Opinion issued March 13, 2008
In The
Court of Appeals
For The
First District of Texas
NO. 01-07-00143-CR
MERKLE CHARLES JUDGE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 3
Harris County, Texas
Trial Court Cause No. 1374011
MEMORANDUM OPINION
A jury convicted appellant, Merkle Charles Judge, of assault of a family member, (1) and the trial court assessed punishment at confinement for one year. On appeal, appellant contends the trial court erred by (1) overruling his motion for mistrial after the prosecutor commented on appellant's right not to testify; (2) refusing to permit appellant to impeach the complaining witness with a prior inconsistent statement and an allegedly fraudulent insurance application; and (3) admitting evidence of an extraneous offense. We affirm.
I. BACKGROUND
The complainant, Edith Judge, and appellant were married in 2003. Edith testified that they had no children together, but that she had two children--a 13-year-old boy, Kalen, and a 14-year-old girl, Kelse.
On December 5, 2005, Edith came home from work and found appellant cooking supper. Edith, appellant, and the two children went to Wal-Mart together, and then returned home. Because Edith's son had forgotten to take out the garbage, appellant left to take the garbage to a nearby dumpster. While he was gone, Edith left to pick up two children who were planning to spend the night with her children. When she returned, appellant was still not home. The children ate dinner, but Edith did not because she was upset that appellant had not returned.
Edith went to bed, and, at 11 p.m.--after being gone for three hours--appellant returned. Appellant came into the bedroom and asked Edith if she was awake. Edith began arguing with appellant about where he had been and why he had been gone so long. Appellant told Edith that he had been out playing dominoes.
Edith told appellant he could stay at the house, but that she was leaving because she did not want to argue in front of the children. As Edith began collecting the clothes that she needed for work, appellant took an alarm clock, threw it at the wall, and began cursing.
Edith went outside to discover that appellant had moved his truck to block her vehicle so that she could not leave. Appellant refused to move his truck and went back inside. Unable to use her car, Edith began walking down the street. Appellant came back outside, yelling and cursing at Edith to come home. Appellant then punched Edith, and she fell to the grass. Appellant dragged Edith to the sidewalk, where he continued punching and kicking her.
Appellant grabbed Edith's keys and said that he was "going to get what was his." Edith believed that he meant that he was going to take her daughter and leave. Edith walked back to the house and saw appellant with Kelse. Appellant ordered Kelse to get in the truck, which she did. Appellant then revved the engine on his truck and it jumped forward as if he were going to hit Edith. Appellant then drove off down the street with Kelse.
Edith could not get into the house because appellant had taken her keys. Her son, however, opened the garage door to let her in. Appellant then returned, and when he saw the garage door opened, he began to fuss at Kalen for opening it.
Appellant then told Edith and Kalen to get in the truck. Kalen got in the back seat with Kelse and Edith got in the front passenger seat. Appellant then drove away, leaving Kelse's and Kalen's friends alone at the house.
As they were driving, Edith kept telling appellant to slow down because she was in pain, but appellant refused to do so. Appellant then stopped the truck and told the children to get out and Edith to get in the back seat. Before the children got back in the truck, appellant turned to Edith and asked, "What happened tonight?" Edith asked what he meant. Appellant again asked, "What happened tonight?" Edith said, "Well, I don't know what you want me to say," to which appellant replied, "Well, I'm not going to jail for anybody; and I'm not losing my kids."
Appellant offered to drop Edith off at the hospital, but she refused because she did not want to leave her children with appellant. Edith was afraid appellant would take her children and leave. So, Edith told appellant to go back to the house.
Upon arrival at the house, Edith went into the bathroom and began to wash her face. Appellant asked her if she was going to press charges against him and send him to jail. Edith said that she was not because she was afraid of another assault. Appellant went to bed, and Edith also tried to sleep but she could not do so because of the pain in her side. The next morning, Edith drove herself to the emergency room.
At the hospital, Edith told hospital personnel that she was not going to discuss her attacker because he was still with her children. After a while, a nurse told Edith that she had two broken ribs. Edith at that point decided to talk about the attack.
She called appellant and told him to leave the kids at home and come pick her up. Appellant asked her what she had told hospital personnel, and Edith told him that she had said that she was attacked by a boyfriend who was upset because she was reconciling with her husband. After talking with appellant, Edith described appellant to police and told them what he would be driving. When appellant arrived at the hospital, he was arrested.
Appellant did not testify, but called Kelse to testify. Kelse's testimony tended to corroborate that of her mother. When asked by defense counsel whether she had seen appellant hit her mother on the night in question, she replied, "No, but I've seen him like hit her before."
II. PROSECUTOR'S COMMENT ON FAILURE TO TESTIFY
In point of error one, appellant argues that the prosecutor commented on his failure to testify during the guilt/innocence phase of the trial, thus violating his Fifth Amendment right not to testify and article 38.08 of the Texas Code of Criminal Procedure. In closing argument, the prosecutor stated as follows:
Now, defense counsel says, we're not arguing that the witness was [not] assaulted. You know why they are not arguing why the witness wasn't assaulted? Because we have the pictures. We have the medical records. So, now, hands down she was assaulted after they were confronted with the evidence, overwhelming evidence.
Now, let's attack the person who was already attacked so we can save the attacker who is not man enough to stand up and take responsibility for what he did to this woman.
[Defense Counsel]: Objection, Your Honor. May we approach?
[Trial Court]: Yes, sir.
[Defense Counsel]: Your Honor, that's improper closing. It is improper closing argument, which intimates to the jury that my client failed to testify.
[Trial Court]: Sustained.
[Defense Counsel]: Okay. Your Honor, I would request at this time a mistrial.
[Trial Court]: Denied.
[Prosecutor]: He mentioned--it was not that, Your Honor. It was the fact he's still not taking responsibility for what he did.
[Trial Court]: I sustain the objection.
[Defense Counsel]: Would you request the jury to disregard the statement?
[Trial Court]: Members of the jury, please disregard the last statement by the prosecutor.
[Defense counsel]: I'd like to reiterate my request for a mistrial.
[Trial court]: Denied.
A comment by a prosecutor on the accused's failure to testify is a violation of his Fifth Amendment privilege against self-incrimination, U.S. Const. Amend. V , and also violates article 38.08 of the Texas Code of Criminal Procedure. However, such an comment is impermissible only if, when viewed from the jury's standpoint, the comment is manifestly intended to be, or is of such character that a typical jury would naturally and necessarily take it to be a comment on the defendant's failure to testify. Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001). It is not sufficient that the comment might be construed as an implied or indirect allusion to a defendant's failure to testify. Id. When the remark calls the jury's attention to the absence of evidence that only a defendant's testimony could supply, it is impermissible. See Garrett v. State, 632 S.W.2d 350, 353 (Tex. Crim. App. 1982). However, if there is evidence in the record supporting the comment, then no error is shown. Howard v. State, 153 S.W.3d 382, 386 (Tex. Crim. App. 2005) (citing Fearance v. State, 771 S.W.2d 486, 514 (Tex. Crim. App. 1988)).
A comment by a prosecutor on a defendant's refusal to take responsibility may be a comment on his failure to testify. See Roberson v. State, 100 S.W.3d 36, 40-41 (Tex. App.--Waco 2002, pet. ref'd). However, in this case there was evidence in the record that appellant was not going to take responsibility for his crime. Edith testified that appellant asked her, "What happened tonight?" When Edith responded, "Well, I don't know what you want me to say," appellant replied, "Well, I'm not going to jail for anybody; and I'm not losing my kids." The clear implication of this evidence was that appellant wanted Edith to make up a story so that he would not be held responsible for her injuries. Because there was evidence in the record that appellant was refusing to accept responsibility for the crime, the prosecutor's comment was not error.
Even if we assume that the argument was an improper reference to appellant's failure to testify, we find the error to have been cured. After appellant objected, the trial court sustained the objection and ordered the jury to disregard the prosecutor's comment. The jury charge also instructed the jury that it could not consider for any purpose appellant's decision not to testify. In most circumstances, an instruction to disregard improper argument is considered a sufficient response by the trial court. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Error in a prosecutor's improper jury argument concerning a defendant's failure to testify may be cured by an instruction to disregard the comment. See Longoria v. State, 154 S.W.3d 747, 763-64 (Tex. App.--Houston [14th Dist.] 2004, pet. ref'd); Linder v. State, 828 S.W.2d 290, 300 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd). "The . . . presumption that an instruction [to disregard] generally will not cure comment on failure of the accused to testify . . . has been eroded to the point that it applies only to the most blatant examples. Otherwise, the Court has tended to find the instruction to have force." Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995) (quoting Waldo v. State, 746 S.W.2d 750, 753 (Tex. Crim. App. 1988)). The comment in this case was not so blatant as to render the instruction to disregard ineffective.
We overrule point of error one.
III. EXCLUSION OF IMPEACHMENT EVIDENCE
In points of error two through five, appellant contends the trial court erred by refusing to permit appellant to impeach the complaining witness with (1) a prior inconsistent statement and (2) an allegedly fraudulent insurance application. We review a trial court's decision to admit or exclude evidence for abuse of discretion. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002). A trial court abuses its discretion if it acts outside the zone of reasonable disagreement. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001).
A. Prior Inconsistent Statement
During direct examination, Edith testified that appellant was not the biological father of Kelse. On cross-examination, the following exchange took place:
[Defense counsel]: Okay. Ma'am, you testified yesterday under oath that Kelse was not, was not Merkle's daughter; is that correct?
[Edith]: He's not her biological father.
[Defense counsel]: Do you recall, ma'am, ever making sworn testimony that Merkle was?
[Edith]: I have went through court proceeding--
[Defense counsel]: Just "yes" or "no," ma'am.
[Prosecutor]: Your Honor, I'd like to object to the relevance of the question.
[Trial court]: Repeat your question, please.
[Defense counsel]: Your Honor, the question is she--had she previously provided or made a statement under oath that the daughter was, indeed, Mr. Merkle Judge's daughter?
[Trial court]: I sustain the objection.
[Defense counsel]: May we approach?
[Trial court]: Yes, sir.
[Defense counsel]: Your Honor, the relevance of the question is--of course we already know about the Motion in Limine, but I'm trying to impeach her with the prior inconsistent statements. There has been an application for a protective order that Ms. Judge had sworn to in December of 2004 wherein she stated under oath that Kelse was, indeed, the biological daughter of --or Merkle Judge was, indeed, the biological father of Kelse. I'm trying to impeach her with respect to a prior inconsistent statement. I'm not trying to offer this as evidence, Your Honor.
[Trial court]: Right. But the statement has to be relevant to the issues in this trial. How is it relevant?
[Defense counsel]: The relevance, Judge, it's relevant with respect to her character. She testified under oath that Kelse was, indeed, the biological father. My point is to show that she's obviously just fabricating and she done [sic] so under oath here and that she may very well be doing so under oath now.
[Trial court]: I sustain the objection.
1. Impeachment on a Collateral Issue ?
Generally, using prior inconsistent statements to impeach a witness on a collateral matter is impermissible. Flannery v. State, 676 S.W.2d 369, 370 (Tex. Crim. App. 1984). An exception applies when a witness testifies gratuitously as to a collateral matter. Hammett v. State, 713 S.W.2d 102, 105 (Tex. Crim. App. 1986). In that situation, the witness may be impeached by showing that he lied or is mistaken about that collateral matter. Id.
Whether appellant was Kelse's biological matter is a collateral matter. However, once Edith testified about that collateral matter, appellant could impeach her credibility on that issue with a prior inconsistent statement.
2. Foundation Requirements of Rule 613(a) met?
Nevertheless, the State argues that the trial court did not err in refusing to allow the prior inconsistent statement because appellant did not lay the foundation required by Texas Rule of Evidence 613. (2) To lay the foundation required by Rule 613(a), an appellant must establish (1) "identification of the statement (by time, place, and person)," (2) "a summary of the contents," and (3) "a denial by the witness as to what the statement contains." See Ferguson v. State, 97 S.W.3d 293, 296 (Tex. App.--Houston [14th Dist.] 2003, pet. ref'd); Joseph v. State, 960 S.W.2d 363, 366 (Tex. App.--Houston [1st Dist.] 1998, pet. ref'd) (holding that trial court erred in refusing to allow defendant to impeach witness with prior inconsistent statement because "adequate foundation" had been laid).
Defense counsel informed the trial court that he wished to impeach Edith with a prior inconsistent statement she had made in an application for a protective order sworn to in December of 2004 wherein she stated under oath that Kelse was appellant's biological child. However, appellant was not permitted to ask Edith whether she denied making the inconsistent statement because the trial court erroneously concluded that the question was improper impeachment on a collateral issue.
The purpose of the foundation requirements for rule 613(a) is to put the witness on notice as to which statements are going to be used to impeach his or her credibility. Allen v. State, 788 S.W.2d 637, 640 (Tex. App.--Houston [14th Dist.] 1990, pet. ref'd). In this case, appellant gave adequate notice of which statement was going to be used to impeach Edith. "The rule of admissibility of evidence of prior inconsistent statements should be liberally construed and the trial judge should have discretion to receive any evidence which gives promise of exposing falsehood." Aranda v. State, 736 S.W.2d 702, 707 (Tex. Crim. App. 1987); Garcia v. State, 871 S.W.2d 279, 284 (Tex. App.-- El Paso 1994, no pet.).
3. Harmless Error?
Having decided that the trial court erred by refusing to allow appellant to impeach Edith with a prior inconsistent statement, we turn to the issue of harm. Improper limitation of cross-examination violates the confrontation clauses of both the state and federal constitutions and is subject to a constitutional harmless error analysis. U.S. Const. amend. VI; Tex. Const. art. 1, § 10; Tex. R. App. P. 44.2(a); Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000).
Because a violation of the right to cross-examination under the Confrontation Clause necessarily means that the testimony was not permitted before the fact-finder, we apply a three-pronged test in our review of the exclusion of such evidence. Shelby v. State, 819 S.W.2d 544, 547 (Tex. Crim. App. 1991); Smith v. State, ___ S.W.3d ___, No. 01-05-00819-CR, 2007 WL 852344, at *8 (Tex. App.--Houston [1st Dist.] Mar. 22, 2007, no pet. h.). First, a reviewing court must assume that the damaging potential of the cross-examination was fully realized. Shelby, 819 S.W.2d at 547 (citing Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438, 89 (1986)); Smith, 2007 WL 852344 at *8. Second, with that assumption in mind, we analyze the error in connection with the following factors: (1) the importance of the witness's testimony to the prosecution's case; (2) whether the testimony was cumulative; (3) the presence or absence of evidence corroborating or contradicting the witness's testimony on material points; (4) the extent of cross-examination otherwise permitted; and (5) the overall strength of the prosecution's case. Shelby, 819 S.W.2d at 547 (citing Van Arsdall, 475 U.S. at 684, 106 S. Ct. at 1438); Smith, 2007 WL 852344 at *8. Finally, keeping the first two prongs in mind, we determine whether the error was harmless beyond a reasonable doubt. Tex. R. App. P. 44.2(a); Shelby, 819 S.W.2d at 547; Smith, 2007 WL 852344, at *8.
Under Van Arsdall we must focus on Edith's testimony and assume that the damaging potential of the cross-examination was fully realized. In other words, we must assume the jury was fully informed that Edith had given a prior sworn statement, contrary to her testimony at trial, in which she testified that appellant was Kelse's biological father. We then apply the following five factors:
a. The Importance of the Witness'sTestimony in the Prosecution's Case
Edith's testimony was obviously important to the prosecution's case. She was the complaining witness and testified to how appellant had beaten and kicked her on the night in question.
b. Whether the Testimony Was Cumulative
Edith's testimony was cumulative of other evidence in some regards. Kelse, who was called to testify about the events in question, corroborated most of Edith's testimony. However, Kelse did not actually see appellant hit Edith and was not able to provide direct evidence that appellant was Edith's attacker.
c. The Presence or Absence of Evidence Corroborating or Contradicting the Testimony of the Witness on Material Points
There was a significant amount of evidence corroborating Edith's testimony. Specifically, Kelse corroborated almost all of Edith's testimony. Kelse heard her parents arguing and heard something being thrown against the wall. This corroborated Edith's testimony that appellant threw an alarm clock at the wall. Kelse also saw appellant with her mother immediately after the beating while Edith was still bleeding and in obvious pain. Kelse corroborated that appellant told her get in the truck with him, and that he drove the truck towards Edith and made her leap away from the truck. Kelse corroborated that appellant forced her, her brother, and Edith get in the car, and that appellant later stopped, and ordered the kids out of the car. This portion of Kelse's testimony was consistent with Edith's testimony that, at one point, appellant ordered the children to get out of the truck and move to the backseat. While the children were out of the car, Edith testified that appellant told her "he wasn't going to jail for anyone." Deputy Welch, who was at the hospital, testified that Edith told him that she had beaten up by a man, but refused to tell him who it was because the man was still with her children. This corroborated Edith's testimony exactly.
In contrast, there was no evidence that anyone other than appellant was Edith's attacker.
d. The Extent of Cross-Examination Otherwise Permitted
Appellant was otherwise permitted to cross-examine Edith fully. Specifically, appellant was allowed to ask Edith about Kelse's paternity. Edith testified that, even though she had stated on direct examination that appellant was not Kelse's father, she really did not know who the child's father was, because no paternity test had ever been performed.
e. The Overall Strength of the Prosecution's Case
The prosecution's case was strong. Edith testified about the beating and the events both before and after it. Although she was the only eyewitness, Kelse's testimony corroborated the events before and after. Also, the medical records corroborated Edith's testimony about her injuries. Most importantly, there was no contradictory evidence. Appellant presented three witnesses. Two of the witnesses--his mother and his sister--were not present and did not know what happened. Appellant also called Kelse, whose testimony supported that of her mother. Overall, the State's case was strong.
The final step of the analysis requires us to determine, in light of the foregoing examination, whether the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967). Focusing on Edith's testimony, and assuming that the jury had been told that she had made a prior inconsistent statement regarding Kelse's paternity, we conclude beyond a reasonable doubt that the denial of the appellant's right to cross-examination Edith about the prior inconsistent statement was harmless. See Chapman, 386 U.S. at 24, 87 S. Ct. at 828 (acknowledging that "some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless" and holding that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt").
B. Fraudulent Insurance Application
During cross-examination of Edith, she testified that she had been employed
by a pharmacy, but that she had been terminated. The following exchange then took
place:
[Defense counsel]: Did you have insurance with Walgreen's?
[Edith]: Yes, I did.
[Defense counsel]: On your insurance application--
[Prosecutor]: Your Honor, I object to the relevance of insurance and whether or not she had insurance.
[Defense counsel]: She already answered the question, Judge.
[Trial court]: Well, y'all approach the bench.
[Trial court]: What is the relevance?
[Defense counsel]: I'd like to ascertain-- actually, she may have lied on the insurance--it's to test her character for truthfulness.
[Defense counsel]: Her character for truthfulness. She lied on the insurance application.
[Trial court]: Stating what?
[Defense counsel]: Stating that her brother was--Merkle being her brother, putting false names on the insurance.
[Trial court]: I'll sustain the objection.
We have already stated that, as a general rule, it is improper to impeach a witness as to a collateral matter. Flannery v. State, 676 S.W.2d 369, 370 (Tex. Crim. App. 1984). A matter is collateral if it could not be shown in evidence for any purpose other than contradiction. Gutierrez v. State, 764 S.W.2d 796, 798 (Tex. Crim. App. 1989). Whether Edith lied on her insurance application by stating that appellant was her brother, rather than her husband, is a collateral matter because it has no relevance to the case. And, unlike the prior inconsistent statement analysis above, Edith did not testify about the insurance application on direct examination. Therefore, the exception to the prohibition against impeachment on collateral matters is inapplicable here. See Hammett v. State, 713 S.W.2d 102, 105 (Tex. Crim. App. 1986).
As such, the trial court did not err by refusing to allow appellant to impeach Edith with the allegedly fraudulent insurance application.
We overrule points of error two through five.
IV. ADMISSION OF EXTRANEOUS OFFENSE EVIDENCE
In point of error six, appellant contends the trial court erred by admitting evidence of an extraneous offense, specifically, evidence that appellant had committed domestic violence on other occasions. During trial, the following exchange took place:
[Prosecutor]: Ms. Judge, how do you feel about testifying here today in the courtroom?
[Edith]: It has been something I've been battling with every day. Every day I think about, you know, everything that happened, what I could have done differently, you know, why did it have to go to this? I think about, you know, okay am I going to ruin his future by continuing on with this? Should I drop charges, et cetera? But then ultimately I come to the decision that what's most important right now is our safety and for me to make sure that this is documented. There was a time when an officer told me, you know, well--there were other disturbances in our household.
[Defense counsel]: Objection, Your honor, it's hearsay again. It's outside what has already been ruled on.
[Trial court]: Overruled.
[Edith]: An officer had came out on another call cand because he had been to our home before, I had --
[Defense counsel]: Judge, I will--
[Trial court]: I will sustain the objection now.
[Defense counsel]: Thank you.
[Prosecutor]: I guess my question to you, Ms. Judge, is: Are you still afraid today?
[Edith]: Yes, I guess to some degree, I am.
To preserve a complaint for appellate review, a defendant must raise the complaint to the trial judge by a timely request, objection, or motion that specifically states the grounds for the ruling sought. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Tex. R. App. P. 33.1(a)(1)(A). A defendant's appellate contention must comport with the objection made at trial. Id. at 349. At trial, appellant objected that the evidence was hearsay; however, on appeal, he argues that the evidence was an inadmissible extraneous offense. Because his point of error does not comport with his trial objection, appellant's point of error is waived. See Penry v. State, 903 S.W.2d 715, 753 (Tex. Crim. App. 1995).
Additionally, appellant elicited the same evidence from Kelse when he asked her whether she seen appellant father hit her mother on the night in question, and she replied, "No, but I've seen him like hit her before." Error regarding improperly admitted evidence is waived if that same evidence is introduced later by the defendant and is not an effort to meet, rebut, destroy, deny or explain the improperly admitted evidence. See Rogers v. State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993).
We overrule point of error six.
V. CONCLUSION
We affirm the trial court's judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Jennings and Bland.
Do not publish. Tex. R. App. P. 47.2(b).
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