Joseph De La Cueva v. State

Affirmed and Memorandum Opinion filed December 12, 2006 Affirmed and Memorandum Opinion filed December 12, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-01115-CR ____________ JOSEPH DELACUEVA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the County Criminal Court at Law No. 10 Harris County, Texas Trial Court Cause No. 1260888 M E M O R A N D U M    O P I N I O N Appellant, Joseph Delacueva, was convicted by a jury of misdemeanor assault. The trial court assessed punishment at 18 months community supervision and a $4,000 fine, $3,400 of which was probated. In two points of error, appellant claims his confrontation rights were violated because the declarant did not testify and the evidence is factually insufficient to support his conviction. We affirm. Background At approximately 3:00 a.m., on September 26, 2004, Deputies James Cassidy and Jeffrey Soto of the Harris County Sheriff=s Office were dispatched to a Walgreen=s store. Cassidy and Soto were about a block from the Walgreen=s and arrived there within a minute in separate patrol cars. Upon arriving, they observed the complainant, Danielle Dickerson, lying face down on the ground next to a vehicle. Cassidy and Soto saw that Danielle=s face was bleeding. There was also blood on Danielle=s hands and on the ground. Cassidy testified, AAt the time, we saw that she had a lot of blood on her face. . . . She was laying on the ground and very bloody.@ Both Cassidy and Soto testified that Danielle appeared to be in pain. They both described her emotional state as Adistraught, screaming, crying@ and Aextremely upset.@ When asked who Adid this to her,@ Danielle said her boyfriend and pointed to appellant, who was walking away from the scene. There was no one else in the parking lot. Cassidy and Soto ordered appellant to stop, but he looked back over his shoulder, saw the deputies, and kept walking. At that point, the deputies drew their guns. They ran to catch up to appellant. Appellant told the deputies Ahe didn=t do it.@ After appellant had been handcuffed and placed in the back of a patrol car, Cassidy and Soto returned to Danielle to ascertain her injuries and notify dispatch. Danielle told the deputies that she and appellant had started arguing when they were driving home from a party. She said appellant had kicked her in the face. Danielle had a busted lip and redness and swelling on her face, and her nose was bleeding. There were no scratches or cuts on Danielle=s hands and knees; nor was there any dirt on, or tears in, her clothing. Her injuries were consistent with being kicked in the face with a foot, and did not suggest that Danielle had hurt herself by falling down. An ambulance arrived on the scene, and EMS personnel treated Danielle=s injuries and wiped the blood off her, but she declined transport to the hospital. Instead, she called her parents to pick her up. Danielle was intoxicated. The deputies also observed that appellant was intoxicated. Appellant had some slurred speech and difficulty maintaining his balance as he was walking. Appellant presented a different version of the events. Appellant testified that he and Danielle had gone to a party. They left the party at 1:00 a.m., picked up Danielle=s sister, and took her home. While they were still inside her sister=s apartment complex, Danielle started complaining that her tampon was lodged and she could not get it out. Danielle rejected appellant=s suggestion that she call her sister for help. According to appellant, Danielle was Apanicking and freaking out.@ Becoming irate, Danielle hit appellant. When they arrived at a Walgreen=s parking lot, appellant was going to go inside to purchase a lubricant. Instead, he called 911 because Ashe was out of control.@ Appellant told the 911 operator that Danielle was Acrazy@ and she Ahad gone violent.@ According to appellant, Danielle got out of the car, got in the driver=s seat, drove about 60 feet with the door open, stopped the car, and fell out of the car. On cross-examination, appellant stated he did not actually see Danielle fall out of the car. Believing the deputies were there to help him, appellant walked toward them, but they did not give him a chance to explain what had happened. Appellant also claimed he did not hear the deputies call out to him to stop and he never tried to get away from them. Appellant denied drinking any alcoholic beverages that night. Finally, appellant denied hitting Danielle. Right to Confrontation In his first point of error, appellant claims the trial court erred in admitting hearsay statements made by Danielle, who did not testify at trial, because they were testimonial and he did not have a prior opportunity for cross-examination in violation of the Sixth Amendment and Crawford v. Washington.[1] Under Crawford, the admission of a hearsay statement made by a non-testifying declarant violates the Sixth Amendment if the statement was testimonial, and the defendant did not have a prior opportunity for cross-examination. Wall v. State, 184 S.W.3d 730, 734 (Tex. Crim. App. 2006) (citing Crawford, 541 U.S. at 68). Therefore, a testimonial statement is inadmissible absent a showing that the declarant is presently unavailable and the defendant had a prior opportunity to cross-examine, even if the statement falls under an exception to the hearsay rule. Id. at 734B35. The threshold issue under Crawford is whether the statement to be admitted is testimonial. Spencer v. State, 162 S.W.3d 877, 879 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). We have identified the following principles as guidance in determining whether statements are testimonial in nature: (1) Testimonial statements are official and formal in nature. (2) Interaction with the police initiated by a witness or the victim is less likely to result in testimonial statements than if initiated by the police. (3) Spontaneous statements to the police are not testimonial. (4) Responses to preliminary questions by police at the scene of the crime while police are assessing and securing the scene are not testimonial. Ruth v. State, 167 S.W.3d 560, 568B69 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d) (citing Spencer, 162 S.W.3d at 879). Similarly, the United States Supreme Court recently provided some guidance in determining whether a statement is testimonial or non-testimonial. Davis v. Washington, __ U.S. __, 126 S. Ct. 2266 (2006). AStatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.@ Id. at 2273. AThey are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.@ Id. at 2273B74. We review a constitutional legal ruling, i.e., whether a statement is testimonial or non-testimonial, de novo. Wall, 184 S.W.3d at 742. The legal ruling regarding whether a statement is testimonial under Crawford is determined by the standard of an objectively reasonable declarant in the shoes of the actual declarant. Id. at 742B43. Appellant argues that Danielle=s statement that he kicked her in the face was testimonial in nature because it was in response to questioning by the deputies. The State asserts appellant has waived this complaint on appeal. We will address the State=s waiver argument first. When Cassidy started to testify about what Danielle had said happened, appellant=s counsel objected on the basis of hearsay and right of confrontation under the Sixth Amendment. The trial court overruled the objection. Later, when Cassidy testified, AWe asked her who had done this to her and she pointed to the defendant,@ appellant failed to object. Appellant also did not object when Cassidy testified that Danielle stated that appellant had kicked her in the face. With regard to Cassidy=s testimony that (1) Danielle pointed to appellant when asked who hurt her and (2) Danielle told the deputies appellant had kicked her in the face, we conclude appellant has waived any error on appeal. To preserver error, a party must make a timely objection, stating the specific basis for the objection, and obtain a ruling from the trial court. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003). A party must also object each time the inadmissible evidence is offered or obtain a running objection. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). After the trial court overruled his objection that Danielle=s out-of-court statements were hearsay and violated his right to confrontation, appellant failed to object to Cassidy=s subsequent testimony regarding what Danielle had told the deputies regarding the assault. Therefore, appellant has waived any complaint regarding those statements. See Nelson v. State, 126 S.W.3d 700, 703 (Tex. App.CAmarillo 2004, pet. ref=d) (holding where appellant twice objected to testimony, but failed to object a third time to subsequent testimony on same matter, he waived complaint on appeal); Davidson v. State, 80 S.W.132, 138 (Tex. App.CTexarkana 2002, pet. ref=d) (holding where defendant objected to outcry testimony, but did not object to subsequent testimony about the outcry statement, he did not preserver error). When Soto started to testify about what Dickerson had related about the assault, appellant=s counsel objected on the basis of hearsay and the right of confrontation. The trial court granted appellant=s request for a running objection. The trial court then stated, AAs of right now, your objection is sustained.@ In subsequent testimony, Soto recounted Danielle=s telling them her boyfriend had beat her up and pointing out appellant to the deputies. When Cassidy and Soto arrived on the scene at the Walgreen=s parking lot, they found Danielle lying face down, crying, and bleeding from the face. Their inquiry was for the purpose of determining the extent of her injuries and gathering information for dispatch. Thus, their purpose in questioning Danielle was not to Aestablish or prove past events potentially relevant to later criminal prosecution,@ but, instead, it is objectively apparent the deputies, by their questioning Danielle, were trying to provide Aassistance to meet an ongoing emergency.@ Davis, 126 S. Ct. at 2273B74; see also Spencer, 162 S.W.3d at 879 (stating responses to preliminary questions by the police at the scene of the crime while assessing and securing the scene are not testimonial). Moreover, there is nothing to suggest that Danielle Areasonably expected her statements to be used in a judicial setting.@ Hudson v. State, 179 S.W.3d 731, 737 (Tex. App.CHouston [14th Dist.] 2005, no pet.). We conclude Danielle=s statements made in response to the deputies= questions were non-testimonial. Finally, error, if any, in Danielle=s out-of-court statements coming into evidence is harmless. In cases of constitutional error we must reverse the conviction unless we determine beyond a reasonable doubt that the error did not contribute to the conviction. Tex. R. App. P. 44.2(a); Simpson v. State, 119 S.W.3d 262, 269 (Tex. Crim. App. 2003). The presence of other overwhelming evidence, properly admitted, supporting the material fact to which the admissible evidence was directed may be an important factor in conducting a harm analysis. Wall, 184 S.W.3d at 746. Appellant argues the error is harmful because the only evidence presented during trial that an alleged assault had occurred and the only evidence linking him to the alleged assault came from Danielle=s out-of-court hearsay statements. However, Danielle=s account of the assault was admitted elsewhere, without objection, when Cassidy testified that Danielle stated appellant had kicked her in the face. The trial court also admitted in evidence, without objection, the 911 tape on which Danielle told the dispatcher her boyfriend had kicked her in the face.[2] Therefore, any error in the admission of Danielle=s out-of-court statements is harmless. Appellant=s first point of error is overruled. Factual Sufficiency In his second point of error, appellant challenges the factual sufficiency of the evidence supporting his conviction. When reviewing the factual sufficiency of the evidence supporting a conviction, we view all the evidence in a neutral light. Watson v. State, No. PD-469-05, 2006 WL 2956272, at *8 (Tex. Crim. App. Oct. 18, 2006). Evidence is factually insufficient if (1) it is so weak as to be clearly wrong and manifestly unjust or (2) the finding is against the great weight and preponderance of the available evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We cannot conclude that a conviction is clearly wrong or manifestly unjust simply because, based on the quantum of admitted evidence, we would have reached a different verdict. Watson, 2006 WL at *10. Nor can we order a new trial because we disagree with the jury=s resolution of a conflict in the evidence. Id. Instead, we must first be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury=s verdict before ordering a new trial. Id. We may not substitute our judgment for that of the jury=s. Johnson, 23 S.W.3d at 12. Appellant relies on his own testimony as evidence contrary to the verdict. Appellant described an argument between Danielle and him while at her sister=s apartment complex. According to appellant, Danielle complained that her tampon was lodged and she could not get it out. She was Apanicking and freaking out.@ Danielle, who had been drinking that evening, became irate and started hitting appellant. Appellant drove Danielle to Walgreen=s When they arrived at the Walgreen=s parking lot, appellant was going into the store to purchase some lubricant, but decided to call 911 because Danielle was Aout of control.@ Appellant then testified that Danielle got out of the car, got in the car on the driver=s side, drove the car a short distance with the door open, stopped the car, and then fell out of car. Appellant complains that the only evidence supporting the verdict were out-of-court statements by Danielle, who was intoxicated at the time. However, the influence of alcohol on Danielle is but only one factor to consider in a factual sufficiency review. Cf. Vasquez v. State, 67 S.W.3d 229, 237 (Tex. Crim. App. 2002) (AEven under a factual sufficiency review, the influence of an illegal drug would be but a factor to consider.@). Moreover, Danielle=s intoxicated state goes to the amount of credibility the fact finder will afford to her. See Cain v. State, 958 S.W.2d 404, 409 (Tex. Crim. App. 1997) (stating intoxication, among other factors, did not definitively favor or contradict the jury=s verdict, but, instead, went to the credibility of the witness). Evidence supporting the verdict came from the deputies= testimony and the 911 tape of the call Danielle made. Danielle told the deputies and the 911 operator that appellant had kicked her in the face. Cassidy and Soto both testified that Danielle=s injuries were consistent with having been kicked in the face, not with falling down, injuring herself. When Cassidy and Soto arrived on the scene, appellant and Danielle were the only people in the parking lot. The appellant continued to walk away from the scene, even after the deputies had called out for him to stop and had drawn their guns. It is within the province of the trier of fact to resolve any conflicts and inconsistencies in the evidence. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). Moreover, the trier of fact is free to believe or disbelieve part or all of a witness= testimony. Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998). Appellant and the State put forth competing versions of the events that took place in the Walgreen=s parking lot. The jury was free to believe Cassidy and Soto=s version of the events, and reject appellant=s, which apparently it did. We cannot say the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust, or that the verdict is against the great weight and preponderance of the evidence. Appellant=s second point of error is overruled. Accordingly, the judgment of the trial court is affirmed. /s/ J. Harvey Hudson Justice Judgment rendered and Memorandum Opinion filed December 12, 2006. Panel consists of Justices Anderson, Hudson, and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] 541 U.S. 36 (2004). [2] In addition to appellant=s calling 911, Danielle also called 911.