Capello v. State, No. 03-05-00553-CR (Tex. App. 8/25/2006)
| Decision Date | 25 August 2006 |
| Docket Number | No. 03-05-00553-CR.,03-05-00553-CR. |
| Parties | CHRISTOPHER DAMIEN CAPELLO, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the District Court of Caldwell County, 274th Judicial District, No. 2003-169, Honorable Todd A. Blomerth, Judge Presiding.
Affirmed.
Before Chief Justice LAW, Justices PURYEAR and PEMBERTON.
The jury convicted appellant Christopher Damien Capello of the third-degree felony offense of AssaultCFamily Violence. See Tex. Pen. Code Ann. § 22.01(b)(2) (West Supp. 2005). Punishment was assessed at twenty years' confinement and a $ 5,000 fine. In five issues on appeal, Capello asserts that the district court erred in not granting a mistrial due to improper jury argument, not instructing the jury on self-defense, and admitting the expert testimony of a licensed professional counselor who testified about the behavior of typical victims of domestic violence. We will affirm the judgment of the district court.
The jury heard evidence that, on the night of December 6, 2002, Capello assaulted his soon-to-be wife, Shirley Estrada.1 Estrada testified that she and Capello were part of a group that spent the afternoon drinking beer at Lillie's Bar in Lockhart. Estrada testified that they left the bar and drove to the home of Capello's sister, Christine Garza. The group at the house included Garza and her four children; Capello's half-brother Tony; Garza's estranged husband Rudy; and Rene Perez, Garza's boyfriend. Estrada testified that Capello, Tony, and Perez were inside the home's only bathroom, apparently smoking marihuana. Estrada explained that she was arguing with Capello through the door and that, when he opened the door and she tried to enter the bathroom, he slapped her and then punched her in the face. Estrada further testified that, after being hit in the face, she fell to the floor, where Capello kicked her in the stomach and continued to punch her in the face.
Estrada testified that, after she and Capello returned to their home later in the night, she wanted to call the police but Capello told her "that he was sorry" and asked her "not to call" the police, but that if she did, to "tell them that some girls had jumped [her] at the bar." Estrada left the house and called 911 from a pay phone, requesting an ambulance. Police officers arrived before EMS, and Estrada told the police that she had been "jumped" by some girls at a bar. Estrada testified that this was a lie and that she told this lie because she was scared of Capello. Police approached Capello in the kitchen to ask him some questions, but he was holding a knife and refused to put it down. One of the officers testified that Capello was then "introduced to pepper spray" and arrested. When EMS arrived, Estrada was transported to Brackenridge Hospital.
Capello was indicted for assault. During the first trial the jury was deadlocked, resulting in a mistrial. Capello was convicted in the second trial. This appeal followed.
Motion for mistrial
In his first issue, Capello asserts that the trial court abused its discretion by not granting a mistrial after the State referred to facts outside the record during closing argument. In its closing rebuttal, the State informed the jury that Rene Perez had testified at a "prior hearing" and that Perez "didn't know what happened in the bathroom at the previous hearing." Capello objected, and the district court sustained the objection. Capello also asked for a mistrial, which the district court denied. However, the district court did instruct the jury to "disregard any comments made with regard to something that did or didn't happen at a prior hearing."
We review a trial court's decision to deny a motion for mistrial under an abuse-of-discretion standard of review. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). When a trial court sustains an objection and instructs the jury to disregard, we presume the jury complies with the court's instruction. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). An argument that exceeds permissible bounds will not amount to reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper, violates a mandatory statute, or injects new facts harmful to the defendant. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). An instruction to disregard will generally cure the error unless the State's remarks constituted a wilful and calculated effort to deprive the defendant of a fair and impartial trial. Id.
The State admits that it was improper to argue that a witness, who did not testify in the second trial, had testified in the first trial to the effect that he did not know what happened in the bathroom. However, in light of the record as a whole, we do not believe this remark "constituted a wilful and calculated effort to deprive the defendant of a fair and impartial trial." See id. There was evidence that Rene Perez and other witnesses had been drinking and possibly smoking marihuana the night of the incident. It is hardly "extreme or manifestly improper" to comment that Perez was unable to remember what happened on the night in question. See id. We also disagree with Capello that Rene Perez's alleged knowledge of what happened was critical to Capello's defense. Our review of the record persuades us that the case turned on the credibility of the complainant, Estrada, and not the knowledge or the lack thereof of a witness who did not testify. The district court instructed the jury to disregard the comment about Perez's lack of knowledge and, on this record, we will presume the jury did so. See Colburn, 966 S.W.2d at 520. We overrule Capello's first issue.
Instruction on self-defense
In his second issue, Capello asserts that the district court erred by refusing to instruct the jury on the law of self-defense in the face of apparent danger. See Tex. Pen. Code Ann. § 9.31 (West 2003).
A defendant is entitled to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of the trial court's opinion about the credibility of the defense. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999); VanBrackle v. State, 179 S.W.3d 708, 712 (Tex. App.CAustin 2005, no pet.). This rule is designed to insure that the jury, not the trial court, will decide the relative credibility of the evidence. Granger, 3 S.W.3d at 38. A defendant need not testify in order to raise a defense. Boget v. State, 40 S.W.3d 624, 626 (Tex. App.CSan Antonio 2001), aff'd, 74 S.W.3d 23, 31 (Tex. Crim. App. 2002). Defensive issues may be raised by the testimony of any witnesses, even those called by the State. Jackson v. State, 110 S.W.3d 626, 631 (Tex. App.CHouston [14th Dist.] 2003, pet. ref'd); Shelvin v. State, 884 S.W.2d 874, 878 (Tex. App.CAustin 1994, pet. ref'd). In deciding whether a defensive theory is raised, the evidence is viewed in the light most favorable to the defense. Granger, 3 S.W.3d at 38.
A person has the right to defend himself from apparent danger to the same extent as he would if the danger were real. Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). Whether a defendant's beliefs were reasonable under the circumstances is a fact question for the jury to decide, not a preliminary question for the court to evaluate in determining whether the defense is raised. Hayes v. State, 728 S.W.2d 804, 808 (Tex. Crim. App. 1987).
A person is justified in using force when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. See Tex. Pen. Code Ann. § 9.31(a) (West 2003). The statute necessarily contemplates that the force used by a defendant must be reasonable as contemplated from the defendant's point of view.Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984) (). For Capello to be entitled to an instruction on self-defense, there must be evidence in the record relating to Capello's state of mind at the time of the incident. See Reed v. State, 703 S.W.2d 380, 384 (Tex. Crim. App. 1985).
There is no evidence in the record that Capello reasonably believed that force was necessary to protect himself against Estrada. There is some evidence, from the testimony of Capello's sister, that Estrada forced the bathroom door open before she entered, but there is no evidence that this action put Capello in reasonable apprehension of danger. Capello did not testify, and no other witness testified as to what Capello might have been thinking when Estrada entered the bathroom.2 See Lavern v. State, 48 S.W.3d 356, 360 (Tex. App.CHouston [14th Dist.] 2001, pet. ref'd) ("While a non-testifying defendant may be entitled to a charge on self-defense, it is rare for the defense to be raised when the defendant fails to testify."). Because there was no evidence that Capello was in reasonable apprehension of danger when he attacked Estrada, he was not entitled to a jury instruction on the issue of self-defense. See id. We overrule Capello's second issue.
Expert testimony
In his third, fourth, and fifth issues, Capello contends that the district court abused its discretion by admitting the expert testimony of licensed professional counselor Taylor Skaar regarding "the cycle of abuse." Capello asserted at trial and on appeal that the testimony was irrelevant, more prejudicial than probative, and that it "indirectly bolstered" Estrada's testimony.
To admit expert testimony, the trial court must find that the evidence satisfies both Rule 702, that the testimony will be...
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