James Donald Pierce v. The State of Texas--Appeal from County Court at Law No 2 of Fort Bend County

MEMORANDUM OPINION
No. 04-02-00749-CR
James Donald PIERCE,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 2, Fort Bend County, Texas
Trial Court No. 96790-A
Honorable Walter S. McMeans, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: November 19, 2003

AFFIRMED

This appeal follows a conviction of assault of a spouse after the victim recanted her account of the assault and requested that the charges against her husband be dropped. The defendant spouse, James Donald Pierce, argues six issues on appeal: (1) whether the trial court erred in admitting the Domestic Violence Victim Statement prepared by the victim at the scene over hearsay objections, (2) whether the trial court erred in admitting the officer's testimony regarding statements made by the victim over hearsay objections, (3) whether the evidence is legally or factually sufficient to support the verdict, (4) whether the trial court erred in not submitting a defensive instruction on consent, (5) whether the trial court erred in not submitting a defensive instruction on necessity, and (6) whether the trial court erred in entering a finding of family violence without a jury finding of intentional or knowing intent to cause injury. We affirm the trial court's judgment.

Background

On December 6, 2001, Pierce and his wife had an argument which ended with physical contact between the two and a call to 911 by Mrs. Pierce. During the call, Mrs. Pierce stated that her husband hit her, and she wanted to make a record. Officer Johnny W. Luttrell arrived at the Pierce home six minutes later. Officer Luttrell observed that Mrs. Pierce had an approximately three inch laceration on the left side of her neck and "red grab marks" on the other side of her neck. Mrs. Pierce also had a contusion on her back, right below her right shoulder blade. The officer testified that the contusion was three to three and one-half inches in diameter with little red marks at the top of it. Officer Luttrell documented these injuries by taking several photographs, which were admitted without objection. In addition, Officer Luttrell observed blood under the nail of the ring finger of Mr. Pierce's right hand.

Officer Luttrell also testified as to Mrs. Pierce's demeanor and statements during her interview about the night's events. Officer Luttrell stated that Mrs. Pierce was initially calm and apologetic for calling the police; however, when questioned about the night's events, she began to tear up and cry. Over hearsay and confrontation objections, Officer Luttrell then testified regarding the account of the events as described by Mrs. Pierce on the night of the assault. The trial court also admitted, over Mr. Pierce's hearsay and confrontation objections, the Suggested Domestic Violence Victim Statement Guidelines ("Victim Statement"), which was prepared and signed by Mrs. Pierce on the night of the assault.

Mrs. Pierce testified, but denied that an assault took place. She stated that she was not injured by the physical contact with Mr. Pierce. Evidence at trial also included an affidavit by Mrs. Pierce in which she recanted her statements to Officer Luttrell and requested that the charges against her husband be dismissed. The cross-examination of Mrs. Pierce revealed inconsistencies between her statement given the night of the incident, during her testimony in court, and within her affidavit.

During his testimony, Mr. Pierce admitted to pushing Mrs. Pierce off the bed and placing his hand on Mrs. Pierce's mouth, but he denied intending any injury.

The trial court entered judgment on the jury's guilty verdict and entered a finding of family violence.

Hearsay

In his first and second issues, Mr. Pierce argues that the trial court erroneously admitted Mrs. Pierce's Victim Statement and Officer Luttrell's testimony as to what Mrs. Pierce told him over hearsay and confrontation objections.

With regard to hearsay, the State counters, in part, that the testimony falls under the excited utterance exception and that the same facts are sufficiently proven by other competent and unobjected to evidence. Whether or not Officer Luttrell's testimony and the Victim Statement were admissible under a hearsay exception is irrelevant. Anderson v. State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986). Generally, when a defendant offers the same testimony as that objected to, or the same evidence is introduced from another source, without objection, he may not complain on appeal. Trevino v. State, 783 S.W.2d 731, 734 (Tex. App.-San Antonio 1989, no pet.) (quoting Withers v. State, 642 S.W.2d 486, 487 (Tex. Crim. App. 1982). To preserve error in admitting evidence, a party must object each time the inadmissible evidence is offered. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). An error in the admission of evidence is cured where the same evidence comes in elsewhere without objection. Valle, 109 S.W.3d at 509-10. In effect, the error to the admission of such evidence is waived. Narvais v. State, 840 S.W.2d 415, 430 (Tex. Crim. App. 1992).

Mr. Pierce's counsel properly objected to the admission of the Victim Statement, which was admitted during Officer Luttrell's testimony. However, the same evidence was introduced during Mrs. Pierce's testimony when she read the entire Victim Statement without objection. Therefore, Mr. Pierce waived error with regard to the admission of the Victim Statement.

Because there was no objection to the reading of the Victim Statement, Mr. Pierce also waived error with regard to Officer Luttrell's testimony. Officer Luttrell offered the following testimony:

Q. What did she say happened to her?

She told me she was struck on the back and knocked to the ground, he got on top of her and choked her.

The rest of Officer Luttrell's testimony regarding the assault was consistent with this statement.

The Victim Statement reveals the same facts to which Officer Luttrell testified. The Victim Statement includes:

HOW DID THIS HAPPEN? . . . I was nagging him about chores when he got mad. He asked me if I was going to let him sleep. I said if he'd put the stuff in the attic in the morning. Then he went to punch me. I said "Go ahead." He did.

DID IT HURT YOU? Yes, when he punched me in the back, knocked me down and put his hands around my neck choking me[.]

(emphasis added to the victim's handwritten answers on the Victim Statement form). Additionally, the photographs taken of Mrs. Pierce the night of the incident were admitted without objection. These photographs revealed redness on her neck and her back. During her testimony, Mrs. Pierce admitted to the physical contact, but alleged that her initial statements to Officer Luttrell were exaggerated. Without objection, she testified that she told the 911 operator that her husband hit her.

Where the fact to which hearsay relates is sufficiently proven by other competent and unobjected to evidence, the admission of the hearsay is properly deemed harmless and does not constitute reversible error. Anderson, 717 S.W.2d at 627. The facts regarding the assault to which Officer Luttrell testified are sufficiently proven by other competent and unobjected to evidence. The trial court did not reversibly err in admitting officer Luttrell's testimony.

With regard to the right of confrontation, the State argues that Mr. Pierce's right of confrontation was satisfied. The Sixth Amendment of the United States Constitution provides that a criminal defendant has the right "to be confronted with the witnesses against him." U.S. Const., amend VI; Pointer v. Texas, 380 U.S. 400, 403 (1965). This right includes the right to cross-examine and is extended to the states by the Fourteenth Amendment. Pointer, 380 U.S. at 406; Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996). Because the hearsay declarant, Mrs. Pierce, was subjected to a full and vigorous cross examination by Mr. Pierce's attorney, we find no violation of the right of confrontation. Mr. Pierce's first and second issues are overruled.

Legal and Factual Sufficiency

In his third issue, Mr. Pierce argues that the evidence is legally and factually insufficient to support the verdict. To determine the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict and ask if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). For a factual sufficiency review, an appellate court looks at all the evidence to determine whether it is so weak as to make the verdict clearly wrong and manifestly unjust or whether the adverse finding is against the great weight and preponderance of the available evidence. Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003). The appellate court must consider all of the evidence presented, whether properly or improperly admitted. Nickerson v. State, 810 S.W.2d 398, 400 (Tex. Crim. App. 1991).

In support of his argument, Mr. Pierce relies on his denials of the assault and his wife's recantation of the events. In contrast to her statements to Officer Luttrell and in her Victim Statement on the night of the assault, Mrs. Pierce testified at trial that the events occurred as follows: she was arguing with her husband; he pushed or shoved her so she lost her balance and fell off the bed; she started to scream and went toward the living room; he followed her because, she thinks, he was trying to get her to be quiet; at some point, his hands were around her mouth and neck; in her struggle to get free, they fell to the ground; and since she was in the lead, he fell on top of her. During his testimony, Mr. Pierce admitted to pushing Mrs. Pierce off the bed and placing his hand on Mrs. Pierce's mouth. Mr. Pierce denies intending any injury, and Mrs. Pierce denies having any pain due to the physical contact. However, this was not the only evidence before the jury.

The jury also considered the photographs of Mrs. Pierce's injuries, and Mrs. Pierce's statements on the night of the incident to the 911 operator and to Officer Luttrell, which are also documented in her Victim Statement. With regard to having pain, Mrs. Pierce testified that even before Officer Luttrell allegedly told her what to write on the Victim Statement, she had answered "yes" to the question "did it hurt you?" Mrs. Pierce admitted telling the 911 operator that she wanted to report an incident and that her husband hit her. She admitted to having a scratch on her neck, but denied having any bruises or redness on her neck or back. When confronted with the photographs taken at the scene, Mrs. Pierce dismissed the discolorations in the photos with a variety of explanations including a tan line, blotchy skin, pimple marks, shadows, and that she marks easily. She admitted that her husband placed his hand on her mouth to keep her quiet when she was calling for the children, yet she had no marks on her face. When confronted with her prior statements to Officer Luttrell, Mrs. Pierce explained these as being her own exaggerated statements. She stated she wanted to make a record in case of divorce. When confronted with her Victim Statement, she stated that Officer Luttrell disapproved of the statement and had her correct the statement with dictated material. However, Officer Luttrell denied that he suggested any answers, and the document does not reveal that anything was corrected. Additionally, Mrs. Pierce testified that Mr. and Mrs. Pierce continued to live together after the assault, and they went to the trial together. Mr. Pierce has been the sole provider for the family ever since Mrs. Pierce gave up her job as a teacher to care for their children.

Given the conflicting stories, the evaluation of the witness credibility and demeanor was crucial in determining the appropriate verdict. Given the verdict, the jury must have chosen to believe Mrs. Pierce's account of the incident on the night of the attack over Mr. and Mrs. Pierce's contradictory testimonial evidence. Because the available record does not clearly reveal that a different result is appropriate, we defer to the jury's determination concerning what weight to give the contradictory testimonial evidence because it turns on an evaluation of credibility and demeanor. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000). Mr. Pierce's third issue is overruled.

Defensive Instruction on Consent and Necessity

In his fourth and fifth issues, Mr. Pierce contends that the trial court erred in failing to submit defensive instructions on consent and necessity. It is well settled that an accused has the right to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of the evidence. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999); Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). An accused is thus entitled to an instruction whether the issue is raised by a defendant's testimony alone or otherwise. Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991). This rule is designed to insure that the jury, not the judge, will decide the relative credibility of the evidence. Miller, 815 S.W.2d at 585. When the evidence fails, however, to raise a defensive issue, the trial court commits no error in refusing a requested instruction. McGarity v. State, 5 S.W.3d 223, 227 (Tex. App.-San Antonio 1999, no pet.). We review the evidence in the light most favorable to the defense. Brazelton v. State, 947 S.W.2d 644, 646 (Tex. App.-Forth Worth 1997, no pet.).

Under the Texas Penal Code, the victim's effective consent or the actor's reasonable belief that the victim consented to the actor's conduct is a defense to prosecution for assaultive conduct. Tex. Pen. Code Ann. 22.06 (Vernon 2003). Mr. Pierce alleges that consent was implicated by language in the Victim Statement, in which Mrs. Pierce states "Then he went to punch me. I said 'Go ahead.' He did." Mrs. Pierce testified that she had been "egging him on" right before he pushed her off the bed. Under the circumstances, the statement was no more than a "smart-alec" remark and was not consent. Even viewed in the light most favorable to the defense, the statement shows that the alleged consent occurred only after the assaultive conduct had begun, e.g. the threat of force; therefore, Mrs. Pierce could not effectively consent to being hit. Tex. Pen. Code Ann. 1.07(19), 22.06 (Vernon 2003). It also shows that she did not consent to being choked, grabbed, scratched or knocked down. Moreover, Mr. Pierce offered no evidence, testimonial or otherwise, that he formed a reasonable belief that Mrs. Pierce consented to being hit. Because the evidence failed to raise the defense of consent, the trial court did not commit error in refusing the requested instruction on consent. Granger, 3 S.W.3d at 38.

The defense of necessity, as set out in the Texas Penal Code, requires a reasonable belief and determination on the part of the defendant that the commission of the offense charged against him is immediately necessary to avoid imminent harm. Tex. Pen. Code Ann. 9.22 (a) (Vernon 2003); Pentycuff v. State, 680 S.W.2d 527, 528 (Tex. App.-Waco 1984, writ ref'd untimely filed). A defendant who denies the commission of the proscribed conduct could not have entertained this belief and made the choice to act due to necessity. Id. One must first identify and admit to the commission of the act before establishing that the act was justified. McGarity, 5 S.W.3d at 227. Hence, a necessity instruction is not required unless there was evidence from the accused specifically admitting to the commission of the offense and claiming justification for having committed the offense because of other facts. Id. The necessity defense also requires affirmative evidence of imminent harm. Brazelton, 947 S.W.2d at 648. Evidence of a generalized fear of harm is not sufficient to raise the issue of imminent harm. Id.

In support of his necessity instruction, Mr. Pierce contends that evidence was introduced that showed that he placed his hand on his wife's mouth to prevent the waking of their children and involving them in a parental dispute that would cause emotional harm and difficulty in school. The State argues that Mr. Pierce was not entitled to a necessity instruction because he did not provide an admission that he committed the charged offense, and he failed to provide affirmative evidence of any imminent harm.

The improper conduct with which Mr. Pierce was charged in the indictment was assault causing bodily injury by "choking", "grabbing", or "hitting JULIE MAYER PIERCE with the hand of the Defendant," "scratching JULIE MAYER PIERCE with the fingernail of the Defendant", or "knocking JULIE MAYER PIERCE down with the hand of the Defendant." Mr. Pierce only admitted to placing his right hand on Mrs. Pierce mouth and his left hand on the back of her neck and could not recall touching any other part of her neck or falling on top of her. Because Mr. Pierce did not admit to the commission of the offense as charged in the indictment, and his concern regarding his children was too generalized to rise to the level of imminent harm, the trial court did not commit error in refusing the requested instruction on necessity. Mr. Pierce's fourth and fifth issues are overruled.

Finding of Family Violence

In his sixth issue on appeal, Mr. Pierce argues that the trial court erred in entering an affirmative finding of family violence without a jury finding that Mr. Pierce intentionally or knowingly caused injury. Article 42.013 of the Texas Code of Criminal Procedure allows for the entry of such a finding if appropriate under Section 71.01 of the Texas Family Code. Tex. Code Crim. Proc. art. 42.013 (Vernon Supp. 2003). The Family Code defines "family violence," in part, as:

an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault . . . .

Tex. Fam. Code Ann. 71.004 (Vernon 2002) (emphasis added). The charge to the jury permitted conviction if Mr. Pierce intentionally, knowingly, or recklessly caused bodily injury to Mrs. Pierce.

Mr. Pierce contends that the court's affirmative finding of family violence is not supported by the jury verdict. The State, however, is not required to obtain a jury finding regarding the defendant's culpable mental state. The trial court has the discretion to enter an affirmative finding of family violence if the evidence supports such a finding. See Tex. Code Crim. Proc. art. 42.013 (Vernon Supp. 2003). Article 42.013 states, "if the court determines that the offense involved family violence, . . . the court shall make an affirmative finding of that fact and enter the affirmative finding in the judgment of the case." Tex. Code Crim. Proc. art. 42.013 (Vernon Supp. 2003). Thus, the trial court makes the determination of whether or not the offense involved family violence, not the jury. Mr. Pierce's sixth issue is overruled.

Conclusion

The trial court's judgment is affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH