Opinion issued March 4, 2010
In The
Court of Appeals
For The
First District of Texas
NO. 01-09-00197-CR
JIMMY DARRELL HUSKEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Cause No. 08CR2806
MEMORANDUM OPINION
A jury found appellant, Jimmy Darrell Huskey, guilty of the felony offense of assault by causing bodily injury to a family member[1] and assessed his punishment at confinement for ten years and a fine of $5,000. In his sole point of error, appellant contends that the trial court erred in denying his motion to reopen the evidence to further cross-examine the complainant.
We affirm.
Background
The complainant, Denisa Marie Huskey, testified that on the evening of July 18, 2008, after she and appellant, her husband, had returned to their hotel room after eating dinner, he suddenly turned around and said, “do you want to fight, Bitch.” He then hit her with a telephone on the left side of her head. She explained that appellant’s action was unexpected because they had had “a wonderful night.” After the blow, the complainant fell onto the bed where appellant “jumped on [her] and straddled [her] with his knees . . . and proceeded to beat [her] [with his fists] in [her] face and [her] head repeatedly for 40 to 45 minutes.” During the assault, appellant kept saying “I’m going to kill you, Bitch.” The complainant pleaded with him to stop and screamed for help, but she could not get away because she was pinned beneath appellant. She explained that because appellant was “crazy” and “[f]ull of rage,” she decided to “play dead” to stay alive. After she fell off the bed, appellant kicked her to see if she would respond. When she did not, appellant then went into the bathroom and “calmly started washing the blood . . . off his hands and arms.” The complainant then got up and ran screaming from the room. She went to the hotel office and found the night clerk, who called for emergency assistance. After the complainant identified appellant as her attacker, she explained that no one else had been in the hotel room during the attack. She also noted that appellant did not have a girlfriend at the time of the assault. Although she admitted to having had “two drinks” on the night of the assault, she denied being intoxicated.
On cross-examination, the complainant admitted that she had previously been convicted of aggravated robbery when she was nineteen years old. She conceded that she had been seeing a pain management doctor for several years after having back surgery, medical records showed that she had made numerous visits to the pain doctor since the surgery, and she had been prescribed Loracet, Soma, Valium, and Restoril for pain “as needed.” However, the complainant denied taking any medications on the night of the assault. She also denied that, after she and appellant had returned to the hotel room from dinner, appellant left and returned with his girlfriend and asked the complainant to have a “threesome.” She further denied kicking appellant in the groin and then being attacked by his girlfriend.
Galveston County Sheriff (“GCS”) Deputy C. Dunn testified that on the evening of July 18, 2008, he was dispatched to the hotel’s office in response to the assault. Upon his arrival, he saw the complainant being treated by emergency services personnel. She had “injuries to her mouth . . . missing teeth . . . [b]oth of her eyes were swollen shut . . . [and] a large amount of . . . dried blood in her hair.” The complainant told Dunn that her attacker, her husband, was in the hotel room. Dunn found appellant alone in the room, and he saw no indication that another person had been there. Dunn noted that appellant had “some scratches on him,” “blood on his shorts,” “blood splattered on his glasses,” and recently washed his hands. Dunn saw two wet, bloody towels in the bathtub, “a large amount of blood” on the bed, the pillow, the side of the bed, and the carpet,” “teeth in the bed,” and the handset to the phone cracked, with a “bloody palm print” on it “as if somebody had used it as a weapon.” Dunn noted that neither appellant nor the complainant appeared intoxicated.
Dunn explained that appellant had told him that the person that had beaten his wife was his “girlfriend,” they had fought, and he had broken up the fight. Dunn opined that, based on his experience, the injuries sustained by the complainant were consistent with what she had told him and inconsistent with what appellant had told him and the nature and extent of the complainant’s injuries were not indicative of a “quick fight” between two women but an extended fight.
GCS Deputy S. Pathos testified that he was dispatched to the hotel regarding the assault. When he arrived, he saw that the complainant had a “lot of blood” in her hair, one eye swollen shut, and a very swollen mouth. He then went to the hotel room with Deputy Dunn to interview appellant. When they walked in, Pathos saw blood on the carpet and door and the phone, which was off the hook and broken. Pathos pulled back the covers on the bed and saw “a large amount of blood on the sheets [and] a tooth on the bed.”
Pathos described appellant as having “an attitude” and being “real evasive.” Although appellant told Dunn that “his girlfriend” had attacked the complainant, Pathos opined that, in his experience, the complainant’s injuries were not caused by a fight between two women. Pathos saw no indication that another person had been in the hotel room, and he did not see any other woman in the area. Significantly, when Dunn asked appellant about his “girlfriend,” appellant provided no name or contact information for the woman.
GCS Forensic Investigator Sergeant W. O’Briant testified that he was dispatched to the hotel to collect evidence of the assault. Using photographs admitted into evidence, he explained what he saw: blood on the phone with its broken handset; blood splatter on the left lens of appellant’s glasses; blood on the bed, the pillows, and the door handle to the room; wet, bloody towels in the bathtub; a tooth on the bed; and blood stains on appellant’s lower legs and on his blue jeans. O’Briant had also taken photographs of the complainant at the hospital where she had been taken. He noted that her injuries consisted of severe swelling around her eyes and facial area, bruising on her wrists and forearms, and a small amount of bruising on her legs. O’Briant opined that, in his experience, the complainant’s injuries were inconsistent with having been inflicted by another woman.
Standard of Review
We review a trial court’s decision not to reopen evidence under an abuse-of-discretion standard. Gilmore v. State, 792 S.W.2d 553, 554 (Tex. App.—Houston [1st Dist.] 1990, no pet.). A trial court abuses its discretion when its decision is arbitrary or unreasonable. State v. Fury, 186 S.W.3d 67, 72 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). The question is whether the trial court “acted without reference to any guiding rules or principles.” Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (op. on reh’g).
Request to Reopen Evidence
In his sole point of error, appellant argues that the trial court erred in denying his motion to reopen the case to further cross-examine the complainant because evidence of her statement “Bye-bye, Bitch,” made to appellant in open court, would have revealed her motive to testify “less than truthfully” and “materially changed the case in [his] favor.”
At the conclusion of her testimony, the trial court released the complainant but told her to “stay around.” The State then rested, followed by appellant, who did not call any witnesses. After a short break, defense counsel brought to the attention of the trial court that the complainant, “as she left the courtroom, . . . told [appellant] ‘Bye-bye, Bitch.’” Defense counsel then asked to reopen the evidence to allow him to call the complainant to ask her about the comment because “it shows bias.” The trial court stated, “I think that she pretty much established bias. Why is it important—why is it germane to the case?” Defense counsel urged that it showed “she came in here with bad intent and she meant to lie . . . she’s saying that she loves him . . . and then she’s over there whispering to him ‘Bye-bye, Bitch.’”
The trial court denied defense counsel’s request and cautioned the State to tell the complainant it would find her in contempt if she did it again. The trial court immediately proceeded with its charge to the jury and the closing arguments. During his closing, defense counsel highlighted the complainant’s behavior upon leaving the courtroom by telling the jury,
But did you see what she did when she left the courtroom? Did she just walk straight out? Or did she walk over to the Defendant? Ask yourself: What do you think she said to him when she left the courtroom? And why is she talking to him anyway? It’s just other questions we have unanswered.
A trial court must “allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice.” Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 2007). The “due administration of justice” requires a trial court to reopen a case if the evidence would materially change the case in the proponent’s favor. Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim. App. 2003). The proffered evidence must be more than just relevant; it must actually make a difference in the case. Id. Among the factors to be considered in determining the materiality of evidence under article 36.02 are the weight of the evidence, its probative value, the issue upon which it is offered, and whether it is cumulative. Id. at 77–78. A trial court commits error when it denies a motion to reopen to allow a witness to testify when the following criteria are satisfied: (1) the witness is present and ready to testify; (2) the motion to reopen is made before final arguments and before the charge is read to the jury; (3) the movant states with specificity what testimony the witness is expected to give and the importance that the testimony carries; and (4) it is not apparent that the motion’s purpose is to frustrate the due administration of justice. Scott v. State, 597 S.W.2d 755, 758 (Tex. Crim. App. 1979).
Appellant asserts that the complainant’s statement “Bye-bye, Bitch,” whispered to appellant as she left the witness stand, “shows bias beyond the general bias that is attached against one’s attacker” and was “calculated to send him to prison and not based upon what actually occurred on the night in question.” He further asserts that the statement illustrates the complainant’s “intent and desire to obtain the maximum punishment for Appellant.” He argues that cross-examining the complainant in front of the jury about her statement could have made a material difference in the case because the jury would have heard that the complainant “possessed a motive to testify less than truthfully . . . whereas previously they had no other basis to infer any motive for her to testify untruthfully.” He notes that the complainant was the State’s “star witness” and she vehemently denied the existence of a third person in the room, which was appellant’s “primary, if not only defense at trial.”
In denying appellant’s motion, the trial court indicated that it thought that the complainant had “pretty much established [her] bias,” and it questioned the importance of the evidence to the case. The record reveals that the complainant had already admitted to having been previously convicted of aggravated robbery, being a frequent user of pain medications, and drinking alcohol on the night of the assault. She had also asserted that because appellant was continually “dirty,” “filthy” and “greasy” from his ironworking, no woman would want to be his girlfriend. Thus, she clearly had established her bias against and contempt for appellant. Nevertheless, we note that cross-examination is a cornerstone of the criminal trial process such that an accused must be given wide latitude to explore a witness’s story, to test the witness’s perceptions and memory, and to impeach the witness’s credibility. Gutierrez v. State, 764 S.W.2d 796, 799 (Tex. Crim. App. 1989). Generally, great latitude is to be allowed to an accused to show any fact “to establish ill feeling, bias, motive, and animus on the part of any witness testifying against him.” Parker v. State, 657 S.W.2d 137, 139 (Tex. Crim. App. 1983) (quoting Simmons v. State, 548 S.W.2d 386 (Tex. Crim. App. 1977)).
However, even if appellant had been allowed to cross-examine the complainant on the depth of her bias, we conclude that this additional testimony would not have “actually ma[d]e a difference in the case.” Discounting the complainant’s testimony that appellant was her attacker, the testimony of the police officers about the nature of the complainant’s injuries and the physical evidence provided overwhelming evidence that appellant assaulted the complainant. Most important, when Deputies Dunn and Pathos asked appellant about his “girlfriend,” he did not provide them with her name or contact information. Deputies Dunn and Pathos testified that they did not see any indications of a third person having been in the hotel room. They opined, based on their experiences, that the complainant’s injuries were not inflicted in a fight between two women, as appellant had told them. Sergeant O’Briant testified that he found wet, bloody towels in the bathroom, appellant had blood on his eyeglasses, legs, and pants, and appellant had recently washed his hands.
Considering the entire record, the weight of the evidence offered, its probative value, and the issue upon which it was offered, the trial court did not abuse its discretion in implicitly concluding that further cross-examination of the complainant on her bias against appellant would not have “materially changed” the case in appellant’s favor. Accordingly, we hold that the trial court did not err in denying appellant’s motion to reopen the evidence. See Peek, 106 S.W.3d at 79.
We overrule appellant’s sole point of error.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Hanks, and Bland
Do not publish. Tex. R. App. P. 47.2(b).
[1] See Tex. Penal Code Ann. § 22.01 (Vernon Supp. 2009).