Dominguez, Juan AKA Juan Chavez AKA Juan Chavez Dominguez v. The State of Texas--Appeal from 205th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JUAN DOMINGUEZ A/K/A JUAN CHAVEZ A/K/A JUAN CHAVEZ DOMINGUEZ,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-02-00211-CR

Appeal from the

205th District Court

of El Paso County, Texas

(TC# 20010D05837)

MEMORANDUM OPINION

This is an appeal from a jury conviction for aggravated assault with a deadly weapon, namely hands and knees. The jury set punishment at seven years imprisonment. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

On February 11, 2001, Yvette Dominguez (Yvette) returned to her own home after spending the day with her twin sister Yvonne. Her husband, Appellant Juan Dominguez (Dominguez), got upset, apparently because she had spent the day with her sister and had not cooked him dinner. An argument ensued, during which Dominguez punched Yvette in the face with his fist, knocking her and their two month old baby, whom she was holding, into the dresser. He grabbed the baby, shook him, and threw him onto the bed. He proceeded to beat Yvette, kneeing her in the face and punching her all over her body, including the head. Yvette estimated that the attack lasted for thirty minutes. Yvette testified that Dominguez had over twenty years of martial arts training and that Dominguez used that training during the attack, though during cross-examination she admitted that one does not have to be a martial arts expert to make a fist.

After Dominguez stopped attacking her, he would not leave until Yvette called his cell phone and left a message saying that she had been beaten up by some Cholos. Yvette described her condition at that point:

I was just hurting everywhere, inside, so bad. I just wanted to keep breathing and keep my mentality going, because I felt like I was going to pass out. I was bleeding so bad, I couldn t control the bleeding. I was afraid that I wasn t going to be able to stop the bleeding.

And everything hurt. Everything. And my throat was swollen. And I couldn t see no more after a while. My eyes swelled up so bad I couldn t see through them no more.

My nose was so busted I had to try to breathe through my mouth.

When Dominguez left, she called Yvonne. Yvonne testified that when she arrived at the house, she saw that Yvette had been beaten up. Her eyes were swollen and closed, she had a big bump on her forehead, and she was bleeding profusely. Yvonne called the police and 911. The paramedics arrived before the police and took Yvette to the hospital.

Officer David Briones, a patrol officer for the El Paso Police Department, responded to the dispatch and was able to locate Yvette at the hospital. He noted her appearance that evening: she had bruises around her neck, on her back, and on her left arm. She was visibly upset and crying, and seemed to be in pain. He arrested Dominguez at the hospital.

After being qualified as an expert in deadly weapons, Officer Briones further testified that hands are weapons and that in his experience as a police officer he had learned of people who have died from being assaulted by hands and feet. Additionally, he has personally come across instances where victims have been severely injured by assaults with the hands and feet, including one case of serious internal injuries.

Dr. Richard Saunders, the emergency room physician who treated Yvette, testified that when he saw Yvette, she had swelling above both eyes, both orbits, her forehead, and in the right posterior skull. X-rays revealed that she had a fractured nose. She also had a small laceration above her right eyebrow. Yvette complained of hearing loss and upon inspection, they found blood behind her right eardrum. She also complained of chest pain, neck pain, and back pain. Dr. Saunders was particularly worried about a concussion, as she did not remember whether she lost consciousness. He ran a number of tests to rule out any serious bodily injuries such as subdural hematoma, cerebral contusions, orbital fractures, or fractures to the vertebrae. Such injuries, if present, could cause memory loss and a change in cognitive function. Dr. Saunders further testified that he had heard of people being seriously injured or killed by being assaulted by hands and feet, though he personally had never seen such a case.

Jeanne Ochoa testified that she met Dominguez after the assault through a dating service and began dating him. Dominguez admitted to Ochoa that he was married, that his wife had filed charges against him for assault, and that he did, in fact, assault her. He said that he beat her very badly with his hands, and that at the time of the assault, his wife was holding the child. After the incident, his wife was unidentifiable.

According to Yvette, at the time of trial she still had problems breathing through her nose, had a ringing in her right ear, pain in her lower back and ribs, and swelling in her knee.

Dominguez was indicted for aggravated assault with a deadly weapon. A jury tried Dominguez and found him guilty.

II. DISCUSSION

In Issue No. One, Dominguez asserts that the evidence is legally insufficient to establish that he used his hands and knee as deadly weapons // . When reviewing the legal sufficiency of the evidence, we must view 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 alleged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Teer v. State, 923 S.W.2d 11, 17 (Tex. Crim. App. 1996); Dominguez v. State, 62 S.W.3d 203, 205 (Tex. App.--El Paso 2000, pet. ref d). It is exclusively the jury s role to evaluate the credibility of witnesses and to weigh the evidence. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996); Hernandez v. State, 946 S.W.2d 108, 110-11 (Tex. App.--El Paso 1997, no pet.). Our only duty is to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. Dominguez, 62 S.W.3d at 205.

A person commits an assault by intentionally, knowingly, or recklessly causing bodily injury to another. Tex. Pen. Code Ann. 22.01(a)(1) (Vernon 2003). An assault becomes an aggravated assault when a person uses or exhibits a deadly weapon during its commission. Id. 22.02(a)(2). A deadly weapon is anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Id. 1.07(a)(17)(B) (Vernon 2003 & Supp. 2004). Serious bodily injury is defined as bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Id. 1.07(a)(46).

Hands and knees are not deadly weapons per se, but may become deadly weapons when they are used in a manner capable of causing death or serious bodily injury. Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App. 1983); Powell v. State, 939 S.W.2d 713, 717 (Tex. App.--El Paso 1997, no pet.); Gillum v. State, 888 S.W.2d 281, 288 (Tex. App.--El Paso 1994, pet. ref d). The State is not required to show that serious bodily injury did in fact occur, only that in the manner the hands or knees were used, they were capable of causing serious bodily injury. See Hill v. State, 913 S.W.2d 581, 584 (Tex. Crim. App. 1996). Although helpful, expert testimony is not required to establish that a weapon is a deadly weapon. Denham v. State, 574 S.W.2d 129, 131 (Tex. Crim. App. 1978); Bailey v. State, 46 S.W.3d 487, 492 (Tex. App.--Corpus Christi 2001, pet. ref d); Hester v. State, 909 S.W.2d 174, 179 (Tex. App.--Dallas 1995, no pet.).

Viewing the evidence in the light most favorable to the verdict, we cannot say that it was irrational to conclude that Dominguez s hands and knee qualified as deadly weapons. The evidence reveals that Dominguez, a big guy, had trained in the martial arts for over twenty years and that he had participated in a number of tournaments. Yvette testified that he used this martial arts training during the estimated thirty-minute assault. Both Officer Briones, who was qualified as an expert in weapons, and Dr. Saunders acknowledged that it was possible for someone to be killed or seriously injured in an assault using hands and feet. Officer Briones had personally come across at least one such case. The injuries in this case were severe enough for Dr. Saunders to worry about serious injuries, including subdural hematoma, cerebral contusions, and fractures to the vertebrae. While Dr. Saunders ruled these serious injuries out, the injuries that did occur included marked swelling around both eyes, the orbits, the forehead, the nose, the lip, and the skull. Yvette had a laceration above her right eyebrow, blood behind her eardrum that affected her hearing, a fractured nose, pain in her neck, back, and chest, and possibly a concussion. All these were a result of getting punched in the head many times, getting kneed in the head, and getting hit all over the body. Considering this evidence in the light most favorable to the verdict, we find that a rational jury could have concluded that Dominguez used his hands and knee in a manner that was capable of causing serious bodily injury. We therefore overrule Appellant s Issue No. One.

In Issue No. Two, Dominguez maintains that the trial court committed harmful error by not allowing him to question the jury panel on the concept of lesser-included offenses. During voir dire, counsel for Dominguez attempted to discuss the concept of lesser-included offenses. The State objected to voir dire on this subject. At a bench conference, counsel for Dominguez asserted that he anticipated a lesser-included offense charge and that he was entitled to examine the jury panel on the law of lesser-included offenses. He specifically stated the question he wanted to ask: I am just going to ask them if they understand the concept you can acquit on a higher charge and convict on a lower charge, and see if anybody has a problem with that. The trial court did not allow this question on the grounds that the defense had already covered lesser-included offenses when he discussed the different grades of assault and the requirements for each grade. A lesser-included offense charge was, in fact, submitted to the jury at the conclusion of evidence at the guilt/innocence phase of trial. The charge stated:

Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will find the Defendant, Juan Dominguez, not guilty of Aggravated Assault with a Deadly Weapon as charged in the indictment (Verdict Form A) and you will next consider whether the Defendant is guilty of Assault.

The elements and definitions of assault were included in the charge.

The right to counsel guaranteed by Art. I, 10 of the Texas Constitution includes a right to question prospective jurors during voir dire. Gonzales v. State, 994 S.W.2d 170, 171 (Tex. Crim. App. 1999). However, the trial court has broad discretion over the voir dire process. Sells v. State, 121 S.W.3d 748, 755 (Tex. Crim. App. 2003). Therefore, a challenge to a trial court s restrictions on voir dire questioning is reviewed for an abuse of discretion. Id. at 755-56; Moncada v. State, 960 S.W.2d 734, 736 (Tex. App.--El Paso 1997, pet. ref d). The trial court abuses its discretion when it restricts a proper question into a proper area of inquiry. Sells, 121 S.W.3d at 755-56. A question is proper if it aims at discovering a juror s views on an issue applicable to the case. Id. at 756; Moncada, 960 S.W.2d at 736. Nevertheless, a trial court may limit voir dire where the questions are duplicitous or repetitious. Dinkins v. State, 894 S.W.2d 330, 345 (Tex. Crim. App. 1995); Moncada, 960 S.W.2d at 737. If error is found, the error must be subjected to harm analysis. Gonzales, 994 S.W.2d at 171.

The trial judge disallowed the specific question regarding the ability of the prospective jurors to understand that they could acquit on a higher charge and convict on a lower charge on the grounds that the defense had already explained the difference between the different grades of an assault. In other words, the trial judge understood this question to be repetitious. An examination of the record reveals that the prosecution first discussed the different levels of assault, explaining the difference between felony assault and misdemeanor assault. The defense then questioned the venire members extensively on whether they understood the concept of proportionality and making the punishment fit the crime. He used a number of examples, including distinguishing between stealing a marker and a $2 million painting, in order to drive home the importance of proportionality. After these examples, defense counsel asked questions regarding the necessity of acquittal if the prosecution did not prove every element of aggravated assault with a deadly weapon. He then went into the specifics about the different levels of assault and what is required for each, explaining how the law of assault is built or stacked on top of each other and asking questions. After the trial court denied defense counsel the opportunity to ask his question regarding lesser-included offenses, defense counsel was allowed to ask more questions about whether the venire members thought fairness dictated that a person should be charged with and punished for only the level of offense actually committed. Thus, the record reveals that the attorneys for both the State and defense discussed the different grades of assault and what it takes to move from one level to the next. Counsel for the defendant stressed the need for proportionality and focused on whether the venire members could convict on the level of the crime actually committed and not simply what was stated in the indictment. Our review of the questions relating to the different grades of assault, the necessity of proportionality, and to convicting people only for the level of the crime actually committed reveal that the defense had explored the substance of his lesser-included offense question, such that the trial court did not abuse its discretion in finding the specific question excluded as repetitious.

Even if the trial judge erred in not permitting the specific question proffered by the defense, this error was harmless. The judge instructed the jury to consider the lesser-included offense of assault only if they found Dominguez not guilty of aggravated assault with a deadly weapon. In other words, the jury was to take up the issues sequentially and first decide whether or not Dominguez was guilty of aggravated assault with a deadly weapon. Only if they found him not guilty were they then to consider the lesser-included offense. It is presumed that the jury followed the instructions in the jury charge. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). Therefore, while the issue of a lesser-included offense was raised and submitted to the jury, the jury did not reach the lesser-included offense claim because they found Dominguez guilty of the greater offense. See Posey v. State, 840 S.W.2d 34, 41 (Tex. App.--Dallas 1992, pet. ref d) (holding that where jury convicted defendant of murder, the jury did not reach the lesser-included offense of voluntary manslaughter). Because the jury did not reach the lesser-included offense claim, any error in refusing the question about lesser-included offenses was harmless. See Dowthitt v. State, 931 S.W.2d 244, 251 (Tex. Crim. App. 1996) (holding that any error in voir dire questioning concerning lesser-included offense of murder made no contribution to the defendant s conviction or punishment as he was convicted of the greater offense of capital murder). Issue No. Two is overruled.

Lastly, in Issue No. Three, Dominguez challenges the decision of the trial court to allow evidence of extraneous bad acts during the punishment stage of the trial on the grounds that he had no notice of these extraneous bad acts. Specifically, Dominguez contends that he had no notice that the State would introduce evidence that he fathered a child out of wedlock, evidence of an incident in which Dominguez urged his son to lie to his mother, and evidence that insinuated drug and alcohol abuse. It should be noted at the outset that the evidence implying drug and alcohol use was not in fact admitted into evidence, therefore we will only discuss the first two pieces of evidence.

On March 26, 2002, Dominguez filed a motion entitled Motion To Disclose Evidence Of Other Crimes, Wrongs Or Acts And For Exclusion Of Such Evidence in which he requested that the State provide notice of extraneous acts in accordance with Rule 404(b) of the Texas Rules of Evidence. On November 26, 2001, four months prior to the defense s motion, the State provided Dominguez with its Second Amended Notice of Extraneous Offenses, which listed eighteen extraneous offenses that the State might introduce into evidence. Item #18 on this list alleged that on or about October 1, 2001, Dominguez committed the offense of injury to a child against Diego Dominguez. The State also provided Dominguez with a list of potential witnesses, including Carol Pollet and Jeanne Ochoa, one of Dominguez s ex-wives and an ex-girlfriend, respectively.

At the punishment stage of trial, Carol Pollet testified that she filed for a divorce from Dominguez due to some issues she felt were irresolvable. When asked what those issues were, Dominguez objected on grounds of relevance. The court overruled the objection and allowed Pollet to testify to Dominguez s infidelity and to the fact that he had a child with another woman. Dominguez again objected, arguing that testimony that Dominguez fathered a child out of wedlock was prejudicial and had no probative value. And again, the objection was overruled.

After testimony from other witnesses that Dominguez had assaulted his daughter and another ex-wife, Jeanne Ochoa took the stand. Ochoa described the incident listed as #18 in the Second Amended Notice of Extraneous Offenses as Injury to Child. Dominguez picked up his son Diego, shook him violently and threw him up against a large sofa. He then took Diego and locked him in a truck for two minutes. Ochoa then described how, on the same day, Dominguez told Diego to tell his mother that he had given him medicine when he did not actually give Diego medicine. At this point, Dominguez objected, contending that this incident involving the medicine was not on the list of extraneous offenses, that it was not even an extraneous offense, and that it was improper and irrelevant. The trial court overruled the objection. On cross-examination, Ochoa admitted that she did not know how telling Diego to tell his mother that he had given him medicine made Dominguez a bad guy.

On appeal, Dominguez argues that these extraneous bad acts of fathering a child out of wedlock and urging his son to lie about taking medicine were inadmissible because he had no notice of them. We must first note that with respect to the evidence of an illegitimate child, Dominguez raises a different challenge on appeal than at trial. At trial, Dominguez argued that the evidence was prejudicial and had no probative value. On appeal he asserts lack of notice. To preserve error, the complaint on appeal must comport with the legal objection raised at trial. See Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003); Sandoval v. State, 35 S.W.3d 763, 770 (Tex. App.--El Paso 2000, pet. ref d). Because Dominguez did not challenge the adequacy of the State s notice of intent to offer evidence regarding an illegitimate child at trial, he failed to preserve error on that point.

This leaves the objection to the admission of evidence that Dominguez encouraged Diego to lie to his mother. We review a trial court s admission of evidence under an abuse of discretion standard. Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996); Arzaga v. State, 86 S.W.3d 767, 781 (Tex. App.--El Paso 2002, no pet.). During the punishment phase of trial, any evidence the court deems relevant to sentencing is admissible, including evidence of the defendant s general character and evidence of extraneous bad acts that are shown beyond a reasonable doubt to have been committed by the defendant. See Tex. Code Crim. Proc. Ann. art. 37.07, 3(a)(1) (Vernon Supp. 2004); Arzaga, 86 S.W.3d at 781. Upon timely request by the defendant, the State must provide notice of the intent to introduce any extraneous bad act. Id. art. 37.07, 3(g).

Dominguez filed his Motion To Disclose Evidence of Other Crimes, Wrongs or Acts And For Exclusion Of Such Evidence with the court and delivered a copy to the State. The record does not reveal whether the motion was ruled on by the court. A motion to the court, even if it specifically asks the State to provide notice, does not constitute a timely request for notice under Article 37.07, section 3(g). Mitchell v. State, 982 S.W.2d 425, 427 (Tex. Crim. App. 1998). Nothing in the record suggests that Dominguez ever requested notice other than in the form of a motion to the court. Thus, Dominguez failed to timely request notice and the State was under no compulsion to provide it. However, if the State voluntarily provides notice, it has a duty to provide complete information, just as if such notice had been properly requested. Blackmon v. State, 80 S.W.3d 103, 108 (Tex. App.--Texarkana 2002, pet. ref d). In other words, where the state voluntarily provides notice of extraneous offenses, the defense is entitled to rely on it as complete and accurate. Here, the State, prior to Dominguez s attempted request, voluntarily provided Dominguez with a list of extraneous offenses. Therefore, Dominguez was entitled to rely on it as complete.

The purpose of the notice requirement of Article 37.07, section 3(g) is to avoid surprise and trial by ambush. Brown v. State, 54 S.W.3d 930, 933 (Tex. App.--Corpus Christi 2001, pet. ref d); Roman v. State, 986 S.W.2d 64, 67 (Tex. App.--Austin 1999, pet. ref d). Item number 18 on the State s list of Dominguez s extraneous offenses indicates Injury to Child against Diego. Although this does not specifically indicate anything about encouraging Diego to lie to his mother about taking medicine, this incident occurred on the same date provided by the State in its notice and was part of the entire incident described by Jeanne Ochoa. Furthermore, Ochoa was on the State s witness list. Given these circumstances, the trial court did not abuse its discretion in admitting this evidence. Moreover, any error in admitting the evidence was harmless. We must disregard any error that does not affect a substantial right. Tex. R. App. P. 44.2(b). A substantial right is affected when the error has a substantial and injurious effect or influence in determining the jury s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Dominguez claims that he was harmed because he did not receive probation. In support of his claim of harm, Dominguez cites James v. State, 47 S.W.3d 710 (Tex. App.--Texarkana 2001, no pet.), ignoring the statement there that [t]he punishment, standing alone, does not necessarily show that the error was harmful. Id. at 714. Dominguez has not shown how the admission of this evidence substantially influenced the jury s verdict or how the lack of notice with respect to this specific incident deprived him of the ability to mount a defense.

Our own examination of the record does not reveal that any error in admitting evidence that Dominguez encouraged Diego to lie substantially affected the outcome. First, counsel for Dominguez was able to mitigate any harm done during cross-examination of Ochoa, where she admitted that she did not know how this particular incident made Dominguez a bad man. Second, the evidence about encouraging Diego to lie about receiving medicine is insignificant in light of remaining punishment evidence. The State argued and presented evidence to establish that Dominguez had a history of violent outbursts and of abusing his wives and his children. The State did not rely on the minor incident of encouraging his son to lie during closing argument when it asked the jury to sentence Dominguez for no less than ten years. Instead, the prosecutor urged this sentence based on the severity of Dominguez s assault on his wife and his abusive past. Considering this evidence, and the fact that the jury sentenced Dominguez to less time than sought by the State, we find that any error was harmless and overrule Issue No. Three.

Having overruled each of Appellant s issues on review, we affirm the judgment of the trial court.

July 26, 2004

RICHARD BARAJAS, Chief Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)