Opinion issued July 20, 2006
In The
Court of Appeals
For The
First District of Texas
NO. 01-05-00589-CR
VICTOR MANUEL RODRIGUEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court at Law No. 6
Harris County, Texas
Trial Court Cause No. 1283054
MEMORANDUM OPINIONAppellant, Victor Manuel Rodriguez, was charged by information with the Class A misdemeanor offense of assault. The jury found appellant guilty of the lesser offense of Class C misdemeanor assault by contact. The trial court assessed punishment at a $250 fine and made an affirmative finding of family violence. On appeal, appellant presents four points of error. Appellant contends that the trial court should have granted a mistrial after the jury heard improper extraneous-offense evidence, erroneously admitted hearsay testimony, and erred by making an affirmative finding of family violence.
We affirm.
Background
Appellant’s wife, Dolores Rodriguez, called 9-1-1 and reported that her husband had pushed her into the wall. Harris County Deputy Constable Jeannette Soefjes responded to the call. Dolores told Deputy Soefjes that appellant had pushed her into the wall and to the floor during an argument. Deputy Soefjes noted that Dolores had a small scratch below her eye and scratches on the inside of her thigh.
Appellant was charged by information with Class A misdemeanor assault of a family member. The case was tried to a jury three months after the altercation between appellant and Dolores. By that time, Dolores had changed her account of what had happened and no longer wanted the State to prosecute appellant. At trial, Dolores acknowledged that she had told the 9-1-1 operator and Deputy Soefjes that appellant had pushed her, but stated that she had been mistaken in her claim. Dolores testified that she had lost her balance and had fallen. She characterized appellant’s physical contact with her as accidental.
Extraneous-Offense Testimony
In his first and second points of error, appellant complains of Deputy Soefjes’s trial testimony that Dolores told her that “this was not the first time that something like this had happened, but it was the first time that it happened in front of her children.” Appellant contends in his first point of error that Deputy Soefjes’s testimony was inadmissible extraneous-offense evidence and that, despite a curative instruction, the trial court should have granted a mistrial. Relatedly, in his second issue, appellant complains of Deputy Soefjes’ testimony on the ground that the State did not give him notice that it planned to introduce extraneous-offense evidence.
The trial court orally instructed the jurors that they could not consider Deputy Soefjes’s testimony indicating that appellant may have previously assaulted Dolores. In this regard, the record reveals as follows:
THE COURT: Ladies and gentlemen of the jury, you are hereby instructed that certain evidence was admitted before you in regard to the defendant possibly having committed a similar act or acts other than the one for which he is now on trial. Such evidence cannot be considered by you against the defendant as any evidence of guilt in this case. Do I have your solemn word you will follow this instruction? Ma’am, ma’am, ma’am, ma’am, sir, ma’am?
THE JURORS: Yes.
In the jury charge, the trial court also gave the following instruction:
You are instructed that certain evidence was admitted before you in regards to the defendant possibly having committed a similar act or acts other than the one for which he is now on trial. Such evidence cannot be considered by you against the defendant as any evidence of guilt in this case and you will not consider it for any purpose.
We agree with the State that, because the instruction was sufficient to cure any harm associated with Deputy Soefjes’s testimony regarding extraneous acts, the trial court properly denied appellant’s motion for mistrial. A trial court’s denial of a motion for mistrial is reviewed under an abuse of discretion standard. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). “A witness’s inadvertent reference to an extraneous offense is generally cured by a prompt instruction to disregard.” Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998). An exception exists when the reference was clearly calculated to inflame the minds of the jury or was of such damning character as to suggest it would be impossible to remove the harmful impression from the jurors’ minds. Id.
If a trial court instructs a jury to disregard, then we presume that the jury followed the trial court’s instruction. See Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996); Waldo v. State, 746 S.W.2d 750, 753 (Tex. Crim. App. 1988). “Only when it is apparent that an objectionable event at trial is so emotionally inflammatory that curative instructions are not likely to prevent the jury being unfairly prejudiced against the defendant may a motion for mistrial be granted.” Bauder, 921 S.W.2d at 698.
When reviewing error pursuant to the harmless error rule and the efficacy of curative instructions, we may consider the following factors: (1) the nature of the error; (2) the persistence of the prosecution in committing the error; (3) the flagrancy of the violation; (4) the particular instruction given; (5) the weight of incriminating evidence; and (6) the harm to the accused as measured by severity of the sentence. See Waldo, 746 S.W.2d at 754. Irrespective of whether Deputy Soefjes’ testimony constituted improper extraneous-offense evidence of which appellant did not have proper notice, we find nothing in the record to suggest that the complained-of testimony was of such a nature that any prejudice associated with it was not be cured by the trial court’s instruction to disregard.
Deputy Soefjes’s reference to an extraneous offense was vague and isolated, was not directly solicited by the State, was not emphasized, and was not further referenced by the State. The State presented sufficient evidence that appellant had committed a Class C misdemeanor assault. Even though Dolores had recanted her claim that appellant had pushed her, it was for the jury, as the fact finder, to determine which version of the events it would believe. The record reflects that, after the defense objected, the trial court promptly instructed the jury to disregard the remark and reminded the jury in the charge not to consider it in determining appellant’s guilt. Based on the record and relying on the presumption that the jury followed the trial court’s instruction, we discern no reason why the instruction to disregard failed to cure any prejudicial effect that Deputy Soefjes’s testimony might have had. See Rojas, 986 S.W.2d at 250. Thus, we hold that the trial court did not abuse its discretion in denying appellant’s motion for mistrial.
We overrule appellant’s first and second points of error.
Hearsay Testimony
In his third point of error, appellant contends that the trial erred by admitting Deputy Soefjes’s testimony regarding what Dolores said to her when the officer arrived at the residence in response to the 9-1-1 call. Appellant asserts that such testimony was inadmissible hearsay. In this regard, appellant complains of not only Deputy Soefjes’s testimony discussed above, but also her testimony regarding what Dolores told her about the events surrounding the assault.
We review a trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). That is, we will not reverse a trial court’s evidentiary ruling unless it falls outside the zone of reasonable disagreement. Id.
We agree with the State that the trial court would have been justified in determining that Deputy Soefjes’s testimony regarding what Dolores told her was not inadmissable hearsay because it fell within the excited utterance exception to the hearsay rule. An excited utterance is defined as a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Tex. R. Evid. 803(2); Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim. App. 2001). The critical factor in determining whether a statement is an excited utterance is whether the declarant was dominated by the emotions of the event at the time of the statement. Zuliani v. State, 97 S.W.3d 589, 596 (Tex. Crim. App. 2003). Deputy Soefjes testified that, when she arrived at the scene, Dolores was upset, had tears in her eyes, and was trembling. Given Dolores’s demeanor, reasonable people could disagree about whether she was still dominated by the emotions of her attack when she made the statements to Deputy Soefjes. See id. at 595–96. Therefore, the trial court did not abuse its discretion to the extent that it concluded that Deputy Soefjes’s testimony fell within the excited utterance exclusion and admitted the testimony. See Tex. R. Evid. 803(2).
We overrule appellant’s third point of error.
Affirmative Finding of Family Violence
In his fourth point of error, appellant contends that “the trial court’s finding of family violence violated the jury’s verdict under article I, section 15 of the Texas Constitution,” which establishes a party’s right to trial by jury. Tex. Const. art. I, § 15.
The jury was charged, in pertinent part, as follows:
Our law provides that a person commits the offense of [a]ssault of a family member if the person unlawfully or recklessly causes bodily injury to another person.
Our law also provides that a person commits the less serious crime of assault by contact if he or she intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
The jury found appellant guilty of “assault by contact.” Appellant contends that, by making an affirmative finding of family violence, the trial court “invalidated the jury’s verdict by changing the character of the offense for which the Appellant was convicted.” Appellant supports this contention as follows:
The jury’s verdict page gave the jury three options: one was to find the Appellant guilty, another was to find the Appellant guilt [sic] of assault of a family member and the third was to find Appellant guilt [sic] of assault by contact. By the jury entering a verdict of guilty of assault by contact, the jury refused to make a finding of assault on a family member. The jury having rejected the family violence, so should the judge have done and left the jury’s verdict intact.
We disagree that the trial court’s family-violence finding “invalidated the jury’s verdict by changing the character of the offense for which the Appellant was convicted.”
Code of Criminal Procedure article 42.013 statutorily obligates a trial court to enter an affirmative finding of family violence in the judgment, if during the guilt phase of trial, the court determines that the offense involved family violence as defined by Family Code section 71.004(1). Butler v. State, 189 S.W.3d 299, 302 (Tex. Crim. App. 2006); see Tex. Code Crim. Proc. Ann. art. 42.013 (Vernon Supp. 2005). Penal Code section 22.01(b)(2) provides that the offense of assault is ordinarily a Class A misdemeanor, but is enhanced to a felony “if the offense is committed against: a member of the defendant’s family or household, if it is shown on the trial of the offense that the defendant has been previously convicted of an offense against a member of the defendant’s family or household under this section.” Tex. Pen. Code Ann. § 22.01(b)(2) (Vernon Supp. 2005).
By enacting article 42.013, the legislature sought to simplify the enhancement of punishment for family violence repeat offenders. State v. Eakins, 71 S.W.3d 443, 444 (Tex. App.—Austin 2002, no pet.). Before article 42.013’s enactment, extrinsic evidence was the only method of proving that a previous conviction for assault was against a family member. Id. An affirmative article 42.013 finding of family violence eliminates the need to use extrinsic evidence to enhance a subsequent conviction for family violence. Godwin v. State, 91 S.W.3d 912, 919 (Tex. App.—Fort Worth 2002, no pet.). This simplifies the enhancement process for possible future assaults against a family member and promotes judicial economy. Id.
Here, the trial court’s affirmative finding of family violence did not serve to alter or change the character of appellant’s conviction or otherwise “invalidate” the jury’s verdict. There is no indication in the record that the affirmative family-violence finding was used to enhance the offense. See Tex. Pen. Code Ann. § 22.01(b)(2). The record indicates that appellant was charged with and convicted of a single count of assault, and there is no indication that appellant had been previously convicted of an offense involving family violence. The judgment reflects that appellant was convicted of Class C misdemeanor assault, nothing more. The punishment assessed against appellant—a $250 fine—was within the punishment range allowed for a Class C assault. See Tex. Pen. Code Ann. § 12.23 (Vernon 2003) (providing that “[a]n individual adjudged guilty of a Class C misdemeanor shall be punished by a fine not to exceed $500”). At most, the family-violence finding will serve to enhance, from a misdemeanor to a felony, any future assault that appellant may commit against a family member. See Tex. Pen. Code Ann. § 22.01(b)(2).
We also disagree with appellant that the affirmative finding of family violence conflicts with the jury’s verdict. Appellant contends that the jury’s finding that appellant was guilty of the offense of “assault by contact,” rather than the offense of “assault of a family member,” indicates that the jury rejected a finding of family violence. This is not necessarily the conclusion to be drawn from the verdict. The jury may have rejected the “assault on a family member” offense because it did not find that appellant “unlawfully or recklessly caused bodily injury to another person,” which, as defined in the jury charge, was an element required to convict appellant of “assault of a family member.”
Appellant also contends that the affirmative finding of family violence is insupportable because the Family Code’s definition of “family violence” requires a showing that the defendant’s acts were intended to result in physical harm, bodily injury, or assault. See Tex. Fam. Code Ann. § 71.004(1) (Vernon 2002). Appellant asserts that the jury could not have found that he acted intentionally because the application paragraph in the charge did not require the jury to find intentional conduct. We find appellant’s argument to be without merit. The trial court, not the jury, determines whether an affirmative family-violence finding should be made. Article 42.013 assigns the responsibility for making the family-violence finding solely to the trial court and requires the trial court to make such finding if it determines that the offense involved “family violence,” as defined in the Family Code. See Tex. Code Crim. Proc. Ann. art. 42.013. The Court of Criminal Appeals recently held that an article 42.013 family-violence finding is properly made by the trial court, rather than the jury, if, as in this case, the finding does not serve to increase the defendant’s punishment. Butler, 189 S.W.3d at 302–03.
Appellant further contends, without substantive argument or authority, that “[t]he evidence does not support any intentional act as required by section 71.004.”
We disagree. The State presented evidence that appellant pushed Dolores, appellant’s wife, against the wall and also pushed her to the ground causing injuries to her face and leg. Such evidence sufficiently supported the trial court’s finding of family violence.
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 Jennings, Hanks, and Higley
Do not publish. Tex. R. App. P. 47.2(b).