ACCEPTED
06-14-00052-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
12/30/2014 11:59:31 PM
DEBBIE AUTREY
CLERK
No. 06-14-00052-CR
IN THE COURT OF APPEALS FILED IN
FOR THE SIXTH DISTRICT OF TEXAS 6thTEXARKANA,
COURT OF APPEALS
TEXAS
AT TEXARKANA, TEXAS 12/31/2014 11:43:00 AM
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗ DEBBIE AUTREY
Clerk
MARTIN SUAREZ JUAREZ,
APPELLANT
v.
THE STATE OF TEXAS,
APPELLEE
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
On Appeal from the 195th Judicial District Court
Hon. Fred Tinsley, Judge Presiding
Dallas County, Texas
In Cause No.F13-60355-N
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
STATE’S RESPONSE BRIEF
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Counsel of Record:
CRAIG WATKINS TARA CUNNINGHAM
Criminal District Attorney Assistant District Attorney
Dallas County, Texas State Bar No. 24068757
Frank Crowley Courts Building
133 N. Riverfront Boulevard, LB-19
Dallas, Texas 75207-4399
(214) 653-3828| (214) 653-3643 fax
Tara.Cunningham@dallascounty.org
Attorneys for the State of Texas
The State requests oral argument only if Appellant argues.
Table of Contents
Table of Contents .................................................................................................................... i
Table of Authorities .............................................................................................................. iii
Statement of the Case ........................................................................................................... iv
Statement of Facts .................................................................................................................. 1
Summary of the Argument .................................................................................................... 6
Argument ................................................................................................................................. 8
Response to Issue One ....................................................................................................... 8
Response to Issue Two .................................................................................................... 11
Response to Issue Three .................................................................................................. 14
Response to Issue Four ...................................................................................................... 8
Response to Issue Five ..................................................................................................... 11
Response to Issue Six ....................................................................................................... 14
Response to Issue Seven .................................................................................................. 14
Conclusion ............................................................................................................................. 16
Certificate of Compliance .................................................................................................... 17
Certificate of Service ............................................................................................................ 17
i
Table of Authorities
Cases
Asberry v. State,
813 S.W.2d 526 (Tex.App.—Dallas 1991, pet. ref’d)………………………………..12
Atkins v. State,
951 S.W.2d 787 (Tex. Crim. App. 1991)……………………………………………..2
Barajas v. State,
93 S.W.3d 36 (Tex. Crim. App. 2002)…….……………… ………………………..2
Bell v. State,
877 S.W.2d 21, 24(Tex. App. Dallas 1994))…….…………… …..……………….7,10
Bigley v. State,
865 S.W.2d 26 (Tex. Crim. App. 1993)....……….…………………………....……..12
Braxton v. State,
226 S.W.3d 602 (Tex. App.—Houston [1st Dist.] 2007, pet. dism'd)………..……3,4,5
Burden v. State,
55 S.W.3d 608 (Tex. Crim. App. 2001)………………..………………..……….7,9,10
Cassidy v. State,
149 S.W.3d 712 (Tex. Crim. App. 2004)………………………………..……..……5
Coble v. State,
330 S.W.3d 253(Tex. Crim. App. 2010)………………………………….……….7,10
Cook v. State,
858 S.W.2d 467, 471 (Tex. Crim. App. 1993)……………………………………….6
Davis v. State,
349 S.W.3d 517(Tex. Crim. App. 2011)....…………………………………..….........4
Delacerda v. State,
425 S.W.3d 367 (Tex. App.--Houston [1st Dist.] 2011, pet. ref'd)………...……...…2
Dillon v. State,
2007 Tex. App. LEXIS 9339 (Tex. App. Tyler Nov. 30, 2007, pet. ref’d)…………....7
Lee v. State,
206 S.W.3d 620 (Tex. Crim. App. 2006)………………………………………….…6
Sanchez v. State,
165 S.W.3d 707, 712 (Tex. Crim. App. 2005)…………..……….……………………3
Standefer v. State,
59 S.W.3d 177 (Tex. Crim. App. 2001)…………..………………..…….………..3,4,5
ii
Statutes
Tex. Penal Code § 22.01(a)(1)…..………………………………………….……….12
Tex. Penal Code § 22.02(a)…..………………………………………….….…...…..12
Texas Code of Criminal Procedure, Article 35.16(b)(3)……………………..……….5
Rules
Tex. R. Evid. 401…………………..……………………..……..………………….10
Tex. R. Evid. 402…………………..……………………..……………..………….10
Tex. R. Evid. 801…………………..……………………..………………………….7
Tex. R. App. P. 44.2 (b)………………….………………..……….……………….12
iii
TO THE HONORABLE COURT OF APPEALS:
The State’s Brief is submitted on behalf of Craig Watkins, the Criminal District
Attorney of Dallas County, Texas, in response to the brief of Appellant, Martin
Suarez Juarez.
Statement of the Case
Appellant was indicted for assault causing bodily injury by impeding the
complainant’s normal breathing and circulation. (CR: 6). The indictment further
alleged that the complainant was a member of Appellant’s family. (CR: 6). Appellant
entered a plea of not guilty. (RR2: 12; RR3: 13). A jury found Appellant guilty and the
trial court sentenced Appellant to 8 years’ confinement. (CR: 53; RR4: 26, 58). This
appeal followed.
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Statement of Facts
The facts relevant to this appeal are adequately set forth in the statement of the case
and the arguments sections of this brief.
Summary of the Argument
Issue One:
Voir Dire. The trial court did not abuse its discretion when it overruled
Appellant’s objection to the State’s question during voir dire.
Issue Two:
Testimony of Officer Regarding 911 Call Notes. The trial court did not
abuse its discretion when it allowed the investigating officer to testify regarding the
911 call notes while describing the course of her investigation.
Issue Three:
Testimony of Officer Regarding Witness Statement. The trial court did not
abuse its discretion when it allowed the investigating officer to testify regarding the
statement of the complaining witness while describing the course of her investigation.
Issue Four:
Relevant Testimony. The trial court did not abuse its discretion when it
allowed testimony regarding the emphasis that the Dallas Police Department has put
on family violence.
Issue Five:
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Investigator’s Testimony Regarding Appellant’s Immigration Status. The
trial court did not abuse its discretion when it allowed testimony from the State’s
investigator regarding Appellant’s immigration status which fit as an exception to the
hearsay rule.
Issue Six:
Investigator’s Testimony Regarding Appellant’s Immigration Status. The
trial court did not abuse its discretion when it allowed testimony from the State’s
investigator regarding Appellant’s immigration status because it was not speculative.
Issue Seven:
Judgment. The Court should reform the judgment to reflect that the correct
offense statute.
Argument
Response to Issue One:
The trial court did not abuse its discretion when it overruled Appellant’s
objection to the State’s question during voir dire.
Pertinent Facts:
During voir dire the State explained to jurors that the State was required to
prove beyond a reasonable doubt that Appellant caused bodily injury to the
complainant by impeding the normal breathing and circulation of the complainant's
blood by applying pressure to her throat or neck or by blocking her nose or mouth
2
with the use of a hand and hands. (RR2: 25). The State also let the jurors know that
when she used the word ―choking‖ she was referring to the longer definition of
―caused bodily injury to the complainant by impeding the normal breathing and
circulation of the complainant's blood by applying pressure to her throat or neck or
by blocking her nose or mouth with the use of a hand and hands.‖ (RR2: 26). The
State then asked people to raise their hands if they ―need to see something more than
just bodily injury.‖ Every time a potential juror raised their hand, the State asked them
if they would require the State to prove something in addition to bodily injury. (RR2:
26-32). Three prospective jurors in a row raised their hand and said they would
require the State to prove more than bodily injury. (RR2: 26-32). The State then asked
if Venireperson Thompson felt the same way. (RR2: 32). Thompson said that he
―would like to see a bruise or something‖ in a choking case. (RR2: 32-33). The State
followed up by asking the venireperson if no bruising meant that he would render a
not guilty verdict. (RR2: 33). The venireperson never responded to the question after
the State was interrupted by Appellant’s objection. The State followed up by asking
the venireperson ―You would require the State to prove more than what is required
under the law?‖ to which the venireperson replied, ―Yes.‖
Standard of Review
The trial court has broad discretion over the process of selecting a jury. Barajas
v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002). A trial court’s ruling on an allegedly
3
improper commitment question during voir dire is reviewed under an abuse of
discretion standard. Atkins v. State, 951 S.W.2d 787, 790 (Tex. Crim. App. 1997);
Delacerda v. State, 425 S.W.3d 367, 381 (Tex. App.--Houston [1st Dist.] 2011, pet.
ref'd).
Applicable Law
A commitment question is a question that commits a prospective juror to
resolve or to refrain from resolving an issue a certain way after learning of a particular
fact. Commitment questions are impermissible unless the law requires a commitment.
Davis v. State, 349 S.W.3d 517, 518 (Tex. Crim. App. 20011). Improper commitment
questions are prohibited to "ensure that the jury will listen to the evidence with an
open mind—a mind that is impartial and without bias or prejudice—and render a
verdict based upon that evidence." Sanchez v. State, 165 S.W.3d 707, 712 (Tex. Crim.
App. 2005). Not all commitment questions are improper, however. Standefer v. State, 59
S.W.3d 177, 181 (Tex. Crim. App. 2001).
The Court of Criminal Appeals has articulated a three-part test for determining
whether a voir dire question is an improper commitment question. Id. at 179; Braxton
v. State, 226 S.W.3d 602, 604 (Tex. App.—Houston [1st Dist.] 2007, pet. dism'd). First,
the trial court must determine whether the particular question is a commitment
question. Standefer, 59 S.W.3d at 179. A commitment question is one in which one or
more of the possible answers is that the prospective juror would resolve or refrain
4
from resolving an issue in the case on the basis of one or more facts contained in the
question. Id. at 180. Second, if the question is a commitment question, the trial court
must determine whether it is a proper commitment question. Id. at 181. A
commitment question is proper if one of the possible answers to the question gives
rise to a valid challenge for cause. Id. at 182; Braxton, 226 S.W.3d at 604. Lastly, if the
question gives rise to a valid challenge for cause, then the court must determine
whether the question contains only the facts necessary to test whether the prospective
juror can be challenged for cause. Standefer, 59 S.W.3d at 179. If additional facts are
added beyond what is required to sustain a challenge for cause the question is
improper. Braxton, 226 S.W.3d at 604.
Analysis
It was clear that the State was referencing the comments of the other
venirepersons who had just responded to her question saying that they would require
more than what the State was required to prove under the law. (RR2: 26-32). He said
that he ―would like to see a bruise or something‖ in a choking case. (RR2: 32-33). The
State followed up by asking the venireperson if no bruising meant that he would
render a not guilty verdict. (RR2: 33). That was a preliminary question to establish a
challenge for cause. The venireperson never responded to the question after
Appellant’s objection. The State followed up by asking the venireperson ―You would
5
require the State to prove more than what is required under the law?‖ to which the
venireperson replied, ―Yes.‖
The State may challenge for cause any venireman who has a bias or prejudice
against any phase of the law upon which the State is entitled to rely for conviction or
punishment. Texas Code of Criminal Procedure, Article 35.16(b)(3). One phase of the
law upon which the State is entitled to rely is that the jury will not require a greater
burden of proof than beyond a reasonable doubt. Cook v. State, 858 S.W.2d 467, 471
(Tex. Crim. App. 1993). The State was required to prove the elements of the crime
beyond a reasonable doubt. Id. The state was entitled to ask prospective jurors if they
would require more than that. Id.
The State started off by explaining the burden of proof and then followed up
again with the State’s burden of proof. (RR2: 25, 34). Even though the State didn’t
repeat the burden of proof for every question it was clear that each question was in
the context of the previous explanation. (RR2: 25-34). The questioning of each juror
is not viewed by an appellate court in isolation. Lee v. State, 206 S.W.3d 620 (Tex.
Crim. App. 2006). In context, the State’s later questions are merely short-hand
renditions of the original question that properly elicited whether the venire persons
could follow the law, and it reasonable to presume the venire persons understood the
later questions in that manner.
6
The venireperson did not respond to the State’s question after Appellant’s
objection. Even if the Court found the State’s question to be an improper
commitment question, which the State does not concede, there was never a
commitment or any response to the question from the potential juror and therefore
there was no harm.
Joint Response to Issues Two and Three:
The trial court did not abuse its discretion when it allowed the investigating
officer to testify regarding the 911 call notes and statement of the complaining witness
while describing the course of her investigation.
Standard of Review
Appellate courts review a trial court’s ruling on the admission or exclusion of
evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615
(Tex. Crim. App. 2001). If the trial court’s ruling is within the reasonable zone of
disagreement, appellate courts will not disturb the ruling. Id.
Applicable Law
Hearsay is a statement, other than one made by the declarant while testifying at
the trial, offered for the truth of the matter asserted. Tex. R. Evid. 801; Coble v. State,
330 S.W.3d 253 (Tex. Crim. App. 2010). Bell v. State, 877 S.W.2d 21, 24(Tex. App.
Dallas 1994). The purpose of the rule is to exclude evidence that is too unreliable to
7
be evaluated accurately by the trier of fact. Id. If the relevancy of the statement does
not hinge on the truthfulness of the statement, it is not hearsay. Id. When the
declarant appears for cross examination there is no constraint on the use of prior
testimonial statements at trial unless it’s offered for the truth of the matter asserted.
Dillon v. State, 2007 Tex. App. LEXIS 9339 (Tex. App. Tyler Nov. 30, 2007)(Pet.
ref’d). A witness may testify regarding statements when they are offered to explain the
actions taken by the witness after the statement was made. Id at 26. Police officer’s
testimony regarding extra-judicial statements are not inadmissible hearsay when they
are admitted not to prove the truth of the matter asserted, but rather to explain how
the defendant came to be a suspect. Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim.
App. 1995); Jones v. State, 843 S.W.2d 487, 499 (Tex.Cr.App. 1992).
Analysis
Officer Courtney Collins responded to a call from someone at Appellant’s
apartment building regarding a man and woman fighting, and the female screaming,
―let me go, let me go.‖ (RR3: 60-61). Whether what the caller said was true or not had
no bearing on the relevance of the statement, which only served to explain why
Officer Collins Appellant became a suspect and why Officer Collins arrived at
Appellant’s apartment to investigate the disturbance. Officer Collins decided after
investigating the matter to arrest Appellant. (RR3: 66). Office Collins testified that she
was not at the scene when the offense took place, but that her decision to arrest was
8
based on her interview with the complainant which was conducted using a language
line since the complainant spoke Spanish. (RR3: 61, 64-65). Whether statements
made by the complainant to Officer Collins were true had no bearing on the relevance
of Officer Collins testimony, which was simply offered to detail the course of her
investigation and explain why she made the determination to arrest Appellant for the
offence. Similarly, the accuracy of the language line translations did not make a
difference as to the relevance of Officer Collin’s testimony. The statement’s only
significance was that it explained the reasons for Officer Collin’s actions after the
statement was made, not whether it was accurately translated or truthful. Appellant
did not make a specific objection to the 911 call notes during trial. The Court should
overrule Appellant’s objections two and three.
Response to Issue Four:
The trial court did not abuse its discretion when it allowed testimony
regarding the emphasis that the Dallas Police Department has put on family violence.
Standard of Review
Appellate courts review a trial court’s ruling on the admission or exclusion of
evidence under an abuse of discretion standard. Burden, 55 S.W.3d at 615. If the trial
court’s ruling is within the reasonable zone of disagreement, appellate courts will not
disturb the ruling. Id.
9
Applicable Law
Relevant evidence is evidence having the tendency to make a fact of
consequence more probable or less probable. Tex. R. Evid. 401. Evidence that is not
relevant is not admissible. Tex. R. Evid. 402.
Analysis
Officer Collins testified regarding the importance of family violence
cases. (RR3: 81). The relevance stemmed from cross-examination questions in which
Appellant suggested that police officers do not typically do a thorough investigation
and simply arrest the person who is the largest in size. (RR3: 73, 77-79). Officer
Collins response was relevant in that it helped the jurors to understand that the Dallas
Police Department does take family violence seriously and why they aim to protect
the victim. (RR3: 81). The Court should overrule Appellant’s fourth issue.
Joint Response to Issues Five and Six:
The trial court did not abuse its discretion when it allowed testimony
from the State’s investigator regarding Appellant’s immigration status which fit as an
exception to the hearsay rule and was not speculative.
Standard of Review
Appellate courts review a trial court’s ruling on the admission or exclusion of
evidence under an abuse of discretion standard. Burden, 55 S.W.3d at 615. If the trial
10
court’s ruling is within the reasonable zone of disagreement, appellate courts will not
disturb the ruling. Id.
Applicable Law
Hearsay is a statement, other than one made by the declarant while testifying at
the trial, offered for the truth of the matter asserted. Tex. R. Evid. 801; Coble v. State,
330 S.W.3d 253 (Tex. Crim. App. 2010). Bell v. State, 877 S.W.2d 21, 24(Tex. App.
Dallas 1994). Evidence that a writing authorized by law to be recorded or filed and in
fact recorded or filed in a public office, or a purported public record, report,
statement, or data compilation, in any form, is from the public office where items of
this nature are kept is properly authenticated. Tex. R. Evid 901.
Analysis
Dallas County District Attorney’s Office Investigator Eraina Longoria
testified that she had the opportunity to review Appellant’s records contained in the
Adult Identification System. The Adult Identification System is a Dallas County is
properly authenticated because it is a public record. Investigator Longoria’s testimony
was not hearsay or speculative because it was based on a public record. Tex. R. Evid
901
Response to Issue 7:
The trial court did not abuse its discretion when it allowed testimony
regarding the emphasis that the Dallas Police Department has put on family violence.
11
Standard of Review and Applicable Law
The Court has the authority to modify the judgment to speak the truth when it
has the necessary information to do so. Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.
W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.
App. –Dallas 1991, pet. ref’d).
Analysis
The record provides enough information to correct the judgment in this
case. The judgment reflects that the offense statute in this case is Section 22.02 Penal
Code. (CR: 46). However, Appellant was indicted and found guilty under Section
22.01. (CR: 6, RR4: 26). Therefore, the Court should exercise its authority to correct
the judgment to properly reflect that Appellant was indicted and found guilty under
Section 22.01.
Conclusion
This Honorable Court should overrule his points of error in issues one through
six and affirm the judgment below. Additionally, the Court should correct the
judgment to properly reflect that Appellant was indicted and found guilty under
Section 22.01.
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Respectfully submitted,
/s/Tara Cunningham
CRAIG WATKINS TARA CUNNINGHAM
Criminal District Attorney Assistant District Attorney
Dallas County, Texas State Bar No. 24068757
Frank Crowley Courts Building
133 N. Riverfront Boulevard, LB-19
Dallas, Texas 75207-4399
(214) 653-3828 | (214) 653-3643 fax
Tara.Cunningham@dallascounty.org
13
Certificate of Compliance
I certify that this brief contains 3247 words. This word count includes all
necessary parts outlined in Texas Rule of Appellate Procedure 9.4(i)(1), and it was
conducted with Microsoft Word 2010.
/s/Tara Cunningham
Tara Cunningham
Certificate of Service
I certify that a true copy of this brief was served on Julie Woods, as appellate
counsel for Martin Suarez Juarez. Service of an electronically-formatted copy of this
brief was made by use of the electronic service function that accompanies the filing of
the brief with this Court through the electronic filing service provider to which the
State subscribes.
/s/Tara Cunningham
Tara Cunningham
14
Martin Suarez Juarez v. State
Combined Opinion