Opinion
No. 10-17-00111-CR
01-31-2018
ROBERT NATHANIEL, Appellant v. THE STATE OF TEXAS, Appellee
From the 19th District Court McLennan County, Texas
Trial Court No. 2015-1634-C1
MEMORANDUM OPINION
In three issues, appellant, Robert Nathaniel, challenges his conviction for assault family violence by occlusion. See TEX. PENAL CODE ANN. § 22.01 (West Supp. 2017). Specifically, appellant contends that: (1) he suffered substantial harm when the jury heard opinion testimony from a witness that was not qualified as an expert and had no personal knowledge on the subject about which he opined; (2) the trial court abused its discretion in allowing opinion testimony when the witness was not qualified as an expert and had no personal knowledge of the facts upon which he based his opinion; and (3) the evidence is insufficient to support appellant's conviction. Because we overrule all of appellant's issues on appeal, we affirm.
I. THE TESTIMONY OF WACO POLICE OFFICER W. TERRY MEALS
In his first two issues, appellant complains about the testimony provided by Waco Police Officer W. Terry Meals both at the guilt-innocence and punishment phases of trial, arguing that Officer Meals was not qualified as an expert and that he lacked knowledge of the facts about which he testified. We disagree.
The first exchange that appellant complains about occurred during the guilt-innocence phase of trial and was comprised of the following:
Q [The State]: And so you're aware that the Defendant on the night in question told the officers that were out there that he was assaulted with the tire iron and that the victim was the primary aggressor, and he was the one hurt. Then you also have her version of what happened. Does—does the evidence that was out there that night support anything about the Defendant being the victim in this case?Appellant did not object to this exchange in the trial court.
A [Officer Meals]: No. This—this is not a—this is not a—these pictures are not of self-defense. That—this—these pictures on her are of an assault. Self-defense wounds, you—you—you don't lay on someone's neck with an object or even a hand or scratch him out of self-defense. This is—this is something that shows that the person who do [sic] this was the aggressor.
"A timely and specific objection is required to preserve error for appeal." Luna v. State, 268 S.W.3d 594, 604 (Tex. Crim. App. 2008); see TEX. R. APP. P. 33.1(a)(1)(A). "An objection is timely if it is made as soon as the ground for the objection becomes apparent, i.e., as soon as the defense knows or should know that an error has occurred." Grant v. State, 345 S.W.3d 509, 512 (Tex. App.—Waco 2011, pet. ref'd) (citing Neal v. State, 256 S.W.3d 264, 279 (Tex. Crim. App. 2008)).
As regards specificity, all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). Because appellant failed to timely and specifically object to the complained-of testimony, we conclude that appellant failed to preserve for review his appellate complaints regarding Officer Meals's testimony during the guilt-innocence phase of trial. See TEX. R. APP. P. 33.1(a)(1)(A); Luna, 268 S.W.3d at 604; Neal, 256 S.W.3d at 279; Lankston, 827 S.W.2d at 909; see also Grant, 345 S.W.3d at 512.
Next, appellant challenges the following testimony from Officer Meals during the punishment phase of trial:
Q [The State]: And so one of the—you were in here while I just read the State's exhibit, and one of the things that we've discussed about this Defendant is when you have someone that at a young age is already committing offenses with deadly weapons and then continues to
commit violent offenses, what does that say to you about that offender?Officer Meals then testified to the following without an objection:
A [Officer Meals]: It's—it's really not a normal escalation. It's—most people have a filter system that tells them right from wrong.
[Defense counsel]: Your Honor, I'm going to object to his testimony. He—he's not qualified—they haven't laid a proper foundation for him to testify as to what the effects of a crime in the future may lead to. I—I don't believe he has the qualifications to testify in—in answer to that type of question.
[The State]: Your Honor, I believe in his original testimony—I can go ahead and—and re-go over all of his training and experience, but I believe in his training and experience in 33 years or 32 years of law enforcement and the recidivism and seeing violent offenders commit violent offenses again he is very much a qualified expert, and he has been noticed as an expert in this case.
[Defense counsel]: He's been noticed as an expert as far as family violence, but as far as recidivism and—and the population that commits crimes and what the recidivism rate is as they get older, you know, that's a study that psychologists determine or sociologists determine. I don't believe he has the qualifications to testify as to whether or not a certain person will re-offend in the future.
[The State]: I'm not asking—
THE COURT: The objection is overruled.
In—in my experience in—in dealing with individuals over the years, the filter that tells people from right or wrong, some people can stop during a—a course of action. Some people can't. Once they commit themselves, they
go from zero to 100 miles an hour, full speed without being able to stop, and this—this is not only in everyday life but in moments of anger, emotion, or anything, and when you resort to weapons such as we have, then that—that leads me in my experience to believe that any time anything happens we're going to go full bore, go into weapons, go into—into serious assaultive offenses, and that's what we've—we've seen in this position here.
On appeal, appellant argues that Officer Meals was not qualified to opine about recidivism and future violent behavior and that his testimony was not based on personal knowledge or rational perception of any event; thus, this testimony should have been excluded.
A review of the record shows that Officer Meals testified to the same facts during the guilt-innocence phase without an objection. Therefore, any error in the admission of the complained-of testimony was cured because the same evidence came in elsewhere during trial without objection. See Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) ("An error in the admission of evidence is cured where the same evidence comes in elsewhere without objection." (citing Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991))); see also Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004). Based on the foregoing, we overrule appellant's first two issues.
II. SUFFICIENCY OF THE EVIDENCE
In his third issue, appellant asserts that the evidence supporting his conviction is insufficient. We disagree.
In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of Criminal Appeals expressed our standard of review of a sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder 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, 61 L. Ed. 2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Hooper, 214 S.W.3d at 13.Id.
Our review of "all of the evidence" includes evidence that was properly and improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting inferences, we must presume that the factfinder resolved the conflicts in favor of the prosecution and therefore defer to that determination. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. Furthermore, direct and circumstantial evidence are treated equally: "Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt." Hooper, 214 S.W.3d at 13. Finally, it is well established that the factfinder can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
The sufficiency of the evidence is measured by reference to the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability; and (4) adequately describes the particular offense for which the defendant was tried. Id. A person commits the offense of assault family violence by occlusion if he (1) intentionally, knowingly, or recklessly, (2) causes bodily injury to another, including the person's spouse, (3) the offense is committed against a person whose relationship with the defendant is described in sections 71.0021(b), 71.003, or 71.005 of the Family Code, and (4) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth. TEX. PENAL CODE ANN. § 22.01(a), (b)(2). On appeal, appellant focuses his sufficiency challenge on the fourth element listed above.
Here, appellant was charged by indictment with, among other things,
intentionally, knowingly, and recklessly causing bodily injury to MARQUISSIA LITTLE, a person with whom the Defendant has or has had a dating relationship, as described by Section 71.0021(b) of the Texas Family Code, by intentionally, knowingly, and recklessly impeding the normal breathing or circulation of blood of the said MARQUISSIA LITTLE by applying pressure to the throat or neck of the said MARQUISSIA LITTLE.At trial, Little's medical records were admitted into evidence without objection. These records indicated that Little mentioned in her statement for medical treatment that appellant "choked her with his hands, struck her head into the ground multiple times[,] and choked her until she lost consciousness." Hospital staff also noted that Little had an abrasion on the right side of her neck that caused her some mild burning. Registered Nurse Brian Eubanks noted that Little's injuries were consistent with abuse.
In addition, Little's injuries were photographed by police at the scene of the crime. These photographs indicated prominent marks on the right side of Little's neck, as well as bleeding from her ear. In her testimony, Little confirmed the statements she made to hospital staff on the night of the assault. She also testified that appellant was "on top of me choking me" and that she "got dizzy" and her vision became blurred as a result of the choking. Little believed that, as a result of the choking, appellant could kill her. Additionally, law enforcement observed blood on the floor of the apartment where Little claimed she was assaulted.
However, despite the foregoing, appellant directs us to, among other things, the testimony of Little's neighbor, Regina Magee, who noted that Little came to her apartment around 4:00 a.m. after the incident occurred. Magee did not see any injuries on Little, and she characterized the mark on Little's neck as a "scratch." Additionally, Magee recounted that she went over to Little's apartment later that morning and did not see anything broken or out of place, implying that a struggle might not have occurred. Furthermore, appellant emphasizes that Little later went to the District Attorney's Office to drop the charges against appellant, but the State would not agree to do so. Officer Meals testified that this is common in family-violence cases because "[t]hey've thought about it, and they've made promises. 'Oh, I'll do better; I won't do this again; I'm sorry, honey,' but they—but the primary thing is that they do want to drop the charges and forget all about it and move on down with their life."
Viewing the evidence in the light most favorable to the verdict, we conclude that the evidence was sufficient for the jury to have determined beyond a reasonable doubt that appellant was guilty of assault family violence by occlusion. See TEX. PENAL CODE ANN. § 22.01(a), (b)(2); see also Lucio, 351 S.W.3d at 894; Hooper, 214 S.W.3d at 13. And to the extent that the evidence conflicts, we are to defer to the jury's resolution of such inconsistencies in the evidence. See Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. App. 2008); see also Render v. State, 316 S.W.3d 846, 859 (Tex. App.—Dallas 2010, pet. ref'd) ("An appellate court must give deference to a jury's decision regarding what weight to give contradictory testimonial evidence because the decision is most likely based on an evaluation of credibility and demeanor, which the jury is in a better position to judge."). Accordingly, we overrule appellant's third issue.
III. CONCLUSION
Having overruled all of appellant's issues on appeal, we affirm the judgment of the trial court.
AL SCOGGINS
Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Affirmed
Opinion delivered and filed January 31, 2018
Do not publish
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