11th Court of Appeals
Eastland, Texas
Opinion
Carmella Rezals Sanders
Appellant
Vs. No. 11-00-00321-CR -- Appeal from Dallas County
State of Texas
Appellee
The jury convicted Carmella Rezals Sanders of assault, a Class A misdemeanor offense,[1] and the trial court assessed her punishment[2] as confinement in the county jail for 180 days and a fine of $200. The period of confinement was suspended, and appellant was placed on community supervision for 12 months.[3] We affirm.
Issue Presented
Appellant presents only one issue for appellate review under TEX.R.APP.P. 38.1(e). That issue reads in full as shown:
Appellant was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States because her trial attorney failed to object to evidence that she exercised her right to remain silent at the time of her arrest.
This issue will be overruled. The testimony about which appellant refers was during the investigation prior to her arrest.
Background Facts
Appellant and the complainant (Michael Muhammad) have never been married, but they are the parents of a small child. On the day of the offense, March 29, 2000, they met at a neutral site. The complainant testified that appellant was going to let him take their baby for a visit; however, appellant testified that the complainant was only supposed to visit with the child at the neutral site. The assault occurred when the complainant and his mother attempted to leave with the child.
After the complainant and his mother testified to their version of the incident, the State called Officer Dallas Dodson of the Duncanville Police Department. Officer Dodson testified that he was dispatched to the scene of the dispute at about 7:10 p.m. Officer Dodson testified that, when he arrived at the scene, he found appellant and the complainant walking on the sidewalk. They were still arguing, and he tried to separate them. The second officer had not yet reached the scene, and Officer Dodson said he Afirst dealt with the female@ because Ashe seemed to be the one who was the most erratic.@ Officer Dodson said the male was Apretty calm@ and that he did not see anyone else at that time.[4] Relevant portions of Officer Dodson=s testimony on direct examination read as shown:
Q: When you say she was erratic can you describe what you mean by that?
A: She - - the only thing she told me was I want my baby. It=s my baby - - I want my baby. That was it. I mean - -
Q: Well, what made you say she was erratic though?
A: Just her demeanor. You can tell the way she was trying to talk with her hands. And, she was very upset. She seemed very emotional.
Q: After speaking with her what did you do next?
A: About that time the other officer did arrive on the scene - - Officer Luna. And, he spoke with Mr. Muhammad. I stayed with the female and just kept them separated until Officer Luna could decipher what Mr. Muhammad had to tell him.
Q: After Officer Luna spoke with Mr. Muhammad, what happened next?
A: We both - - got together kind of in the middle [of the median on the street] to try and figure out what his subject had to say and what mine said.
Q: And, did you make a determination based on your discussion with Officer Luna?
A: Yes ma=am, we did. We determined that apparently during the course of the transfer of the kid or whatever was going on at that point - - Ms. Sanders had apparently hit him in the back of the head with a closed fist. And, had somehow reached around and hit him in the lip area causing his lip to bleed....[T]he only noticeable bodily injury we saw was on the lip area.
* * *
Q: What happened next after you conferred with Officer Luna?
A: I simply told him what Ms. Sanders had told me - - which was basically nothing. I got her I.D.=d but that was about it. I told him that Ms. Sanders wasn=t answering any of my questions. And, that - - I conferred with him basically again what Mr. Muhammad had told him and decided she would be placed under arrest for Class A Family Violence, bodily injury.
Officer Dodson testified that Officer Luna transported appellant to the Duncanville City Jail. Officer Dodson then took a statement from the complainant=s mother which supported the complainant=s version of the dispute.
The State rested after Officer Dodson testified. Appellant then took the witness stand, and she testified that the complainant is the father of her child and that they met on March 29, 2000, to let him visit with the baby in her car. Appellant testified that, when the complainant took the baby out of her car, she asked him what he was doing. He said that he was taking the baby, and appellant said: A[N]o you=re not.@ Appellant testified that the complainant=s mother held her and that he put the baby in his mother=s car. Appellant managed to get loose, and she ran to the front of the car to keep him from driving off with the baby. Appellant said that she jumped onto the hood of the car to keep him from driving off with the baby. The only testimony from appellant about the police officer reads in full as shown:
Q: What did you tell the officer?
A: I told the officer that I wanted my baby and that I told him that Mr. Muhammad was coming up there and he wanted to see the baby. I was letting him see the baby. But at the same time he started trying to take the baby out of the car seat. And, while I was trying to get the baby from him -- he started attacking me.
* * *
Q: Now, when the officer came were you injured?
A: Yes, I was.
Q: Tell the jury what your injuries were?
A: When the officer drove up and he was trying to calm me down - - he put - - he took out his flashlight and he shined it on my face. And, he said, are you okay? I said, I=m fine. He said, are you sure - - do you need to go to the hospital? I said, no - - He said, are you sure because you are bleeding all over your face. I said...I just want my baby back. And, he said, are you sure because he saw bruises and scratches on me. I said, I just want my baby back -- I said, I don=t care -- I just want my baby back. I said, I don=t want to go to the hospital. I just want my baby back.
On cross-examination, appellant testified that she told the police officer that the complainant hit her and that the officer was Alying when he said@ that she Awouldn=t say anything to him about what happened.@ Appellant also testified that she realized that she had scratches on her face and knees when the officer pointed them out to her, that the police officer asked her for her name and where she lived, that she told him, and that he then asked her what happened. Appellant testified that she Agave him the accounts of what happened@ and told him: AI just want my baby back.@
Officer Dodson was then called as a rebuttal witness. He testified that he did not remember appellant having any injuries at the scene of his investigation and that he did not remember her complaining of any injuries. He also testified that if there had been any injuries, he would have made a note of them in his report. Officer Dodson also testified that appellant was not cooperative.
Controlling Authorities
Appellant cites Strickland v. Washington, 466 U.S. 668 (1984), and Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999), as the basis for her claim that she did not receive Aeffective assistance of counsel.@ Appellant cites Doyle v. Ohio, 426 U.S. 610 (1976), and Sanchez v. State, 707 S.W.2d 575 (Tex.Cr.App.1986), in support of her claim that trial counsel should have objected to evidence of her Apost-arrest silence.@ Both Doyle and Sanchez concern a person=s right to be free from compelled self-incrimination which Aarises at the moment an arrest is effectuated.@
The Asilence@ about which appellant complains occurred during the course of the pre-arrest investigation of the dispute. Neither Doyle nor Sanchez were applicable; consequently, appellant=s trial counsel did not err in failing to make objections based upon those cases. The record shows that appellant received an effective defense in the trial court. Her trial counsel filed appropriate motions prior to trial, made an opening statement to the jury which summarized her position, cross-examined the State=s witnesses, made appropriate objections to the State=s questions, assisted appellant in giving testimony as to her version of the dispute, and then made a jury argument which summarized the testimony supporting her version of the dispute. The issue presented for appellate review is overruled.
The judgment of the trial court is affirmed.
BOB DICKENSON
SENIOR JUSTICE
October 25, 2001
Do not publish. See TEX.R.APP.P. 47.3(b).
Panel consists of: Wright, J., and
McCall, J., and Dickenson, S.J.[5]
[1]TEX. PENAL CODE ANN. ' 22.01(a)(1) (Vernon Supp. 2001) defines the offense (Aintentionally, knowingly, or recklessly causes bodily injury to another@) and declares that it is a Class A misdemeanor offense.
[2]TEX. PENAL CODE ANN. ' 12.21 (Vernon 1994) provides that a person adjudged guilty of a Class A misdemeanor shall be punished by a fine of not more than $4,000, by confinement for not more than one year, or by both a fine and confinement.
[3]The fine was not probated.
[4]Later, the complainant=s mother came back to the scene in her car with the baby.
[5]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.