Opinion
No. 05-14-01568-CR
04-06-2016
ROBERT ALAN NOURSE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 5 Collin County, Texas
Trial Court Cause No. 005-84640-2013
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Myers
Opinion by Justice Francis
Following a bench trial, Robert Alan Nourse was convicted of assaulting his wife. The trial court assessed punishment at 365 days in the county jail, probated for eighteen months, and a $100 fine. In his sole issue, appellant contends the trial court erred by excluding from evidence his wife's affidavit of nonprosecution. We conclude appellant's issue is without merit. On our own motion, we modify the trial court's judgment to conform to the record and affirm the judgment as modified.
Jennifer Schnell testified she is married to appellant. In May 2013, appellant came home from work early and had been drinking. Schnell said he "passed out" in the bedroom and woke up while she was talking on her cell phone. Appellant yelled for her, and when she went to see what he wanted, he jumped out of bed and was "super angry." Schnell said she was "[i]nstantly terrified" and "felt he wanted to hurt" her. Appellant asked who she was talking to and took her cell phone and smashed it into the wall. Appellant grabbed her arm, but Schnell pulled away and went outside. When she came back in, appellant hit her over the head with her laptop computer. Schnell said "it seriously hurt," and she "fell back" and "grazed" herself on the counter. Schnell said she was "terrified" and left the house on foot. While walking down the street, she called 911 from a second cellphone but had difficulty maintaining a connection. Appellant began following her in his vehicle and was yelling at her. Because she did not believe the police were going to respond and in an attempt to "diffuse" the situation, she got in the vehicle with him.
Within minutes, Officers Mike Lopez and Chad Hernandez of the Allen Police Department arrived at the scene. Both said Schnell was "upset" and had a "small abrasion" on her forehead. She identified appellant as the person who assaulted her and gave details. Appellant told the officers Schnell, upset about not having any money, grabbed her laptop and hit herself in the head with it. After talking with both appellant and Schnell, the police arrested appellant. Schnell was taken to the hospital for medical treatment.
On cross-examination, Schnell acknowledged signing an affidavit of nonprosecution one week after the incident. She admitted the affidavit and her trial testimony were "different." Specifically, she acknowledged stating in the affidavit that she and appellant had a "tug of war" over the laptop, appellant let go, and it "came up" and hit her in the forehead. Defense counsel then offered the affidavit into evidence, but the State objected on hearsay grounds. Defense counsel argued the affidavit was admissible as a statement against interest and also as a prior inconsistent statement. In response to the prosecutor's continued argument that the document was hearsay, defense counsel specifically told the court, "I get to ask it line by line or you get to read it." The trial court ruled the affidavit inadmissible "for right now" but said counsel could "ask your questions line by line." Appellant then went through the affidavit, as it pertained to the incident, line by line, pointing out that Schnell had said (1) she and appellant "were arguing but not fighting", (2) had a "tug of war" over the laptop, (3) that appellant "let go" of the computer and it "came up" and hit her in the forehead, (4) she was "injured and upset" and called the police, and (5) she did not believe appellant hit her intentionally or on purpose.
On redirect, Schnell explained appellant "begged" her to file an affidavit of nonprosecution saying she lied to the police and exaggerated the incident. She went to his attorney's office with him, where she and appellant collaborated on the contents of the affidavit, which she signed. Schnell said she was "conflicted" and "torn." Later that same day, she wrote appellant's attorney and told him not to submit the affidavit to the court because it was "completely false." Appellant did not later re-offer the affidavit.
In his sole issue, appellant argues the trial court erred by refusing to admit Schnell's affidavit of nonprosecution. He argues that "[f]ailure to admit the statement caused harm to Appellant because it showed the [trial court] did not give the full weight of the probative value of a statement against interest, an exception to hearsay versus limited statements made by the complainant that were considered only for impeachment."
We have reviewed the record and, in particular, appellant's references to it, and see no support for appellant's position the trial court considered Schnell's oral testimony regarding the affidavit for impeachment purposes only. The trial judge made what appeared to be a preliminary ruling, saying, "Well, for right now I am not going to admit it. You can go and ask your questions line by line." This ruling does not indicate the judge would consider Schnell's testimony for only limited purposes. Appellant's counsel then went through the affidavit line by line with Schnell and elicited the details of how she said she was injured; counsel did not re-offer the document. Under the circumstances, even if we assumed the affidavit was admissible, any error in excluding it was cured when Schnell testified to its contents. See Tollett v. State, 422 S.W.3d 886, 896 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd) (concluding any error stemming from trial court's exclusion of medical report rendered harmless by EMT's testimony on substance of report). We overrule the sole issue.
Although neither party has raised the issue, our review of the record reveals errors in the trial court's judgment. The judgment here is titled, "JUDGMENT - PLEA OF GUILTY BEFORE COURT - COMMUNITY SUPERVISION." In the body, the judgment states appellant pleaded "Guilty or Nolo Contendere" to the information and the court assessed a fine of "$1,000.00" (in addition to placing appellant on community supervision). The reporter's record, however, shows appellant waived a jury trial and pleaded not guilty to the charge. It also reflects the trial court orally assessed a "$100 fine plus court costs."
When the oral pronouncement of sentence in open court and the written judgment conflict, the oral pronouncement controls. Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003). The solution is to modify the written judgment to conform to the sentence orally pronounced. Id. The reviewing court has the power to modify judgments to make the record speak the truth when it has the necessary data and information. Thompson, 108 S.W.3d at 290; Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref'd). This authority is not dependent upon a request by a party nor does it turn on the question of whether a party has objected in the trial court. Asberry, at 529-30.
Accordingly, we modify the trial court's judgment to reflect (1) appellant pleaded not guilty and (2) the court assessed a $100 fine. We affirm the judgment as modified. We order the trial court to enter a new judgment that reflects these modifications. Do Not Publish
TEX. R. APP. P. 47.2(b)
/Molly Francis/
MOLLY FRANCIS
JUSTICE 141568F.U05
JUDGMENT
On Appeal from the County Court at Law No. 5, Collin County, Texas
Trial Court Cause No. 005-84640-2013.
Opinion delivered by Justice Francis; Justices Lang-Miers and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
To reflect (1) appellant pleaded not guilty and (2) the trial court assessed a $100 fine.We AFFIRM the judgment as MODIFIED. We ORDER the trial court to enter a new judgment that reflects these modifications. Judgment entered this 6th day of, 2016.