Carter v. State
| Decision Date | 20 December 2022 |
| Docket Number | 01-22-00197-CR |
| Parties | MARK KENNETH CARTER, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 351st District Court Harris County, Texas Trial Court Case No. 1641166.
Panel consists of Radack, Chief Justice and Countiss and Rivas-Molloy, Justices.
Julie Countiss Justice.
A jury found appellant, Mark Kenneth Carter, guilty of the felony offense of aggravated assault of a family member.[1] After appellant pleaded true to the allegations in two enhancement paragraphs that he had twice been previously convicted of felony offenses and the trial court found true the allegation in one enhancement paragraph the trial court assessed his punishment at confinement for thirty years. In his sole issue, appellant contends that the trial court erred in denying his motion for mistrial. We affirm.
Maria Narvaez testified that she was seventy-six years old and was a neighbor of appellant and the complainant, Blanca Rivera. Narvaez and her husband lived in a house on Noble Street in Houston, Harris County, Texas. They would see appellant and the complainant outside in the neighborhood, and sometimes the complainant would visit Narvaez. The complainant and Narvaez "would sit and talk for a little while and then [the complainant] would leave." Appellant and the complainant would also take their child to play in the park across the street from Narvaez's house.
Narvaez had a patio area in front of her house that was enclosed by a wooden fence. The fence had a gate centered in front of the house and a side gate that Narvaez's husband kept locked. On the afternoon of August 2, 2019, Narvaez was in her house when she heard screaming outside. She went to the driveway area beside the enclosed patio and opened the front gate to look into the patio. "The first thing [she] saw" was the complainant "lying on the concrete." The complainant was bleeding "a lot" from her forehead and her face was "covered with blood." Appellant "was standing" about three or four feet away from the complainant, holding "a shovel in" both hands above his head as if he were "ready to bring it down" onto the complainant. Narvaez told him, Appellant tossed the shovel aside and stood there.
Meanwhile two men, who were friends of Narvaez's adult son, had arrived at Narvaez's house and were waiting outside for her son. Narvaez "told them to hold the [patio] gate" closed so appellant "wouldn't get out." Appellant then "just laid down" beside the fence. The complainant was still on the ground bleeding.
Narvaez called for emergency assistance. A short time later Narvaez's son and his girlfriend arrived at Narvaez's house. The girlfriend, who was a nurse, tended to the complainant until emergency assistance personnel arrived. She applied a towel to the complainant's head, which was still bleeding heavily.
According to Narvaez, appellant did not try to call for emergency assistance or do anything to care for the complainant. And he did not talk to the law enforcement officers who arrived at the scene.
Narvaez further testified that sometime before trial, the complainant asked Narvaez to testify that the person who had assaulted her "wasn't [appellant]." Narvaez responded that she "was not going to lie." She was not going to "change[] the story" from what she had told law enforcement officers on the day of the assault because what she had told officers "[was] what happened."
Houston Police Department ("HPD") Officer D. Molina testified that on August 2, 2019, he was dispatched to a house on Noble Street. The house was "enclosed by a wooden fence," and "numerous people" were standing outside the house on the sidewalk by the front gate. As Molina approached the gate, he saw the complainant lying "on the ground" just inside the fence. She was "covered in blood." Blood was "on her face, on her arms, and on her clothing," and there was blood on the patio around her. Emergency medical technicians ("EMTs") were attending to her. The people standing by the gate pointed Molina "in the direction of" appellant, "who was lying a few feet away from" the complainant. Appellant "was lying there on his back" and "staring up at the sky" "as if nothing was going on." Appellant did not appear to be concerned about the complainant and did not try to help her. To Molina, appellant appeared intoxicated; he could not stand "on his own" and "his pupils were dilated." The people at the scene told Molina that appellant was the person who had injured the complainant.
Officer Molina interviewed the complainant after the EMTs had placed her on a stretcher outside the fence. Molina observed that the complainant had a "deep laceration to the back of her head, several baseball to softball size welts on her arm, a swollen nose, and what appeared to be a deep cut on the bridge of her nose." She was in apparent pain but was conscious and appeared coherent. Wincing while she spoke, the complainant told Molina that her "husband" had assaulted her with a shovel because she had "approached him" about his narcotics use. The complainant stated that appellant had been "standing over her and hitting her," and she showed Molina how appellant wielded the shovel with "an over the head movement." Molina also spoke with Narvaez, who told him that she saw appellant strike the complainant.
Molina took photographs at the scene depicting the complainant's injuries, which the trial court admitted into evidence a trial. He also photographed the shovel, and during his testimony, he pointed out a mark on the blade of the shovel that he had "identified as blood splatter" on the day of the assault. As a result of his investigation, Molina concluded that appellant had caused the complainant's injuries.
HPD Officer G. Waskow testified that on August 2, 2019, he was "dispatched to a call for service for an assault." When he arrived at the scene, Officer Molina was already there. Waskow was tasked with collecting and tagging the evidence that other law enforcement officers had recovered and photographed, and he "secured it in the back of [his] patrol car." The evidence included "a shovel that was used to assault the complainant." The shovel "was in two pieces" and had "what appeared to be some blood residue on . . . the blade."
Houston Fire Department ("HFD") EMT J. Pacheco testified that on August 2, 2019, he was dispatched to a house on Noble Street after an assault. When Pacheco arrived, he found the complainant "ready to be transported." She "was already bandaged," and her head was wrapped with a gauze compress. The other HFD EMTs at the scene told Pacheco that the complainant had a "[three] inch laceration to the right side of her head" and her right forearm was bruised and swollen. On the way to the hospital, the complainant told Pacheco "that her husband [had] hit her multiple times with a shovel."
Monica Ngann testified that she is a social worker with the domestic violence division of the Harris County District Attorney's Office. She is a licensed master social worker and has over eight and a half years of experience working with people who have experienced domestic violence. Ngann explained that victims of domestic violence may recant in certain situations because of the cycle of behavior common in relationships where domestic violence is present. After an incident of domestic violence occurs, the abuser "may make an excuse as to why that incident occurred," saying, for instance, that he "was very tired that day and he got frustrated and took it out on [the victim]" or that "[narcotics] or alcohol were involved," or giving some other excuse to "explain away" the abuse. Then, the victim "may give" the abuser "another opportunity in their relationship because maybe they have children together," or maybe she believes that the abuser is "sincere in his apology and he won't do it again." Ngann added that "[p]eople may stay in abusive relationships because they may fear retaliation," or because "they have a child together" and the victim is "really trying to work it out." The victim may "feel[] guilty because even though [the abuser] was violent toward[] her, she doesn't want to feel like" she was the person who "ruined his life, if law enforcement g[ets] involved."
The abuser and the victim then "may go through a period" known as "the honeymoon phase." "But eventually," something else happens "that triggers [the abuser] again," and "another incident" of domestic violence occurs. According to Ngann, it is common for domestic violence victims to ask for a case against their abuser to be dismissed. The victim might recant or minimize an incident of domestic violence because she is "back in the relationship" with the abuser and "doesn't want that person away from [her] life," because things may be going well or she believes "things will get better" if she "just leaves it alone." A victim also might recant or minimize an incident of domestic violence if she and the abuser "have a child together" or if "she's financially dependent" on the abuser. According to Ngann, these kinds of factors "may make it difficult for [the victim] to separate" from the abuser.
The complainant testified on behalf of appellant at trial. She stated that appellant was her husband. They were not legally married, but they had been in a relationship for five years and had a child together.
According to the complainant, on August 2, 2019, she was assaulted by an unknown man who was inside the gate at Narvaez's house. The complainant explained that "a lot of people hang out" in the yard outside Narvaez's house and use narcotics. Before assaulting her, the...
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