George N. Milhim v. The State of Texas--Appeal from County Court at Law No. 6 of Travis County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-073-CR
GEORGE N. MILHIM,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY
NO. 347,687, HONORABLE DAVID PURYEAR, JUDGE PRESIDING

Appellant was found guilty in a bench trial of assault causing bodily injury, a Class A misdemeanor. See Tex. Penal Code Ann. 22.01(a)(1) (West 1989). The trial court assessed appellant's punishment at one hundred and twenty days' confinement in the county jail and a fine of five hundred dollars.

Appellant advances five points of error. In his first two points, appellant contends that the trial court erred in excluding testimony showing that the instant assault charge had not been filed until after the complaining witness had received service on appellant's civil lawsuit "arising out of the same incident." In his third and four points of error, appellant urges that the trial court erred in excluding, as hearsay, testimony concerning the complaining witness's statement to the police officer and the offense report of Officer Limon. Lastly, in hs fifth point of error, appellant challenges the sufficiency of the evidence to sustain the conviction. We shall affirm the judgment of conviction.

We shall first consider the last point of error. The assault occurred in the parking lot or yard of the M & M Towing Service [M & M Vehicle Transport, Inc.] in the early afternoon of October 29, 1990. David Patrick Bennett, the complaining witness, had gone with his wife, Stephanie, to the towing company to recover her impounded car. After the towing fee was paid and the car was released, the Bennetts observed that the car had a cracked taillight cover and that there was damage to the rear bumper. They were told by Jackie Milhim, appellant's wife and an employee of the towing company, that they would have to await the return of the wrecker driver who had towed the Bennett car to resolve any issue of damages. Appellant arrived at the towing company simultaneously with the wrecker driver. Appellant leased wreckers to the towing company and has a used car lot at the location. He was not, however, employed by the company. Appellant and the driver simulated a towing for the Bennetts to demonstrate that any damage to the car had not resulted from the towing. The Bennetts were not convinced. They pointed to truck paint on the taillight cover and insisted that the tow bar had damaged the bumper.

According to the State's testimony, appellant became belligerent, started yelling obscenities and ordered the Bennetts off the property. The yelling escalated to physical contact when appellant began pushing his stomach up against David Bennett. Appellant then ordered the wrecker driver to reimpound the Bennett car. Stephanie Bennett immediately moved her car. David Bennett started towards his own vehicle. When Bennett opened the door of his vehicle, appellant slapped Bennett in the face with his hand. Bennett got into his vehicle. Appellant pressed his face against the vehicle's window, shouting obscenities. Bennett rolled down the window to tell appellant to stop bending the antenna on the vehicle. When he did, the appellant hit him in the face two or three times with a closed fist. Bennett got out of his vehicle. He was struck again by the appellant. Bennett and his wife both left the premises and drove their vehicles to a Texaco service station. The police were called. After giving a report to the police, David Bennett returned to his workplace and visited an on-site physician because he was bruised and was experiencing pain, particularly in his cheek bone. Stephanie Bennett saw her husband being beaten and observed his swollen eyes and the red spots on his face. Officer Martin Limon, Jr., also observed the redness and swelling around David Bennett's left eye.

Appellant and four defense witnesses all denied that appellant hit David Bennett. They stated that Bennett at one time struck the appellant.

The elements of the offense of assault under section 22.01(a) of the Texas Penal Code are:

 

(1) an individual

 

(2) intentionally, knowingly or recklessly

 

(3) causes bodily injury to another.

 

Tex. Penal Code Ann. 22.01(a) (West 1989); see also Walker v. State, 761 S.W.2d 572, 575 (Tex. App.--San Antonio 1988), pet. dism'd, 811 S.W.2d 131 (Tex. Crim. App. 1991). "'Bodily injury' means physical pain, illness, or any impairment of physical condition." Tex. Penal Code Ann. 1.07(a)(7) (West 1974).

The information, in pertinent part, alleged that appellant on or about October 29, 1990, "did then and there intentionally and knowingly cause bodily injury to another, namely: David Bennett by striking David Bennett about the head with hand."

The standard for reviewing the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the judgment (in a bench trial), any rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense charged. Jackson v. Virginia, 443 U.S. 307, 319 n.12 (1979); Valdez v. State, 776 S.W.2d 162, 165 (Tex. Crim. App. 1989), cert. denied, 495 U.S. 963 (1990). The standard for review is the same in both direct and circumstantial evidence cases. Herndon v. State, 787 S.W.2d 408, 409 (Tex. Crim. App. 1990). The instant case was based on direct evidence.

It must also be remembered that the trial court, sitting as a trier of fact, is the judge of the credibility of the witnesses and the weight to be given their testimony. Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987), cert. denied, 488 U.S. 831 (1988). Reconciliation of evidentiary conflicts is solely the function of the trier of fact. Bowen v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982); Miranda v. State, 813 S.W.2d 724, 733-34 (Tex. App.--San Antonio 1991, pet. ref'd). The trier of fact is entitled to accept or reject all or any part of the testimony adduced. Wright v. State, 603 S.W.2d 838, 840 (Tex. Crim. App. 1988). In fact, the trial court, as the trier of fact, may disbelieve a defendant's version of the facts. Wicker v. State, 667 S.W.2d 137 (Tex. Crim. App.), cert. denied, 469 U.S. 892 (1984).

Appellant fails to identify the element or elements of the offense charged on which the State's proof fails. See O'Campo v. State, 647 S.W.2d 708-09 (Tex. App.--Corpus Christi 1992, no pet.). Appellant argues that the "entire case revolves around the issue of the credibility of the witnesses." He notes that the State produced only two eye witnesses to the alleged assault, while the defense brought forth five eye witnesses who denied that appellant assaulted David Bennett. As appellant concedes, however, the trial court was the sole judge of the credibility of the witnesses.

We conclude, viewing the evidence in the light most favorable to the judgment, and accepting all credibility choices and reasonable inferences made by the trial court, that a rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offense charged. See United States v. Bland, 653 F.2d 989, 995 (5th Cir.), cert. denied, 454 U.S. 1055 (1981). Appellant's fifth point of error is overruled.

In points of error one and two, appellant contends that the trial court erred in excluding testimony, from Stephanie Bennett on cross-examination and from appellant on direct examination, that the instant assault charge had not been filed until after the complaining witness had received service of appellant's civil lawsuit "arising out of the same incident."

During the cross-examination of Stephanie Bennett, the record reflects:

 

Q Ms. Bennett, you've been sued along with your husband --

 

MR. DUGGAN: Your Honor, the State is going to object to this as not being relevant to this hearing.

 

MR. FRIEDMAN: Your Honor, I think it's absolutely relevant in that the assault complaint was not filed until after they were served with a civil lawsuit. And I think the information contained in the lawsuit, which we're not intending to introduce here -- it may be immaterial and irrelevant, but the fact that the complaint was not filed and Mr. Milhim not charged with assault until after Mr. and Mrs. Bennett were served with civil suit papers has a direct bearing on both their motive and their credibility.

 

A May I say something?

 

THE COURT: I'll sustain the objection.

 

Rule 103(a)(2) of the Texas Rules of Criminal Evidence provides:

 

(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and

 

(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

 

Tex. R. Crim. Evid. 103(a)(2); see also Tex. R. App. P. 52(b).

Nothing is preserved for review where a defendant fails to perfect his bill of exception or make an offer of proof to show what questions he wanted to propound and answers he expected to elicit. See Medina v. State, 828 S.W.2d 268, 270 (Tex. App.--San Antonio 1992, no pet.); Dawkins v. State, 822 S.W.2d 668, 674 (Tex. App.--Waco 1991), pet. ref'd, 825 S.W.2d 709 (Tex. Crim. App. 1992); Johnson v. State, 800 S.W.2d 563, 566-67 (Tex. App.--Houston [14th Dist.] 1990, pet. ref'd); Tovar v. State, 777 S.W.2d 481, 491-92 (Tex. App.--Corpus Christi 1989, pet. ref'd); see also Easterling v. State, 710 S.W.2d 569, 578 (Tex. Crim. App.), cert. denied, 479 U.S. 848 (1986).

Appellant has failed to perfect a bill of exception or to make an offer of proof as to the excluded evidence. Appellant has the burden to insure that a sufficient record is presented to show error requiring reversal. Tex. R. App. P. 50(d). In his brief, appellant refers to his response to the State's objection as his offer of proof. He did not make this known to the trial court. The "response" makes no mention of a civil lawsuit "arising out of the same incident" as now claimed on appeal. The nature of the lawsuit, the names of the parties, the date of the lawsuit and time of service is not reflected in the record. We are unable to determine the relevancy of the evidence. See Dawkins, 822 S.W.2d at 674. Nothing is preserved for review.

Under any circumstances, trial courts have a wide discretion in determining the admissibility of evidence. Breeding v. State, 809 S.W.2d 661, 663 (Tex. App.--Amarillo 1991, pet. ref'd). Error cannot be predicated upon a trial court's ruling that admits or excludes evidence unless a substantial right of a party is affected. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). There is no showing that the trial court abused its discretion. Breeding, 809 S.W.2d at 662-63. The first point of error is overruled.

In his second point of error, appellant contends his counsel was prevented from eliciting testimony from him on direct examination about the civil lawsuit. The record page number to which appellant directs our attention does not reflect any attempt to elicit such testimony from appellant. See Tex. R. App. P. 74(b). The State contends that the statement of facts fails to show that appellant's counsel sought to elicit from appellant the testimony in question. Our own examination of appellant's testimony supports this contention. Nothing is presented for review. The second point of error is overruled.

In his third point of error, appellant claims that the trial court erred in excluding as hearsay, testimony concerning the complaining witness's statement to the police, "where the statement was not offered to prove the matter asserted, but to show a lack of credibility of the complaining witness." See Tex. R. Crim. Evid. 801(d).

Austin Police Officer Martin Limon, Jr., testified that he was the "back-up" officer who responded to an assault call on October 29, 1990. Limon stated that he "interviewed" the Bennetts at a Texaco service station, observed Mr. Bennett's appearance, and filed a supplemental report. On direct examination, Limon did not testify as to any conversation he had with the Bennetts. On cross-examination, Officer Limon was asked:

 

Q How many times did Mr. Bennett tell you he was hit by Milhim?

 

Mr. Duggan [prosecutor]: Your Honor, the State is going to object to this as hearsay. I believe the proper person to ask this would be Mr. Bennett, not this officer because anything this officer could testify to would be hearsay.

 

Mr. Friedman [defense counsel]: We've been asking questions about the police report -- the investigation that he did and reported.

 

The Court: I'll sustain the objection.

 

Nothing is preserved for review. Appellant has failed to perfect a bill of exception or to make an offer of proof to show the nature of the testimony that was excluded. Medina, 828 S.W.2d at 270; Johnson, 800 S.W.2d at 566-67. Moreover, the claim on appeal that the evidence was not being offered for the truth of the matter asserted was never made to the trial court. Appellant's third point of error is overruled.

In his fourth point of error, appellant urges that the trial court erred in excluding as hearsay Officer Limon's offense report, "where the report was being offered not to prove the matters asserted, but to show a lack of credibility of the State's witnesses, and the report was admissible as a business record."

During the cross-examination of Officer Limon, the record reflects:

 

Q And based on what you've read on your supplemental report that you had a chance to review a few minutes ago, that supplemental report is a true and accurate representation of what you were told?

 

A Yes, sir --

 

Mr. Duggan [prosecutor]: Your Honor, once again, the State is going to object. I believe defense counsel has already asked this and it's been answered by this officer, and I think it's belaboring the point.

 

Mr. Friedman [defense counsel]: Your Honor, at this point, notwithstanding that objection, we're going to tender a supplemental report as written and identified by Officer Limon as a true and accurate representation of what the investigation showed and what he was told. It has direct relevance on testimony and credibility of the testimony of both Mr. Bennett and Mrs. Bennett.

 

Mr. Duggan: Your Honor, the State would argue that that would be highly objectionable as to hearsay. The officer has written down hearsay statements of other witnesses, and we would argue that it would be hearsay to allow something like that.

 

The Court: Sustain the objection.

 

The matter was not further pursued. The offense report was not made a part of the record. See Tex. R. App. P. 50(d). Appellant has failed to perfect a bill of exception or to make an offer of proof to show the nature of the evidence included in the offense report. Nothing is presented for review. Medina, 828 S.W.2d at 270; Johnson, 800 S.W.2d at 566-67. Moreover, appellant never advised the trial court that he was not offering the offense report for the truth of the matter asserted nor claimed it was admissible as a business record or report. See Tex. R. Crim. Evid. 803(6). Appellant certainly never laid the predicate for the admission of the offense report as a business record. See id. Appellant's fourth point of error is overruled.

The judgment is affirmed.

 

John F. Onion, Jr., Justice

[Before Justices Powers, B. A. Smith and Onion*]

Affirmed

Filed: March 17, 1993

[Do Not Publish]

 

* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. 74.003(b) (West 1988).