Gruenfelder, Daniel Joseph v. The State of Texas--Appeal from 291st District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

DANIEL JOSEPH GRUENFELDER,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

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No. 08-02-00149-CR

Appeal from the

291st District Court

of Dallas County, Texas

(TC# F 0037284 LU)

O P I N I O N

Daniel Joseph Gruenfelder appeals his conviction of aggravated sexual assault. He was sentenced to fifty years= confinement by the jury. He presents five issues. He challenges the legal and factual sufficiency of the evidence to support the findings of the offense. He argues the trial court erred in excluding key defense testimony, that he was denied the right to effective assistance of counsel, and that the trial court abused its discretion in failing to conduct a motion for new trial hearing on his allegation of jury misconduct. We affirm.

I

Beginning at 2:30 a.m. on September 11, 2000, appellant set about a series of beatings and sexual assaults of his then spouse, the complainant. Except for one brief respite, he kept her locked inside their Mesquite home. After a lengthy argument, appellant sexually assaulted complainant. He told her to Afix it@ and forced his penis into her mouth, while grabbing the back of her head, pushing himself into her. The complainant testified she did what she was told in fear of being knocked in the head again, which had already occurred several times before this particular moment. When she tried to stop, appellant again grabbed her head and yanked her forward. While complainant was sitting down crying, he led her by the hand to the sofa, bent her over, then sodomized her. She tried to stop appellant with words but did not physically fight him off out of fear because she had been slapped around for several days before. A neighbor came over to mediate the relationship and in her presence, appellant boxed complainant in the side of the head with his fist, two times. Appellant threatened to deface the complainant, take all her fingerprints off her body, and take out all her teeth so she could not be identified. After the neighbor left, appellant again slapped the complainant across the face and accused her of lying to him. During this argument, appellant struck the complainant in the eye. In one attempt to leave the house, appellant intercepted her and kicked her in the legs, crotch, and stomach. The complainant said she was petrified. Appellant again kicked complainant in the face and Abusted my lip with his foot.@ Photos of the complainant showed black eyes, bruising on her legs, her buttocks and upper arm, and cigarette burns on her right leg. When complainant=s brother came and removed his sister from the residence, appellant pulled a knife from under the sofa and appeared to be enraged.

Appellant testified and defended on the basis of consent and the fact he was recuperating from an auto accident which hospitalized him for three days. He denied causing any injuries and explained the cigarette burns to his wife were accidental.

II

In reviewing legal sufficiency, the courts look at all of the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002) (citing Jackson). Legally sufficient evidence supporting a conviction exists if the court, after reviewing the evidence in the light most favorable to the prosecution, determines that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979).

In determining factual sufficiency, we look at all of the evidence in a neutral light, and will reverse only if the evidence supporting guilt is so obviously weak as to render the conviction clearly wrong and manifestly unjust, or if that evidence, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez, 67 S.W.3d at 236; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)). The court reviews the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compares it with the evidence that tends to disprove that fact. Id. We are authorized to disagree with the fact finder=s determination. Id. (citing Clewis, 922 S.W.2d at 133). This review, however, must employ appropriate deference to prevent an appellate court from substituting its judgment for that of the fact finder, and any evaluation should not substantially intrude upon the fact finder=s role as the sole judge of the weight and credibility given to witness testimony. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996); cf. Johnson, 23 S.W.3d at 8. The complete and correct standard a reviewing court must follow to conduct a Clewis factual sufficiency review of the elements of a criminal offense asks whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson, 23 S.W.3d at 11.

III

In his legal sufficiency argument, appellant asserts the complainant never attempted to call the police, left the residence and returned home, didn=t initially tell her sister to call police, and refused rape crisis services. He points to medical exams that showed normal genitalia, and the fact that no sperm was detected in the specimens taken. He reiterates his own injuries, the fact he was run over by a vehicle and sustained a compound fracture of the right shoulder blades and a compression fracture. With these injuries, plus numerous leg and body injuries, appellant was not physically able to assault the complainant. Appellant urges the evidence and testimony failed to prove lack of consent. He cites McGaheyv. State, 744 S.W.2d 695 (Tex. App.--Fort Worth 1988, pet. ref=d). AConsent is a defensive theory which vitiates sexual assault, aggravated or otherwise.@ Id. at 697. We agree. He argues the complainant=s testimony she was physically assaulted and threatened was shown to be false and more specifically appellant was physically unable to assault the complainant as she averred. He argues due process requires proof beyond a reasonable doubt of every fact necessary to constitute the crime citing In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). He cites state cases to the same effect concluding that the State failed to show aggravated sexual assault where the overall conduct, viewed in the totality of the circumstances, placed the victim in fear of death or serious bodily injury. See Lindsey v. State, 672 S.W.2d 892, 894-95 (Tex. App.--Dallas 1984), aff=d, 760 S.W.2d 649 (1988). We agree with the stated principles argued by appellant. However, as the State urges, we are to review all the evidence in the light most favorable to the verdict. Vasquez, 67 S.W.3d at 236. The complainant testified that at least on two occasions appellant forced oral sex. While it is true that appellant testified the sexual acts were consensual, this was directly contradicted by the complainant, whose testimony was also corroborated by her injuries, photos, and hospital records. We conclude a rational trier of fact could have found appellant forced complainant=s submission by the use of physical force. Barnett v. State, 820 S.W.2d 240, 241 (Tex. App.--Corpus Christi 1991, pet. ref=d) (double amputee straddled complainant=s chest, moved victim=s head, pushed it back on pillow and forced him down when he tried to get up; issue is whether sufficient evidence exists to show that appellant compelled submission by the use of actual force). We overrule appellant=s first issue.

Next appellant attacks the factual sufficiency of the verdict. He cites Johnson v. State for the proposition that an appellate court can consider only those matters bearing on credibility that can be fully determined from a cold record. Johnson, 23 S.W.3d at 8 (some credibility assessment allowed but assessment usually requires deference to jury=s conclusion). He argues insufficient evidence points should be sustained where there is either insufficient evidence to support a finding of a vital fact or the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. Goodman v. State, 66 S.W.3d 283, 285-86 (Tex. Crim. App. 2001). Appellant argues the second prong of a factual sufficiency analysis, that the finding of is so contrary to the great weight and preponderance as to be clearly wrong and unjust. He says complainant=s testimony was not credible or reliable. The argument again proceeds that complainant never contacted the police during the time of the assault, though she had phone access. She left the residence at least once but returned. Appellant was severely injured and was incapable of an assault. Appellant testified he never struck or threatened her and the sex was consensual. Other factors challenged the complainant=s veracity. The complainant admitted she had previously stabbed herself with a fork though she had told the police appellant did the stabbing. The complainant refused her sister=s offer to call police. A friend of appellant testified the complainant was a liar and had admitted to him complainant had lied to police. A Mesquite police officer testified concerning appellant=s written statement and reported that appellant could not write due to his injuries. In his statement, appellant said the marks of complainant were purely accidental Afrom me not wanting her to leave.@ He said he loved his wife, the sex was passionate, and seductive on her part. He tried to hold her and she fought to get away. They bumped into several walls. And somehow, accidentally, his cigarette got pressed against her leg and burned her. Appellant also admitted pulling a knife on complainant=s brother.

The State counters that complainant testified appellant was almost recovered within a week of the accident. He was able to move heavy furniture. The neighbor witnessed appellant striking complainant and yanking her hair. Appellant=s own testimony admitted of three sexual encounters. We agree with the State that the jury was free to reject appellant=s testimony of incapacity (as well as his claim of consent). See Johnson, 23 S.W.3d at 8. Complainant testified she did not call the police because of fear she would be beaten some more and the police would not arrest him. AAnd I didn=t want to be hit on anymore.@ Testimony from the neighbor, family members, medical evidence of injury and photos also largely support complainant=s testimony and independently gave rise to reasonable inferences of physical assaults. Ultimately, the critical consent issue came down to the jury=s assessment of the conflicting testimony between the complainant and the appellant. We cannot say that the finding is so contrary to the great weight and preponderance as to be clearly wrong and unjust. Goodman, 66 S.W.3d at 285-86; see also Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex. Crim. App., 2003).

Appellant=s second issue is overruled.

Next, appellant challenges the limitation of direct examination of the defense witness Christine Dykes. Dykes was a co-worker of appellant, but only knew him a couple of months. She observed the complainant pick up appellant a few times. Her only contact with the complainant was a single incident. The witness stated complainant was kind of irate, a little jealous. When asked what the complainant said, the court sustained the State=s hearsay objection. The defense also asked if the incident was related to appellant and she said yes. The court again sustained the objections of leading, relevance, and hearsay. The defense passed the witness, there was no cross-examination, and the witness was released. The defense attorney proffered further testimony of the witness, that the complainant confronted her in a jealous rage and accused her of having sex with appellant. Defense counsel stated the complainant had testified she was not jealous of appellant and his activities with other women. He argued the testimony was relevant to the issue of consent and the general credibility and bias of the witness. On appeal, appellant now argues that the proffered testimony was relevant and its exclusion harmful.

Sadly, appellant does not address the State=s other trial objections of leading and hearsay. While we can overlook the failure to address the Aleading@ objection, to overlook the hearsay objection is problematic. Hearsay is a somewhat more complex critter, with more exceptions than any other rule of evidence. See Tex. R. Evid. 803. Perhaps the testimony was offered as a statement which is not hearsay. Tex. R. Evid. 801(e)(1) (prior statement of witness). But we are not favored with either an argument or citation to the record. Perhaps the statement was not offered for the truth of the matter stated, and thus was not hearsay. Tex. R. Evid. 801(d). No such offer was made at trial. Facially, hearsay is not admissible, except as provided by statutory or regulatory authority. Tex. R. Evid. 802. In any event, appellant fails to inform us why the trial court abused his discretion by sustaining a hearsay objection. Thus, he has failed to comply with briefing requirements. Tex.R.App. P. 38.1(h) (brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and record). We decline to brief this issue for appellant and speculate how the trial court was possibly in error on a ruling that is not attacked on appeal. See Salazar v. State, 38 S.W.3d 141, 147 (Tex. Crim. App. 2001).

In any event, if the trial court abused its discretion, we do not perceive that the exclusion of complainant=s accusation that appellant may have committed adultery with a co-worker was harmful. Considering the significant evidence delineated above, including multiple sexual attacks, injuries, black eyes, photographic evidence, hospital records of injuries, eyewitness accounts of assaults, cigarette burns, and even appellant=s own statements, we cannot conclude that the exclusion of one possibly relevant statement of a co-worker had a substantial and injurious effect or influence in determining the jury=s verdict. See Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). Appellant=s third issue is overruled.

In his fourth issue, appellant asserts his trial counsel was ineffective because he failed to offer photographic evidence of appellant=s extensive injuries. To show that trial counsel was ineffective, appellant must demonstrate that: (1) trial counsel=s performance was deficient because it fell below an objective standard of reasonableness; and (2) a probability existed, sufficient to undermine confidence in the outcome, that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Strickland states that judicial scrutiny of counsel=s performance must be highly deferential and that a reviewing court Amust indulge a strong presumption that counsel=s conduct falls within the wide range of reasonable professional assistance . . . .@ Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. This case is typical because Athe record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel=s actions.@ Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). The record is silent as to why appellant=s trial counsel did not offer the photos into evidence. It may well have been counsel=s strategy to focus on the credibility of the complainant, and not give evidence that would focus attention on appellant=s claimed incapacity, particularly when he admitted three sexual encounters. Trial counsel should ordinarily be afforded an opportunity to explain his actions before being found ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). Based upon this record, we cannot conclude that appellant has established that trial counsel=s performance fell below an objective standard of reasonableness in order to satisfy the first prong of Strickland. Id. Appellant=s fourth issued is overruled.

Finally we turn to the last issue where appellant complains of the trial court=s failure to conduct a hearing on his motion for new trial on the basis of jury misconduct. A defense witness signed an affidavit attached to the motion for new trial stating he overheard two jurors in conversation about the case, before the case was submitted to the jury. The affidavit averred one juror asked the other: AWhat do you think?@ The other replied, AWe haven=t heard all of it yet, but I think he is going away for a long time.@ The motion was timely filed and overruled by the court January 31, 2002, fourteen days after its filing, apparently without a hearing. Appellant primarily relies on Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993). There the court held: A. . . when an accused presents a motion for new trial raising matters not determinable from the record, upon which the accused could be entitled to relief, the trial judge abuses his discretion in failing to hold a hearing pursuant to Rule 31(d).@ Id. Appellant also argues from McIntire v. State, 698 S.W.2d 652, 660 (Tex. Crim. App. 1985). The McIntire court held: AIn the face of a timely motion for new trial supported by sufficient affidavit, a trial court which denies an accused this opportunity abdicates its fact finding function and denies the accused a meaningful appellate review.@ Id. (emphasis added).

The State counters a trial court does not err by not holding a hearing on a motion for new trial when none is requested. The State cites Gallegos v. State, 76 S.W.3d 224, 228 (Tex. App.--Dallas 2002, pet. ref=d).[1] The Gallegos court held: AA trial court is not required to convene a hearing on a motion for new trial absent a request by the movant for such a hearing.@ Id. (citing Brooks v. State, 894 S.W.2d 843, 847 (Tex. App. --Tyler 1995, no pet.); and Edwards v. State, 37 S.W.3d 511, 515 (Tex. App.--Texarkana 2001, pet. ref=d)). Our review of the motion for new trial finds no request for hearing in the body of the motion. Nor is there a fiat or other order suggesting the trial court set the matter for hearing. Rather, there is a certificate of service which is immediately followed by only a one line order for the judge to sign, either granting or overruling the motion. Appellant points to nothing in the record remotely suggesting to the trial court a request for a hearing and we find none. We can only conclude the trial court accommodated the only request appellant made; he ruled on the attached motion for new trial. We hold that where there is neither a request for a hearing nor even a pleading or order suggestive to the trial court that a hearing is requested, it is not an abuse of discretion not to set the matter for hearing. Id. Cf. Reyes v. State, 82 S.W.3d 351, 353 (Tex. App.--Houston [1st Dist.] 2001, no pet.) (hearing mandatory where attached to the motions are fiats and proposed orders for a hearing date). Appellant=s fifth issue is overruled. The judgment is affirmed.

DON WITTIG, Senior Justice

October 16, 2003

Before Panel No. 5

Barajas, C.J., Larsen, and Wittig, JJ.

(Wittig, J., sitting by assignment)

(Do Not Publish)

[1]We also note that this appeal was transferred from the Dallas Court of Appeals. While not bound by that precedent, we believe both comity and predictability of the law would argue that we not ignore precedent from the jurisdiction where the case was tried.