Jimmy Rodriquez Ytuarte v. State of Texas

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-01-068 CR ____________________ JIMMY RODRIQUEZ YTUARTE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 163rd District Court Orange County, Texas Trial Cause No. B-000173-R O P I N I O N A jury convicted Jimmy Rodriquez Ytuarte of two counts of aggravated assault and sentenced Ytuarte to twelve and one-half years' confinement in the Texas Department of Criminal Justice-Institutional Division, for each count; the sentences run concurrently. Ytuarte appeals raising eight points of error. In his first three points, Ytuarte contends the evidence is legally and factually insufficient to support his conviction. Briefly summarized, the evidence adduced at trial established Barbara Ytuarte was assaulted. At the time of the attack, Barbara was married to Jimmy Ytuarte. Sandy Rogers, a registered nurse, was working at Doctor's Hospital when Barbara came in for treatment. Barbara identified her attacker as her husband. At trial, Barbara had difficulty remembering what happened, including what happened at the hospital and her own statements to both the hospital personnel and law enforcement. Barbara recalled making the statement that she and Jimmy attended a bonfire at the home of an acquaintance in North Vidor. Barbara further recalled making the statement that an exchange of remarks became heated between her and either Laurie or another lady. Barbara testified she got in Laurie's face, hollering at her, then Barbara pushed her. Laurie hit Barbara and Barbara fell down. Laurie began kicking her. That is all Barbara could remember. Barbara denied Jimmy was her attacker. Connie Ytuarte, Jimmy Ytuarte's daughter-in-law, testified he told her (Connie) that he hit Barbara. Connie than asked, "You hit her?" Ytuarte replied, "Yes." According to Connie, Barbara never told her she [Barbara] was beaten up by Laurie or some other girl at a bonfire. Connie testified that when Barbara indicated she and Ytuarte might get back together, Connie told her, "He's going to do it again." Barbara at first said, "If I take him back, then he might do it worse. I could be dead." Detective Gary Platt testified Barbara told him that Jimmy Ytuarte beat her up and threatened to kill her while brandishing a baseball bat. Investigator Thomas Smith testified Barbara told him that two unknown white females had followed her home from a club in Vidor and assaulted her at the house. Ray Lopez, a friend of Jimmy Ytuarte's, testified they went to a bonfire, he was pretty sure it was the same day, and Jimmy and Barbara were arguing. Lopez did not witness an altercation between Barbara and any girls. In determining the sufficiency of the evidence, we consider all the evidence, whether properly or improperly admitted. See Johnson v. State, 871 S. W.2d 183, 186 (Tex. Crim. App. 1993); and Beltran v. State, 728 S.W.2d 382, 389 (Tex. Crim. App. 1987). Therefore Barbara's hearsay statements to Detective Platt are before us in deciding these points of error. Ytuarte contends there was no evidence Barbara sustained a serious bodily injury. (1) Sandy Rogers testified Barbara sustained a concussion. She further testified that a concussion can be a serious bodily injury, causing impairment of the function of the brain which can then affect other bodily functions, such as breathing and the heart. See Powell v. State, 939 S.W.2d 713, 715 (Tex. App.--El Paso 1997, no pet.). Rogers' testimony was not contested. The jury is the trier of fact, the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Tex. Code Crim. Proc. Ann. § 38.04 (Vernon 1979). The jury may accept or reject all or any part of the testimony. See Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). Any contradictions in the evidence are reconciled by the jury and the jury's determination will not be disturbed on appeal so long as there is enough credible testimony to support the verdict. See Bowden v. State, 628 S. W.2d 782, 784 (Tex. Crim. App. 1982). Viewing all of the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime charged. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We therefore hold the evidence is legally sufficient to support the jury's verdict. Viewing all the evidence without the prism of "in the light most favorable to the prosecution" and considering the testimony of defense witnesses and the existence of alternative hypothesis, we find the jury's verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We determine the evidence to be factually sufficient to support the jury's verdict. Points of error one, two and three are overruled. Point of error four claims the trial court erred in allowing the State "to misjoin offenses resulting in multiple convictions and punishments." Ytuarte's brief acknowledges the two offenses were part of a single criminal episode but argues that since the State did not elect which count to proceed on, and the trial court did not conditionally submit the counts to the jury with an instruction to convict on only one count, we should reform the judgment to reflect conviction on only one count. Ytuarte's argument mistakenly supposes the State was charging two different means by which he committed the single offense of aggravated assault. The indictment clearly charges two separate offenses of aggravated assault, the beating and the threats to kill Barbara, both of which occurred in a single criminal episode. Pursuant to Tex. Pen. Code Ann. § 3.02 (a) (Vernon Supp. 2002), "[a] defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode." See also Graham v. State, 19 S.W.3d 851, 852, n.2 (Tex. Crim. App. 2000). "[W]here the State properly joins two offenses for trial pursuant to § 3.02, the defendant, upon timely motion, has an absolute right to a severance of the offenses." Id. (citing Tex. Pen. Code Ann. § 3.04 (a) (Vernon Supp. 2002)). The record does not reflect a severance was requested. See Coleman v. State, 788 S.W.2d 369, 373 (Tex. Crim. App. 1990). Ytuarte's claim of misjoinder is based upon the two convictions having been obtained from a single indictment. The authority Ytuarte relies upon is no longer the law. See Howell v. State, 795 S.W.2d 27, 28 (Tex. App.--El Paso 1990, pet. ref d). Further, any claim of misjoinder has been waived as it was not raised prior to trial. See McGowen v. State, 885 S.W.2d 285, 291 (Tex. App.--Beaumont 1994, no pet.). Point four is overruled. Ytuarte argues in point of error five the trial court erred in overruling his hearsay objections. Ytuarte complains of the statements made by Barbara to Detective Gary Platt. The State offered the statements as an excited utterance. See Tex. R. Evid. 803(2). The trial court overruled defense counsel's objection and permitted the testimony. We review the trial court's decision for an abuse of discretion and will uphold the trial court's ruling if it is within the zone of reasonable disagreement. See Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App.), cert. denied, ___U.S.___, 122 S.Ct. 127, 151 L.Ed.2d 82 (2001). Detective Platt spoke with Barbara about 3:30 the afternoon after the attack. He testified Barbara was coherent, intelligent, and in a lot of pain. According to Detective Platt, Barbara was willing and cooperative, very upset and tearful, and crying. He described her emotional condition as "tearful and distraught, very shaken, very upset." As she described the incident, she became more tearful and upset. Detective Platt said, "Yes" when asked if Barbara still appeared to be under distress from the traumatic, exciting event that had taken place the night before, and when asked if she made statements about what had happened while still under that stress. Rule 803 (2) provides "[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" is not excluded by the hearsay rule. See Tex. R. Evid. 803 (2). This exception is founded on the belief that the statements made are involuntary and do not allow the declarant an adequate opportunity to fabricate, ensuring their trustworthiness. Couchman, 3 S.W.3d at 159.[ (2)] To determine whether a statement qualifies as an excited utterance, (1) the statement must be the product of a startling occurrence, (2) the declarant must have been dominated by the emotion, excitement, fear, or pain of the occurrence, and (3) the statement must be related to the circumstances of the startling occurrence. Id. Other factors the court may consider are whether the statement is spontaneous or in response to questions and how much time has elapsed between the startling event and the statement. See Wood v. State, 18 S.W.3d 642, 652 (Tex. Crim. App. 2000); Bondurant v. State, 956 S.W.2d 762,766 (Tex.App.--Fort Worth 1997, pet. refd). Biggins v. State, 73 S.W.3d 502, 504 (Tex. App.--Fort Worth 2002, no pet.). The record does not reflect there was a startling event other than the attack itself. Cf. Hunt v. State, 904 S.W.2d 813, 815 (Tex. App.--Fort Worth 1995, pet. ref'd) (An eleven-year-old girl was sexually assaulted and three months later, she saw a television show about a young rape victim and began to cry uncontrollably. Her mother asked why she was crying and the girl told her about the rape.) Therefore, approximately seventeen hours elapsed between the startling event and the statements. Cf Parks v. State, 843 S.W.2d 693, 697 (Tex. App.--Corpus Christi 1992, pet. ref'd) (Six-hour delay, together with several intervening events declarant went to the hospital, was sedated, and had surgery--tended to attenuate the shock). In this case, Barbara made a trip to the hospital alone and after waiting some time returned home. Connie then took her to another hospital. After treatment and sedation, Detective Platt questioned her. The record indicates Barbara's statements, though possibly given in a narrative form, were made in response to Detective Platt's questions. As Detective Platt testified, "I just interviewed her, and I asked her to give her account of what transpired." Barbara's statements were a narrative account of past events, made in response to questions designed to elicit just such an account. Barbara was undeniably upset, but that does not make her statements an excited utterance. The State cites Zuliani v. State, 52 S.W.3d 825 (Tex. App.--Austin 2001, pet. granted), in support of its contention the statement was an excited utterance. One of the issues on which petition has been granted is the admission of hearsay statements made by the victim to an officer. The court in Zuliani found those statements were admissible as excited utterances. Zuliani is distinguishable from the present case; to the extent it is not, we decline to follow it. The Zuliani court recognized the statements were made twenty hours after the incident, the declarant did not appear excited or startled, the statements were not spontaneous, the statements were made with ample time for reflection, and the statements were made with some deliberation. Id. at 828. Nevertheless, the court found the declarant's demeanor was different when Zuliani was outside the house, her injury had not been treated because Zuliani feared arrest if they went to the emergency room, and the declarant said if Zuliani were jailed, she feared what he would do when released. The court then concluded the declarant was still under the stress of excitement caused by the incident and it was not unreasonable for the trial court to find the stress was unabated until family and law enforcement were present to shield her from Zuliani. Id. In this case, the statements were made after a lengthy lapse of time. During that time Barbara sought medical treatment, once on her own and later with Connie, was treated and sedated. There was a considerable period of time before the statements were made that Ytuarte was not in close proximity to Barbara. The statements were made with time for reflection and were not spontaneous. We conclude Barbara was not "dominated by the emotion, excitement, fear, or pain of the occurrence" when the statements were made. This conclusion is not within the zone of reasonable disagreement and the trial court's admission of the hearsay evidence constituted an abuse of discretion. We must, therefore, determine whether the error is harmful. See Tex. R. App. P. 44.2 (b). If the error does not affect Ytuarte's substantial rights, we disregard it under Rule 44.2 (b). See Dorsey v. State, 24 S.W.3d 921, 930 (Tex. App.--Beaumont 2000, no pet.). When the error had a substantial and injurious effect or influence on the jury's verdict, a substantial right is affected. Id. Without Barbara's statement to Detective Platt, there was no evidence to support the jury's finding Ytuarte guilty of count two in the indictment, that Ytuarte intentionally and knowingly used a deadly weapon to threaten Barbara with imminent bodily injury. Accordingly, we must find the error in admitting the testimony had a substantial and injurious influence on the verdict as it relates to count two. There is however, other evidence supporting the conviction for count one, that Ytuarte intentionally and knowingly caused serious bodily injury to Barbara by beating her. As noted above, Barbara identified her attacker as her husband to Sandy Rogers. Rogers' testimony regarding the extent of Barbara's injuries, including a concussion, was uncontested. Connie Ytuarte testified that Jimmy Ytuarte told her he hit Barbara. Accordingly, we cannot say the error had a substantial and injurious effect on the jury's verdict in count one. Point of error five is sustained, therefore, only as to count two. Point of error six asserts the trial court erred in overruling an objection made during the State's closing argument that counsel was arguing evidence not in the record. The State argued: "Folks, you've got to believe that before she went up to the Sheriff's office that day, she was back with her husband. They talked about it. He said, "Just go down there and drop charges. It's easy as that, and it's allover with.'" Defense counsel objected and the State argued he was allowed to make inferences from the testimony. The trial court overruled the objection. Whiting held "any reasonable deduction from the evidence" is within the scope of proper jury argument. Whiting v. State, 797 S.W.2d 45, 48 (Tex. Crim. App. 1990). "Counsel is allowed wide latitude without limitation in drawing inferences from the evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith." Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). "Conversely, the jury argument must be extreme or manifestly improper, or inject new and harmful facts into evidence to constitute reversible error." Id. Ytuarte does not specify why the State's deduction is unreasonable. The record reflects Barbara had returned to her husband. She told Investigator Smith she did not want to press charges. Barbara also told the prosecuting attorney she did not want charges to be filed. When informed by Smith that Ytuarte would be prosecuted anyway, Barbara began to weep heavily and asked, "Are you saying that even if I don't give a statement, that you're going to prosecute anyway or you're going to file the charges anyway?" Smith told her yes and Barbara said, "Then all I can say is thank you." Smith also testified he gave Barbara information on public representation because she wanted an attorney for a protective order and divorce but could not afford to hire an attorney. Considering the evidence, it is not unreasonable to infer that Ytuarte suggested she drop the charges. Furthermore, Ytuarte merely recites new and damaging facts were injected into the case. No analysis is performed explaining how the "new facts" could have possibly damaged Ytuarte's case. Considering the nature of the offense and the evidence adduced, we are not convinced the State's inference that Ytuarte told Barbara to drop the charges caused any harm. Accordingly, we overrule point or error six. In point of error seven, Ytuarte contends the trial court erred in denying his request for a charge on a lesser included offense. Defense counsel requested a charge on the lesser included offense of assault. To be entitled to a charge on the lesser-included offense of assault, it had to be possible for the jury in this case to rationally reject the greater offense by finding that Ytuarte assaulted Barbara, but did not cause her serious bodily injury. (3) See Hernandez v. State, 10 S.W.3d 812, 820 (Tex. App.--Beaumont 2000, pet. ref'd). Ytuarte's brief asserts "he was guilty of only assault" but fails to enlighten this court as to how he was guilty of only assault. There are no references to the record and no application of the law cited to the facts of this case. See Tex. R. App. P. 38.1(h). Elsewhere in the brief, Ytuarte did contend there was no evidence Barbara sustained a serious bodily injury but as discussed above, we have determined otherwise. The evidence that Barbara's concussion constituted a serious bodily injury was unchallenged. Point of error seven is overruled. Ytuarte's final point argues the trial court erred in denying his motion for a mistrial. The motion was made after the following exchange: [Defense counsel]: Okay. Now, just for the record, did you see any of the altercation or any of the fight that took place between Mrs. Ytuarte and these girls? [Witness]: No, but the girls acted like they were real mad at her, though, because Jimmy [Ytuarte] and her-Jimmy and Barbara were fighting-you know, sitting there arguing over-I guess that one girl. I just wanted to get Jimmy out of there, because, you know, he's on parole, and I was trying to get him away from there, because he didn't need the trouble. Counsel asked that the response be stricken from the record and the jury instructed to disregard it. The trial court granted both requests. Counsel then moved for a mistrial, the trial court denied the motion. "Generally, harm from testimony that implies that the defendant has been previously incarcerated will be cured by a prompt instruction to the jury to disregard that evidence." Murray v. State, 24 S.W.3d 881, 892 (Tex. App.--Waco 2000, pet. refd) (citing Hughes v. State, 878 S.W.2d 142, 154 (Tex. Crim. App. 1992); Tennard v. State, 802 S.W.2d 678, 685 (Tex. Crim. App. 1990)). See also Freeman v. State, 985 S.W.2d 588, 589 (Tex. App.--Beaumont 1999, pet. ref d). Here, the witness' testimony was followed by an immediate instruction to disregard and the testimony was not so inflammatory as to suggest that the curative instruction was inadequate. Thus, we find the trial court did not err in denying Ytuarte's motion for a mistrial. Point eight is overruled. Having found reversible error only as to Count Two, the trial court's judgment on Count One in Cause No. B0000173-R is affirmed. The judgment of the trial court on Count Two in Cause No. B0000173-R, is reversed and the cause remanded for a new trial. AFFIRMED IN PART; REVERSED AND REMANDED IN PART. ________________________________ DON BURGESS Justice Submitted on August 30, 2002 Opinion Delivered October 16, 2002 Do not publish Before Walker, C.J., Burgess, and Gaultney, JJ. 1. "'Serious bodily injury' means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Tex. Pen. Code Ann. § 1.07(46) (Vernon 1994) 2. Couchman v. State, 3 S.W.3d 155, 158 (Tex. App.--Fort Worth 1999, pet. ref'd). 3. Due to our disposition of point of error five, we address Ytuarte's claim only as it relates to count one.