Opinion issued May 31, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-06-00060-CR
TANEESHA MONIQUE SIMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Cause No. 902151
MEMORANDUM OPINION
A jury convicted appellant, Taneesha Monique Sims, of aggravated assault with a deadly weapon, a knife. See Tex. Pen. Code Ann. § 22.02(a)(2) (Vernon Supp. 2006). The trial court assessed punishment at four years in prison. We determine (1) whether the trial court erred (1) by commenting on the weight of the evidence when giving an instruction to the jury, (2) by permitting the introduction of character testimony during the punishment phase, and (3) by permitting the introduction of hearsay testimony regarding alleged prior bad acts during the punishment phase. We affirm.
Facts
On February 7, 2002, there was a dispute at a nightclub. As a result, several persons, including the complainant, Tranese Davis, and appellant, were asked to leave. Appellant blamed the complainant for having started the dispute. The next day, the complainant and appellant argued on the telephone and threatened to fight one other. At some point, appellant threatened to stab the complainant. On February 10, 2002, appellant discovered that her car had been scratched. She suspected that the complainant had done it. Appellant put a kitchen knife in her purse before going to pick up a friend, Aqueelah, to go shopping at the Galleria. The complainant found out that appellant was going to Aqueelah's apartment, and she went there intending to fight with appellant. At the complainant's knock, Aqueelah opened the door a crack to see who was there, the complainant barged in, and the fight with appellant began. At some point, appellant grabbed her knife and stabbed the complainant in the left side of her stomach.
The complainant collapsed and started vomiting chunks of blood. An ambulance was called, and the complainant was taken to the hospital. The complainant did not regain consciousness for a week. She had several surgeries to treat wounds to her stomach, pancreas, and kidneys. Doctors had to remove her left kidney and her spleen. As a result of complications, the complainant stayed over three months in the hospital.
In the meantime, having stabbed the complainant, appellant left Aqueelah's apartment, and she returned to her own residence, where she called the police to come out so that she could report her suspicions that someone had keyed her car. Appellant told the officer that she had gotten into a fight and stabbed that person with a knife. When the officer asked where the knife was, appellant pointed it out on the coffee table, and he seized it. Upon confirming that there had been a stabbing, the officer arrested appellant.
After getting out of the hospital, the complainant was approached by appellant at a bar. Appellant started crying, telling the complainant that she was sorry and asking the complainant to drop the charges.
Alleged Comment on the Weight of the Evidence
In her first issue presented for review, appellant contends that the trial court erroneously commented on the weight of the evidence when it instructed the jury that "conduct is not rendered involuntary merely because an accused does not intend the result of her conduct."
At trial, during the guilt-innocence phase, the trial court submitted two jury instructions that included the requirement of a voluntary act or omission for aggravated assault. The first two sentences of the two instructions came directly from Chapter 6 of the Texas Penal Code:
You are instructed that a person commits an offense only if she voluntarily engages in conduct, including an act, an omission, or possession. A person does not commit an offense unless she intentionally or knowingly engages in conduct as the definition of the offense requires.
Tex. Pen. Code Ann. §§ 6.01(a), 6.02(a) (Vernon 2003 & Supp. 2006). The instruction emphasized that appellant cound not be found guilty of having committed an offense unless she had had one of the two culpable mental states alleged in the indictment: intentionally or knowingly. In addition, the second instruction included the statement: "Conduct is not rendered involuntary merely because an accused does not intend the result of her conduct."
A. Standard of Review
In preparing and submitting a jury charge, a trial court is prohibited from expressing any opinion as to the weight of the evidence, from summing up the testimony, from discussing the facts, or from using any argument in the charge calculated to arouse the sympathy or to excite the passions of the jury. Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007). A charge that constitutes a comment by the court on the elements of the offense charged, or assumes the truth of a controverted issue, is a comment on the weight of the evidence and is erroneous. Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim. App. 1986); see Grady v. State, 634 S.W.2d 316, 317 (Tex. Crim. App. 1982).
This Court's first duty in analyzing a jury charge issue is to decide whether error exists. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If error exists in the charge, this Court applies the appropriate harm analysis depending on whether the error was preserved in the trial court. See id; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). If the alleged error is the omission of a defensive issue, the defendant must show that she timely requested the issue or objected to its omission because the trial has no duty sua sponte to instruct the jury on unrequested defensive issues. Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998). Unlike the culpable mental state, which is an element of the offense to be proved by the State, voluntariness is treated as a defensive issue that must be raised by the evidence and requested by the defendant to warrant an instruction to the jury. See Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997).
B. Analysis
Appellant argues that, although the jury instruction may appear neutral on its face, when read as part of the whole charge, and when examined in light of the evidence presented at trial, it had the obvious effect of singling out testimony-namely the testimony relating to appellant's claim that the complainant rushed her and made first contact, and that-when the complainant was stabbed, appellant did not push the knife into her or move her hand. Appellant asserts that the jury instruction had the further effect of directing the jury to ignore or to disregard appellant's evidence that the complainant had impaled herself and, as such, it constituted a prohibited comment on the weight of the evidence.
The resolution of the issue in the present case is controlled by Simpkins v. State, in which the Court of Criminal Appeals stated: Upon examination of the record we find that this instruction fairly and adequately presented the issue raised by the appellant's own testimony.
Appellant specifically complains about the portion of the charge which states:
"You are instructed that a person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession. Conduct is not rendered involuntary merely because the person did not intend the results of his conduct."
[Appellant] asserts that the statement is a misdirection of the law and a comment on the weight of the evidence. . . .
The trial court has correctly stated the law as found in V.T.C.A. Penal Code, Secs. 6.01(a) and 6.02(a). These grounds of error are therefore overruled.
Id., 590 S.W.2d 129, 135 (Tex. Crim. App. 1979)(citations omitted). In Dockery v. State, the same court acknowledged that the Code required both a culpable mental state and voluntary conduct for a defendant to be found guilty. See id., 542 S.W.2d 644, 649-50 (Tex. Crim. App. 1975). Thus, it is not error for the jury to be instructed that there is a difference between involuntary conduct and unintentional conduct such that the absence of one does not dictate the absence of the other.
Appellant cites to numerous cases to support her contention that the jury instruction singled out testimony and constituted an impermissible comment on the weight of the evidence. See Matamoros v. State, 901 S.W.2d 470, 477 (Tex. Crim. App. 1995) (holding that instruction concerning reliability of DNA evidence constituted impermissible comment on weight of the evidence); Zani v. State, 758 S.W.2d 233, 245 (Tex. Crim. App. 1988) (recognizing that instruction can have obvious effect of singling out testimony and inviting jurors to pay attention); Russell v. State, 749 S.W.2d 77, 78 (Tex. Crim. App. 1988) (holding that instruction regarding credibility of expert witnesses was comment on weight of evidence when only expert witness to testify was defense expert). The cases on which appellant relies are distinguishable because the instructions in those cases actually did mention evidence, contrary to the instruction here, which did not mention any evidence. Appellant argues that because of the jury instruction, the "jury could have concluded there was no voluntary conduct on the part of appellant; that the stabbing was the result of physical contact between the parties--contact initiated by the complainant. Yet, nevertheless, the instruction told them to disregard that evidence." We disagree. The jury instruction was not adding additional information or commenting on the evidence, as in the cases that appellant cites. The jury instruction merely informed the jury that the lack of intent with regard to the result, in and of itself, was not sufficient to show lack of voluntary conduct. Furthermore, prior instructions had already been given that commanded the jury to acquit appellant if it found that there had been no voluntary conduct.
Accordingly, the trial court's instruction was not a comment of the weight of the evidence. We overrule appellant's first issue.
Punishment Evidence
In her second and third issues presented for review, appellant contends that the trial court erred in admitting character testimony and hearsay testimony regarding appellant's prior bad acts during the punishment phase. In her second issue, appellant specifically complains of the testimony of Officer Terry regarding his opinion of appellant's character for truthfulness based on a single encounter when he was dispatched to an incident involving appellant in April 2003. In her third issue, appellant specifically complains of the testimony of Officers Holub, Terry, Dubois, Banes, and Torres, who were dispatched on calls involving appellant on five occasions from November 2002 to April 2005, while appellant was on bond, as to matters that appellant told the officers.
A. Standard of Review
A trial court has broad discretion in determining the admissibility of evidence proffered at the punishment stage of trial. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon 2006) ("[E]vidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing"); Henderson v. State, 29 S.W.3d 616, 626 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd). The reviewing court should not disturb a trial court's exercise of discretion in admitting evidence as long as the ruling is within the "zone of reasonable disagreement." Resendiz. v. State, 112 S.W.3d 541, 544 (Tex. Crim. App. 2003); see Flores v. State, 125 S.W.3d 744, 746 (Tex. App.--Houston [1st Dist.] 2003, no pet.).
B. Character Testimony
Appellant complains in her second issue of Officer Terry's testimony, regarding a call that he made to a disturbance involving appellant. During that call, and based on his observations of her demeanor, the fact that her story kept changing, and the lack of any visible injuries corroborating her story that she had been assaulted, he formed the opinion that she was not truthful. Appellant contends that a witness's character for truthfulness cannot be impeached by proof of specific instances of conduct and that a witness to a person's truthfulness must be substantially familiar with that person's reputation, rather than basing an opinion on a single encounter with the person.
Appellant overlooks the fact that in the incident that the officer recounted, appellant was committing the offense of making a false report to a peace officer. Tex. Pen. Code Ann. § 37.08 (a)(1) (Vernon 2003) (providing that "a person commits an offense if, with intent to deceive, he knowingly makes a false statement that is material to a criminal investigation and makes the statement to a peace officer conducting the investigation"). Therefore, because the single encounter involved untruthfulness that also constituted a criminal offense, Officer Terry's testimony was admissible as evidence of an extraneous crime or bad act committed by appellant. Tex. Code Crim. Proc. Ann. art. 37.07§ 3(a)(1) (Vernon 2006).
Accordingly, we overrule appellant's second issue.
C. Appellant's Statements
In her third issue, appellant contends that the many statements that she had made to officers who had been dispatched to incidents in which she had been involved constituted inadmissible hearsay, to which she timely objected. Appellant's position is that statements of a party-opponent can be admitted, pursuant to rule 801(e)(2) of the Texas Rules of Evidence, only when the statement is an inculpatory admission. Appellant relies on the dictionary definition of "admission" and civil case law to support her position.
The State takes the position that appellant's statements were not hearsay because (1) they were not offered for the truth of the matter asserted and (2) they were appellant's own statements offered against her as a party. Tex. R. Evid. 801(d) ("'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.") (emphasis added); Tex. R. Evid. 801(e)(2)(A) ("A statement is not hearsay if the statement is offered against a party and is the party's own statement in either an individual or representative capacity."). The State explains that appellant's statements were not offered for the truth of the matters asserted; to the contrary, they were offered to show that appellant was not telling the truth about incidents she reported to police officers. The State also takes exception to appellant's position that a statement must be an admission, i.e., inculpatory, in order to be admissible as a statement against a party-opponent.
There seems to be some misunderstanding, demonstrated by the trial court's statements while ruling on the admissibility of appellant's statements of which she complains here, as to the requirements of admissibility of a party-opponent's statement. The misunderstanding was cleared up in Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim. App. 1999), wherein the Court of Criminal Appeals explained the requirements and the rationale for admissibility of a party-opponent's statements under rule 801(e)(2) of the Texas Rules of Evidence. See id.; see also Tex. R. Evid. 801(e)(2). To understand the issue requires an appreciation of the distinction between statements against interest, a hearsay exception under rule 803(24), and statements of a party-opponent, which is non-hearsay under rule 801(e)(2). Trevino, 991 S.W.2d at 853. The only requirements for admissibility of an admission of a party-opponent under rule 801(e)(2) is that it be the party's own statement and that it be offered against him. Id. The rationale is that a person is estopped from challenging the fundamental reliability or trustworthiness of his own statements. Id. Of course, for the very reason that the accused's statements are being offered against him, it generally means that they are detrimental to him, but it does not follow that they must be admissions of guilt. As the rule states, it need be only the party's own statement offered against him, as were all of the statements of which appellant complains here. See Tex. R. Evid. 801(e)(2)(A).
Accordingly, we overrule appellant's third issue.
Conclusion
We affirm the judgment of the trial court.
Tim Taft
Justice
Panel consists of Justices Taft, Alcala, and Hanks.
Do not publish. Tex. R. App. P. 47.2(b).