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finding evidence admissible to show nature of the relationship between defendant and victim and to rebut defensive theory that victim fabricated the assault
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No. 05-16-00711-CR
07-11-2017
SHEPHARD MAPOLISA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court No. 10 Dallas County, Texas
Trial Court Cause No. MA-1462666-L
MEMORANDUM OPINION
Before Justices Fillmore, Whitehill, and Boatright
Opinion by Justice Whitehill
A pivotal issue in this family violence assault case is whether appellant's wife's testimony that she had taken a nurses oath to do no harm opened the door to evidence of her prior violent acts. Appellant also complains that the trial court erred by (i) excluding evidence concerning Wife's unemployment status and eligibility for Medicare, (ii) admitting evidence suggesting that he had previously assaulted Wife, and (iii) submitting a charge with erroneous mental state definitions.
We conclude that the trial court did not abuse its discretion by excluding evidence of Wife's violent acts offered to refute the impression that she was not a violent person, and the remaining two grounds urged in support of that evidence were not preserved for our review. We further conclude that (i) there was no abuse of discretion by admitting evidence that may have suggested that appellant previously assaulted Wife, or by excluding evidence concerning Wife's unemployment status, and (ii) erroneous definitions in the jury charge did not harm appellant. We thus affirm the trial court's judgment.
I. Background
Appellant and his wife had been separated for three years when appellant agreed to let her stay in his apartment temporarily. One evening, they got into a heated discussion about appellant's romantic involvement with another woman. Appellant became angry, jumped over an ottoman and on top of Wife, and "grabbed, clawed, scratched, and pulled at her" while attempting to throw her outside and yelling "Get out."
After Wife called 911, the police responded, concluded that appellant was the aggressor, and arrested him.
Before appellant's assault trial began, the court granted motions in limine concerning violent acts and prior offenses by both appellant and Wife. The trial judge, however, said that all of the issues included in the limine order could potentially be admitted under the right circumstances.
At trial, Wife testified that she was a nurse. The State then asked her if she was required to take an oath to become a nurse. Wife responded, without objection, that she took an "oath to do no harm. It's pretty much the same as a doctor's oath."
On cross-examination, appellant asked her to clarify what she meant to imply by her saying that she took an oath to do no harm. The State objected to that question, and the court later held a hearing outside the jury's presence.
During that hearing, the State objected under evidence rule 404(b) that appellant's follow-up question called for impermissible character evidence and was not relevant. Appellant responded that Wife was not a practicing nurse when the offense occurred, and argued that the State opened the door to his question by asking her about the oath because it implied that she was not a violent person. As a result, appellant urged that he should be allowed to ask about Wife's previous acts "where she threw all the furniture and everything at him, tore up the house, [and] was taken to the hospital." He further argued that he should be allowed to go into other evidence of her assaulting someone else and slashing the neighbor's tires.
The trial judge sustained the State's objection, and appellant subsequently made a bill of exceptions that included a Dallas Police Department report. That report described the officers' response to a previous disturbance call involving appellant and Wife, and stated that Wife, who is bipolar, was "upset for an [unknown] reason," and "threw glassware, chairs, and other household items at [appellant]" in an attempt to injure him. She also yelled "I'll kill you" while tipping over a curio cabinet in appellant's direction. As a result, she was arrested and transported to "Timberlawn Psychiatric Facility."
Wife's testimony was also included in the bill of exceptions. She said that she had taken the nurse's oath to do no harm twenty years before the incident in question. When counsel inquired about the "implications" of that oath, Wife responded that she had used her nursing skills to take care of appellant's health for fifteen years after he was diagnosed HIV positive. Wife admitted that she had been taken to Timberlawn as shown in the report, but claimed the officers lied about her tipping over the curio cabinet.
Appellant's bill of exceptions further included information about Wife's attack on her daughter's boyfriend's mother and Wife's arrest for criminal mischief when she slashed a neighbor's tires.
In closing argument, appellant argued that he had a right to remove Wife from his apartment and that he did not harm her when he attempted to do so. He also argued that Wife's assault story was fabricated because she was angry that appellant told her to leave. Appellant, however, never argued that he acted in self-defense.
The jury found appellant guilty and made an affirmative family violence finding. The trial court assessed punishment at one year confinement and a $1,800 fine, with the confinement probated for two years. Appellant's motion for new trial argued only that the verdict was contrary to the law and the evidence and was overruled by operation of law. This appeal followed.
II. Analysis
A. Evidentiary Issues (Issues One through Six)
Appellant's first six issues complain about trial court rulings that (i) excluded evidence of Wife's prior bad acts and employment history and (ii) admitted evidence of appellant's prior conduct. Because the record does not support appellant's arguments that the trial court abused its discretion in any of those rulings, we reject his first six issues.
1. Standards of Review and Applicable Law
We review evidentiary rulings for an abuse of discretion. Salazar v. State, 38 S.W.3d 141, 153 (Tex. Crim. App. 2001). The test for abuse of discretion is not whether the facts present an appropriate case for the trial court's action; it is whether the trial court acted without reference to any guiding rules or principles. That a trial court may decide a matter within its discretionary authority differently than an appellate court might does not demonstrate such an abuse. Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990) (op. on reh'g). Thus, we will not reverse a trial court's evidentiary ruling if it is within the zone of reasonable disagreement. See Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992).
Generally, evidence involving other crimes, wrongs, or acts is not admissible to prove character of a person; however, the evidence may be admissible for other purposes such as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." TEX. R. EVID. 404(b); see also Montgomery, 810 S.W.2d 372 at 387.
Otherwise inadmissible evidence may be admitted if the party against whom it is offered "opens the door" to the evidence. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Schutz v. State, 957 S.W.2d 52, 71 (Tex. Crim. App. 1997). "A party opens the door by leaving a false impression with the jury that invites the other side to respond." Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009). Nonetheless, the party offering the evidence may not "stray beyond the scope of the invitation." Schutz, 957 S.W.2d at 71.
As a general rule, specific acts of misconduct may not be introduced to impeach a party or a witness. See Prescott v. State, 744 S.W.2d 128, 130 (Tex. Crim. App. 1988). However, when a party produces evidence tending to create a false impression of his law-abiding behavior, he opens the door on his otherwise irrelevant past criminal history, and opposing counsel may impeach him by exposing the falsehood. Delk v. State, 855 S.W.2d 700, 704 (Tex. Crim. App. 1993) (allowing impeachment of a witness after statements concerning past criminal conduct), overruled on other grounds by Ex parte Moreno, 245 S.W.3d 419, 425 (Tex. Crim. App. 2008); Abshire v. State, 62 S.W.3d 857, 861 (Tex. App.—Texarkana 2001, pet. ref'd) (extraneous evidence admissible because door was opened and evidence admissible to rebut a defensive theory). But for the exception to apply, there must be an unambiguous false impression of law abiding behavior. See Delk, 855 S.W.2d at 704-05. To determine the admissibility of such impeachment evidence, courts consider (i) how broadly the question asked might be interpreted, (ii) evidence that might reflect the question's tenor, and (iii) the question's relationship to the substantive issues in the case. Id.
In addition, when a witness's blanket assertion of exemplary conduct "is directly relevant to the offense charged," the opponent may both cross-examine the witness and offer extrinsic evidence rebutting the statement. See Daggett v. State, 187 S.W.3d 444, 453 n. 24 (Tex. Crim. App. 2005); Winegarner v. State, 235 S.W.3d 787, 791 (Tex. Crim. App. 2007).
But even if a witness opens the door to admitting extraneous evidence, the trial court still has the discretion to exclude it. Texas Rule of Evidence 403 provides that relevant evidence may be excluded "if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." "The rule gives the trial court considerable latitude to assess the courtroom dynamics, to judge the tone and tenor of the witness' testimony and its impact upon the jury, and to conduct the necessary balancing." Winegarner, 235 S.W.3d at 791.
Rule 403 favors the admissibility of relevant evidence and presumes that the probative value of relevant evidence exceeds any danger of unfair prejudice. Montgomery, 810 S.W.2d at 389; Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009). The rule, however, provides for the exclusion of evidence when there is a clear disparity between the degree of prejudice the evidence's probative value. Hammer 296 S.W.3d at 568; see also Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007) ("In keeping with the presumption of admissibility of relevant evidence, trial courts should favor admission in close cases."). Evidence is unfairly prejudicial only when it has "an undue tendency to suggest that a decision be made on an improper basis." Reese v. State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000).
2. Issues One, Three, and Four: Was the trial court's exclusion of evidence concerning Wife's prior violent acts an abuse of discretion?
In three issues, appellant argues that he should have been allowed to cross-examine Wife about her prior specific acts of violence, including (i) the incident in which she threw their personal property around the house and at him before she was taken to a psychiatric hospital, (ii) a police report describing an incident alleging that she attempted to kick her son's girlfriend's mother, and (iii) the allegation that she slashed the neighbor's tires. Appellant urges that this evidence was admissible to rebut the false impression that Wife was not a violent person, to show her bias in falsely accusing him, and to show the nature of their relationship. But only the first of these argued bases for admission was preserved for our review because it is the only argument that was raised in the court below. See TEX. R. APP. P. 33.1; Cisneros v. State, 692 S.W.2d 78, 82-82 (Tex. Crim. App. 1985) (error regarding admission or exclusion of evidence not preserved absent a timely, specific objection identifying the evidence and setting forth the specific grounds for the objection). Therefore, we limit our discussion to the narrow question concerning the exclusion of extraneous evidence offered to rebut a false impression that Wife was not a violent person.
We note at the outset that Wife's propensity for violence and whether she physically provoked the incident in question were not at issue. Instead, appellant's theory was that he had the right to eject her from his apartment; he did not argue self-defense or that Wife was the aggressor in this instance. And even if we were to assume that Wife's testimony about her oath was a blanket statement of good conduct, neither the statement nor the "bad acts" evidence appellant was seeking to introduce were directly relevant to the charged offense.
Next, we consider the statement itself and the context in which it was made. We do not view "I took an oath to do no harm" as an unequivocal statement that Wife had never harmed anyone, and the context in which the statement was offered does not suggest otherwise. As Wife explained for the bill of exception, she referenced her oath with regard to caring for appellant's health. And the question itself was posed during a general inquiry about Wife's educational background and profession.
If we had made the trial ruling, we might have ruled differently. But this presents a question on which reasonable minds could differ. Therefore, we cannot conclude that the trial judge acted outside the bounds of reasonable disagreement and defer to that ruling. See Pawlak v. State, 420 S.W.3d 807, 810 (Tex. Crim. App. 2013) (trial court's ruling "must be upheld if it is within the zone of reasonable disagreement"); Winegarner, 235 S.W.3d at 791 (Rule 403 "allows different trial judges to reach different conclusions in different trials on substantially similar facts without abuse of discretion"). We therefore resolve appellant's first, third, and fourth issues against him.
3. Second Issue: Did the trial court abuse its discretion by excluding evidence about wife's unemployment status?
Wife testified that she experienced pain from the assault, but she did not go to the hospital for that pain because she was unemployed, had no health insurance, and could not afford an ambulance. She also said she was afraid that she would be unable to get back into the apartment if she left for the hospital.
Appellant asked Wife on cross-examination whether she had been unemployed for a couple of years. The State lodged a relevance objection, which the trial court sustained. Appellant responded, "She indicated she was in-between her work insurance and her Medicaid disability. If she hasn't worked for two or three years, how long does it take to transfer it?" The judge repeated that the objection was sustained. Appellant now argues that this ruling was erroneous because the length of Wife's unemployment related to her credibility, and the question would have demonstrated that Wife could have gone to the hospital because she was likely covered by or eligible for Medicaid coverage. According to appellant, Wife's refusal to accept medical care suggested that her claim about pain from the assault was not credible. We disagree.
As demonstrated at the hearing outside the jury's presence, as well as in appellant's appellate brief, he wanted the opportunity to "rebut" the notion that Wife "did not have Medicaid even though she was unemployed for two or three years."
Appellant was allowed to cross-examine Wife concerning her version of events and to question her credibility. Nothing prevented appellant from challenging Wife's statement that she did not seek medical care because she could not afford it, he was just required to do so without referencing the length of her unemployment or eligibility for Medicaid.
Moreover, Wife's eligibility for Medicaid was not relevant because such eligibility was not a fact of consequence to the action. Although appellant contends that it pertained to her credibility, Wife's unemployment status does not necessarily establish eligibility for Medicaid. And even if she was eligible for Medicaid, it does not establish that she received it or that an ambulance was included in such coverage. Thus, on this record, excluding testimony about Medicaid eligibility or the length of Wife's unemployment was not outside the zone of reasonable disagreement. See Pawlak, 420 S.W.3d at 810. We thus resolve appellant's second issue against him.
4. Fifth and Sixth Issues: Did the trial court abuse its discretion by admitting evidence suggesting that appellant previously assaulted wife?
Wife testified that "something terrible happened" whenever appellant had a certain look in his eyes. Appellant objected under evidence rules 401, 402, 403, and 404(b), and his objections were overruled. Appellant now characterizes this as testimony that he had previously assaulted Wife, and argues the trial court erred in admitting it because it was improper character evidence and unfairly prejudicial. As discussed below, we disagree because (i) there was no definitive statement concerning extraneous conduct, (ii) the evidence was admissible to show the nature of the relationship between appellant and Wife and to rebut the defensive theory that Wife fabricated the assault, and (iii) the trial court could reasonably conclude that the probative value of the evidence outweighed the potential for unfair prejudice.
Appellant also makes the same complaint about Wife's 911 call that was played for the jury. In that call, Wife said "he's beating me up; I'm tired of it." This evidence, however, was admitted without objection and then raised again, without objection, in closing argument. Thus, the argument was not preserved for our review. See TEX. R. APP. P. 33.1.
During the hearing regarding Wife's testimony about something bad happening, there was general disagreement about whether she testified in the past tense that "something bad happened," or in the present tense that "something bad happens." The distinction is immaterial for this analysis. Either way, the testimony was not an unambiguous statement that appellant had assaulted Wife in the past. See Delk, 855 S.W.2d at 704-05.
The trial court did not explain the basis for its ruling, but the State urged at trial that the trial court could reasonably have concluded that even if the statement suggested prior assaultive conduct, it was admissible under code of criminal procedure article 38.371, which allows testimony concerning the nature of the relationship between the actor and the victim. See Garcia v. State, 201 S.W.3d 695, 703 (Tex. Crim. App. 2006). Similarly, the court could also have concluded that the evidence was admissible to refute the defensive theory that Wife fabricated the assault. See Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003).
Specifically, the statute provides that, subject to the Rules of Evidence, a party may offer relevant testimony about the relationship between the actor and the victim that would assist the trier of fact in determining whether the actor committed a family violence assault. See id. Appellant now argues that the statute should be treated as a substantive change to the rules of evidence, but he did not raise this theory in response to the State's argument in the court below.
While the record does not specifically reflect that the trial judge conducted the balancing test, we presume that the judge has engaged in the required balancing test when he or she overrules a rule 403 objection. Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997). And appellant has not explained how the complained-of evidence was unfairly prejudicial. As we have said, the statement was ambiguous and did not reference any specific extraneous acts. Under these circumstances, we cannot conclude that the court's decision to admit the evidence was outside the zone of reasonable disagreement. See Werner v. State, 711 S.W.2d 639, 643 (Tex. Crim. App. 1986) (applying a "clear abuse" of discretion standard). We thus resolve appellant's fifth and sixth issues against him. B. Seventh (Supplemental) Issue: Was appellant harmed by the erroneous definitions in the jury charge?
Appellant's supplemental issue asserts that he was harmed by the jury charge because it did not limit the definitions of the intentional, knowing, and reckless mental states to the results of the assaultive conduct. The State concedes that this was error, but argues that appellant was not harmed because the error was corrected in the charge's application paragraph.
1. Standard of Review and Applicable Law
Appellate review of jury charge error is a two-step process. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). We first determine if the jury charge was erroneous. Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). If error exists, we then determine whether the error caused sufficient harm to warrant reversal. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005).
If, as here, an appellant lodges a timely objection to the instruction in the trial court, then to obtain a reversal the record need only show that he suffered some harm as a result of the error. See TEX. CODE CRIM. PROC. art. 36.19; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g), superseded on other grounds by rule as stated in Rodriguez v. State, 758 S.W.2d 787, 788 (Tex. Crim. App. 1988). This standard requires us to find that the defendant "suffered some actual, rather than merely theoretical, harm from the error." Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).
In evaluating whether there was some harm, we consider "the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Barron v. State, 353 S.W.3d 879, 883 (Tex. Crim. App. 2011) (quoting Almanza, 686 S.W.2d at 171).
2. Did the jury charge contain error?
Penal code § 6.03 provides three "conduct elements" that can be involved in an offense: (1) the nature of the conduct, (2) the result of the conduct, and (3) the circumstances surrounding the conduct. TEX. PENAL CODE ANN. § 6.03; McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). A trial court errs by failing to limit the definitions of the culpable mental states to the conduct element or elements of the offense to which they apply. See Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995).
A person commits assault if the person intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse. TEX. PENAL CODE § 22.01(a)(1). An offense defined by causing bodily injury—such as assault causing bodily injury—is a result-of-conduct offense. See Garfias v. State, 424 S.W.3d 54, 60 (Tex. Crim. App. 2014). This means that a defendant must possess the requisite culpable mental state relative to the result of his conduct. See Landrian v. State, 268 S.W.3d 532, 537 (Tex. Crim. App. 2008).
Here, the mental state definitions in the charge's abstract paragraphs were not limited to the result of conduct element; they also included the other two conduct elements—the nature and circumstances of the conduct. Accordingly the charge contains error.
3. Was appellant harmed by the erroneous charge?
Having determined that the charge contains error, the question is whether that error caused appellant some harm. We conclude that it did not because the application paragraph correctly addressed the proper mental state and the State did not argue the case otherwise.
Considering the charge as a whole, we note that the charge instructed that assault is committed if a person "intentionally or knowingly or recklessly causes bodily injury to another." In the application paragraph, the terms intentionally, knowingly, or recklessly directly modify the phrase "causes bodily injury." Specifically, that paragraph provides:
[I]f you believe from the evidence beyond a reasonable doubt, that [Appellant] . . . did unlawfully then and there, intentionally, knowingly, or recklessly cause bodily injury to . . . [Wife], by grabbing or by pulling on or by striking [Wife] with a hand, then you will find [Appellant] guilty as charged in the Information . . . .Thus, the facts, as applied to the law in the application paragraph pointed the jury to the appropriate part of the definitions. Moreover, the application paragraph did not discuss the mental state elements with reference to the circumstances or the nature of appellant's conduct. See Hughes v. State, 897 S.W.2d 285, 297 (Tex. Crim. App. 1994).
Regarding closing argument, the State emphasized that the elements of the offense required a finding that appellant committed the offense by "knowing and/or recklessly causing bodily injury." The State also reminded the jury of these elements again later in the argument. And the State made no argument concerning the "nature of the conduct" or the "circumstances surrounding the conduct" (the two erroneous components of the mental state definitions). We find no other relevant information in the record.
Appellant further contends that the evidence did not unequivocally show that he acted with a culpable mental state when he removed Wife from his home. Instead, he asserts that the evidence shows that he intended to remove Wife, "not necessarily to harm her." A culpable mental state, however, is almost always proven by circumstantial evidence. See Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. [Panel Op.] 1978). The jury could infer the requisite mental state from appellant's conduct itself. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (intent may be inferred from circumstantial evidence such as acts, words, and conduct of the accused); Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002) (intent may be inferred from acts, words, and conduct, as well as the method of committing the crime and the nature of the wounds inflicted).
In view of the foregoing, based on the entire record, the jury charge as a whole, and the arguments of counsel, we conclude that including the erroneous instruction in the jury charge's abstract portion did not harm appellant. We overrule appellant's seventh (supplemental) issue.
III. Conclusion
Having resolved all of appellant's issues against him, we affirm the trial court's judgment.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE Do Not Publish
TEX. R. APP. P. 47
160711F.U05
JUDGMENT
On Appeal from the County Criminal Court No. 10, Dallas County, Texas
Trial Court Cause No. MA-1462666-L.
Opinion delivered by Justice Whitehill. Justices Fillmore and Boatright participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered July 11, 2017.