Summary
observing that appellant "acknowledges that this case involves a 'he-said/she-said dispute of facts' from which the jury was entitled to decide who to believe"
Summary of this case from Ofurum v. StateOpinion
NO. 02-15-00113-CR
03-31-2016
ZACHARY R. ROBINSON APPELLANT v. THE STATE OF TEXAS STATE
FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY
TRIAL COURT NO. CR-2014-07472-A MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. Introduction
In two issues, appellant Zachary R. Robinson challenges the sufficiency of the evidence to support his conviction of interference with an emergency call. We affirm.
II. Factual and Procedural Background
Rachel Kimberling, a registered nurse, and Robinson, an engineer-turned-firefighter, started dating in 2011 and later moved in together. By the time of the incident at issue here, Robinson had moved out of the house but was in the process of assuming the mortgage so that he could buy the house from Kimberling.
Late one night, after an argument over Robinson's infidelity escalated, Kimberling left the house to seek her neighbor's help. The police were summoned, and Robinson was subsequently arrested and tried for the class A misdemeanor offenses of assault causing bodily injury-family violence and interference with an emergency call.
The jury found Robinson not guilty of assault but guilty of interference, assessed a sentence of 180 days' confinement, and recommended that Robinson's sentence be suspended and that he be placed on community supervision. The trial court followed the jury's recommendation, suspended the sentence, and placed Robinson on fifteen months' community supervision. This appeal followed.
III. Sufficiency of the Evidence
Robinson was charged with knowingly preventing or interfering with Kimberling's ability to place an emergency telephone call to a law enforcement agency. See Tex. Penal Code Ann. § 42.062(a) (West Supp. 2015); Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (stating that sufficiency is measured by charged offense's statutory elements as modified by charging instrument); Schumm v. State, No. 02-15-00102-CR, 2015 WL 8528890, at *2 (Tex. App.—Fort Worth Dec. 3, 2015, no pet.) (reciting the elements of interfering with an emergency call).
The penal code defines "knowingly," as,
A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to the result of his conduct when he is aware that his conduct is reasonably certain to cause the result.Tex. Penal Code Ann. § 6.03(b) (West 2011). It defines "emergency" within the context of section 42.062, as
a condition or circumstance in which any individual is or is reasonably believed by the individual making a call or requesting assistance to be in fear of imminent assault or in which property is or is reasonably believed by the individual making the call or requesting assistance to be in imminent danger of damage or destruction.Id. § 42.062(d) (West Supp. 2015). And it defines "reasonable belief" as "a belief that would be held by an ordinary and prudent man in the same circumstances as the actor." Id. § 1.07(a)(42) (West Supp. 2015).
Robinson complains that a rational trier of fact could not have found beyond a reasonable doubt that (1) Kimberling reasonably believed herself to be in fear of imminent assault (an emergency) or that (2) he knowingly prevented her from making a phone call or interfered with her ability to make a phone call.
A. Standard of Review
In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. at 319, 99 S. Ct. at 2789; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198 (2015).
The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we determine whether the necessary inferences are reasonable based upon the cumulative force of the evidence when viewed in the light most favorable to the verdict. Murray, 457 S.W.3d at 448. We must presume that the factfinder resolved any conflicting inferences in favor of the verdict and defer to that resolution. Id. at 448-49.
B. Evidence
1. The State's Case
Joshua Johnson, Kimberling's neighbor, called 911 about a domestic disturbance shortly after midnight on September 8, 2014, after he heard the sound of glass breaking, grabbed his gun, went outside to investigate, and noticed Kimberling crying nearby. In the five-minute phone call, Johnson reported to the 911 operator that when he first went outside, he observed Kimberling running from her house. He described her as being in obvious distress, scared to death, and limping. Johnson told the 911 operator that Kimberling had said something about her boyfriend going crazy, and he asked the operator to send police "code 3" and provided a description of Robinson's truck. The trial court admitted into evidence a recording of the 911 call and allowed it to be published to the jury.
Johnson, also a firefighter, explained that he gave the call a high priority code, requesting the police to come with lights and sirens, because of Kimberling's "panic and fear" and Robinson's size. Kimberling testified that she was 5'7" and weighed 145 pounds. Robinson, a former college football player, was substantially bigger and stronger.
Johnson testified that after he placed the 911 call and before the police arrived, Robinson drove back to the house, at which time Robinson and Kimberling exchanged some words that were "partly trying to reconcile, still trying to argue." Although he could not recall exactly what was said, he did overhear Kimberling ask Robinson to "please get out of the truck." Robinson drove off again shortly before the police arrived.
According to Kimberling, earlier that evening she and Robinson had dined out together and had planned that he would stay over at the house that night. Once they went to bed, however, they began arguing. During the argument, Robinson squeezed Kimberling's arm, which she said hurt her. When Robinson got up from bed and started walking into the hallway, she followed him, threatening him that if he did not leave, she would call the police. In response, according to Kimberling, Robinson grabbed her cell phone out of her hand. Since there was no land line at the house, the cell phone was Kimberling's only option for summoning the police.
In what Kimberling characterized as an ongoing attempt to retrieve her cell phone from Robinson so she could call 911 for help, she continued to pursue him as he made his way to the front door of the house. Over the course of her pursuit, Kimberling stated that Robinson smashed her hand in the bedroom door, kicked an ottoman in her way causing her to trip, smashed her foot in a bedroom door, put her in a closet that he blocked with an armoire, pulled her hair, put a fan remote control in her mouth, and put her on the bed and piled blankets over her head. At some point, Kimberling also intentionally kicked out a bedroom window. According to Kimberling, when she finally told Robinson she was going to the neighbor's house to call the police, he chased her down and tore her shirt as he attempted to pull her away from the front door. The trial court admitted into evidence various photographs taken at the scene, including photographs of Kimberling's hand and foot, her torn shirt, the window that Kimberling broke, the blankets, the fan remote control, and the armoire located near the closet door.
Kimberling admitted that she had threatened to call the police many times during prior arguments. She also admitted that on these prior occasions, she had never really intended to call them. Instead, all of her past threats to call the police—and an occasional threat to call his mother—were made simply to motivate him to leave.
However, Kimberling described this occasion as "most definitely" different. This time, according to Kimberling, the argument had become very physical, and she was afraid that she might be physically harmed. Kimberling stated that when she threatened to call 911 during this argument, she fully intended to make good on her threat to call for help.
Within minutes of receiving Johnson's call, Flower Mound patrol officer Daniel Hooton arrived at the scene, where he observed Kimberling sitting on the curb. According to Officer Hooton, Kimberling was crying and seemed distraught, and she reported to him that her boyfriend had taken off and that he had hurt her.
Shortly thereafter, Officer Hooton located Robinson and questioned him about the events of the evening. Officer Hooton's testimony about what Robinson told him parallels the patrol vehicle's dashboard camera recording of their conversation. The trial court admitted into evidence the camera footage, which was published to the jury.
During the thirty-minute video, Robinson told the officer that after he and Kimberling had argued, she told him that she did not want to "hang out" any more. According to Robinson, as he began to leave, she started asking, "Where's my phone, where's my phone?" At that point, Robinson said he tried to go into another room to avoid her, but she followed him. When he got to the living room, she was screaming at him, but he tried to get out of her way. He told Officer Hooton that she pushed him, trying to take what he thought at the time was his own phone. Robinson said that he tried to explain to Kimberling that there was no reason to call the police and tried to assure her that he would find her phone and give it to her, but she said that it was too late. She went outside, and Robinson said that he waited for a moment to see if she would come back in and talk. Then he looked outside, saw her sitting on the curb, and asked her if she really wanted him to stay or for him to go. She told him that she really wanted him to go.
In response to questions about the broken window, Robinson initially told the officer that he did not know or remember why Kimberling kicked out the window. He also assured Officer Hooton that Kimberling had not done anything that bothered or harmed him. However, when pressed, Robinson retreated from that position, and upon further questioning, Robinson told Officer Hooton that Kimberling kicked out the window when the argument first started because she was angry.
When asked about Kimberling's hand and foot, Robinson said that Kimberling had put her hand and foot in to stop a door but that he did not see her until he was "halfway through the slam," and he then backed out and apologized. While he acknowledged that she accused him of doing it on purpose, he claimed that it was not intentional, adding that if he had used "full power," her hand and foot would have been broken.
When asked about Kimberling's torn shirt, Robinson postulated that perhaps the shirt was designed to look like that. Robinson also denied pushing Kimberling to the ground, but he did admit that at one point, he gave her a bear hug to keep her from scratching him as she kept coming at him for the phone.
2. The Defense's Case
Robinson testified that his past infidelity was a trigger for Kimberling to get extremely angry, and while he and Kimberling had a history of arguing, he had never intentionally hit her or touched her offensively. And as to that particular night, when they were in bed together, Robinson denied squeezing her arm "any more than a hug. Nothing that would have hurt her." According to Robinson, when he got out of the bed to leave the room, he grabbed his keys, wallet, and the phone, which at the time he thought was his. He described Kimberling as the aggressor who followed him around and became physically combative with him.
Robinson testified that he left the house that night in an attempt to "de-escalate" the issue and also because she had asked him to leave. Once in his truck, he realized that the phone he had grabbed was indeed hers, not his, so he drove back to the house to return it to her.
With regard to the broken window, Robinson explained that he had initially tried to downplay Kimberling's aggressive behavior because he did not want to implicate her in a domestic violence dispute. Robinson explained that he thought "it made her look like she was . . . for lack of a better term, crazy," and he did not want her to appear crazy. He attributed his reluctance to discuss it with the police to his concern that Kimberling would get in trouble "since she was aggressing [him]."
As for the armoire, Robinson testified that as he was leaving, he went into the master closet to look for his shirt, and she followed him inside. According to Robinson, he then left the closet and in so doing opened the armoire door in order to provide distance between himself and Kimberling, who was chasing after him as he left the room. Robinson said that he did not know if opening the armoire door jammed the closet door but if it did, that was "absolutely not" his intent. The purpose of opening the armoire door was to give himself an extra second and slow her down.
With regard to her foot injury, Robinson testified that as he left the master bedroom, he slammed the door behind him, not realizing that Kimberling was in pursuit and that she had put her foot in the way. When he realized that her foot had been slammed in the door, he quickly opened the door and asked if she was okay, but she just yelled at him some more. The hand injury was explained in much the same manner.
Robinson reiterated that his actions that evening were designed to de-escalate the situation by removing himself from Kimberling. In addressing the ottoman, Robinson cited three reasons why he moved it, none of which involved an attempt to cause Kimberling to trip over it. According to Robinson, the ottoman was moved so he could reach his shoes, to create a path to get to the back door because he was parked behind the house, and to form a temporary obstacle to her pursuit of him—to give himself "an extra second of time to where she wasn't jumping on [him] or trying to take [his] phone or -- or the phone." Robinson testified that he never saw her hit the ottoman or fall down.
The episode concluded when Kimberling announced that she was going outside to call the police. As she left, he said he "told her that she shouldn't go outside because she looked to be half naked, and [he] told her [he] was leaving out the back, and [he] did."
According to Robinson, because of Kimberling's hysterical state, he did not believe her when she claimed the phone was hers. He said that he thought "it wasn't about really the phone with her, that she was just really wanting to further the conflict." And because the nature and circumstances of the events as they transpired that evening commanded his attention elsewhere, Robinson said he never stopped to examine the phone and to verify that it was his. But he did agree that he knew that she wanted the phone that he had, that she clearly believed it was her phone, and that she wanted it so she could call 911. Robinson stated that in retrospect, he wished he had recognized that the phone was hers when he removed it from the nightstand, but he disputed that he ever took the phone away from her.
Kimberling testified that she had an older version of the iPhone (a 5c) with no case or cover and that Robinson had a newer version of the iPhone (a 5s) with an Otterbox case over it. They also each had pass codes on their phones, and the backgrounds on the phone screens were different. Kimberling said that they were familiar with each other's phones and that she did not believe he could have possibly been confused or taken her phone thinking that it was his.
Robinson countered that while his phone normally had an Otterbox cover on it, the cover had been removed because the adapter would not fit with the cover on it. Although Robinson's phone was later found in Kimberling's car, he stated that he did not realize that he had left it there.
C. Analysis
Robinson acknowledges that this case involves a "he-said/she-said dispute of facts" from which the jury was entitled to decide who to believe. Nevertheless, he argues that Kimberling's testimony confirms that she was not in fear of him and that she just used the threat of calling the police to get him out of the house.
Robinson is correct that the record is replete with evidence that Kimberling's past threats had always been used as a bluff. However, as set out above, the jury was entitled to believe Kimberling when she testified that this time was different and that she was afraid because their argument had become physical. The jury likewise could have found from all of the evidence that Robinson knew that Kimberling wanted the phone to call 911 for help but nonetheless actively prevented her from doing so by keeping the cell phone away from her once she made her desire known.
And although some of the evidence, including Johnson's testimony regarding Kimberling's apparent attempt to convince Robinson not to leave (when she asked him to get out of the truck) and Kimberling's admitted continued pursuit of Robinson—and the phone—around the house, supports Robinson's version of the events, we cannot "sit as a thirteenth juror." Rather, we must determine whether the trier of fact, acting rationally, could have found the evidence sufficient to establish the elements beyond a reasonable doubt. Villalon v. State, 791 S.W.2d 130, 132 (Tex. Crim. App. 1990) (quoting Blankenship v. State, 780 S.W.2d 198, 206-07 (Tex. Crim. App. 1988)). The jury could have determined from the evidence above—Robinson's size, the vigor with which he defended the phone from Kimberling, and the physical evidence of their actions in the house, including a broken window—that Kimberling reasonably believed herself to be in fear of an imminent assault, even though the jury did not determine that one had actually occurred. See Franklin v. State, 193 S.W.3d 616, 620 (Tex. App.—Fort Worth 2006, no pet.) ("[T]he jury is free to accept or reject any or all of the evidence of either party, and any or all of the testimony of any witness."); see also Tex. Penal Code Ann. § 22.01(a) (West Supp. 2015) (stating that a person commits the offense of assault if he intentionally, knowingly, or recklessly causes bodily injury to another; intentionally or knowingly threatens another with imminent bodily injury; or intentionally or knowingly causes physical contact with another when he knows or should reasonably believe that the other will regard the contact as offensive or provocative); Stefanoff v. State, 78 S.W.3d 496, 501 (Tex. App.—Austin 2002, pet. ref'd) (op. on reh'g) (stating that an assault is "imminent" if it is "immediate, something that is going to happen now").
Viewing the evidence in the light most favorable to the verdict, we conclude that the jury could have found beyond a reasonable doubt that Robinson knowingly prevented or interfered with Kimberling's ability to call 911 and that she reasonably believed that she was in danger of an imminent assault. See Tex. Penal Code Ann. §§ 1.07(a)(42), 6.03(b), 42.062(a), (d); Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Murray, 457 S.W.3d at 448. Therefore, we overrule both of Robinson's issues.
IV. Conclusion
Having overruled both of Robinson's issues, we affirm the trial court's judgment.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE PANEL: DAUPHINOT, WALKER, and SUDDERTH, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: March 31, 2016