COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-040-CR
BRIDGET RENEE LEITAO A/K/A APPELLANT
BRIDGET R. LEITAO
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Bridget Renee Leitao appeals from her adjudication of guilt and twelve-
year sentence for assaulting a police officer with a knife. In two points, she
argues that the trial court erred (1) by finding “true” to the allegations in the
State’s petition to proceed to adjudication and (2) by admitting a
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… See Tex. R. App. P. 47.4.
methamphetamine recipe into evidence at the adjudication hearing over her
hearsay objection. We affirm.
Background
In April 2007, Appellant pleaded guilty to having assaulted a public
servant with a knife in May 2006, and the trial court placed her on deferred
adjudication community supervision. The State filed a petition to proceed to
adjudication in September 2007, alleging that Appellant had caused serious
bodily injury to and attempted to murder Amy Mattis by cutting or stabbing her
with a knife in violation of the terms of her deferred adjudication community
supervision. Appellant pleaded “not true” to the allegations.
Two witnesses testified at the adjudication hearing: Mattis, the
complainant in the knifing allegation; and Mattis’s treating physician, Dr.
Fernando Garcia. Mattis testified that she and Appellant had had an “intimate
relationship” for several years. Mattis said that when she told Appellant that
she wanted to break up with her and started to move her possessions out of
their shared apartment, Appellant tried to kill herself with a kitchen knife.
Mattis testified that she tried to stop Appellant from killing herself and was
“scraped” with the knife in the neck and stomach. Under questioning by the
State, Mattis admitted that she had told a 911 operator at the time of the
incident that Appellant had stabbed her and that she was bleeding profusely
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and afraid she was going to die. She further admitted that at the hospital, she
told a detective that Appellant said that if Mattis left her, she would kill Mattis
and herself. Under questioning by defense counsel, Mattis reiterated that
Appellant was trying to kill herself and had attempted suicide several times
before and that Mattis was injured when she tried to take the knife away from
Appellant.
Dr. Garcia testified that Mattis’s wounds were more than superficial
scratches and were consistent with stab wounds. He said that Mattis’s neck
wound was close to the carotid artery and deep enough to make him suspect
an esophageal or tracheal injury. Dr. Garcia testified that Mattis’s injuries,
based on his experience with knife wounds, were more consistent with
intentional injuries than accidental injuries.
The court found the serious bodily injury allegation in the State’s petition
to be “true” and adjudicated Appellant guilty of the May 2006 aggravated
assault on a public servant.
At the punishment phase of the hearing, Fort Worth Police Officer Justin
Stroud testified that on May 25, 2006, he responded to a domestic disturbance
call at Appellant’s apartment. When he entered the apartment, Appellant
attacked him with a “butterfly” knife, and he shot her. Among the exhibits
offered by the State was a seven-page, handwritten recipe for manufacturing
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methamphetamine found during a search of Appellant’s apartment after the
May 2006 assault. Appellant objected to the document as hearsay. The trial
court overruled her objection and admitted the exhibit into evidence.
The trial court assessed punishment at twelve years’ confinement, and
Appellant filed this appeal.
Legal Sufficiency
In her first point, Appellant challenges the legal sufficiency of the
evidence to support the trial court’s finding of “true” to the State’s allegation
that she violated the terms of her deferred adjudication community supervision
by causing serious bodily injury to Mattis.
Appellate review of the decision to adjudicate guilt is “in the same
manner” as review of the revocation of community supervision. Tex. Code
Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2008). Appellate review of
a community supervision revocation is limited to determining whether the trial
court abused its discretion, and we examine the evidence in the light most
favorable to the trial court’s findings. See Cardona v. State, 665 S.W.2d 492,
493–94 (Tex. Crim. App. 1984). The State must prove by a preponderance of
the evidence that appellant violated the conditions of community supervision.
Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). The trial judge
is the sole trier of facts and determines the credibility of the witnesses and the
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weight to be given to the testimony. See Lee v. State, 952 S.W.2d 894, 897
(Tex. App.—Dallas 1997, no pet.).
Here, Appellant’s conditions of community supervision required that she
commit no crime against the laws of Texas. The State alleged that she violated
that condition by causing serious bodily injury to Mattis. Although Mattis
testified at the revocation hearing that Appellant was attempting to kill herself,
not Mattis, and that the knife merely “scraped” her as she attempted to take
it away from Appellant, she also admitted that she had told the 911 operator
that Appellant had stabbed her and that she had told a detective that Appellant
said she intended to kill not only herself but Mattis as well. Although Mattis’s
trial testimony conflicted with her earlier statements, the trial court was free to
disbelieve her trial recantation. See Chambers v. State, 805 S.W.2d 459, 461
(Tex. Crim. App. 1991) (holding factfinder free to disbelieve complainant’s trial
recantation of earlier statements and that earlier statements were legally
sufficient to support guilty verdict). Dr. Garcia’s testimony supports the
conclusion that Mattis’s wounds were the result of an intentional stabbing, not
an accidental “scraping.”
Viewing the evidence in the light most favorable to the trial court’s
decision and measuring it against the preponderance of the evidence standard,
we hold that the trial court did not abuse its discretion by finding true to the
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State’s allegation that Appellant caused serious bodily injury to Mattis by
stabbing her with a knife. See Cobb, 851 S.W.2d at 874; Cardona, 665
S.W.2d at 493–94. We overrule Appellant’s first point.
Admission of Methamphetamine Recipe
In her second point, Appellant argues that the trial court erred by
admitting into evidence the handwritten methamphetamine recipe over her
hearsay objection. We review a trial court’s evidentiary rulings under an abuse
of discretion standard. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.
Crim. App. 1991) (op. on reh’g). A trial court abuses its discretion when its
decision lies outside the zone of reasonable disagreement. Casey v. State, 215
S.W.3d 870, 879 (Tex. Crim. App. 2007).
The State argues that Appellant waived this point by failing to object to
the exhibit “when the witness described [it],” citing United States v. Wicks,
995 F.2d 964, 975 n.8 (10th Cir.), cert. denied, 510 U.S. 982 (1993). In
Wicks, the court held that a methamphetamine recipe was not hearsay because
it was not admitted for the truth of the matter asserted, but it also stated in a
footnote dictum that even if the recipe was hearsay, the defendant failed to
object when the sponsoring witness identified the document as a
methamphetamine recipe, thereby in effect setting forth the hearsay contained
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in the document. Id. In our case, when asked to identify several exhibits, the
sponsoring witness stated that the document in question was a “recipe for ice.”
The State then offered the exhibits, and Appellant, after taking the witness on
voir dire, objected to the document in question as hearsay. The trial court
overruled her objection and admitted the document.
We hold that under the circumstances, Appellant preserved her hearsay
objection for review. The sponsoring witness’s identification of the exhibit as
a “recipe for ice” is somewhat ambiguous and does not convey the document’s
actual contents, namely, step-by-step detailed instructions for manufacturing
methamphetamine out of readily-available supplies. Moreover, Appellant
objected to the document as hearsay almost immediately after the witness
identified it. We therefore decline to apply the Tenth Circuit’s footnote dictum,
and we hold that Appellant preserved her hearsay objection for our review.
But we further hold that her hearsay objection lacks merit. “Hearsay” is
an out-of-court statement, including a written verbal expression, offered in
evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). The
“matter asserted” by the methamphetamine recipe is that one can manufacture
methamphetamine by following the steps set forth therein. The State did not
offer the recipe to prove that one can manufacture methamphetamine by
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following the steps but, presumably, to show that Appellant deserved a greater
punishment for possessing something that purported to be a methamphetamine
recipe. Therefore, the recipe was not offered in evidence to prove the truth of
the matter asserted, and it is not hearsay. We hold that the trial court did not
abuse its discretion by overruling Appellant’s hearsay objection, and we
overrule her second point.
Conclusion
Having overruled both of Appellant’s points, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: GARDNER, J.; CAYCE, C.J.; and MCCOY, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 15, 2009
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