JOSEPH ESTER, Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRMED; Opinion Filed June 25, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01215-CR
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JOSEPH ESTER, Appellant
                                                                                          
V.
                                                                                  
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 10
Dallas County, Texas
Trial Court Cause No. M06-16522-L
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OPINION
Before Chief Justice Thomas, Justice Moseley, and Justice Lang
Opinion By Justice Lang
        Appellant Joseph Ester was found guilty by a jury of misdemeanor assault. The trial court assessed punishment at three hundred sixty-five days' confinement in the county jail, probated for twenty-four months, and a $300 fine. An affirmative finding of family violence was entered on the judgment. In four issues, appellant asserts: (1) the trial court erred in denying his motion for a directed verdict; (2) the evidence is legally insufficient to establish that appellant committed the offense of assault; (3) the evidence is factually insufficient to establish that appellant committed the offense of assault; and (4) the trial court abused its discretion by excluding a prior consistent statement made by the complainant. We affirm the judgment of the trial court.
 
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        Appellant and complainant were living together and engaged to be married. On August 23, 2006, complainant made a 9-1-1 call reporting injuries caused by appellant, but later recanted her story. Complainant, who has multiple physical and psychological problems, testified that on the day she was injured, she felt tired and irritable after a recent trip to the hospital emergency room. She became upset at appellant. As appellant attempted to assist her on the stairs of their apartment, she grabbed him and tried to move him out of the way. According to appellant, he and complainant got into a fight and there had been a “physical altercation” in which complainant had ripped a necklace from his neck.
        Complainant called the police and hung up the phone several times before speaking to the 911 dispatcher. She reported that appellant had hit her in the face with a telephone. The police arrived at the apartment and saw the injuries to complainant's face. Complainant was upset, crying, angry, and bleeding from the mouth, but was not “uncontrollable” and did not appear to be under the effect of drugs. She told police officers that after she accidentally pulled appellant's necklace and broke it, he got really mad and hit her in the face with a telephone. The blow broke her tooth and “busted” her lip, causing extensive bleeding. In the apartment, police saw a telephone with blood on it lying on the floor between the kitchen and the living room.   See Footnote 1  Otherwise, the apartment seemed orderly and there was no blood elsewhere. Complainant told police she still cared for appellant, but did not want him hitting her. The police arrested appellant and handcuffed him. However, complainant tried to “make it right” by telling police that appellant did not hit her. Complainant said she lost her balance and fell, hitting her face on the side of a counter.         While police were still at the apartment, several of appellant's family members arrived. They were upset at complainant. One of the officers helped complainant pack some of her things and drove her to a gas station so complainant could make a telephone call. After the officer left complainant at the gas station, complainant sat on the curb behind the station and shot herself in the chest with appellant's gun, intending to commit suicide. She was hospitalized for two months. Complainant agreed at trial that one of the reasons she had shot herself was appellant's arrest. After her release from the hospital for the self-inflicted gunshot wound, complainant began writing letters trying to get the case against appellant dismissed. She prepared an affidavit of non-prosecution in which she stated appellant had not coerced or intimidated her into asking for the case to be dismissed. She recanted the 9-1-1 call and said appellant had not assaulted her.
        At trial, complainant testified that appellant had not assaulted her. She testified she had been the aggressor and had been afraid appellant would call the police first. Complainant was not on the apartment lease and had been informed by the apartment management that she was not allowed on the premises. She stated she was afraid she would be arrested for trespassing if appellant called the police regarding her aggression toward him. Complainant claimed she lied in the statement she gave police and assumed full responsibility for her injuries, claiming she had a psychotic episode that caused her to become “uncontrollable.” The State presented testimony from a police officer and the executive director of Genesis Women's Shelter that it is not unusual in family violence situations for a victim to recant her story. The executive director of Genesis Women's Shelter testified that victims of violence are often reluctant to testify against their abuser and often feel guilty for causing trouble for the abuser. Appellant was found guilty of misdemeanor assault. This appeal followed.
II. LEGAL AND FACTUAL SUFFICIENCY
 
        In his first issue, appellant complains of the denial of his motion for a directed verdict. In issue two, appellant challenges the legal sufficiency of the evidence in support of his conviction. Because a challenge to the denial of a motion for directed verdict is a challenge to the legal sufficiency of the evidence, and appellant presented these issues jointly, we analyze issues one and two together as a legal sufficiency challenge. See Williams v. State, 937 S.W.2d 479, 482-83 (Tex. Crim. App. 1996). In his third issue, appellant challenges the factual sufficiency of the evidence in support of his conviction. The State responds that the evidence is both legally and factually sufficient to support the conviction.
A. Standards of Review
 
        Differences exist between a legal sufficiency and factual sufficiency review of the evidence. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007); Lee v. State, 186 S.W.3d 649, 654 (Tex. App.-Dallas 2006, pet. ref'd). However, a factual sufficiency review is barely distinguishable from a legal sufficiency review. Marshall, 210 S.W.3d at 625 . The primary difference between the two standards is that a legal sufficiency review requires an appellate court to defer to the jury's credibility and weight determinations while a factual sufficiency review permits the appellate court to substitute its judgment for the jury on these questions, albeit to a very limited degree. Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007) (quoting Marshall, 210 S.W.3d at 625).
1. Legal Sufficiency
 
        In assessing the legal sufficiency of the evidence to support a criminal conviction, “we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt.” Rollerson, 227 S.W.3d at 724 (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)); see also Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). A review of the evidence for legal sufficiency does not involve re-weighing the evidence or substituting our judgment for the jury's judgment. See Marshall, 210 S.W.3d at 625; Lee, 186 S.W.3d at 654. “The fact finder is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence.” Lee, 186 S.W.3d at 654 (citing Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)). The jury is free to accept or reject any and all of the evidence presented by either side. Wilkerson v. State, 881 S.W.2d 321, 325 (Tex. Crim. App. 1994). All evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Marshall, 210 S.W.3d at 625.
 
2. Factual Sufficiency
 
        In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.), cert. denied, 128 S. Ct. 282 (2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). “Evidence can be factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust, and (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust.” Roberts, 220 S.W.3d at 524; see also Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007); Marshall, 210 S.W.3d at 625. “A clearly wrong and unjust verdict occurs where the jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias.” Berry, 233 S.W.3d at 854.
        When conducting a factual sufficiency review, an appellate court considers all of the evidence. Berry, 233 S.W.3d at 854; Marshall, 210 S.W.3d at 625. Also, an appellate court gives due deference to the findings of the fact-finder, but the appellate court may substitute its judgment for the jury's credibility and weight determinations to a very limited degree. Marshall, 210 S.W.3d at 625; see also Roberts, 220 S.W.3d at 524; Johnson, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000) (factual sufficiency review requires reviewing court to afford “due deference” to jury's determinations). However, “the existence of contrary evidence is not enough to support a finding of factual insufficiency.” Lee, 186 S.W.3d at 655 (citing Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001)). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight should be given to contradictory testimony. Johnson, 23 S.W.3d at 8; see also Clayton, 235 S.W.3d at 778.
 
B. Applicable Law
 
        A person commits assault if he intentionally, knowingly, or recklessly causes bodily injury to another. See Tex. Penal Code Ann. § 22.01(a) (Vernon Supp. 2007). The information in this case charged appellant with intentionally, knowingly, or recklessly causing bodily injury to the complainant by striking her head with his hand and a telephone.
C. Application of Law to Facts
 
        Appellant argues the evidence is legally insufficient to support the conviction because “the evidence is clear that appellant did not commit any degree of assault on the alleged victim.” Further, appellant argues the evidence is factually insufficient to support the conviction because “complainant's uncontradicted, credible recantation, in which it was made plain that appellant did not assault her in any way, renders the verdict clearly wrong, manifestly unjust, and/or against the great weight and preponderance of the evidence.”
        Appellant argues only appellant and complainant were present when the altercation occurred and, because complainant has recanted her account of the assault, there is insufficient evidence indicating the injuries were caused by appellant. Appellant's arguments rest on the characterization of complainant's recantation as “credible and uncontradicted.” However, there is evidence other than complainant's statement to police that indicate appellant assaulted complainant. Appellant himself told police there had been a “physical altercation” between him and complainant. Police officers testified as to complainant's demeanor upon their arrival at the apartment and to the extent of her injuries. Complainant's recantations began after appellant was arrested and she tried to “make it right” by stating that she had been the aggressor. However, both appellant and complainant testified regarding complainant's medical problems and weakness, making her story of being the aggressor less credible. Furthermore, there was evidence that recantations are common when victims of domestic violence feel guilty for the trouble they have caused the abuser. The jury, as the exclusive judge of witness credibility, could have determined complainant's recantation was not credible, and reconciled any conflicts in the evidence against appellant. See Lee, 186 S.W.3d at 654. The jury was free to reject complainant's recantation and accept her original account of the assault contained in the statement made to police. See Wilkerson, 881 S.W.2d at 325.
        Viewing the evidence in the light most favorable to the verdict, we conclude that there is evidence from which a rational fact-finder could have found that appellant intentionally, knowingly, or recklessly caused bodily injury to the complainant. See Rollerson, 227 S.W.3d at 724. Viewing the evidence in a neutral light, we conclude there is evidence from which a fact-finder could rationally conclude beyond a reasonable doubt that appellant was guilty of assault. See Berry, 233 S.W.3d at 854; Marshall, 210 S.W.3d at 625. The evidence supporting the verdict is not so weak that the verdict seems clearly wrong and manifestly unjust, nor is the adverse finding against the great weight and preponderance of the evidence. See Berry, 233 S.W.3d at 854; Marshall, 210 S.W.3d at 625. Having reviewed the evidence under the proper standards, we conclude it is legally and factually sufficient to support appellant's conviction for assault.
        We decide against appellant on issues one through three.
III. EXCLUSION OF LETTER WRITTEN BY COMPLAINANT
 
        In his fourth issue, appellant complains of the trial court's exclusion of a letter written by the complainant to the District Attorney's office in an attempt to get the case against appellant dismissed. The State responds that the letter was properly excluded as hearsay and does not meet the requirements of a non-hearsay “prior consistent statement.”
 
A. Standard of Review
 
        A trial court's decision to admit or exclude evidence is reviewed under an abuse of discretion standard. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005); Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). A trial court does not abuse its discretion as long as the decision to admit evidence is within the “zone of reasonable disagreement.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991). The appeals court may not substitute its own decision for that of the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). If the record supports the trial court's decision on the admission of evidence, there is no abuse of discretion, and the decision of the trial court will not be reversed. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002); Montgomery, 810 S.W.2d at 379.
B. Applicable Law
 
        Hearsay is a statement, other than one made by the declarant while testifying at trial, that is offered to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay statements are generally inadmissible. Tex. R. Evid. 802. However, Rule 801(e)(1)(B) gives “substantive, non- hearsay status to prior consistent statements of a witness 'offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.'” Hammons v. State, 239 S.W.3d 798, 804 (Tex. Crim. App. 2007); see also Tex. R. Evid. 801(e)(1)(B). A prior statement by a witness is not hearsay if (1) the declarant testifies at the trial and is subject to cross- examination concerning the statement, (2) there is an express or implied charge against the declarant of recent fabrication or improper influence or motive, (3) the statement is consistent with the declarant's in-court testimony, and (4) the prior consistent statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. Hammons, 239 S.W.3d at 804; see also Tex. R. Evid. 801(e)(1)(B). The rule requires that a prior consistent statement be made before the alleged motive to fabricate arose. Dowthitt v. State, 931 S.W.2d 244, 263 (Tex. Crim. App. 1996); Haughton v. State, 805 S.W.2d 405, 408 (Tex. Crim. App. 1990); see also Johnson v. State, 208 S.W.3d 478, 504 (Tex. App.-Austin 2006, pet. ref'd).
 
C. Harm Analysis
 
        As a general rule, error in the admission or exclusion of evidence does not rise to a constitutional level. Bagheri v. State, 119 S.W.3d 755, 762-63 (Tex. Crim. App. 2003) (erroneous evidentiary rulings rarely rise to the level of denying fundamental constitutional rights). Generally, the erroneous admission or exclusion of evidence is nonconstitutional error governed by rule 44.2(b) of the Texas Rules of Appellate Procedure if the trial court's ruling “merely offends the rules of evidence.” Melgar v. State, 236 S.W.3d 302, 308 (Tex. App.-Houston [1st Dist.] 2007, pet. filed) (citing Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)).
        When evaluating harm under rule 44(b), we “need only determine whether or not the error affected a substantial right of the defendant.” Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000); see also Tex. R. App. P. 44.2(b). To make such a determination, we must decide whether the error had a substantial or injurious effect on the jury verdict. Morales, 32 S.W.3d at 867; King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Substantial rights are not affected by the erroneous admission or exclusion of evidence “if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (citations omitted). When the claimed error is exclusion of a relevant piece of evidence, conducting a meaningful harm analysis requires consideration of all evidence which was admitted at trial. Motilla, 78 S.W.3d at 355-56; Morales, 32 S.W.3d at 867. “The fact that a piece of evidence was wrongfully excluded from the jury's consideration is not sufficient to warrant reversal of a conviction unless the exclusion had a 'substantial and injurious effect or influence in determining the jury's verdict.'” Morales, 32 S.W.3d at 867 (citing King, 953 S.W.2d at 271). When the excluded evidence is generally cumulative of other evidence introduced in the case, no harm attaches. Rangel v. State, 179 S.W.3d 64, 70 (Tex. App.-San Antonio 2005, pet. ref'd) (holding no harm when complained-of excluded evidence was admitted through other testimony); see also Franks v. State, 90 S.W.3d 771, 805-06 (Tex. App.-Fort Worth 2002, no pet.) (holding no harm when complained-of testimony was generally cumulative of other evidence introduced in case).
D. Application of Law to Facts
 
        During trial, defense counsel attempted to introduce a letter the complainant wrote which sought dismissal of the case against appellant. The trial court sustained the State's hearsay objection. The excluded letter was not included in the appellate record. However, the complainant testified the letter said appellant did not hurt her in any way and she had fallen and hit her mouth on a counter. The complainant testified she had sent several such letters to the District Attorney's office.
        Appellant argues on appeal the letter was a “prior consistent statement which was offered to refute the State's imputation that [complainant's] trial testimony was false,” and should have been admitted into evidence as non-hearsay under rule 801(e)(1)(B) of the rules of evidence. See Tex. R. Evid. 801(e)(1)(B). Assuming without deciding it was error to exclude the letter, we conclude there is no reversible error because appellant has shown no harm resulting from exclusion of the letter. See Morales, 32 S.W.3d at 867. There was evidence before the jury to the effect that complainant had recanted her complaint and did not want appellant to be prosecuted. The substance of the letter, as described by complainant in her testimony, was cumulative because it had been presented to the jury in several other ways during trial. See Rangel, 179 S.W.3d at 70. Upon reviewing the entire record, we conclude the trial court's error, if any, in excluding the letter from evidence did not have a substantial and injurious effect or influence on the jury's verdict. See Morales, 32 S.W.3d at 867; King, 953 S.W.2d at 271.
 
IV. CONCLUSION
 
        The evidence is both legally and factually sufficient to support appellant's conviction for assault. Furthermore, appellant has not shown reversible harm respecting the letter from the complainant. Appellant's points are decided against him. The judgment of the trial court is AFFIRMED.
 
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE
 
 
Do Not Publish                        
Tex. R. App. P. 47
071215F.U05
 
Footnote 1 At trial, the telephone did not appear to have blood on it. The officer testified there had been blood on it at the scene. The telephone base was admitted as State's Exhibit 4.

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