the trial court. The footage was then published to the jury.
We observe that Lopez's initial objection to the complained-of footage encompassed complaints under both the Texas Rules of Evidence governing the admission of hearsay statements and the Confrontation Clause. Unlike his hearsay objection, which the trial court explicitly denied with an explanation, a review of the record shows no explicit adverse ruling by the trial court regarding any Confrontation Clause objection before it admitted the complained-of footage. See Tex. R. App. P. 33.1(a)(2). Nevertheless, for purposes of this analysis, we assume but do not decide that the trial court implicitly overruled Lopez's Confrontation Clause objection when it allowed admission of the footage into evidence. See Rey, 897 S.W.2d at 336; Kelley, 20 S.W.3d at 154; Miller, 83 S.W.3d at 319.
C. Harmless Error Analysis
Lopez contends that the entirety of Bauer's statements contained in Deputy Guzman's body worn camera footage was testimonial and their admission harmful. We assume but do not decide that Bauer's statements were testimonial in nature, and conclude that Lopez did not suffer harm from their admission.
Federal constitutional error is harmless and not reversible if it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman v. California, 386 U.S. 18, 24 (1967); Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007). "Under Chapman, a federal constitutional error 'did not contribute to the verdict obtained' if the verdict 'would have been the same absent the error.'" Clay, 240 S.W.3d at 904 (quoting Neder v. U.S., 527 U.S. 1, 15-18 (1999)). The Chapman test is codified in Texas Rule of Appellate Procedure 44.2(a). Tex.R.App.P. 44.2(a); Clay, 240 S.W.3d at 904.
To assess the likelihood that, absent the trial court's error in admitting the evidence, the jury's verdict would have been the same, we must examine the entire record. Clay, 240 S.W.3d at 904. Among the factors we consider are: (1) the importance of the evidence to the State's case; (2) whether the evidence was cumulative of other evidence; (3) the presence or absence of other evidence corroborating or contradicting the evidence on material points; and (4) the overall strength of the State's case. Id. We must also consider any other factor in the record that may shed light on the probable impact of the trial court's error on the minds of average jurors. Id.
Regarding harm, Lopez simply argues that without the footage of Bauer's statements, "the State would have had a difficult time proving the allegations in its information as [Bauer's] statements on the [9-1-1] call are not coherent or detailed regarding how the assault occurred or whether she was in pain." We disagree.
A person commits assault if the person intentionally, knowingly, or recklessly causes bodily injury to another. See Tex. Penal Code Ann. § 22.01(a)(1). Bodily injury means physical pain, illness, or any impairment of physical condition. See id. § 1.07(a)(8). The charging instrument contains nothing modifying the statutory elements of assault, save for naming the complainant and including the following manner and means regarding how Lopez committed the assault: "by PUSHING THE COMPLAINANT WITH THE HAND OF THE DEFENDANT and GRABBING THE COMPLAINANT WITH THE HAND OF THE DEFENDANT."
We are mindful that "the question for the reviewing court" in a harm analysis "is not whether the jury verdict was supported by the evidence. Instead, the question is the likelihood that the constitutional error was actually a contributing factor in the jury's deliberations in arriving at that verdict." Langham v. State, 305 S.W.3d 568, 582 (Tex. Crim. App. 2010). Nevertheless, we are still instructed to consider the strength of the State's overall case. See Clay, 240 S.W.3d at 904. We conclude that, even without the complained-of statements, the State's case was strong.
In the recording of the 9-1-1 call, Bauer identified Lopez as her attacker and is heard yelling at Lopez "[you] pushed me physically over and over" and "you push[ed] me into the f***ing stool." Furthermore, when asked by the dispatcher whether she needed EMS, Bauer replied, "Yeah. I'm hurt." Bauer also informed the dispatcher that she was outside and stated, "He kicked me outside. He woke me up in my sleep[ ]attacking me," and "He[ ]threw my face into a stool." The jury was also presented with photographs of Bauer's injuries from the assault in question. In particular, a photograph depicting a marking underneath Bauer's chin corroborates Bauer's statement in the 9-1-1 call that Lopez threw her "face into a stool."
In addition, Deputy Guzman testified that he was dispatched at 6:45 a.m. to a residence located in Bexar County and made immediate contact with Bauer upon his arrival. According to Guzman, "[Lopez] was on the balcony" "still arguing with [Bauer]" at the time. Furthermore, Deputy Guzman made an in-court identification of Lopez and testified that Bauer "was very upset, very irate. I got the sense that she was very shocked by-She was woken up to something, which she described [as] him assaulting her. [She] [s]ort of freaked out because she didn't know where it came from or what happened." Despite Bauer's refusal to request EMS service after his inquires, Deputy Guzman called EMS anyway and wanted her to be evaluated because he noticed a bruise under her chin and recalled that Bauer was adamant about getting hit there and complained of pain.
In light of this evidence, Bauer's statements contained in the body worn camera were of slight importance to the State's case. See id. We observe that many of the complained-of statements were cumulative of and corroborated by the above-referenced evidence. See id. In addition, the State did not heavily emphasize the complained-of statements contained in the body camera footage during its closing arguments. See Langham, 305 S.W.3d at 582 (holding that reviewing courts may consider to what extent, if any, the State emphasized evidence erroneously admitted in violation of Crawford). While Lopez presented evidence on his behalf, including testimony from Joost and himself, that evidence did not specifically contradict the complained-of statements on material points. See Clay, 240 S.W.3d at 904.
Counsel for Lopez heavily emphasized Bauer's absence at trial during his closing arguments.
On this record, we cannot conclude there is a reasonable possibility that the complained-of statements moved the jury from a state of non-persuasion to a state of persuasion. See Langham, 305 S.W.3d at 582. Accordingly, taking the record as a whole, we are persuaded beyond a reasonable doubt that the jury's verdict in this case would have been the same even if the trial court had not admitted Bauer's out-of-court statements. See Tex. R. App. P. 44.2.
We overrule Lopez's sole issue.
III. Conclusion
We affirm the judgment of the trial court.