Opinion issued May 27, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-01242-CR
JOHN STARK ECK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court At Law No. 12
Harris County, Texas
Trial Court Cause No. 1101057
MEMORANDUM OPINION
A jury found appellant, John Stark Eck, guilty of assault. The trial court assessed punishment at confinement for one year, but suspended the sentence and placed appellant on community supervision for one year. The court also imposed an $800 fine. On appeal, appellant contends that (1) the trial court erred in admitting hearsay statements as excited utterances; (2) the evidence at trial was legally and factually insufficient to convict him of assault; and (3) the trial court gave an erroneous jury instruction on self-defense.
We affirm.
Facts and Procedural History
At trial, the State predominantly relied on the testimony of Lakeview Police Officer C. Hendricks. Kathleen Eck, complainant, did not appear at the trial.
According to Officer Hendricks’s testimony, on February 12, 2002, he responded to a 911 call regarding a domestic disturbance at appellant’s house. When Officer Hendricks arrived at the house, appellant answered the door and acknowledged that his wife, complainant, had called 911. As Officer Hendricks entered the foyer, complainant emerged from an adjoining bathroom in which she had locked herself.
Complainant was still talking to the 911 operator as she entered the foyer and Officer Hendricks could see that she was upset and crying; her hair was disheveled; her eyes were red; her nose was running; and, she had urinated on herself. Furthermore, complainant had red finger marks on her neck that appeared to be the
result of “throttling.” She also had a red mark on her sternum and a scratch behind her ear. Appellant had fresh, “thumbnail-type” scratches on the inside of his wrists.
During the course of Officer Hendricks’ investigation, complainant remained emotional. Officer Hendricks described her behavior as varying between “being very upset to almost not being able to communicate with me.”
At trial, Officer Hendricks testified as to numerous remarks made by complainant during the course of his investigation. The trial court admitted the testimony concerning complainant’s statements under the excited utterance exception to the hearsay rule. Specifically, Officer Hendricks testified that complainant stated she and appellant had begun to argue while preparing lunch. As the argument progressed, complainant became increasingly hostile, eventually sweeping the dishes and food off the dining-room table. When appellant attempted to leave, she attacked appellant, ripping his shirt. When appellant went upstairs to change his shirt, complainant followed him and continued the argument. While upstairs, appellant
grabbed complainant, threw her down, put his knee on her chest and choked her until she urinated on herself.
Hearsay Testimony
In his first point of error, appellant asserts that the trial court erred in admitting Officer Hendricks’ testimony concerning the statements made by complainant. Specifically, appellant asserts that the trial court erred in finding the statements admissible as excited utterances.
We review a trial court’s decision to admit or exclude hearsay evidence under an abuse of discretion standard. Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994). A trial court has broad discretion in determining whether evidence is admissible as an exception to the hearsay exclusionary rule. See Kubin v. State, 868 S.W.2d 394, 396 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d). The trial court’s ruling will not be reversed as long as it is within the “zone of reasonable disagreement.” Couchman v. State, 3 S.W.3d 155, 158 (Tex. App.—Fort Worth 1999, pet. ref’d).
An excited utterance is a statement that relates to a startling event or condition and that is made while the declarant is under the stress of excitement caused by the event or condition. Tex. R. Evid. 803(2). An excited utterance is not subject to the exclusionary rule generally applicable to hearsay testimony. See Tex. R. Evid. 803.
The excited utterance exception is based on the premise that, when a person is in the instant grip of violent emotion, excitement or pain, he ordinarily loses the capacity for reflection necessary to the fabrication of a falsehood. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). Thus, the statement is trustworthy because it represents an event speaking through the person rather than the person speaking about the event. Id. The critical determination is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event or condition at the time of the statement. Id. at 596. The length of time between the occurrence and the statement, and whether the statement was made in response to questioning, are factors to consider but are not necessarily dispositive. Id. at 595-96.
In the instant case, the statements of complainant to which Officer Hendricks testified were made just minutes after a physical altercation between her and appellant. This altercation was such that complainant had marks on her neck and chest and had urinated on herself. Officer Hendricks described complainant as upset and crying; her hair was disheveled; her eyes were red; and her nose was running. He further described complainant’s behavior as erratic and as “being very upset to almost not being able to communicate with me.”
We conclude that the trial court could have reasonably determined that complainant was still dominated by the emotions, excitement, fear, or pain of the altercation when making the statements of which Officer Hendricks testified. Thus, we hold that the trial court did not abuse its discretion in allowing the testimony.
We overrule appellant’s first point of error.
Sufficiency of the Evidence
In his second and third points of error, appellant asserts that the evidence was legally and factually insufficient to convict him of assault. Specifically, appellant asserts that the evidence was insufficient to support the jury’s rejection of his self-defense theory.
A. Standards of Review
In reviewing the legal sufficiency of evidence to support rejection of a defense such as self-defense, we examine all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense and also could have found beyond a reasonable doubt against the defendant on the self-defense issue. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). The defendant has the burden of producing some evidence to support the claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Once the defendant produces such evidence, the State has the burden of disproving the defense. Id. The burden of persuasion does not require the State to produce evidence; rather, it requires only that the State prove its case beyond a reasonable doubt. Id. When the jury finds the defendant guilty, it implicitly finds against the defensive theory. Id.
In reviewing the factual sufficiency of evidence to support rejection of a defense such as self-defense, we examine all of the evidence neutrally to determine whether the State’s evidence, if taken alone, is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. Id. at 594-95. The jury is the sole judge of the facts, the witnesses’ credibility, and the weight to be given to the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). Thus, in conducting our analysis, we must defer to the trier of fact’s determination concerning the weight given contradictory evidence. See Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).
B. Assault and Self-Defense
A person commits the offense of assault if that person intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse. Tex. Penal Code Ann. § 22.01 (Vernon 2003).
In regard to self-defense, a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of force. Tex. Penal Code Ann. § 9.31(a) (Vernon 2003). A reasonable belief is a belief that would be held by an ordinary and prudent man in the same circumstances as the actor. Tex. Penal Code Ann. § 1.07(42) (Vernon Supp. 2004). Actual danger is not required; rather, as long as a defendant’s belief is reasonable, he is entitled to use force to protect against an apparent danger. Jones v. State, 544 S.W.2d 139, 142 (Tex. Crim. App. 1976).
C. Legal Sufficiency of Evidence
The testimonial evidence that appellant choked complainant by the neck was supported by pictures of complainant taken shortly after the altercation, showing considerable bruising around complainant’s neck, as well as a scratch behind her ear and a bruise on her chest. The State also presented evidence that complainant was choked to the point where she lost control of her bladder and urinated on herself. Further evidence was presented indicating that appellant had fresh, “thumb nail” type scratches on the inside of his wrists. Thus, we conclude that the evidence, as viewed in the light most favorable to the verdict, was such that a reasonable juror could have found the essential elements of assault, beyond a reasonable doubt.
Appellant asserts, however, that his actions were justified because he acted in self-defense. The evidence indicates that complainant initiated the argument. It also indicates that she was the first person to become physically violent. Nevertheless, the jury was free to determine that the degree of force used by appellant in reciprocation of complainant’s hostility was more than immediately necessary to protect himself. By rejecting appellant’s self-defense claim, the jury implicitly found that the force used by appellant was excessive. Thus, we hold that the evidence, as viewed in the light most favorable to the verdict, is such that a reasonable juror could have rejected appellant’s self-defense claim.
We overrule appellant’s second point of error.
D. Factual Sufficiency of Evidence
The State presented evidence that complainant had bruises around her neck and throat. It further presented the testimony of Officer Hendricks conveying that complainant was upset, disheveled, soaked in her own urine and crying when he arrived at the house. Hendricks further testified that complainant stated that “He [appellant] grabbed me, threw me on the ground, put his knee on my chest, started choking me, and I peed on myself.”
To support his self-defense claim, appellant presented evidence that complainant precipitated the argument that led to the assault and testified that his only physical act against her was to grab her by the neck and push her to the ground in an effort to extricate himself from the violent and escalating argument. Because appellant was the only person who testified as to the events of the actual altercation, the jury’s evaluation of his credibility was crucial to its verdict. When a jury’s determination depends primarily on its evaluation of the witnesses’ demeanor and credibility, it is entitled to almost total deference. Johnson, 23 S.W.3d at 8-9. Ultimately, the jury was free to reject appellant’s claim that he merely pushed complainant by the neck, instead finding that he choked her causing her bruising and resulting in her losing control of her bladder. In doing so, the jury could have reasonably determined that the force used by appellant was more than necessary to protect himself from whatever threat complainant posed. Viewing all the evidence in a neutral light, we hold that the State’s evidence, if taken alone, is not so weak that it fails to support a finding of guilt; nor is it so weak that it fails to support the jury’s
rejection of appellant’s claim of self-defense. We further hold that appellant has failed to demonstrate that the proof of guilt is against the great weight and preponderance of the evidence.
We overrule appellant’s third point of error.
Jury Instruction
In his fourth point of error, appellant contends that the trial court erred in incorrectly instructing the jury that his right to act in self-defense must be based on a fear of bodily injury—as Penal Code subsection 9.31(a) allows one to act in self-defense merely upon the use or attempted use of unlawful force. Specifically, the trial court charged the jury as follows:
Upon the law of self-defense, you are instructed that a person is justified in using force against another when and to the degree the person believes the force is immediately necessary to protect himself against the other person’s use or attempted use of unlawful force. Verbal provocation alone is not a defense.
When a person is attacked with unlawful force, or he reasonably believes he is under attack with unlawful force, and there is created in the mind of such person a reasonable expectation or fear of some bodily injury, then the law excuses or justifies such person in resorting to force to the degree that he reasonably believes is immediately necessary, viewed from his standpoint at the time, to protect himself from attack or attempted attack. It is not necessary that there be an actual attack, as a person has a right to defend himself from apparent danger as fully and to the same extent as he would had the danger been real, provided that
he acted upon a reasonable apprehension of danger, as it appeared to him at the time, and that he reasonably believed such force was immediately necessary to protect himself against the other person’s use or attempted use of unlawful force.
(Emphasis added). Thus, appellant contends that the “fear of some bodily injury” language imposed an additional element not required by subsection 9.31(a).
When we review the charge to the jury, our first inquiry is whether the alleged error was preserved. If so, any harm, regardless of the degree, is sufficient to require reversal of the conviction. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Error is harmful if, looking at the entire jury charge, and the trial as a whole, it is calculated to injure the rights of the defendant. Id. If the alleged error was not preserved, however, the defendant must show that the harm was “egregious,” or so harmful that the defendant was denied “a fair and impartial trial.” Id. at 171-72.
Appellant failed to preserve error by objection at trial. Thus, he must demonstrate that any harm caused by the complained-of error was “egregious.” We find that he has failed to do so.
In the instant case, “bodily injury” was defined in the jury charge as “physical pain, illness or any impairment of physical condition.” The evidence presented by appellant of complainant’s unlawful force included (1) her striking him, (2) her ripping his shirt, and (3) her grabbing onto his leg as he attempted to leave. This evidence was uncontroverted. Although Penal Code subsection 9.31(a) does not require a reasonable expectation or fear of some bodily injury, Tex. Pen. Code Ann. § 9.31(a), because the evidence was uncontroverted that complainant had not only attacked appellant, but had struck him so that he had a reasonable expectation or fear of some bodily injury, the erroneous jury instruction did not raise appellant’s burden and thus did not cause appellant any harm. See Zuliani v. State, 52 S.W.3d 825, 831-32 (Tex. App.—Austin 2001), rev’d on other grounds, 97 S.W.3d 589 (Tex. Crim. App. 2003). On these facts, we hold that appellant has failed to show that the erroneous jury instruction caused egregious harm.
We overrule appellant’s fourth point of error.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Taft, Hanks, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).