Andra Demond House v. The State of Texas--Appeal from 185th District Court of Harris County

MEMORANDUM OPINION
No. 04-02-00742-CR
Andra Demond HOUSE,
Appellant
v.
The STATE of Texas,
Appellee
From the 185th Judicial District Court, Harris County, Texas
Trial Court No. 895309
Honorable Belinda Hill, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Chief Justice (concur in judgment only)

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: December 17, 2003

AFFIRMED

Andra Demond House ("House") was convicted of aggravated assault and sentenced to fifty years in prison. He brings six issues on appeal. We affirm the judgment of the trial court.

Background

The State alleges that on November 1, 2001, House assaulted Amber Agler ("Agler"), his girlfriend at the time, causing her serious bodily injury. It is undisputed that eight days later, he brought Agler to the hospital. She was comatose and suffering from extensive injuries to her head and torso. At the hospital, doctors found traces of cocaine and marihuana in her system. House initially denied having any part in the alleged assault. Later, however, in an interview with a Houston police officer, House admitted to hitting Agler and signed a written statement in which he confessed to the details of the assault. House was convicted at trial and sentenced to fifty years in prison.

On appeal, he argues that 1) the trial court erred in overruling his Batson motion; 2) the trial court erred in overruling his motion to suppress his written statement; 3) the evidence is legally insufficient to support the jury's finding that Agler suffered "serious bodily injury"; 4) the evidence is factually insufficient to support the jury's finding that Agler suffered "serious bodily injury"; 5) the evidence is legally insufficient to support the jury's finding that House caused Agler's injuries; and 6) the evidence is factually insufficient to support the jury's finding that House caused Agler's injuries.

Batson Motion

At the close of voir dire, House brought a Batson motion, arguing that the State improperly exercised its peremptory challenges to exclude persons from the jury based on their race. The trial court overruled the motion. On appeal, House argues that the trial court erred in overruling his Batson motion.

In order to prevail on a Batson claim, the party opposing a particular peremptory strike must first establish a prima facie case of racial or gender discrimination. Guzman v. State, 85 S.W.3d 242, 246 (Tex. Crim. App. 2002). The burden of production then shifts to the proponent of the strike to offer a race- or gender-neutral explanation for that strike. Id. If the proponent offers a race- or gender-neutral explanation, the trial court must then decide whether the opponent has proved purposeful racial or gender discrimination. Id.

To make a prima facie case of racial discrimination, the opponent of the strike must show: 1) that the defendant is a member of an identifiable racial group; 2) that the attorney representing the state exercised peremptory challenges for the purpose of excluding persons from the jury on the basis of their race; and 3) that the defendant has offered evidence of relevant facts that tend to show that the challenges made by the attorney representing the state were made for reasons based on race. Tex. Code Crim. Proc. Ann. art. 35.261(a) (Vernon 1989); Rousseau v. State, 824 S.W.2d 579, 584 (Tex. Crim. App. 1992). A trial court's ruling regarding a Batson claim will not be overturned unless it is shown to be clearly erroneous. Williams v. State, 804 S.W.2d 95, 101 (Tex. Crim. App. 1991).

Here, House presented his Batson motion as follows:

DEFENSE: Your honor, at this point we would make a Batson challenge. We believe that the State has improperly exercised their peremptory challenges against several of the African Americans that are on the venire panel.

STATE: Judge, there is no prima facie showing. Juror No. 10 was not struck by the State. She was struck by the defense. Juror No. 13 was not struck by the State. Also, there's a juror that actually made the jury that was not struck by the State that's an African American female.

DEFENSE: As to Juror No. 7, who never said anything objectionable or Juror No. 19, who was qualified and Juror No. 13, though, was struck by a challenge for cause.

As the above dialogue illustrates, House failed to make clear which veniremembers the State improperly struck or what the race of those veniremembers was. Additionally, the record fails to reflect the racial composition of the entire panel. We do not know the race of the veniremembers challenged for cause or the race of the veniremembers peremptorily challenged. Hatchett v. State 930 S.W.2d 844, 847 (Tex. App.--Houston [14th Dist.] 1996, pet. ref'd). Such incomplete data will not allow us to perform a statistical analysis of House's prima facie case. Id. House offered no other facts or circumstances which would give rise to an inference of purposeful discrimination. Thus, House failed to establish a prima facie case of racial discrimination. Accordingly, we hold that the trial court's overruling of House's Batson motion was not clearly erroneous. We overrule this issue on appeal.

Motion to Suppress

At trial, the State offered into evidence a written statement by House in which he confesses to assaulting Agler. House moved to suppress the statement, arguing that it was given involuntarily. The trial court denied the motion to suppress. House argues on appeal that the trial court erred in denying the motion to suppress.

In reviewing a ruling on a motion to suppress evidence, an appellate court views the evidence in the light most favorable to the trial court's ruling. Champion v. State, 919 S.W.2d 816, 818 (Tex. App.--Houston [14th Dist.] 1996, pet. ref'd). The trial judge is the sole judge of the credibility of the witnesses and the weight to be given their testimony at the hearing on the motion to suppress. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Unless there is a clear showing of abuse of discretion, a trial court's ruling on the admissibility of the evidence should not be reversed. Champion, 919 S.W.2d at 818.

House argues that his written statement was involuntary because Officer McDaniel, the officer who took House's statement, promised House leniency if he confessed to the assault. Thus, the only issue for the trial court to decide at the hearing on the motion to suppress was whether House's statement was improperly induced by Officer McDaniel. To make this determination, the trial court considered the testimony of two witnesses, House and Officer McDaniel. House testified that the only reason he confessed was because Officer McDaniel told House that if he confessed, he would have to serve no time but the remaining time on his paroled sentence. Officer McDaniel testified that he read House his Miranda warnings; that he discussed the facts of the case with House and that House admitted to hitting Agler; that he and House worked together on reducing House's statement to writing; that House signed the statement and initialed the Miranda warnings on the statement; and that during the entire process, McDaniel believed House's participation to be voluntary. He further testified that he did not recall making any promise of leniency to House.

The trial court was not obligated to believe the testimony of House. To the contrary, the trial court was free to accept or reject any or all of the testimony presented at the hearing. Taylor v. State, 604 S.W.2d 175, 177-78 (Tex. Crim. App. 1980). Thus, viewing the evidence in a light most favorable to the trial court's ruling, we hold that the trial court did not abuse its discretion in denying House's motion to suppress. We overrule this issue on appeal.

Serious Bodily Injury

In his third and fourth issues, House argues that the evidence is legally and factually insufficient to support the jury's finding that Agler suffered "serious bodily injury."

Citing Texas Rule of Appellate Procedure 33.1(d), the State argues that because House failed to present his legal and factual sufficiency issues to the trial court, he failed to preserve error for appeal. (1) Legal sufficiency issues, however, do not need to be preserved for appeal in criminal cases. See Rankin v. State, 46 S.W.3d 899, 901 (Tex. Crim. App. 2001) ("A claim regarding sufficiency of the evidence need not be preserved for review at the trial level and is not waived by the failure to do so."). Nor do factual sufficiency issues need to be preserved for appeal in criminal cases. See Washington v. State, No. 01-02-00926-CR, 2003 WL 22456200, at *3 (Tex. App.--Houston [1st Dist.] Oct. 30, 2003, no pet h.) ("[T]he Court of Criminal Appeals did not intend, simply by adopting [Texas Rule of Appellate Procedure 33.1(d), which states that] defendants in non-jury cases are not required to preserve certain errors, to require criminal defendants in jury cases to preserve error on insufficiency-of-the-evidence complaints."); see also Martin v. State, No. 04-02-00517-CR, 2003 WL 22203749, at *1, n. 1 (Tex. App.--San Antonio Sept. 24, 2003, no pet h.) ("An appellate court must always review challenges to the sufficiency of the evidence."). Accordingly, we reject the State's argument that House needed to preserve these issues for appeal.

The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 320 (1979); Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the jury's verdict. Jackson, 443 U.S. at 320; Johnson, 871 S.W.2d at 186.

The jury is the trier of fact and the ultimate authority on the credibility of witnesses and the weight to be given to their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). It is for the jury as trier of fact to resolve any conflicts and inconsistencies in the evidence. Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982). Even where there is no conflict, the jury may give no weight to some evidence, and thereby reject part or all of a witness's testimony. Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987); see also Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) (holding jury as judge of credibility may "believe all, some, or none of the testimony"). Because it is the province of the jury to determine the facts, any inconsistencies in the testimony should be resolved in favor of the jury's verdict in a legal sufficiency review. Johnson v. State, 815 S.W.2d 707, 712 (Tex. Crim. App. 1991) (citing Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)).

To prove aggravated assault, the State must prove that the defendant caused "serious bodily injury." Tex. Pen. Code Ann. 22.02(a)(1) (Vernon 2003). Serious bodily injury is "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).

Here, Dr. James, the general surgeon who supervised Agler's care in the hospital, testified that when he first saw Agler, she was comotose. He also testified that she had multiple rib fractures; severe brain injury; subdural hematoma (blood between the brain and the lining of the brain); hypernatremia (dangerously high sodium levels); sepsis (an uncontrolled infection); and bruises on her face and head. Dr. James further testified that the subdural hematoma, hypernatremia, and rib fractures created a substantial risk of death. Dr. James also testified that Agler suffered protracted loss or impairment of several bodily functions. He testified that during most of her two months in the hospital, she couldn't swallow, speak, or walk, and at the time she was discharged, her mental capacity was that of a ten- or eleven-year-old.

Additionally, Agler herself testified to protracted loss or impairment. She stated that although she learned to walk again, she can no longer run or balance on one foot as she was able to do before her injuries.

Viewing this evidence in the light most favorable to the verdict, we conclude that the evidence is legally sufficient to support the jury's finding that Agler's injuries constituted serious bodily injury.

House also argues that the evidence is factually insufficient to support the jury's finding that Agler's injuries constituted serious bodily injury. Under a factual sufficiency review, we ask whether "a neutral review of all the evidence . . . demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). We must be deferential to the fact finder and careful not to invade the province of the jury to assess the credibility and weight of the evidence. Johnson, 23 S.W.3d at 9.

Dr. Varon, who testified for the defense, stated that on the basis of the medical records he reviewed, there was no substantial risk of death, no permanent disfigurement, and no protracted loss or impairment of the function of any bodily member or organ in Agler's case. He also testified that pneumothorax, or a lung puncture, which Dr. James testified was a threat in Agler's case, is very easily treatable and not necessarily life-threatening.

On cross-examination, however, Dr. Varon agreed that Agler did suffer from serious bodily injury as defined by Texas law. Dr. Varon also stated that Agler's hypernatremia, had it been left untreated, could have killed her.

Thus, while there is conflicting evidence regarding the seriousness of Agler's injuries, the evidence of serious bodily injury is not so obviously weak as to undermine confidence in the jury's determination. Dr. James and Dr. Varon both testified that Agler's injuries constituted serious bodily injury as defined by Texas law. Thus, upon consideration of the evidence as a whole, we conclude that the evidence is factually sufficient to support the jury's finding that Agler's injuries constituted serious bodily injury. Accordingly, we overrule this issue on appeal.

Causation

In his fifth and sixth issues, House argues that the evidence is legally and factually insufficient to support the jury's finding that House caused Agler's injuries. House contends that Agler's drug abuse, and not the alleged assault, caused her injuries.

Again, the standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 320 (1979); Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the jury's verdict. Jackson, 443 U.S. at 320; Johnson, 871 S.W.2d at 186.

The jury is the trier of fact and the ultimate authority on the credibility of witnesses and the weight to be given to their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). It is for the jury as trier of fact to resolve any conflicts and inconsistencies in the evidence. Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982). Even where there is no conflict, the jury may give no weight to some evidence, and thereby reject part or all of a witness's testimony. Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987); see also Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) (holding jury as judge of credibility may "believe all, some, or none of the testimony"). Because it is the province of the jury to determine the facts, any inconsistencies in the testimony should be resolved in favor of the jury's verdict in a legal sufficiency review. Johnson v. State, 815 S.W.2d 707, 712 (Tex. Crim. App. 1991) (citing Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)).

Here, House's written statement, which was admitted into evidence at trial, provides:

A number of days before Amber went into the hospital[, s]he and I did get into it. It happened in the West End by my auntie's house in Houston. We were in a gravel parking lot on Spencer Street. It was about to get dark[,] and I do not think there was anyone else around.

I was there on foot[,] and Amber just got out of a car of some guy who[m] I had not seen. . . .

When she got out of the car, she walked up to me[,] talking "shit". . . .

I had not been drinking or smoking, but it was not right for her to insult me[,] and I just got really upset. I then hit her with my open hand on her right shoulder[,] and she fell to the ground. She got back up[,] and I told her to go home. When she got up, she hit me somehow in the face and busted my lip. It has healed over[,] though.

At that point, I slapped her again in the right side of her head with my left open hand. She kept getting back up and talking "shit[,"] and I kept slapping her down to the ground. Then, after one last hit, she did not get back up. I then told her to get her ugly ass up[,] and she did not say [anything].

After that, I went and got some water and poured it on her, but [she] did not get up. I tried to help her, but she wouldn't respond. So [I] called for a ride from a crack head named "Tony" and got a ride to the Infiniti Inn. I do not really know "Tony[,"] though[,] and I had to pay him for the ride. Once we got to our room, I took her inside. I watched television for awhile[,] and she raised up after a few hours. I told her to stop playing around. She just opened her eyes and didn't say anything and just closed her eyes and went back to sleep.

After a few hours, I heard a noise after I had fallen asleep. I then saw that she [had] walked into a wall. I then helped her to the restroom. . . . For the next few days, she was not able to talk[--]she could just blink her eyes sometimes. Finally, after a number of days, I saw her bleeding from her vagina[,] and I knew she was not on her period . . . . [A] friend of ours, an older white lady (Christopher's wife), told me she needed to go to the doctor.

So, about a day or two later, she was still bad[, so I] called Christopher and the old white lady to get a ride to the hospital. They picked us up [to go to] the hospital[,] and I had to walk her to the car and into the hospital.

Once she was in the hospital, I want to say that I did contact her parents and let them know Amber's condition. Later, I met with Officer McDaniel of the Homicide Division. He read me my rights[,] and I waived those rights. I then sat with him as he typed this statement[,] and it is true and correct to the best of my ability. I also read the statement after it was printed out and find it to be accurate.

Finally, I want to say that I am really sorry for what happened. I did hit her, [but I] did not intend for her to have serious injuries. I would like to get some help with anger management[,] and I do love Amber very much.

In addition to this evidence, there was testimony from two doctors that Agler's injuries were consistent with her being assaulted. Dr. James testified that Agler's subdural hematoma and the bruising to her face were consistent with being hit in the head with a fist. He further testified that Agler's fractured ribs were consistent with being punched. Dr. James also testified that Agler's injuries could not be explained by drug abuse.

Dr. Varon stated on cross-examination that Agler's fractured ribs would be consistent with trauma inflicted to that area of her body. He further testified that it would require trauma in addition to prior drug abuse to cause Agler's injuries.

Viewing this evidence in the light most favorable to the verdict, we conclude that the evidence is legally sufficient to support the jury's finding that House caused Agler's injuries.

House also argues that the evidence is factually insufficient to support the jury's finding that Agler's injuries constituted serious bodily injury. Under a factual sufficiency review, we ask whether "a neutral review of all the evidence . . . demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). We must be deferential to the fact finder and careful not to invade the province of the jury to assess the credibility and weight of the evidence. Johnson, 23 S.W.3d at 9.

Upon review of all the evidence, we do find evidence that House did not cause Agler's injuries. Dr. Varon, who testified on behalf of the defense, stated that he did not think Agler was suffering from a subdural hematoma but fluid collection, which he testified was likely to have been caused by ministrokes from Agler's drug abuse. Dr. Varon further testified that, in his opinion, Agler's head injuries weren't caused by trauma alone and that two factors, Agler's drug use and her drug withdrawal while in the hospital, likely contributed to her injuries. Dr. Varon also testified that Agler's sepsis, and not any trauma she may have suffered, could have accounted for her coma-like condition. Dr. Varon also testified that the doctors at the hospital corrected Agler's hypernatremia too quickly, which could have caused the swelling observed in her brain. Dr. Varon also testified that while he couldn't point to a single cause of Agler's injuries, pre-existing neurological problems caused by her drug abuse significantly contributed to those injuries.

While Dr. Varon's testimony provides some evidence that House did not cause all of Agler's injuries, his testimony does not provide evidence that House caused none of Agler's injuries. Dr. Varon admitted that it would require trauma in addition to prior drug abuse to cause Agler's injuries. Additionally, Dr. James testified that Agler's injuries indicated that she had been assaulted. Futhermore, House himself confessed to hitting Agler in a written statement admitted at trial. Thus, the evidence is not so obviously weak as to undermine confidence in the jury's determination. Upon consideration of the evidence as a whole, we conclude that the evidence is factually sufficient to support the jury's finding that House caused Agler's injuries. Accordingly, we overrule this issue on appeal.

Conclusion

We affirm the judgment of the trial court.

Karen Angelini, Justice

DO NOT PUBLISH

1. Rule 33.1(d) provides:

In a nonjury case, a complaint regarding the legal or factual insufficiency of the evidence--including a complaint that the damages found by the court are excessive or inadequate, as distinguished from a complaint that the trial court erred in refusing to amend a fact finding or to make an additional finding of fact--may be made for the first time on appeal in the complaining party's brief.

Tex. R. App. P. 38.1(d).