CHARLES KAUFMAN v. THE STATE OF TEXAS--Appeal from 117th District Court of Nueces County

NUMBER 13-01-507-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

CHARLES KAUFMAN, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 117th District Court

of Nueces County, Texas.

O P I N I O N

Before Justices Dorsey, Hinojosa, and Castillo

Opinion by Justice Dorsey

A jury found appellant, Charles Kaufman, a Nueces County Corrections Officer, guilty of one count of aggravated assault, two counts of misdemeanor assault, and four counts of official oppression. The incident forming the basis of these convictions occurred at the Nueces County Jail after two suspects were arrested and taken to the jail. By four points of error appellant challenges the legal and factual sufficiency of the evidence to support his aggravated assault conviction, and he complains the trial court erred by limiting cross-examination of the State=s expert witness and that the trial court erred by denying his request for ten peremptory challenges. We affirm.

I. Facts

On February 20, 2000, Ralph Torres and a friend were arrested and taken to the Nueces County Jail. While Officer Castleberry escorted Torres inside the jail facility Torres turned around to see where his friend was. Castleberry, in an attempt to control Torres, put his arm around Torres=s neck and took him to the floor. During the take down Torres fell on Castleberry=s leg, breaking it. Although Torres was non-combative, Officer Kaufman, appellant, grabbed Torres by the shirt and dragged him down a hall. After Torres was strapped in a restraint chair appellant choked him. Video cameras in the jail caught the incident on videotape, which was admitted into evidence during trial.

Sufficiency Of The Evidence

By points one and two appellant attacks the legal and factual sufficiency of the evidence to support his aggravated assault conviction. In evaluating the legal sufficiency of the evidence we use the standard in Jackson v. Virginia, 443 U.S. 307, 319 (1979). In evaluating the factual sufficiency of the evidence we apply the test set forth in Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).

A person commits aggravated assault if he intentionally, knowingly, or recklessly causes serious bodily injury to another, or intentionally or knowingly threatens or injures another with a deadly weapon. Tex. Pen. Code Ann. '' 22.01(a), 22.02(a) (Vernon 1994). ASerious bodily injury@ means Abodily 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.@ Tex. Pen. Code Ann. ' 1.07(a)(46) (Vernon 1994) (emphasis added). Here the application paragraph provided that the jury could convict appellant of aggravated assault if they found that he Aintentionally, knowingly, or recklessly cause[d] serious bodily injury to Ralph Torres by choking Ralph Torres. . . .@

The State relied on the testimony of Dr. Lloyd White, the Nueces County Medical Examiner, to establish that appellant=s act of choking Torres constituted serious bodily injury, because the choking created a substantial risk of death. See Tex. Pen. Code Ann. ' 1.07(a)(46) (Vernon 1994). Appellant argues that Dr. White=s testimony directly conflicts with the legal definition of Aserious bodily injury,@ because Dr. White only set forth the proposition that, to him, serious bodily injury meant Abodily injury that could create a substantial risk of death.@ Appellant argues that this is not consistent with the legal definition of serious bodily injury.

Dr. White viewed the videotape showing appellant=s assault of Torres. During the guilt/innocence phase the State=s attorney asked Dr. White the following three questions: ADoctor, based on your number of years of experience and number of people that injuries you've seen and autopsies that you've done, is it your professional opinion that the actions of . . . [appellant] created a substantial risk of death to Ralph Torres?@; APersons who are choked but not choked to death are exposed to a substantial risk of death, is that correct?@; and ABased on the videotape, the witness statements that you observed, is it your professional opinion that Ralph Torres was subjected to a substantial risk of death by choking?@. Dr. White answered affirmatively to these questions. Dr. White=s testimony showed that appellant gripped the front of Torres=s neck, placing his thumb on one side and his fingers on the other side of the larynx or voice box region. There were periods of time, sometimes involving as much as thirty seconds or so, in which appellant gripped the front of Torres=s neck. According to Dr. White appellant=s actions could interrupt Torres=s air flow, blood circulation to the brain, and result in carotid body stimulation.

Viewing the evidence in the light most favorable to the prosecution we hold that any rational trier of fact could have found beyond a reasonable doubt that appellant=s act of choking Torres created a substantial risk of death. We do not find that the proof of guilt is so obviously weak that it undermines confidence in the jury's determination, or is greatly outweighed by contrary proof. Accordingly we hold the

evidence is legally and factually sufficient to support appellant's conviction for aggravated assault. We overrule points one and two.

Dr. White=s Cross-Examination

By point three appellant argues that the trial court erred by limiting his cross-examination of Dr. White. The Sixth Amendment protects the defendant's right not only to confront the witnesses against him, but to cross examine them as well. Davis v. Alaska, 415 U.S. 308, 316 (1974). The accused is accorded great latitude in showing witness bias or motive to falsify testimony. Tan Kien Tu v. State, 61 S.W.3d 38, 53 (Tex. App.BHouston [14th Dist.] 2001, no pet.). The extent of this cross examination, however, is not unlimited, and the trial court retains wide latitude to impose reasonable limits on cross examination. Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986); Carroll v. State, 916 S.W.2d 494, 498 (Tex. Crim. App. 1996). The trial court must carefully consider the probative value of the evidence and weigh it against the risks of admission. Tan Kien Tu, 61 S.W.3d at 53. See Hodge v. State, 631 S.W.2d 754, 758 (Tex. Crim. App. 1982). These potential risks include "the possibility of undue prejudice, embarrassment or harassment to either a witness or a party, the possibility of misleading or confusing a jury, and the possibility of undue delay or waste of time." Id.; Tex. R. Evid. 403. A trial court may exclude evidence being elicited during cross examination on the basis that the prejudicial effect of that evidence clearly outweighs its probative value. Tan Kien Tu, 61 S.W.3d at 53; Nevels v. State, 954 S.W.2d 154, 157 (Tex. App.BWaco 1997, pet. ref'd).

A Confrontation Clause violation occurs when a defendant is prohibited from engaging in otherwise appropriate cross examination designed to show a prototypical form of bias on the part of the witness, and thereby "to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness." Van Arsdall, 475 U.S. at 680. However the trial court's decision to limit cross examination is not subject to reversal absent a clear abuse of discretion. Love v. State, 861 S.W.2d 899, 903 (Tex. Crim. App. 1993); Tan Kien Tu, 61 S.W.3d at 53. Whether the trial court abuses its discretion depends upon the facts of the case. Tan Kien Tu, 61 S.W.3d at 53-54.

During the guilt/innocence phase appellant sought to cross-examine Dr. White about his testimony in an unrelated criminal trial, State v. Dario Bargas, Jr.,[1] involving serious bodily injury. The State objected that Dr. White=s testimony in the Bargas case was irrelevant, and the trial court sustained the objection.

Appellant made a bill of exceptions in which he introduced into evidence Dr. White=s testimony in the Bargas case.[2] In that case Dr. White testified that stab wounds and lacerations made by scissors to various parts of the female victim=s body did not constitute serious bodily injury.

We hold that the trial court did not abuse its discretion. The victim's wounds in the Bargas case bear no similarity to the wounds here. This case concerns whether appellant=s act of choking Torres created a substantial risk of death and the Bargas case concerned whether those stab wounds constituted serious bodily injury. Stab wounds are a much different type of injury than injuries which may result when someone chokes the other. Stab wounds, depending on their depth, location, and number may or may not constitute serious bodily injury. Choking, on the other hand, can cause loss of air flow, loss of blood circulation to the brain, and carotid stimulation depending on the amount of pressure, where applied, and its duration. Twenty years ago the court of criminal appeals stated that Ait is certainly common knowledge that the throat is a particularly vulnerable part of the body, as exemplified by the popular expression >go for the throat.=" Morales v. State, 633 S.W.2d 866, 868 (Tex. Crim. App. 1982).

We hold the trial court did not err in holding the evidence was not relevant and excluding it. The trial court allowed appellant to thoroughly question Dr. White about his understanding of the definition of serious bodily injury and whether being stabbed with scissors in the face, chest and behind both ears could create a risk of serious bodily injury. Due to the differences in the two cases, Dr. White could have had different opinions regarding the injuries and how they were inflicted without compromising the veracity of his medical opinion or his credibility as an expert. Therefore the trial court properly excluded Dr. White=s testimony regarding prior statements in the Bargas case. We overrule appellant's third point of error.

Peremptory Challenges

By point four appellant argues that the trial court erred in overruling his request for ten peremptory challenges as set forth in article 35.15(b) of the Texas Code of Criminal Procedure. Article 35.15(b) provides that AIn non capital felony cases . . . the State and defendant shall each be entitled to ten peremptory challenges. If two or more defendants are tried together each defendant shall be entitled to six peremptory challenges and the State to six for each defendant.@ Tex. Code Crim. Proc. Ann. art. 35.15(b) (Vernon Supp. 2002).

Appellant was indicted on four felony counts and four misdemeanor counts. His co-defendant Thomas Bailey[3] was indicted for two misdemeanor counts. Appellant and Bailey were tried together in the 117th Judicial District Court of Nueces County. The trial court denied appellant=s request for ten peremptory challenges, but instead granted him six peremptory challenges. Appellant renewed his request for an additional four peremptory challenges prior to the jury being seated, pointing out that jurors 5, 6, 7, and 11 were objectionable to him. The trial court denied the request.

Appellant argues that because only he was charged with a felony offense, he alone qualified as a defendant under article 35.15(b) for the determination of statutory peremptory challenges. Thus he contends that the trial court should have awarded him ten peremptory challenges. Appellant has not cited any case law to support this argument, but instead relies on his own interpretation of the statute. We point out that peremptory challenges are not of constitutional dimension, Ross v. Oklahoma, 487 U.S. 81, 88 (1988), but instead are a statutory right. See Tex. Code Crim. Proc. Ann. arts. 35.14, 35.15(b) (Vernon 1989 & Supp. 2002). Under our approach to statutory interpretation we look solely to the literal text of the statute for its meaning unless the text is ambiguous or application of the statute's plain language would lead to an absurd result that the legislature could not possibly have intended. Fryer v. State, 68 S.W.3d 628, 629 (Tex. Crim. App. 2002); Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). The literal text of article 35.15(b) provides, in relevant part, that AIn non capital felony cases . . . the State and defendant shall each be entitled to ten peremptory challenges. If two or more defendants are tried together each defendant shall be entitled to six peremptory challenges. . . .@ Tex. Code Crim. Proc. Ann. art. 35.15(b) (Vernon Supp. 2002). When two or more defendants are Atried together@ the statute does not distinguish between defendants charged with felonies and defendants charged with misdemeanors. The language of this statute is not ambiguous and application of the statute's plain language does not lead to an absurd result that the legislature could not possibly have intended. If a co-defendant is concerned about the number of peremptory challenges, one solution is to move for a severance on the ground that a joint trial would deprive the defendant of the full allotment of peremptory challenges. We hold that the trial court did not err by denying appellant=s request for ten peremptory challenges. We overrule point four.

We AFFIRM the trial court=s judgment.

______________________________

J. BONNER DORSEY,

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 22nd day of August, 2002.

[1]State of Texas v. Dario Bargas, Jr., in the 36th Judicial District Court of San Patricio County, Texas, trial court Cause No. S 003083 CR.

[2]This testimony was marked as Defendant=s Exhibit No. 3.

[3]Thomas Bailey is not a party to this appeal.