COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00102-CR
DAVID MICHAEL SCHUMM APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY COURT AT LAW OF HOOD COUNTY
TRIAL COURT NO. 46723
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OPINION
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A jury convicted Appellant David Michael Schumm of interfering with an
emergency call of his former wife, the complainant, and assessed his punishment
at nine months’ confinement in the Hood County jail with no fine. The trial court
sentenced him accordingly. Appellant does not challenge the sufficiency of the
evidence supporting his conviction. Instead, in his sole point, Appellant argues
that he was denied due process in presenting his own testimony in his defense
because the jury was not allowed to consider that he had been acquitted of the
purported underlying felony assault to which the thwarted 911 emergency call
pertained. Because Appellant failed to preserve his due process claim and the
trial court did not abuse its discretion by excluding the evidence on relevance
grounds, we affirm the trial court’s judgment.
According to the complainant’s testimony in this case, in February 2014,
she and Appellant were arguing in their home when she tried to place a 911 call,
and Appellant physically prevented her from doing so by taking her cell phone
from her. The complainant testified that she ran outside and screamed for help.
She also testified that Appellant followed her, dragged her onto the porch,
pushed her face-first against the door jamb, and pushed his body weight on top
of her. She further testified that Appellant reached around her neck with his arm,
put pressure on her neck, and began “strangling” her. In his testimony, Appellant
denied any assaultive conduct and denied touching her cell phone.
Appellant was charged in this case with interfering with an emergency
call, 1 but he was also charged separately in a district court with assaulting the
complainant by impeding her breathing, a felony. 2 He was acquitted of the felony
assault in a separate trial before the trial in the case at bar. Although the jury in
this case was allowed to hear that he had been accused and tried for the felony
1
See Tex. Penal Code Ann. § 42.062 (West Supp. 2015).
2
See id. § 22.01(b)(2)(B).
2
assault, the jury was not allowed to hear that he had been acquitted of the felony
assault.
Before Appellant began testifying before the jury in this case, he advised
the trial court that he had a certified judgment of acquittal by the district court on
the felony assault case. Counsel stated,
And given the history and the back and forth and so much
coming in from the previous trial and the fact that the underlying
cause of it is the choking charge and the fact that there was an
acquittal in this other case, I would like to offer that [a copy of the
felony indictment and the certified judgment of acquittal] into
evidence Your Honor.
The trial court said, “Well, I'll let you do that by way of a bill, but, I mean,
my previous ruling relative to acquittals on cases that—in the felony case
stands.” Counsel then submitted his bill of exceptions. The trial court granted
the State’s relevance objection and then denied Appellant’s request that the
felony indictment and judgment of acquittal be admitted for “limited consideration
by the jury, not—with the instruction that it is not determinative of this case, but
it’s only considered as evidence.”
Although Appellant now presents state and federal constitutional authority
for the general proposition that a defendant is entitled to testify and to present a
defense, he directs us to no place in the record where he raised a constitutional
basis for admitting the excluded evidence. He has therefore not preserved his
3
due process claim or any other constitutional claim. 3 We liberally construe the
remainder of his point as a complaint that the trial court abused its discretion by
excluding the evidence on relevance grounds.
The applicable elements of interfering with an emergency call are that (1)
an individual (2) knowingly (3) prevents or interferes with (4) another individual’s
(5) ability to place an emergency call or to request assistance, including a
request for assistance using an electronic communications device, (6) in an
emergency (7) from a law enforcement agency. 4 Appellant argues that the
excluded evidence is relevant to the element of “emergency,” defined in the
statute as “a condition or circumstance in which any individual is . . . in fear of
imminent assault.” 5 He claims that the acquittal is “important evidence that there
was a reasonable doubt that an emergency existed.”
Yet the judgment of acquittal Appellant sought to admit did not show that
the felony jury had specifically found no emergency. That is, the felony jury did
not find that the complainant was not in fear of imminent assault at the time
Appellant allegedly prevented her from calling 911. Rather, the felony jury
acquitted Appellant of “intentionally, knowingly, or recklessly imped[ing] the
normal breathing or circulation of the blood by applying pressure to the throat or
3
See Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005).
4
Tex. Penal Code Ann. § 42.062.
5
Id. § 42.062(d).
4
neck of [the complainant],” an event that the complainant alleges happened after
Appellant took her cell phone. “Emergency” is not an element of assault by
impeding normal breathing or blood flow. 6 Similarly, a completed assault, of any
type, is not an element of the offense of interference with an emergency call. 7
In sum, Appellant was prevented from offering evidence that another jury
acquitted him of “intentionally, knowingly, or recklessly imped[ing] the normal
breathing or circulation of the blood by applying pressure to the [complainant’s]
throat or neck,” but that evidence had no bearing on whether the complainant
feared an imminent assault when she attempted to make a 911 call. The trial
court therefore did not abuse its discretion by excluding the evidence on
relevance grounds. We overrule Appellant’s sole point and affirm the trial court’s
judgment.
6
See id. § 22.01(b)(2)(B).
7
See id. § 42.062.
5
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and MEIER, JJ.
WALKER, J., concurs without opinion.
PUBLISH
DELIVERED: December 3, 2015
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