Patrick, Michael Jerome v. The State of Texas--Appeal from Co Crim Ct at Law No 15 of Harris County

Affirmed and Memorandum Opinion filed February 13, 2003

Affirmed and Memorandum Opinion filed February 13, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00325-CR

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MICHAEL JEROME PATRICK, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law Number 15

Harris County, Texas

Trial Court Cause No. 1093564

M E M O R A N D U M O P I N I O N

A jury found appellant guilty of a class A misdemeanor assault, and the trial court sentenced appellant to seventy-two days in the Harris County Jail. On appeal, appellant complains that (1) the trial court erred in admitting oral statements by the complainant, (2) the State failed to prove each element of the offense charged in the information, and (3) the trial court erred in refusing to grant a mistrial. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Two police officers were dispatched to an apartment complex because of a domestic disturbance. When they got to the apartment complex, they saw appellant standing in the street with a cut on his ear. After questioning appellant, he explained that he and his girlfriend, LaQuanna Smith, had gotten in a fight earlier that night. Appellant revealed that he received the cut on his ear because Smith threw a plate at him. As appellant went to the hospital, the officers were dispatched to another location in the apartment complex. When the officers reached the apartment they discovered a broken plate outside. The apartment appeared as if a fight had just taken place, and the woman inside the apartment appeared disheveled and was upset. The officers quickly learned the woman was Smith, appellant s girlfriend. The officers noticed fresh scratch marks and bruising on Smith s neck, and she appeared to have just been hit. Smith told the officers appellant had hit her, and he had attempted to choke her because she was going to take money from her ex-boyfriend.

At trial the two police officers testified to the dispute.[1] The jury found appellant guilty of assault, and the trial court assessed punishment at seventy-two days= incarceration.

DISCUSSION

Appellant raises three issues on appeal. In his first issue, appellant contends the trial court erred in admitting oral statements of Smith as an excited utterance. Second, appellant complains the State did not prove every element of the offense as charged in the information. Finally, appellant asserts the trial court erred when it refused to grant appellant=s motion for a mistrial.

I. Excited Utterance

First, appellant contends the trial court erred by allowing Smith=s statement in evidence as an excited utterance. The decision to admit or exclude evidence rests solely within the discretion of the trial court. Williams v. State, 535 S.W.2d 637, 639B40 (Tex. Crim. App. 1976). A trial court=s decision will not be overturned absent a clear abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 390B91 (Tex. Crim. App. 1990). Here, we do not find the trial court abused its discretion.

Rule 803 defines an excited utterance as a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Tex. R. Evid. 803(2). To determine if a statement qualifies as an excited utterance, (1) the statement must be the result of a startling occurrence, (2) the declarant must be under pain, fear, or emotion of the occurrence, and (3) the statement must relate to the circumstances surrounding the startling occurrence. Couchman v. State, 3 S.W.3d 155, 159 (Tex. App.CFort Worth 1999, no pet.). This Court may also consider how much time has elapsed between the startling event and the statement. See Wood v. State, 18 S.W.3d 642, 652 (Tex. Crim. App. 2000) (determining a fourteen-hour delay is excessive for an excited utterance exception); Ross v. State, 879 S.W.2d 248, 249 (Tex. App.CHouston [14th Dist.] 1994, writ ref=d) (holding that statement within thirty to forty-five minutes of an attack was an excited utterance).

Approximately thirty minutes after being called to the complex, the officers spoke with Smith. She was visibly upset and frightened. She told the officers that her boyfriend had accused her of taking money from an ex-boyfriend. She also said appellant hit her and choked her. At trial, appellant objected to hearsay throughout the officer=s testimony, and the State argued the testimony fell under the excited utterance exception to hearsay.[2]

The State satisfied the excited utterance exception to hearsay. First, the statements Smith told the officers were the result of the startling occurrenceCthe assault by appellant. Second, she was in pain from a bleeding lip and a bruised face. The officers testified she was shaking, her voice was quivering, and she was nervous. Third, the statements she told the officers related to the assault. She described the person who caused the altercation and the reasons behind it. Finally, Smith gave the statements to the officers approximately thirty minutes after the altercation. Considering all the evidence, Smith clearly made the statements while still dominated by the excitement of appellant=s assault. The trial court did not abuse its discretion in admitting the statements as excited utterances, and we overrule appellant s first issue.

II. Proving Elements in the Information

Second, appellant complains that the State did not prove every element of the offense as charged in the information. Appellant essentially raises a legal insufficiency claim. We find the State proved the three elements in the information appellant complains about.

When reviewing the legal sufficiency of the evidence, this Court must view the evidence in the light most favorable to the verdict, and this Court must 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, 61 L. Ed. 2d 560 (1979); Garrett v. State, 851 S.W.2d 853, 857 (Tex. Crim. App. 1993). This standard of review applies to cases involving both direct and circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). On appeal, this Court does not reevaluate the weight and credibility of the evidence, but we consider only whether the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).

First, appellant claims the State did not sufficiently prove identity. Appellant asserts no witness actually identified him as the individual who hit Smith. We disagree. The State linked appellant to the crime through circumstantial evidence. Smith told the officers her boyfriend choked her. Through more questioning, the officers ascertained Smith=s boyfriend was appellant. Both appellant and Smith told the officers a similar set of facts regarding the domestic dispute that occurred in their apartment complex. Appellant told the officers a plate was thrown at his ear, and when the officers questioned Smith, they discovered a broken plate outside her apartment. Appellant, when questioned at the hospital, admitted he struck Smith, but only in self-defense. All of this evidence is legally sufficient to establish the jury reached a rational decision that appellant was the same man who struck Smith.

Next, appellant argues the State did not prove he attacked Smith with his hand. Again, we disagree. Both police officers, the only witnesses in this case, testified that Smith told them her boyfriend choked her. One officer testified that Smith told him appellant struck her with his fist. Choking and striking someone with a fist are both activities done with one=s hands. This evidence is legally sufficient to establish the jury reached a rational decision that appellant struck Smith with his hand.

Finally, appellant contends appellant=s requisite intent was not established because neither of the testifying officers witnessed the assault. We disagree. It is well established that criminal intent can be inferred from circumstantial evidence, such as the extent of the victim=s injuries. See Wolfe v. State, 917 S.W.2d 270, 275 (Tex. Crim. App. 1996); Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). A factfinder can infer intent from the acts, conduct, and remarks of appellant and from the surrounding circumstances. Allen v. State, 478 S.W.2d 946, 947 (Tex. Crim. App. 1972); Withers v. State, 994 S.W.2d 742, 746 (Tex. App.CCorpus Christi 1999, pet. ref'd).

Uncontradicted testimony exists regarding Smith=s injuries. Smith had a bleeding lip, she had scratches and bruising on her neck, and she appeared as if she had been hit. The jury was free to believe either side, and chose to believe the State=s view of the facts. Appellant=s acts, as well as the nature of the wounds inflicted upon Smith, were sufficient for the jury to infer appellant intended to cause bodily injury. Even though this evidence is circumstantial, the jury concluded appellant intentionally and knowingly caused bodily injury to Smith. This evidence is legally sufficient to establish the jury reached a rational decision that the State proved appellant=s intent to cause bodily injury. Therefore, we find the jury=s verdict on all three issues was rational, and we overrule appellant s second issue.

III. Failing to Grant a Mistrial

Finally, appellant argues the trial court erred by not granting appellant a mistrial for violating a motion in limine. A trial court=s denial of a mistrial is reviewed under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). Here, because the trial court instructed the jury to disregard the statement, a mistrial was not required.

A mistrial is an extreme remedy and is only appropriate when the event is so emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against the defendant. Lusk v. State, 82 S.W.3d 57, 60 (Tex. App.CAmarillo 2002, pet. ref d); see also Shepard v. State, 915 S.W.2d 177, 179B80 (Tex. App.CFort Worth 1996, writ ref d) (holding a repeated comment on defendant=s failure to testify warranted a mistrial). Generally, an instruction to disregard is sufficient to cure error when evidence of an extraneous offense is placed before the jury in violation of a motion in limine. Lusk, 82 S.W.3d at 61; see also Richards v. State, 912 S.W.2d 374, 378 (Tex. App.CHouston [14th Dist.] 1995, writ ref d). However, if the error is extremely prejudicial and cannot be withdrawn from the juror s minds, then a mistrial is the correct remedy. See id. at 60.

Prior to trial, appellant filed a motion in limine requesting the State not to discuss extraneous offenses. When the State questioned Officer Nelson about his investigation, he violated the motion in limine. He stated, in part, the following:

Q [The State]: What did you do next?

A [Officer Nelson]: After we interviewed Ms. LaQuanna Smith, we determined that she was the complainant and Mr. Patrick was the suspect. He was already at LBJ at that time, and we ran his information that he had provided us, his name, date of birth and found out that he had a warrant.

MR. ACOSTA: Your Honor, I object.

The trial court sustained the objection. Then, the trial court sua sponte instructed the jury to disregard the officer s last comment. After the trial court dismissed the jury, appellant moved for a mistrial, which the trial court denied.

Appellant properly objected to the violation, but appellant s attorney did not ask for an instruction to disregard. Nonetheless, the trial court instructed the jury to disregard, and we presume the jury followed the trial court=s instructions. See Waldo v. State, 746 S.W.2d 750, 752B53 (Tex. Crim. App. 1988). This breach of the motion in limine was inadvertent and isolated. Officer Nelson=s single reference to a warrant was not so emotionally inflammatory that the trial court s instruction to disregard could not have cured all error. Lusk, 82 S.W.3d at 60. Also, the witness, not the State, violated the motion in limine by giving an unresponsive answer to the prosecutor s question. Given the mild nature of the breach and the fact the evidence was not solicited by the State, the trial court did not abuse its discretion in denying appellant s motion for a mistrial. Ladd, 3 S.W.3d at 567. Appellant s final issue is overruled.

In conclusion, we overrule all of appellant s issues and affirm the judgment of the trial court.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Opinion filed February 13, 2003.

Panel consists of Chief Justice Brister, Justices Fowler and Edelman.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Smith did not testify for either the State or the defense. The defense did not present any testimony at trial.

[2] Appellant does not specifically point this Court to the place in the record where he objects to hearsay and is overruled. He directs this Court=s attention to the phrase Ashe was just assaulted by her boyfriend,@ as the trial court=s error. However, the testimony appellant complains about was objected to, and the trial court sustained appellant=s objection because the State had not satisfied the predicate to an excited utterance exception. Later, the State did satisfy the predicate, appellant again objected, and the trial court overruled the objection. Even though appellant does not point this Court to that testimony, we will assume that testimony is the subject of appellant=s first issue on appeal.