Douglas Allan Ashford v. The State of Texas--Appeal from County Court at Law No. 4 of Travis County

Opinion filed February 8, 2007

In The

Eleventh Court of Appeals

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   No. 11-05-00357-CR

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   DOUGLAS ALLAN ASHFORD, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from County Court at Law No. 4

Travis County, Texas

Trial Court Cause No. 698708

O P I N I O N

Douglas Allan Ashford was convicted by the trial court of the Class A misdemeanor offense of assault with a family violence finding. After assessing punishment at confinement for one year and a fine of $4,000, the trial court probated the sentence and the fine and placed appellant on community supervision for a period of two years. We affirm.

Appellant presents one point of error in which he contends that the evidence is legally insufficient to support his conviction, that he was denied his constitutional right to confront a witness against him, and that the trial court erred in admitting hearsay. The State asserts that appellant has presented nothing for review because his briefing is inadequate. We note that appellant has filed a reply brief in which he more fully sets out his arguments. While we acknowledge that appellant=s point is multifarious and could be overruled on that basis, we will nevertheless address the merits of appellant=s contentions. See Euziere v. State, 648 S.W.2d 700, 704 (Tex. Crim. App. 1983).

To determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and 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 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000). Appellant was charged with and convicted of intentionally, knowingly, or recklessly causing bodily injury to Jacquelyn Michele Nielson, a family or household member, by seizing Nielson=s arm and neck with his hand and by striking Nielson in the head with his hand. See Tex. Pen. Code Ann. ' 22.01 (Vernon Supp. 2006).

The record shows that appellant and Nielson lived together in an apartment with their child and that appellant and Nielson had an altercation during the early morning hours of April 22, 2005. Only two witnesses testified at trial: Nielson=s mother and appellant. Nielson=s mother, Claudette Ottis Watkins, testified that she received two phone calls from her daughter during the early morning hours of April 22. Watkins related that Nielson sounded very scared and upset on the phone. Nielson was crying. During the first phone conversation, Nielson said that she was afraid of what appellant might do to her. Watkins told Nielson to leave the apartment and come to Watkins=s house. During the second phone conversation, Nielson was again crying. Nielson stated that she and appellant had been fighting. Nielson later arrived at Watkins=s home. Nielson was still scared, crying, and upset. Nielson had bruises on her arms and chest and also had a busted lip. Nielson told Watkins that appellant had grabbed her by the throat and threatened to kill her, that he tried to choke her, and that he grabbed her by the arms and threw her up against the wall. Watkins took pictures of the marks on Nielson=s body. The pictures were admitted into evidence.

Appellant testified and admitted that he had had an altercation with Nielson on the night in question. Appellant testified that the altercation occurred after he told her to pack her stuff and leave the apartment. According to appellant, however, Nielson was the aggressor and appellant acted in self-defense. He denied threatening to kill Nielson and stated that the bruises and busted lip must have been inflicted when he was trying to restrain her after she had bitten him in the abdomen and tried to kick him.

We hold that the evidence is legally sufficient for the trial court to have found beyond a reasonable doubt that appellant intentionally, knowingly, or recklessly caused bodily injury to Nielson and that Nielson was a member of his family or household.

Next, appellant contends that much of Watkins=s testimony was hearsay and that it violated his constitutional right to confront Nielson, the real witness against him. The record shows that appellant made numerous objections on these grounds at trial. With respect to the hearsay contention, we recognize that a trial court has broad discretion in determining whether evidence is admissible as an exception to the hearsay rule. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). The record reflects that the statements made by Nielson to Watkins about the confrontation with appellant were made at a time when Nielson was clearly scared, upset, and crying. Thus, we hold that the trial court did not abuse its discretion in admitting such statements under the excited utterance exception to the hearsay rule. See Tex. R. Evid. 803(2).

Appellant also objected to the statements made by Nielson to Watkins about Nielson=s absence from the trial and the reason for that absence. The trial court did not abuse its discretion in admitting such evidence. Watkins=s testimony showed that appellant sent e-mails to Nielson at work. Watkins testified that she saw these e-mails, but she did not testify regarding their content. However, their threatening nature was apparent from the testimony. Because the e-mails were not offered into evidence as out-of-court statements offered to prove the truth of the matter asserted, they were not hearsay. See Tex. R. Evid. 801(d). Moreover, under Tex. R. Evid. 801(e)(2), an out-of-court statement made by a party and offered against him at trial is not hearsay.

The trial court also allowed Watkins to testify that Nielson left Texas and did not come to court to testify against appellant because she was scared. According to Watkins, Nielson was scared because somebody had been following her and because of the content of the e-mails that appellant had sent on the Friday before trial. Nielson=s statement regarding her state of mind B being scared to testify against appellant B constitutes an exception to the hearsay rule under Tex. R. Evid. 803(3). We hold that the trial court did not abuse its discretion in overruling appellant=s hearsay objections. Finally, appellant contends that his Sixth Amendment right to confront the witness against him was violated because he did not have the opportunity to cross-examine Nielson. U.S. Const. amends. VI, XIV. The Supreme Court has declared that, even when out-of-court statements fall into a firmly rooted hearsay exception, their admission may violate the Sixth Amendment. Crawford v. Washington, 541 U.S. 36 (2004). In Crawford, the Court held: AWhere testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.@ 541 U.S. at 68. The Court did not spell out a comprehensive definition of Atestimonial,@ but it did determine that the term Aapplies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.@ Id.

In applying Crawford to the present case, we hold that appellant=s right to confront the witness against him was not violated by the admission of Watkins=s testimony. First, Nielson=s statements were not testimonial in nature and therefore did not violate the Sixth Amendment or Crawford. Second, a defendant forfeits his Sixth Amendment right to confront the witness against him when his wrongdoing causes that witness to be absent from court. The doctrine of forfeiture by wrongdoing was accepted by the Court in Crawford, 541 U.S. at 62, and was recently upheld by the Texas Court of Criminal Appeals in Gonzalez v. State, 195 S.W.3d 114 (Tex. Crim. App.), cert denied, ___ U.S. ___, 127 S. Ct. 564, 166 L. Ed. 2d 418 (2006).

In Gonzalez, the court determined that the defendant forfeited his Sixth Amendment right to confront the witness against him even though the out-of-court statements were made to a police officer and were testimonial in nature. The court in Gonzalez determined that the defendant=s act of misconduct caused the witness=s unavailability and that some evidence indicated that the defendant acted with the intent to prevent the witness=s testimony. Id. at 124-26. Likewise, the trial court in this case could have determined that appellant forfeited his right to confront Nielson by intentionally causing her not to testify against him.

Having considered and rejected each contention asserted by appellant, we overrule his point of error and affirm the judgment of the trial court.

JIM R. WRIGHT

CHIEF JUSTICE

February 8, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.