In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02 -00075 -CR
______________________________
JOE MANUEL VARGAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th Judicial District Court
Harris County, Texas
Trial Court No. 852119
Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Justice Carter
O P I N I O N
I. Nature of the Case
Joe Manuel Vargas appeals his jury conviction of aggravated assault with a deadly weapon, enhanced by a prior felony conviction. He was sentenced to thirty years' imprisonment. No fine was assessed. In two points of error, Vargas contends: (1) the trial court erred by admitting an audio recording over his objections asserting a violation of the confrontation clause and lack of authentication; and (2) he was denied due process when the trial court denied his motion for continuance.
II. Factual Background
On July 8, 2000, Vargas and Michelle Espinoza had an argument culminating in a physical scuffle. As a result of the scuffle, Vargas was charged with assaulting Michelle with a deadly weapon-his crutch.
On the morning the case was set for trial, Vargas' counsel made an oral motion for a continuance due to missing witnesses. Counsel followed the oral motion with a handwritten motion. The trial court denied Vargas' motion for continuance, and the case proceeded to trial.
During trial, the State offered an audio recording of a 9-1-1 tape purporting to contain the voice of Frank Espinoza, Michelle's cousin, who stated Vargas had struck Michelle with his crutch during the physical scuffle. Vargas objected to the tape's admission based on failure to properly authenticate and based on a confrontation clause violation. The trial court overruled the objections and admitted the tape.
III. Discussion
A. Admission of the 911 Tape
In his first point of error, Vargas contends the trial court erred by admitting a 9-1-1 tape offered by the State. Specifically, Vargas asserts the tape's admission was improper because: (1) it violated his constitutional right to confrontation, and (2) the tape was not properly authenticated under Tex. R. Evid. 901.
1. Confrontation Clause Violation
Vargas' argument regarding a confrontation clause (U.S. Const. amend. VI) violation is limited to an assertion that he was denied the opportunity to confront and cross-examine the person who called 9-1-1 in order to "determine possible bias or to probe exactly what [the caller] saw." But Vargas fails to argue or cite authority supporting the proposition that his constitutional right to confrontation was violated under either the United States or Texas Constitutions by the trial court simply admitting the 9-1-1 tape. Vargas' brief is inadequate on this issue and presents nothing for our review. See Tex. R. App. P. 38.1(h) (requiring brief contain clear and concise argument for contentions made, with appropriate citations to authority and record).
We will, however, review whether the 9-1-1 tape was properly authenticated under Tex. R. Evid. 901.
2. Authentication Objection
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. See Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996); Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990). We will not reverse a trial court's ruling if it was within the "zone of reasonable disagreement." Green, 934 S.W.2d at 102; Montgomery, 810 S.W.2d at 391 (op. on reh'g).
Vargas' authentication challenge focuses on whether the voice on the 9-1-1 tape was sufficiently identified as Frank Espinoza's voice.
Tex. R. Evid. 901 governs the authentication of recordings. Angleton v. State, 971 S.W.2d 65, 69 (Tex. Crim. App. 1998). Under Rule 901(a), the requirement of authentication is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Tex. R. Evid. 901(a). Here, the State offered the 9-1-1 tape to show that Frank Espinoza had called and reported that Vargas had struck Michelle with a crutch. The issue before us is whether Espinoza's voice was sufficiently identified for the purpose of authentication. There are several different methods under Rule 901 for voice identification. Voice identification may be based on hearing the voice and recognizing it. See Wilson v. State, 884 S.W.2d 904, 906 (Tex. App.-San Antonio 1994, no pet.). Voice identification may be based on what is said in the conversation. Id. A caller's voice can be demonstrated by self-identification coupled with additional circumstances, such as the context and timing of the call, the content of the statement, and disclosure of knowledge of facts known peculiarly to the speaker. Id. (citing United States v. Orozco-Santillan, 903 F.2d 1262, 1266 (9th Cir. 1990)). Finally, circumstantial evidence may be used to meet this requirement. Wilson, 884 S.W.2d at 906 (citing Palos v. United States, 416 F.2d 438, 440 (5th Cir. 1969)).
The evidence shows that Frank Espinoza is a cousin of the victim and was present at the time of the assault. At trial, Alicia Espinoza, Michelle's mother, testified that, after the scuffle between Michelle and Vargas, she told Frank Espinoza to call the police. Alicia used Frank's truck to take her daughter home from the hospital. When asked if the voice on the tape sounded like Frank's voice, Alicia testified it sounded a little bit like him, but she could not swear to it. In addition to Alicia's testimony, the caller on the 9-1-1 tape identified himself as Frank Espinoza and said he was a cousin of the party involved in the assault and a witness to it. Taken together and considering the methods of voice identification listed above, this evidence is sufficient to meet the identification requirements of Tex. R. Evid. 901 and, therefore, the trial court did not abuse its discretion by admitting it. Vargas' first point of error is overruled.
B. Denial of a Motion for Continuance
In his second point of error, Vargas contends he was denied due process when the trial court erroneously denied his motion for continuance.
On the morning the case was set for trial, Vargas' counsel moved for an oral motion for continuance, followed by a handwritten motion and sworn affidavit.
The trial court's ruling on a motion for continuance is reviewed for abuse of discretion. Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002). To establish an abuse of discretion, an appellant must show he or she was actually prejudiced by the denial of the motion. Id.
Vargas' point of error is without merit for two reasons: (1) he did not show the facts expected to be proved by the missing witness as required by Tex. Code Crim. Proc. Ann. art. 29.06(3) (Vernon 1989); and (2) he has not shown he was actually prejudiced by the denial of his motion.
Tex. Code Crim. Proc. Ann. art. 29.06(3) requires that a motion for continuance based on the absence of a witness must state "[t]he facts which are expected to be proved by the witness, and it must appear to the court that they are material."
In his handwritten motion for continuance, Vargas named five witnesses whom he had subpoenaed, but who were not available to testify. In identifying four of the missing witness--Donna Blaha, R. K. Hillman, Jennifer Varela, and Blanca Ruiz--Vargas failed to provide any facts expected to be shown by the witnesses' testimony. This was insufficient under Article 29.06(3). For the fifth listed witness--Daniel Rodriguez--the motion indicated Rodriguez would testify that the truck owned by Vargas was his separate property. But nowhere in his motion, affidavit, or elsewhere in the record did Vargas show how this fact was material to any issue in the case. This, too, was insufficient under Article 29.06(3).
Furthermore, even though Vargas claims his "ability to present a defense was circumscribed by the Court's denial of a continuance; hence his constitutional right to due process was violated," he provides no evidence or argument showing he was actually harmed. Without this showing, we conclude the trial court did not abuse its discretion by denying Vargas' motion for continuance. SeeVasquez, 67 S.W.3d at 240. Vargas' second point of error is overruled
We affirm the trial court's judgment.
Jack Carter
Justice
Date Submitted: February 20, 2003
Date Decided: March 20, 2003
Do Not Publish
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00156-CR
______________________________
RANDY LEE WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 196th Judicial District Court
Hunt County, Texas
Trial Court No. 26,316
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Randy Lee Williams was found guilty by a jury of aggravated assault causing serious bodily injury to Dennis Eubanks, this being enhanced by prior felony convictions to a first-degree felony. After having been sentenced to fifty years imprisonment, Williams has appealed.
The incident giving rise to the charges occurred at the house of a mutual friend of Williams and Eubanks, Mike Lane. Williams had once resided in the house with Lane, and Eubanks was then currently residing in a room there. Something of a celebration or party was planned and it was attended by Williams, Eubanks, Lane, and Lisa Spurgeon, Lanes girlfriend. Williams had brought alcoholic beverages to the gathering. During the course of the occasion, a disagreement arose between Williams and Eubanks. Eubanks approached Williams and, pointing a bottle at him, told Williams to mind his own business. Williams responded by striking Eubanks, knocking him to the floor; as Eubanks lay on the floor, Williams continued to repeatedly strike Eubanks.
As a result of this, Eubanks suffered severe facial injuries, including a broken nose and multiple breaks and shatters in facial bones, rendering his mid-face unstable.[1] Dr. Thomas Sharp[2] testified that Eubanks had a LaFort III (a very severe facial fracture). Sharp went on to relate that Eubanks suffered from comminuted, or shattered, extensive maxillofacial bone fractures, [c]omminuted fractures of the orbital floor, bilaterally, maxillary sinus fractures, and [f]racture of the lateral pterygoid plates, bilaterally. Some of the hardware installed to deal with the injuries sustained by Eubanks has been removed, but some metal hardware installed in Eubanks face is permanent.
Williams raises two issues on appeal. First, Williams argues the evidence is insufficient for the jury to conclude beyond a reasonable doubt that Williams inflicted serious bodily injury. Second, Williams argues the evidence is insufficient to reject Williams self-defense justification beyond a reasonable doubt.
The Evidence of a Serious Bodily Injury Is Sufficient
Williams argues, in his first issue, the evidence is insufficient to support a finding of serious bodily injury maintaining that Eubanks did not suffer any lasting limitations on any life functions. The State argues the evidence is sufficient because of the serious degree of the injuries sustained or due to the protracted impairment of Eubanks ability to eat.
In reviewing the evidence for sufficiency, we consider the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 31819 (1979); Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010) (plurality op.). A proper application of the Jackson v. Virginia legal sufficiency standard is as exacting a standard as any factual sufficiency standard. Brooks, 323 S.W.3d at 906. Legal sufficiency is judged not by the quantity of evidence, but by the quality of the evidence and the level of certainty it engenders in the fact-finders mind. Id. at 91718 (Cochran, J., concurring). We are directed to subject challenges to the sufficiency of the evidence to the hypothetically-correct jury charge analysis. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
Under the hypothetically-correct jury charge standard, the State was obligated to prove Williams intentionally or knowingly[3] caused serious bodily injury to Eubanks. See Tex. Penal Code Ann. §§ 22.01, 22.02 (Vernon Supp. 2010). The Texas Penal Code defines serious bodily injury as bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Tex. Penal Code Ann. § 1.07(a)(46) (Vernon Supp. 2010).
In such a prosecution, it is the burden of the State to prove that a serious bodily injury occurred. Williams v. State, 696 S.W.2d 896, 898 (Tex. Crim. App. 1985) (concluding State failed to establish gunshot wounds were serious bodily injuries where no surgery occurred and bullets were left in victim). The State does not argue that the injury created a substantial risk of death. The issue in this case is whether the injury caused serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.
When considering whether an injury is a serious bodily injury, our inquiry is focused on the disfiguring and impairing quality of the bodily injury as it was inflicted, not after the effects had been ameliorated or exacerbated by other actions such as medical treatment. Brown v. State, 605 S.W.2d 572, 575 (Tex. Crim. App. [Panel Op.] 1980); Nash v. State, 123 S.W.3d 534, 539 (Tex. App.Fort Worth 2003, pet. refd). No wound constitutes a per se serious bodily injury. See Moore v. State, 739 S.W.2d 347, 352 (Tex. Crim. App. 1987). Whether an injury qualifies as serious bodily injury must be determined on a case-by-case basis. Moore, 739 S.W.2d at 352; Wilson v. State, 139 S.W.3d 104, 106 (Tex. App.Texarkana 2004, pet. refd). We note the State must establish a serious bodily injury was actually inflicted; it is not sufficient to prove a hypothetical or mere possibility of a serious bodily injury. Moore, 739 S.W.2d at 352. Moore prohibits the State from attempting to transform a minor injury into a serious bodily injury through the use of speculative testimony about what might have occurred had the minor injury not been medically treated. Moore v. State, 802 S.W.2d 367, 370 (Tex. App.Dallas 1990, pet. refd).
Although the record does contain some evidence of disfigurement,[4] the record clearly contains sufficient evidence for the jury to conclude that the significant impairment of the function of Eubanks jaw for four to five months constituted a protracted impairment of a bodily function. Dr. Sharp testified for any bone to heal, it has to be set . . . [a] lot of times they will wire that jaw shut. Eubanks testified that Williams broke his jaw,[5] his nose, and shattered a number of his facial bones. Eubanks had to have his jaw wired shut and was on a liquid diet for approximately four to five months. Dr. Sharp testified it would be standard procedure for a patient to have his jaw wired shut and to be placed on a liquid diet consisting of [s]omething thats very soft, barely chewable. Were talking about soups. At the time of trial (which occurred approximately a year after the assault), Eubanks still was prevented by his injuries from eating hard food, such as steaks.[6]
This Court has held that an impairment that has lasted four months is protracted. Kenney v. State, 750 S.W.2d 10, 12 (Tex. App.Texarkana 1988, pet. refd) (citing Williams v. State, 575 S.W.2d 30 (Tex. Crim. App. 1979) (impairment of arm for three months was protracted)). Under the circumstances of this case, a rational juror could have concluded, beyond a reasonable doubt, that Eubanks suffered a protracted impairment of the use of his jaw. The evidence of a serious bodily injury is sufficient.
There Is Sufficient Evidence that Williams Did Not Act in Self-Defense
Williams argues, in his second point of error, that the evidence is insufficient to support the jurys rejection of his claim of self-defense. Under Williams account of the incident, Eubanks threw a bottle at Williams, fully aware that Williams had previously had surgery to his brain.[7] Williams argues that under the circumstances, a rational juror would have reasonable doubt concerning whether Williams reasonably believed that the force he used against Eubanks was immediately necessary to protect himself against unlawful force. The State argues[8] that Williams provoked Eubanks or, alternatively, the jury could have concluded, beyond a reasonable doubt, that Eubanks did not use or threaten unlawful force. We agree with the State that a rational juror could have concluded that Williams lacked a reasonable belief that force was immediately necessary. It is not necessary for us to address the States alternative argument that Williams provoked Eubanks and, therefore, waived his right to the self-defense justification.[9]
The elements of self-defense are contained in Section 9.31 of the Texas Penal Code. See Tex. Penal Code Ann. § 9.31(a) (Vernon Supp. 2010). Section 9.31 provides in pertinent part:
(a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the others use or attempted use of unlawful force . . . .
(b) The use of force against another is not justified:
(1) in response to verbal provocation alone
. . . .
(4) if the actor provoked the others use or attempted use of unlawful force . . . .
Tex. Penal Code Ann. § 9.31 (Vernon Supp. 2010). A reasonable belief is a belief that would be held by an ordinary and prudent man in the same circumstances as the actor. Tex. Penal Code Ann. § 1.07(a)(42) (Vernon Supp. 2010); see Werner v. State, 711 S.W.2d 639, 645 (Tex. Crim. App. 1986).
In raising the justification of self-defense, a defendant bears the burden of production, which requires the production of some evidence that supports the particular justification. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). Once the defendant produces some evidence, the State then bears the burden of persuasion to disprove the self-defense claim beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 91314. The burden of persuasion does not require the production of evidence, but rather only requires that the State persuade the jury beyond a reasonable doubt that the defendant did not act in self-defense. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 91314; Kelley v. State, 968 S.W.2d 395, 399 (Tex. App.Tyler 1998, no pet.). A jury verdict of guilt results in an implicit finding against the defensive theory. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 914.
Although the State argues that there is no evidence the bottle was actually used in a threatening manner towards Williams, the record does contain some evidence that Williams was acting in self-defense. Spurgeon testified that the day after the incident, Williams had told her that Eubanks had thrown a bottle at him that evening.[10] However, neither Lane nor Spurgeon observed the escalation of the conflict from verbal disagreement into physical violence. Thus, neither witness could testify concerning whether the bottle was thrown. While this is some evidence Williams acted in self-defense, a rational juror could have concluded Williams did not act in self-defense.
A rational juror could have chosen to disbelieve Williams self-serving out-of-court statements and concluded, beyond a reasonable doubt, that Williams used force in response to only verbal provocation. A jury can choose to disbelieve a witness, even when that witness testimony is uncontradicted. Henderson v. State, 29 S.W.3d 616, 623 (Tex. App.Houston [1st Dist.] 2000, pet. refd). The use of force is not justified . . . in response to verbal provocation alone. Tex. Penal Code Ann. § 9.31(b)(1) (Vernon Supp. 2010). Eubanks testified that he did not strike Williams with his hand or with the bottle he had in his hand. Spurgeon testified, because the bottle ended up on the floor beside the bed after the fight, that she did not believe that the bottle had been thrown at Williams. Both Spurgeon and Lane testified they saw no visible injuries to Williams after the assault. Eubanks testified that he and Williams had engaged in verbal disagreements in the past, but these disagreements had never escalated to fists being used. Lane testified he had seen Eubanks and Williams have verbal disagreements before, but had never seen the disagreements elevate to physical confrontation. The jury was entitled to believe Eubanks statements of his version of the events over Williams version. A rational juror could have concluded, beyond a reasonable doubt, that Williams lacked a reasonable belief that force was immediately necessary to protect himself from the use or attempted use of unlawful force. The evidence is sufficient to support the jurys rejection of self-defense. Williams second issue is overruled.
For the reasons stated, we affirm.
Bailey C. Moseley
Justice
Date Submitted: February 28, 2011
Date Decided: March 9, 2011
Do Not Publish
[1]Dr. Sharp, the attending emergency room physician who treated Eubanks at Hunt Regional Hospital, explained that a face is stable if it does not move, even though it may have fractures.
[2]After a CAT scan was performed, Eubanks was transferred to Parkland Hospital in Dallas, where the reconstructive surgery was performed on Eubanks.
[3]The indictment alleged Williams did intentionally or knowingly cause serious bodily inury to Dennis Eubanks by striking him in the face with his hand or hands. The State is bound by its allegations that Williams acted intentionally or knowingly. See Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001); Malik, 953 S.W.2d 240; see also Curry v. State, 30 S.W.3d 394 (Tex. Crim. App. 2000).
[4]The record contains some evidence that Eubanks would have been seriously and permanently disfigured absent medical treatment. Dr. Sharp testified Eubanks mid-face was unstable and although Eubanks mandible was intact, a lot of the bones of the face were fractured. When asked, [W]hat would happen if Eubanks did not receive surgery, Dr. Sharp responded that the injury possibly could have had a malocclusion of his - of his of his bite, okay, which could have affected his chewing and everything else down the road. Dr. Sharp also testified that the injury could affect his breathing [through] his nasal cavities and that he would have a hard time breathing. Because the evidence is clearly sufficient to establish protracted impairment, it is not necessary for this Court to decide whether the evidence is sufficient to establish Eubanks would have been permanently disfigured without medical treatment.
[5]Mandible refers to the lower jawbone. Dorlands Illustrated Medical Dictionary 1093 (30th ed. 2003). The record suggests Eubanks upper jaw may have been broken, but it is not clear concerning whether another part of Eubanks jaw was broken. Dr. Sharp testified Eubanks facial fractures would make it difficult to chew [j]ust like if you had a mandible fracture . . . .
[6]Eubanks was scheduled for surgery to repair his teeth damaged in the assault.
[7]Eubanks testified he was aware that Williams had previously undergone surgery for a brain aneurysm. When asked whether he was aware that Williams was very sensitive about his head, Eubanks responded, I dont know. Williams argues that he had been warned that additional head injuries could aggravate his condition.
[8]We note the State argues that error was not preserved because Williams did not object to the charge on provocation. An error concerning jury charge error, if it had been raised, would be reviewed under Almanza v. State, 686 S.W.2d 157, 173 (Tex. Crim. App. 1984) (op. on rehg). Williams, though, has not raised any issue concerning jury charge error; rather, he raised legal sufficiency. [A] claim regarding sufficiency of the evidence need not be preserved for appellate review at the trial level, and it is not forfeited by the failure to do so. Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004).
[9]The self-defense justification is not available if the actor provoked the others use or attempted use of unlawful force. Tex. Penal Code Ann. § 9.31(b)(4) (Vernon Supp. 2010); Smith v. State, 965 S.W.2d 509, 514 (Tex. Crim. App. 1998). The trial court instructed the jury on provocation. The State argues Williams provoked Eubanks by interrupting a private conversation. We decline to express any opinion concerning whether a rational juror could have concluded Williams provoked Eubanks.
[10]Although hearsay, this evidence was not objected to and, therefore, evidence. When reviewing the sufficiency of the evidence, we must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see Neal v. State, 256 S.W.3d 264, 277 (Tex. Crim. App. 2008).