Affirmed and Memorandum Opinion filed September 20, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-06-00238-CV
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IN THE MATTER OF C.R.G
On Appeal from the County Court at Law No. 2
Fort Bend County, Texas
Trial Court Cause No. 10882
M E M O R A N D U M O P I N I O N
C.R.G. (ACraig@)[1] was adjudicated delinquent for four counts of assault. On appeal, he challenges the trial court=s exclusion of testimony concerning a complaining witness=s violent acts and reputation. In addition, he contends the evidence is factually insufficient to support one of the jury=s findings. We affirm.
I. Factual and Procedural History
On March 9, 2004, the Fort Bend County (AFBC@) District Attorney filed a petition alleging Craig had engaged in delinquent conduct. In the live pleading at the time of Craig=s adjudication hearing, he was alleged to have (1) assaulted his former girlfriend, C.N. (AConnie@) on three separate occasions; (2) assaulted his older sister, A.B. (AAnn@); (3) criminally trespassed on the property of Connie=s mother; and (4) sexually assaulted Connie.
An immediate custody order was issued on October 18, 2004. According to a detention report completed by an FBC juvenile detention officer, Craig turned himself in to the FBC juvenile probation department on October 25, 2004. After a detention hearing on October 27, 2004, Craig was placed in the custody of the FBC juvenile court and ordered detained at the juvenile detention center. This detention order was extended several times pending Craig=s adjudication, and he remained in detention pending his adjudication hearing, which began with jury selection on January 10, 2006.
At Craig=s adjudication hearing, several witnesses testified regarding Craig=s alleged assault and sexual assault of Connie. Craig attempted to introduce testimony regarding Connie=s alleged assaults on specific individuals and her reputation for violence, but the trial court excluded much of this testimony.[2] In addition, Craig=s sister, Ann, testified regarding Craig=s alleged assault of her on January 23, 2004. She stated that she and Craig had gotten into an argument, and were hitting each other. According to Ann=s live testimony, she leaned forward to hit Craig and collided with his arm. She further testified that she had signed an affidavit of non-prosecution. But according to Deputy Charles Johnson, who responded to the 911 call of Craig=s mother reporting this assault, he observed a bump on Ann=s head. Johnson also testified that Craig told him that he had hit his sister because she pushed him. Johnson stated that because Craig=s mother wanted Craig taken into custody following this incident, Johnson transported Craig to the juvenile detention facility.[3]
Craig=s adjudication hearing concluded on January 26, 2006. After receiving the charge of the court, the jury found Atrue@ on each of the four assault allegations and Anot true@ on the allegations of sexual assault and criminal trespass. Thus, appellant was adjudicated delinquent; however, the trial court entered an order of no disposition on May 9, 2006, stating:
The Court previously adjudicated this child as a child who engaged in delinquent conduct on the 10th [sic] day of January, 2006. After reviewing the evidence the Court finds that the child is in need of rehabilitation and that the protection of the public and of the child require that a disposition be made, but due to the child=s age no disposition can be made.[[4]]
IT IS THEREFORE[] ORDERED, ADJUDGED AND DECREED that no disposition be made.
This appeal timely followed the trial court=s order of no disposition.
II. Issues Presented
In his first two issues, Craig contends the trial court erroneously excluded testimony regarding Connie=s assaults on specific individuals and her reputation for violence. In a third issue, he challenges the factual sufficiency of the evidence to support his conviction for assaulting Ann on January 23, 2004.[5]
III. Analysis
A. Exclusion of Evidence
We review a trial court=s ruling on the admissibility of evidence for abuse of discretion, considering the ruling in light of the evidence before the court at the time. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). A trial court does not abuse its discretion as long as its decision lies within the zone of reasonable disagreement. Id.
1. Exclusion of Testimony that Connie Assaulted One of Craig=s Girlfriends
In his first issue, Craig contends that the central theme of his defense was that Connie was jealous of Craig=s relationships with several other girls and that, as a result of that jealousy, Connie acted violently toward Craig or fabricated her allegations of assault. Craig complains that the trial court excluded the testimony of the following witnesses concerning Connie=s alleged assault on AKate,@ another of Craig=s girlfriends.
a. Testimony of Chuck
Teenager C.J., identified here as AChuck,@ was asked why he had a bad relationship with the complainant, Connie, and he responded
A: There was an incident with [Connie] and my mother over the phone where she was cursing her out, and also she beat up one of my friends, [Kate]. I witnessed that.
Defense: You were present for that?
State: Objection, your Honor; specific acts, specific alleged acts from a very biased witness.
Court: Overruled.
Defense: Did you witness that event?
A: Yes, sir.
Defense: What happened?
State: Objection, your Honor, to any 404 evidence,[6] and it also violates the Motion in Limine. In fact, it goes directly to one of the most important paragraphs in the Motion in Limine.
The jury was then excused, and the State explained that the Aacts that they are talking about related to an incident where [Connie] was adjudicated and placed on probation . . . . [The State=s] motion in limine specifically refers to them not bringing up any juvenile adjudications or anything related to any of that.@[7] Defense counsel responded:
On cross-examination, of course, we have been over this. They asked [Chuck] what his relationship with [Connie] was, and he testified that it was bad. When I got him on redirect, I asked him why the relationship was bad. They objected and based upon the argument made, you overruled the objection. He then testified.
During that testimony he gaveCone reason was that she beat up a friend of his, [Kate]. I askedCthen I saidCdid sheCI think I said, ADid she assault her,@ or something to that effect and they objected, and you overruled the objection. He answered, AYes.@ At that point I thought I was free to go on asking the specifics. If I=m mistaken, I apologize for that; but I thought the objectionCoverruling the objection to him answering yes, he saw her assault [Kate] seemed to me I could go ahead and ask additional questions. It=s already in the record. He said that she assaultedChe saw her assault [Kate]. I mean that=s already before the jury. You overruled their objection on that, and you let that in. . . .
. . .
I=m not going to ask him if he knows if she was adjudicated or anything like that. I=m just after the facts, your Honor, of what happened on that particular incident.
We conclude the trial court did not abuse its discretion by sustaining the State=s objections. A[I]t is not enough to tell the judge that evidence is admissible. The proponent, if he is the losing party on appeal, must have told the judge why the evidence was admissible.@ Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005); see also Tex. R. App. P. 33.1(a)(1)(A) (requiring a timely request that Astated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context@). Here, defense counsel simply recounted the testimony and objections and explained why he believed the trial court=s order on the State=s motion in limine no longer barred this line of inquiry; however, he did not specify the purpose for which such testimony was admissible. His assertions on appeal that such testimony would have supported an argument that Connie behaved violently toward Craig or fabricated her allegations of assault were not presented to the trial court. Accordingly, this argument has been waived. See Tex. R. App. P. 33.1(a)(1)(A).
b. Testimony of Todd
On appeal, Craig states that he attempted to elicit testimony regarding the assault on Kate through another witness, T.C. (ATodd@). The State again objected and the court sustained the objection. In support of the admissibility of this testimony, Craig cites to a portion of the record containing a conference with the court outside the jury=s presence. At that time, Craig=s defense counsel asked Ato present evidence of specific acts of violence by [Connie] against third persons including [Kate], in the assault that occurred between the alleged physical assaults and the alleged sexual assault in this case and specific acts of violence against [Doug=s] family[8] and [Craig=s] family.@
Although this conference occurred after Todd testified, Craig cites no evidence that Todd possessed any such knowledge. Moreover, the trial court concluded, AAt this time your request is denied. . . . We will carry it and see if you improve your situation or the basis for it.@ Although Todd testified without objection that he had seen Connie assault Craig, we have discovered no evidence in the record that Todd witnessed Connie assault a third person. We therefore conclude that if the trial court excluded testimony from Todd regarding Connie=s assaultive conduct toward third parties, this ruling does not constitute an abuse of discretion. See Tex. R. Evid. 602 (AA witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.@).
c. Testimony of Jack
Another teen, J.M.H. (AJack@), testified as follows:
Q: Did you ever see [Connie] and [Craig] argue?
A: Yes, all the time.
Q: How frequent an occurrence was that?
A: Every day.
Q: Who initiated the arguments?
A: [Connie].
Q: Did the arguments ever become physical?
A: Yes.
Q: Who initiated the physical contact?
A: [Connie].
Q: Did [Connie] argue with other people?
A: Yes.
Q: Did she argue with other girls that [Craig] knew?
A: Yes.
Craig=s defense attorney then initiated a conference outside the jury=s presence, arguing:
The witness has testified he did observe [Connie] arguing with other girls who were friends of [Craig]; and what I would like to ask him in a general wayCI don=t want to get into specific instancesCbut I want to ask him if he ever observed any of these arguments getting physical with other girls, but I won=t ask him about any specific instances where she got physical.
The State responded:
Judge, I believe this is along the lines of what they wanted to ask another witness yesterday, and we objected and I believe you sustained our objection. He wants to get into acts involving [Texas Rule of Evidence] 404, acts covered in the Motion in Limine, and more specifically, these specific acts of misconduct that have no relation to [Craig].
If [defense counsel] wants to ask him, AOn December 9, 2003, did you see [Connie] hitting [Craig],@ that=s one thing because we=re talking specifically about the Respondent. But in this case, they want to talk about other acts between [Connie] and other girls, other collateral matters separate and apart from what we are here for in this trial. Those matters are not relevant and they violate [Rule] 404.
The trial court sustained the State=s objections.
We agree that, for the reasons advanced by the State, the trial court did not abuse its discretion in excluding further testimony regarding whether Jack ever observed Connie in a physical altercation with any other female known to Craig.
d. Testimony of Kate
Out of the jury=s presence, defense counsel offered testimony from K.G. (AKate@) that A[Connie] just like beat me up because I was writing [Craig] a letter.@ According to Kate, this incident occurred A[a]bout a year@ before the January 2006 trial. Kate stated that Craig Awas in juvenile@ at that time and she believes he was being detained in reference to this case. Kate further testified that she and Connie were in the same class, and Connie looked over at Kate=s desk and saw the letter Kate was writing to Craig. Kate stated that A[Connie] just said, >Why are you writing a letter to my man,= and then like she just said that she was going to get me after school and that=s it.@ Kate further testified that later that day, Connie threw a rock at Kate=s car as Kate was driving through the subdivision where both Connie and Craig lived. According to Kate, she stopped the car, and when she got out, Connie said nothing but grabbed her and punched her in the head fifteen or twenty times. Kate testified that she received a concussion and filed a police complaint.
The State objected to Kate=s testimony on the basis that it was speculative, and argued that the evidence was offered to show that Connie=s assault of Kate was motivated by jealousy. The State further objected on the grounds that defense counsel did not specify the basis for admission of this evidence, and the evidence did not address Craig=s self-defense theory or any other defensive purpose; thus, the State argued this testimony was not relevant. In reply, Craig=s defense counsel argued:
404(b) evidence is admissible to show motive; and I think the assault on [Kate] shows motive on [Connie]=s part for either the aggressive acts against her or to fabricate a false allegation of rape. . . . I think it=s highly relevant because [Connie]=s relationships with other girls is what is drivingCat least from our perspective and our defenseC[Connie]=s actions in this case. I think we should be entitled to show specific acts against some of those individuals to show that jealousy and to show that motive on [Connie] to do the things that she has done.
The trial court sustained the State=s objections.
Both at trial and on appeal, Craig=s attorney argued that evidence of Connie=s assault of Kate is admissible, relying on Torres v. State, 117 S.W.3d 891, 894 (Tex. Crim. App. 2003). There, the Court of Criminal Appeals held, AWhen a defendant in a homicide prosecution raises the issue of self-defense, he may introduce evidence of the deceased=s violent character. Specific acts of violence may be introduced to demonstrate the reasonableness of the defendant=s fear of danger or to demonstrate that the deceased was the first aggressor.@ Id. (citations omitted). But the Court continued, AThere must be some evidence of aggression by the deceased during the events that gave rise to the criminal charges in the case before the defendant may introduce evidence of a prior specific violent act that tends to explain the deceased=s later conduct.@ Id. at 895 (emphasis added).
Torres is readily distinguishable. First and most obviously, Torres concerns the admissibility of evidence of the deceased=s propensity for violence in a homicide prosecution. Unlike the present case, the deceased complainant in Torres was necessarily unavailable to Aexplain [his] later conduct.@ Assuming, however, that the reasoning in Torres applies in an assault caseCa matter on which we express no opinionCKate dates her assault by Connie to approximately January 2005, long after the offenses for which Craig was tried. Indeed, Kate testified that Craig was already in juvenile detention for these very offenses at the time Connie allegedly assaulted her. Although the Torres Court permitted evidence of Aprior specific violent@ conduct by the complainant to explain that individual=s conduct during the charged offense, Craig offered evidence of subsequent extraneous acts of violence by Connie to contradict her live testimony. Under these circumstances, Torres does not support Craig=s argument for admissibility.
On the record before us, we conclude the trial court did not abuse its discretion in excluding this testimony. See also Tex. R. Evid. 608(b) (ASpecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness= credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.@). We therefore overrule Craig=s first issue.
2. Exclusion of Testimony Regarding Connie=s Reputation for Violence
Craig also sought to introduce the testimony of a private investigator, Walter Grace, regarding Connie=s reputation in the community for violent behavior. The State objected on the grounds that Ait=s not relevant, . . . it would involve hearsay, and . . . it=s improper reputation evidence, [and] improper reputation character evidence.@ The trial court sustained the objection.
Craig contends that the Aheart of [his] defense was that [Connie] was violently jealous of his relationship with other girls, and that she was the first aggressor in her confrontations with him.@ In arguing that the exclusion of the evidence discussed above caused him harm, Craig contends that, A[a]lthough there was plenty of testimony that [Connie] was the first aggressor in many of her arguments with [Craig], there was a paucity of evidence regarding her actions towards other girls.@ According to Craig, this latter type of evidence was a Acentral pillar@ to his self-defense theory; excluding this evidence undermined this defensive theory because Athe jury would have great difficulty concluding that such jealousy could have caused [Connie] to be the first aggressor.@
But as Craig concedes, Athere was plenty of testimony@ from eyewitnesses that Connie was the first aggressor in many of her arguments with Craig. This evidence includes a tape recording of a conversation between Connie and Craig in which Connie repeatedly stated that she would testify in court that she hit Craig first. In contrast to Connie=s recorded statement and the statements of many eyewitnesses, the excluded evidence consists of testimony that Connie assaulted another girl long after these events and may have had a reputation for violent and jealous behavior. At best, this evidence does no more than create a basis from which a jury could infer that Connie was the first aggressor, but this inference is cumulative of the much stronger direct evidence already admitted.
To place the proffered evidence in context, several other witnesses testified regarding Connie=s bad reputation and her reputed jealousy and violence towards Craig. For example, Connie=s former friend A.H. (AAndrea@) stated that people thought Connie was a Aho,@ was Amean,@ and did Aevil@ things. Andrea testified regarding Connie=s jealousy of Craig, stating that Connie Ajust did not like [Craig] hanging with anybody else but her.@ She further agreed that Connie was possessive and had a reputation for violence and jealousy. Craig=s sister Ann testified that Connie Awas very violent. She was very violent, and she would argue . . . she screamed, throwed (sic) tantrums, broke stuff, broke stuff at our house.@ According to Ann, Connie struck Craig, pushed him, knocked him down, and hit him in the face when they argued about other girls. Another teen, Chuck, testified that Connie Adisliked@ Craig=s relationships with other girls and this dislike was Avery intense.@ According to Chuck, Connie reacted to Craig=s other relationships with jealousy and rage. Another teen, Todd, testified that Connie made threats Aif [Craig] was talking to a girl or something@ and would Ausually slap or hit@ Craig.
In light of the strength of the direct evidence, the exclusion of this tangential and cumulative evidence was well within the trial court=s discretion. Moreover, the availability of much stronger direct evidence renders the exclusion of the contested evidence harmless.
For all of these reasons, we overrule Craig=s first and second issues.
B. Factual Sufficiency of Evidence of Craig=s Assault of Ann
We review adjudications of juvenile delinquency by applying the standards applicable to sufficiency of the evidence challenges in criminal cases. See Tex. Fam. Code Ann. ' 54.03(f) (Vernon Supp. 2006). We determine factual sufficiency by reviewing the evidence in a neutral light. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007) (citing Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (en banc)). Evidence is factually insufficient if (1) the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust, or (2) the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Id. (citing Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006)).
To support a finding that Craig assaulted his sister Ann, the State was required to prove beyond a reasonable doubt that he intentionally, knowingly, or recklessly caused bodily injury[9] to Ann on January 23, 2004 by hitting her with his hand. ABodily injury@ consists of Aphysical pain, illness, or any impairment of physical condition.@[10] The broad definition of A>bodily injury=@ encompasses even relatively minor physical contact as long as it constitutes more than mere offensive touching.@ Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989) (en banc).
Craig contends that the evidence he caused Ann bodily injury Ais outweighed by the evidence that [Ann] was more concerned with documenting the claim for insurance purposes, that [Craig] told the officer [Ann] had pushed him and he had hit her, and the fact that [Ann] filed an affidavit of non-prosecution.@ At trial, Ann denied that her brother caused the injury to her forehead, and testified as follows:
Q: Are you telling this jury you don=t believe that it was caused by him?
A: No. We got into an altercation, and both of usChe didn=t really hit me very much. I was really hitting him. The way that I got hit was when he was reaching out to hit me, I hit him and hit my head and I was reaching in to hit him.
Q: You were reaching to hit him, but you accidentally hit your head?
A: No. This is how it was. Like we were here. I=m here. He=s here. And it was like this and he was hitting me; like he was reaching to me to hit me to keep me from hitting him, and, you know, like that.
Q: Okay.
A: But it wasn=t really a big thing.
Ann further testified that on December 17, 2004, she signed an Affidavit of Non-Prosecution, in which she wrote Athe offense wasn=t as bad as I thought it was at the time. Also, I understand that the Defendant was acting in self-defense when he hit me.@
But other factors undermined Ann=s live testimony. First, the jury heard a tape recording of the January 23, 2004 telephone call for emergency assistance. During the call, the emergency dispatcher asked Karen, the mother of both Ann and Craig, if Craig had physically hurt his sister. Karen responded in the affirmative. She also stated that her son Agoes off like this all the time and I don=t know what causes this but he does this at least twice a week for no reason.@ Deputy Charles Johnson of the FBC Sheriff=s Department testified that Ann Asaid that she and her brother were arguing while preparing lunch and he hit her.@ He further testified that Ann Ahad a bump on her head.@ According to Deputy Johnson, Craig told him that Ann Ahad pushed him and he had hit her[,]@ and Ann indicated that A[Craig] hit her with his fist.@ In addition, Johnson testified that Craig=s mother said she wanted her son Ato go to juvenile.@
Moreover, the jury heard testimony that Karen, who is a law school graduate, accompanied Ann to the district attorney=s office to file the affidavit of non-prosecution. The jury could therefore have believed that Ann was acting on her mother=s instructions in filing the affidavit. Such an interpretation of events is supported by Karen=s conduct in the courtroom. While Ann was testifying, the State objected that the children=s mother was Asitting back there. She=s been shaking her head back and forth . . . and whispering some things.@ Ann responded, AYour Honor, my mother was speaking to me, and I was just tryingC.@ (emphasis added). Under these circumstances, a reasonable jury could have concluded that Ann=s affidavit and live testimony were given pursuant to the direction of their mother, and the jury could have found the evidence of the statements made to emergency personnel on January 23, 2004 to be more persuasive.
We overrule Craig=s third issue.
IV. Conclusion
On this record, we conclude the trial court did not abuse its discretion by excluding evidence that Connie assaulted a third party while this case was pending. We further conclude that the trial court did not abuse its discretion in excluding the cumulative testimony of a private investigator that Connie had a reputation for violence. Finally, we hold the evidence is factually sufficient to support the finding that Craig assaulted his sister on January 23, 2004. Accordingly, we overrule each of Craig=s three issues and affirm the judgment of the trial court.
/s/ Eva M. Guzman
Justice
Judgment rendered and Memorandum Opinion filed September 20, 2007.
Panel consists of Chief Justice Hedges and Justices Hudson and Guzman.
[1] In an opinion from the appeal of a juvenile court proceeding, neither the child nor his family shall be identified by name. Tex. Fam.Code Ann. ' 56.01(j) (Vernon 2002). To protect the privacy of both the child and others who were minors when they testified, we will refer to them by pseudonyms.
[2] This excluded testimony is discussed in more detail in our analysis of appellant=s first and second issues, infra.
[3] Our record does not reflect the outcome of this incident, although it appears that a protective order was entered barring Craig from living at home at some point.
[4] Craig reached the age of eighteen during his adjudication hearing, prior to disposition. Section 51.0412 of the Juvenile Justice Code provides for the retention of a juvenile court=s jurisdiction if: (1) the petition or motion was filed while the respondent was under the age of eighteen; (2) the proceeding is not complete before the respondent=s eighteenth birthday; and (3) the court enters a finding that the prosecutor exercised due diligence in an attempt to complete the proceeding before the respondent reached the age of eighteen. Tex. Fam. Code Ann. ' 51.0412 (Vernon 2002). These requirements were met in this case.
[5] Although Craig argues that the evidence is factually insufficient to support Athe January 24, 2004 assault conviction,@ it is clear from his briefing that he challenges his conviction for assaulting his sister on January 23, 2004.
[6] Texas Rule of Evidence 404 governs the admission of character evidence and evidence of other crimes, wrongs, or acts.
[7] The trial court granted the State=s pre-trial motion in limine requiring Craig, his attorneys, and his witnesses to approach the bench before referring in any manner to A[a]ny act of misconduct on the part of any witness for the State of Texas, including the victim in this case, not amounting to a final adult conviction for a felony or misdemeanor involving moral turpitude . . . @ and A[a]ny acts of misconduct by the victim.@ The order on the motion in limine further prohibited Craig, his attorneys, and his witnesses from referring in any manner to A[a]ny evidence concerning the reputation of the alleged victim for not being peaceable and law[-]abiding, until such time as the State of Texas has had the opportunity to test the qualifications of the person offering such evidence . . . .@
[8] At the time of these events, Doug lived across the street from Connie.
[9] See Tex. Penal Code Ann. ' 22.01(a)(1) (Vernon Supp. 2006) (defining assault by intentionally, knowingly, or recklessly causing bodily injury to another).
[10] Id. ' 1.07(a)(8).