Williams v. State

Full title: MARK ANTHONY WILLIAMS, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 28, 2007

No. 05-06-00797-CR (Tex. App. Mar. 28, 2007)

Opinion

No. 05-06-00797-CR

March 28, 2007. DO NOT PUBLISH. Tex. R. App. P. 47

On Appeal from the 195th Judicial District Court Dallas County, Texas, Trial Court Cause No. F05-00561-SN.

Before Justices Whittington, O'Neill, and Francis.

OPINION

Opinion By Justice WHITTINGTON.

Mark Anthony Williams appeals his conviction for felony assault involving family violence. See Tex. Pen. Code Ann. § 22.01(a)(1), (b)(2) (Vernon Supp. 2006). After finding appellant guilty, the jury assessed punishment, enhanced by two prior felony convictions, at fifty years' confinement. In seven issues, appellant claims the evidence is legally and factually insufficient to support his conviction, the trial judge erred in admitting certain evidence and in sustaining the State's objection to appellant's jury argument, and appellant's fifty-year sentence is cruel and unusual punishment in violation of both the United States and Texas constitutions. We affirm the trial court's judgment. Ginger Edwards lived with appellant for approximately one year. During their relationship, appellant was arrested and convicted for assaulting Edwards in March 2003. In July 2003, he was arrested a second time, again for assaulting Edwards. Following his second conviction, this appeal ensued. Appellant raises two complaints about the admission of the State's Exhibit No. 9, a certified copy of the judgment and sentence relating to his first assault conviction from County Criminal Court Number 10. Under his first issue, appellant claims the admission of this exhibit violated his Sixth Amendment confrontation right. At trial, however, appellant objected to the exhibit because it was hearsay. A trial objection to "hearsay" does not preserve error that the admission of evidence violated a defendant's rights under the Confrontation Clause. Paredes v. State, 129 S.W.3d 530, 535 (Tex.Crim.App. 2004); see Reyna v. State, 168 S.W.3d 173, 179 (Tex.Crim.App. 2005) (explaining that when objection is not sufficiently specific and can be construed as falling under either rules of evidence or Confrontation Clause, objection is not preserved for appeal). Because appellant objected to the evidence on hearsay ground only, he failed to preserve this issue for review. See Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App. 2000) (because appellant did not object to error under Confrontation Clause, he waived argument on appeal). We overrule appellant's first issue. Under his second issue, appellant claims "there appears to be no applicable hearsay exception" that would allow the State to introduce Exhibit No. 9. Appellant concedes that the exhibit is properly authenticated. We review a trial judge's decision to admit or exclude evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). Absent an abuse of discretion, we do not disturb a trial judge's ruling on the admissibility of evidence. See Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App. 2000); Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994). We view the evidence in the light most favorable to the trial judge's ruling. See Corbin v. State, 85 S.W.3d 272, 282 (Tex.Crim.App. 2002). Hearsay is a statement, other than one made by the declarant while testifying at the trial, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay is not admissible except as provided by statute or the rules of evidence. Tex. R. Evid. 802. Business records and public records are not excluded by the hearsay rule. Tex. R. Evid. 803(6), (8). At trial, the prosecutor offered Exhibit No. 9. After defense counsel examined the exhibit, he asked to approach the bench. An off-the-record discussion ensued, after which the prosecutor again offered Exhibit No. 9. Defense counsel objected "on the grounds of hearsay." A general objection is insufficient to apprise the trial judge of a defendant's specific complaint. See Barnes v. State, 876 S.W.2d 316, 329 (Tex.Crim.App. 1994) (citing Jones v. State, 843 S.W.2d 487, 492 (Tex.Crim.App. 1992) for proposition that trial court need never sort through challenged evidence to segregate admissible from excludable, nor is trial court required to admit only former part or exclude only latter part; if evidence is offered and challenged which contains some of each, trial court may safely admit or exclude, and losing party, no matter who he is, will suffer on appeal consequences of "insufficiently specific offer or objection"), overruled on other grounds by Maxwell v. State, 48 S.W.3d 196, 200 (Tex.Crim.App. 2001) (holding defendant is permitted to cross-examine State's witness on status of his deferred adjudication probation in order to show potential motive, bias or interest to testify for State). Nevertheless, the trial judge overruled appellant's objection and admitted the exhibit. We conclude the exhibit was properly admitted as an exception to the hearsay rule under either the business or public records exception. See Todd v. State, 598 S.W.2d 286, 292 (Tex.Crim.App. 1980) ("It is well settled that the attestation of a district clerk of a county of this State, upon a copy of a judgment or sentence received and filed by that district clerk, is alone sufficient to render such documents admissible into evidence for the truth of the matters stated therein."); Tex. R. Evid. 803(6), (8). We overrule appellant's second issue. In his third and fourth issues, appellant contends the evidence is legally and factually insufficient to support his conviction. Under his legal sufficiency challenge, appellant claims there is no evidence to show the victim in the prior assault (used to elevate the assault in this case to a felony) was a family member. Under his factual sufficiency challenge, he argues the "record is beset with telltale inconsistencies regarding the complainant's account of the events in issue." We disagree with both contentions. When reviewing challenges to the legal and factual sufficiency of the evidence, we apply well-known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In a legal sufficiency review, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005); Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004), cert. denied, 544 U.S. 950 (2005); Simmons v. State, 109 S.W.3d 469, 472 (Tex.Crim.App. 2003). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of evidence contradicts the jury's verdict. Watson, 204 S.W.3d at 417. We cannot conclude a conviction is "clearly wrong" or "manifestly unjust" simply because we would have voted to acquit. Watson, 204 S.W.3d at 417. The jury is in the best position to evaluate the credibility of the witnesses, and our factual-sufficiency jurisprudence still requires an appellate court to afford "due deference" to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). Although the reviewing court is permitted "to substitute its judgment for the jury's" when considering credibility and weight determinations, it may do so only "'to a very limited degree.'" Marshall, 210 S.W.3d at 625 (citing Watson, 204 S.W.3d at 417). A person commits an offense if he intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse. Tex. Pen. Code Ann. § 22.01(a)(1). The offense is a felony of the third degree if the offense is committed against

a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03, 20.04, or 21.11 against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code.

Tex. Pen. Code Ann. § 22.01(b)(2). This section requires the State prove that the defendant has been previously convicted of an assault and that the assault was committed against a member of his family or household. Mitchell v. State, 102 S.W.3d 772, 775 (Tex.App.-Austin 2003, pet ref'd). The State can meet this burden by introducing a previous judgment of conviction for assault, along with extrinsic evidence that the victim of that assault was a member of the defendant's family or household. Mitchell, 102 S.W.3d at 775. During trial, Edwards testified that, on July 27, 2003, appellant's aunt DeAnna visited their home. Appellant had left the house, and when he returned, Edwards noticed he had been drinking. Appellant wanted to take Edwards's daughter's car, but Edwards told him he could not. When appellant took the keys, Edwards insisted he could not use the car. Appellant then became "very upset, very violent." He grabbed Edwards's arms and pushed her into the wall. He continued to push her toward the fireplace until she fell back into a plant sitting in front of the fireplace. She got up but he pushed her into the fireplace. Edwards tried to call 9-1-1 but appellant threatened to beat her. He again took the car keys. When appellant's aunt asked why he was hitting Edwards, he became violent with her and threatened to kick her. He left the house, and Edwards called the police. When they arrived, the police took Edwards's statement, DeAnna's statement, and photographs of Edwards's injuries although she declined medical attention. The officers told Edwards to lock her door and call the police if appellant returned. When appellant returned later, Edwards called the police. Appellant was subsequently arrested. Edwards also testified appellant pleaded guilty to assaulting her in March 2003 and that at the time of that assault, she and appellant were living together. Two police officers testified. Officer Jeff Rose testified he responded around 5:10 p.m. to Edwards's first call. He took her statement and photographs of her bruises. He also took DeAnna's statement which corroborated Edwards's. Officer Rose did not recall if Edwards said appellant had been drinking or whether the plant had been overturned when appellant pushed Edwards into it. The officer testified Edwards was scared and feared appellant would return. Officer Damon Jackson testified he responded to Edwards's second call around 8:45 p.m. He likewise did not know if appellant had been drinking. He confirmed appellant's identity and arrested him. The prosecutor offered the State's Exhibit No. 9 which contains a certified copy of the April 16, 2003 judgment in which appellant was found guilty of misdemeanor assault and a certified copy of the information that alleges appellant assaulted the complainant, Ginger Edwards, and "at the time of the offense, the complainant was a member of the defendant's family and household." Officer Billy Washington of the Dallas County Sheriff's Department ID Section, testified he took appellant's fingerprints prior to trial. He compared the prints he personally took from appellant with the fingerprint on the April 16, 2003 judgment and confirmed appellant was the person convicted of assault in that judgment. After reviewing the evidence, we conclude the State met its burden of showing appellant was previously convicted of an assault and that the assault was committed against a member of his family or household. See Mitchell, 102 S.W.3d at 775. Therefore, the evidence is legally sufficient to support the finding that the victim in the prior assault was a family member. We overrule appellant's third issue. With respect to appellant's fourth issue, we note that our review of a factual sufficiency challenge must be appropriately deferential so as to avoid intruding upon the jury's role as sole judge of the weight and credibility of the witnesses' testimony. The evidence here shows appellant pushed Edwards into a wall, a plant, and a fireplace, Edwards was bruised and scared, and appellant's aunt was present and corroborated Edwards's story. In this case, the jury chose to believe Edwards's testimony that appellant assaulted her. After reviewing all the evidence in this case and giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we cannot conclude the great weight and preponderance of evidence contradicts the jury's verdict. See Watson, 204 S.W.3d at 417. Because the jury was rationally justified in finding guilt beyond a reasonable doubt, we conclude the evidence is factually sufficient to support appellant's conviction. See Watson, 204 S.W.3d at 417. We overrule appellant's fourth issue. In his fifth issue, appellant claims the trial judge erred in sustaining the prosecutor's objection to appellant's jury argument. Under this issue, appellant claims that the trial judge erred because juries have the power to nullify a trial judge's instructions, and refusing him the opportunity to argue jury nullification was "improper and prejudicial," left the jury "with the impression that they did not possess the power to nullify." The law on jury nullification in Texas "is limited and generally applies to the sentencing phase of capital punishment cases." Stefanoff v. State, 78 S.W.3d 496, 502 (Tex.App.-Austin 2002, pet. ref'd). Although jury nullification exists in our judicial system, there is no constitutional right to jury nullification, and there is no constitutional requirement that the jury be instructed on nullification. Ramos v. State, 934 S.W.2d 358, 367 (Tex.Crim.App. 1996); Stefanoff, 78 S.W.3d at 502; Mouton v. State, 923 S.W.2d 219, 221 (Tex.App.-Houston [14th Dist.] 1996, no pet.). In this case, the trial judge sustained the prosecutor's objection to appellant's argument on nullification. Because there is no constitutional right to instruct the jury on nullification, we cannot conclude the trial judge erred in sustaining the objection. We overrule appellant's fifth issue. In his sixth and seventh issues, appellant contends his fifty-year sentence is "cruel and unusual punishment in violation" of the Eighth and Fourteenth Amendments to the United States Constitution and of article I, section 13 of the Texas Constitution. Appellant complains his sentence is disproportionate to the crime. The right to be free from cruel and unusual punishment may be waived by failing to object. Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.). Appellant did not object to the jury charge on punishment which stated the punishment range was for "life or for any term of not more than 99 years or less than 25 years." Nor did he object when the trial judge pronounced the sentence. Finally, appellant did not raise the issue in his motion for new trial. Because appellant failed to assert this argument in the trial court, he has waived his complaint on appeal. See Castaneda, 135 S.W.3d at 723. We overrule appellant's sixth and seventh issues. We affirm the trial court's judgment. MARK WHITTINGTON JUSTICE