Pejman Dargahi v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-98-00490-CR Pejman Dargahi, Appellant v. The State of Texas, Appellee FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY NO. 490,638, HONORABLE DAVID CRAIN, JUDGE PRESIDING The trial court, sitting without a jury, found appellant Pejman Dargahi guilty of assault with bodily injury (1) and assessed punishment at confinement for one year and a $1000 fine. The court suspended imposition of the sentence and placed appellant on community supervision for one year. Appellant complains on appeal that the trial court erred in admitting inadmissible hearsay statements; (2) that the evidence is legally insufficient to support the court's finding of guilt; and that his constitutional right to confront his accuser was violated. (3) We will affirm the conviction. BACKGROUND On October 26, 1997, Robin Orten, a patrol officer for the City of Austin, responded to a 911 call reporting a disturbance at appellant's residence. Officer Orten testified that when she arrived at the residence, she encountered Rochelle Dargahi, appellant's wife, whom she believed to be the complainant. Appellant and a child were also present. According to Officer Orten, Mrs. Dargahi "appeared to be very upset," was crying, and her left cheek and jaw area were red. Officer Orten provided further that Mrs. Dargahi was so upset that she initially could not speak. While continuing to cry, Mrs. Dargahi eventually told Officer Orten that appellant had hit her on the head and in the back area with his hands during an argument. Officer Orten took photographs of the injuries sustained to Mrs. Dargahi's face, wrists, and arms. She then arrested appellant, and he was later charged by information with assault with bodily injury. Officer Orten was the sole witness at appellant's trial. She described Mrs. Dargahi's emotional state and her physical observations of Mrs. Dargahi's injuries. She also testified about certain statements Mrs. Dargahi made to her that night concerning her injuries and the cause thereof. The State proffered, and the trial court admitted, the photographs that Officer Orten took of Mrs. Dargahi. Based on this evidence, the trial court found the appellant guilty of assault (4) and sentenced him to one year in jail and a $1000 fine. The court suspended the sentence and placed appellant on community supervision for one year, subject to certain terms and conditions. Appellant asserts in three points of error that: (1) the trial court erred in admitting into evidence hearsay statements of Officer Orten when the evidence did not support a finding that the statements were admissible under the excited utterance exception to the hearsay rule; (2) the evidence is legally insufficient to support the trial court's finding of guilt; and (3) appellant's constitutional right to cross-examine and confront his accuser was violated when the only evidence adduced against him was the testimony introduced through Officer Orten. DISCUSSION The State initially asserts that appellant did not preserve his first two points of error for review because he does not set out in his brief where in the record the specific statements of which he complains can be found. See Tex. R. App. P. 38.1(h). While the failure to specify where the subject matter is to be found in the record may result in the reviewing court's refusal to address the points of error, we decline to exercise this option. See Shelvin v. State, 884 S.W.2d 874, 876 (Tex. App.--Austin 1994, pet. ref'd) (citing Castillo v. State, 810 S.W.2d 180, 182 n.1 (Tex. Crim. App. 1990)). Briefing rules are to be liberally construed. Tex. R. App. P. 38.9. The objectionable testimony is easily accessible as there was only one witness at trial, the record is not lengthy, and the statements are easily identifiable. We will address the points of error advanced by appellant. Evidentiary Findings In his first point of error, appellant challenges the trial court's decision to admit hearsay statements made by Officer Orten under the excited utterance exception to the hearsay rule. See Tex. R. Evid. 803(2). "The admissibility of an out-of-court statement under the exceptions to the general hearsay exclusion rule is within the trial court's discretion." Lawton v. State, 913 S.W.2d 542, 553 (Tex. Crim. App. 1995), cert. denied, 117 S. Ct. 88 (1996); Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994) (trial court is institutional arbiter of whether hearsay is admissible, reviewable on appeal under abuse of discretion standard). Thus, the appellate court's role is limited to determining whether the record supports the trial court's ruling. Coffin, 885 S.W.2d at 149. An appellate court may reverse the trial court's decision under this standard only when it appears that the court applied an erroneous legal standard or when no reasonable view of the record could support the trial court's conclusion under the correct law and the facts viewed in the light most favorable to its legal conclusion. Dubose v. State, 915 S.W.2d 493, 497-98 (Tex. Crim. App. 1996). The State urges that our review of appellant's complaint is limited to only one statement made by Officer Orten at trial because appellant failed to preserve error for any other alleged inadmissible testimony. We agree. "[T]he law in Texas requires a party to continue to object each time inadmissible evidence is offered." Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). See Tex. R. App. P. 33.1 (to present complaint for appellate review record must show complaint was made to trial court by timely objection). Thus, when a party has an objection to a line of testimony from a witness, that party must object every time the objectionable evidence is offered, or request a running objection. See Ethington, 819 S.W.2d at 858. (5) In this case, the State asked Officer Orten if Mrs. Dargahi indicated whether the red marks on her cheek and jaw were causing her pain. Appellant objected to this question on the grounds that it called for inadmissible hearsay; however, the trial court found that the statement fell within the excited utterance exception to the hearsay rule, overruled the objection, and allowed Officer Orten to answer the question: Q. Did she indicate to you that the redness was painful? A. Yes, sir, she did. The record then reflects that Officer Orten continued to relate what Mrs. Dargahi told her that night without further objection by appellant. Appellant never requested a running objection to this line of questioning. Appellant's "initial objection should have been followed by further objections or a request for a 'running' objection." Id. at 859. Therefore, appellant cannot complain on appeal of Officer Orten's continued testimony regarding Mrs. Dargahi's out-of-court statements. See id. at 859-60 (defendant failed to preserve error by only objecting to first question, not to continued detailed testimony, and did not request running objection). We thus must determine whether the trial court abused his discretion in admitting Officer Orten's testimony that Mrs. Dargahi indicated that the red area on her face was painful as an excited utterance under Texas Rule of Evidence 803(2). Tex. R. Evid. 803(2). An excited utterance is "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Id. Appellant first contends that the trial court abused his discretion in admitting the statement under this exception because there is no evidence to establish the proximity between the alleged assault and the statement made by Mrs. Dargahi to Officer Orten. "The critical factor in determining when a statement is an excited utterance under Rule 803(2) 'is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event.'" Lawton, 913 S.W.2d at 553 (quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992), cert. denied, 508 U.S. 963 (1993)). The period of time that elapses between the occurrence of the event and the utterance is only one factor to be considered in determining the admissibility of such statements. Id. Officer Orten testified that when she arrived at appellant's residence, Mrs. Dargahi was "very upset"; she was so upset that she initially could not speak to Officer Orten; and when she was finally able to talk, she cried and sobbed during their entire conversation. Additionally, Officer Orten observed redness on Mrs. Dargahi's cheek and jaw, and later took photographs of scratches on Mrs. Dargahi's wrists and forearms. While the time frame between the event and the statement was not conclusively established, the trial court could have reasonably concluded from the evidence before him that Mrs. Dargahi was still dominated by the emotional and physical stress of the assault when she made the statements to Officer Orten. See McFarland, 845 S.W.2d at 846 (though time between event and statement not established, emotional and physical state established statement as excited utterance); cf. Lawton, 913 S.W.2d at 554 (rejecting appellant's assertion that elapse of one hour categorically removed statement from excited utterance exception). Appellant argues further that Mrs. Dargahi's statement did not constitute an excited utterance because she made this statement in response to questioning by Officer Orten. We agree with the State that the record does not support this contention. During the trial, the State asked Officer Orten whether Mrs. Dargahi ever indicated that the redness was painful, and Officer Orten answered in the affirmative. This does not establish that Mrs. Dargahi made these statements in response to Officer Orten's questions. Rather, this statement merely shows that Mrs. Dargahi indicated that the marks were painful. Appellant never questioned Officer Orten further about the circumstances surrounding this statement. Thus, we find this contention is without merit. (6) We overrule appellant's first point of error. Sufficiency of the Evidence Appellant complains in his next point of error that the evidence is legally insufficient to support the trial court's finding of guilt. The critical inquiry on review of the legal sufficiency of the evidence to support a criminal conviction is whether the record could reasonably support a finding of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318 (1979); Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981). This Court does not ask whether it believes that the evidence at trial established guilt beyond a reasonable doubt. Jackson, 443 U.S. at 318-19; Griffin, 614 S.W.2d at 159. Rather, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Griffin, 614 S.W.2d at 159. Appellant urges that the State's case was based solely on the hearsay testimony of Officer Orten, which is insufficient to support his conviction. While it is true that the trial court admitted hearsay testimony, as we have noted, this testimony consisted of a statement specifically not excluded by the hearsay rule and other statements elicited without objection. (7) The record further reflects that the State introduced additional evidence beyond Mrs. Dargahi's out-of-court statements. The State called Officer Orten, who testified that when she arrived at the scene she identified only Mrs. Dargahi, appellant, and a small child in the apartment. Mrs. Dargahi's cheek and jaw area were red, Mrs. Dargahi was very upset, "sobbing and crying" continuously, and there were scratches on Mrs. Dargahi's forearms and wrists. In addition to Officer Orten's testimony regarding Mrs. Dargahi's emotional and physical state, the State offered photographs of Mrs. Dargahi's injuries to her face, wrists, and forearms, which were admitted into evidence by the trial court. These photographs and Officer Orten's observations corroborate Officer Orten's testimony relating what Mrs. Dargahi said to her that night about the cause of her injuries: A. . . . She told me that she and her husband had been in a verbal argument and that during that argument he struck her. Q. Did he tell you -- did she tell you what he struck her with? A. Yes, sir. She said that he struck her with his hands. Q. On the head? A. Yes. She also advised me that he had struck her in the back area. Q. . . . Did she tell you what this argument was about? A. Yes. She said that it was due to her complaining to her husband that he hadn't been giving her enough attention. Viewing this evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found beyond a reasonable doubt that appellant committed an assault against Mrs. Dargahi. Therefore, we overrule appellant's second point of error. (8) Confrontation Clause By his last point of error, appellant argues that his "right to cross-examine or confront his accuser under Article I, section 10 of the Texas Constitution was violated when the only evidence adduced against him was the 'excited utterance' testimony introduced through Officer Orten." In response, the State argues that appellant did not preserve this point for appeal because he never presented it to the trial court. We agree. To preserve error for appellate review the record must show that the complaint was made to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1. "Thus, as a general rule, reviewing courts will not consider errors, even those of constitutional magnitude, not called to the trial court's attention." Shelvin v. State, 884 S.W.2d 874, 876 (Tex. App.--Austin 1994, pet. ref'd) (citing Rhett v. State, 839 S.W.2d 93, 94 (Tex. Crim. App. 1992)); see also Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990) ("Even constitutional errors may be waived by failure to object at trial."). In Briggs, the court of criminal appeals held that appellant waived his right to claim that his constitutional right to confront witnesses was violated because he failed to object at trial. Briggs, 789 S.W.2d at 924. As in Briggs, the record reveals in this case that appellant made no objection, motion or request claiming that his right to confront the complainant had been violated. Thus, appellant has not preserved this point of error for review. Regardless, even if we chose not to consider the "excited utterance" testimony, sufficient evidence is present to affirm appellant's conviction. We overrule appellant's third point of error. CONCLUSION Having disposed of appellant's points of error, we affirm the trial-court judgment. Lee Yeakel, Justice Before Chief Justice Aboussie, Justices Yeakel and Patterson Affirmed Filed: May 20, 1999 Do Not Publish 1. See Tex. Penal Code Ann. § 22.01(a)(1) (West 1994). 2. See Tex. R. Evid. 802. 3. See Tex. Const. art. I, § 10. 4. Appellant waived his right to a trial by jury. 5. In Ethington, the court of criminal appeals found that former rule 52(b) of the Texas Rules of Appellate Procedure provided that error could be preserved by general objection made to the trial court outside the presence of the jury. Ethington, 819 S.W.2d at 859. However, former rule 52(b) was omitted from the current rules of evidence. See Tex. R. App. P. 33.1 (notes and comments). 6. Even if Mrs. Dargahi's statement had been in answer to a question by Officer Orten, it would not necessarily be inadmissible. See Tejeda v. State, 905 S.W.2d 313, 316 (Tex. App.--San Antonio 1995, pet. ref'd) (citing Jones v. State, 772 S.W.2d 551, 555 (Tex. App.--Dallas 1989, pet. ref'd) (citing Morris v. State, 246 S.W.2d 184, 186 (Tex. Crim. App. 1951))). 7. See pp. 3-7, supra; Tex. R. Evid. 803(2); 802. 8. We do not address whether admissible hearsay, standing alone, may be sufficient to support a conviction. The record before us reflects additional evidence apart from Mrs. Dargahi's out-of-court statements. he light most favorable to the prosecution, we find that a rational trier of fact could have found beyond a reasonable doubt that appellant committed an assault against Mrs. Dargahi. Therefore, we overrule appellant's second point of error. (8) Confrontation Clause By his last point of error, appellant argues that his "right to cross-examine or confront his accuser under Article I, section 10 of the Texas Constitution was violated when the only evidence adduced against him was the 'excited utterance' testimony introduced through Officer Orten." In response, the State argues that appellant did not preserve this point for appeal because he never presented it to the trial court. We agree. To preserve error for appellate review the record must show that the complaint was made to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1. "Thus, as a general rule, reviewing courts will not consider errors, even those of constitutional magnitude, not called to the trial court's attention." Shelvin v. State, 884 S.W.2d 874, 876 (Tex. App.--Austin 1994, pet. ref'd) (citing Rhett v. State, 839 S.W.2d 93, 94 (Tex. Crim. App. 1992)); see also