Davis v. State

• Decision Date: 19 May 2005
• Docket Number: No. 03-04-00014-CR.,03-04-00014-CR.
• Citation: 169 S.W.3d 660
• Parties: Vincent DAVIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Supreme Court

169 S.W.3d 660

Vincent DAVIS, Appellant, v.The STATE of Texas, Appellee.

No. 03-04-00014-CR.

Court of Appeals of Texas, Austin.

May 19, 2005.

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Charles A. Palmer, Austin, for Appellant.

C. Bryan Case, Jr., Assistant District Attorney, Austin, for Appellee.

Before Chief Justice LAW, Justices PURYEAR and ONION^*

OPINION

JOHN F. ONION, JR., Justice(Retired).

AppellantVincent Davis appeals his conviction for aggravated assault with a deadly weapon.SeeTex. Pen.Code Ann. § 22.02(a)(2)(WestSupp.2004-05).The jury found appellant guilty.The trial court assessed punishment at twelve years' imprisonment after finding that appellant had been convicted of a prior felony as alleged for the enhancement of punishment.

Point of Error

In a single point of error, appellant claims that the trial court denied him his constitutional right of confrontation and cross-examination under the Sixth Amendment to the United States Constitution.¹Appellant urges that the trial court erred in admitting, over objection, the hearsay out-of-court statements of the alleged complainant made to a police officer near the scene of the offense when the alleged complainant did not testify and her unavailability was never established.Appellant relies upon Crawford v. Washington,541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177(2004).

Background

The amended indictment alleged that appellant committed aggravated assault with a deadly weapon upon Patricia Ford.Hands and a rope were alleged as deadly weapons.The evidence shows that on January 6, 2003, Paula Weightman came out of her Travis County home that morning to smoke a cigarette.Weightman heard "blood-curdling" screams from the home across the street in the 1000 block of Karen Avenue where Patricia Ford and appellant lived together.She heard Ford scream, "Get out, Get out," heard the sounds of an assault, and heard a male voice yell, "I will show you."Weightman called 911 for police assistance.After the police arrived, Ford came running across the street, trembling and crying.Over objection, Weightman testified that Ford told her, "He tried to kill me."

Austin Police Officers Albert Cortez and Arturo Canizales arrived on the scene within a matter of minutes.After the 911 call, the officers heard a woman screaming and approached the front door of the house from which the screams had come.Cortez saw a woman inside yelling hysterically and holding her hands to her face.The man inside fled to the back of the house.When Cortez entered the house, he told the woman to leave.Officer Cortez located the man, later identified as appellant, in the rear of the house and handcuffed him.A rope was found in the living room.A second man, Lee Hodges, was found in the house.He rented a room from Ford.It was determined that he was not involved in the assault.

Officer Canizales testified that he followed the woman who had exited the house to the front porch of the Weightman home.The woman was identified as Patricia Ford.According to Canizales, Ford was still crying, trembling, and frightened.She bore signs of injuries.There was a knot on the right side of her face, blood on her lips, and a redness around her neck that soon turned into a large bruise.

At this point, appellant objected to further testimony from Canizales on the basis, inter alia, that he was being denied the right of confrontation of the witnesses against him.The prosecutor had indicated that Ford would not testify.After a hearing in the jury's absence, the trial court overruled the objection.There was no showing that Ford was unavailable or that appellant had had a prior opportunity to cross-examine Ford.

In the presence of the jury, Officer Canizales testified as to what Ford told him on the Weightman porch.Ford related that she and appellant began arguing about his failure to secure employment, and that he accused her of having a sexual relationship with another man.The argument escalated, and appellant knocked a cup of coffee out of her hands.Ford told Canizales that she moved from room to room to avoid appellant, and that when she tried to leave the house appellant grabbed her shirt, pulled her back into the house, and threw her on the couch.At this point, appellant beat her around the face with his hands, then pressed his thumbs into her eyes and his fingers into her head.Appellant then put his knee into her throat while she was on the couch and told her that he was going to teach her "about talking that way to him."Appellant then threw Ford onto the floor of the living room.As she lay on the floor, appellant took a rope and wrapped it around her neck, put his knee into her back and pulled up on the rope, lifting her torso off the floor.When Ford couldn't breathe, she pleaded with appellant, and he released her to get her inhaler.At this juncture, Ford began screaming.Appellant responded by choking her with his hands.Shortly thereafter, the police officers arrived at the home.

Photographs reflecting Ford's injuries were admitted into evidence.Upon being shown one of the State's exhibits, Officer Canizales agreed that the injury around her neck was consistent with having a rope around her neck.

William Henry Petty, assistant manager of Victim Services at the Austin Police Department, came to the scene on Karen Avenue while Ford was still there.He described Ford's injuries and determined that she needed to be sent to a hospital.He added, without objection, that an officer at the scene had a rope that the officer said had been used and that Ford's neck injury appeared to be consistent with strangulation by a rope.Jeanine Helton, another employee of Victim Services, saw Ford the following day, January 7th.She saw bruising on Ford's face and a very dark bruising at the base of Ford's neck and above the collar bone.Keith Walker, a homicide detective, was qualified as an expert, and testified that strangulation by hands or by ligature could cause death.

Appellant Davis was the only defense witness.His testimony was similar in many respects to what Ford told Officer Canizales.Appellant said that the discussion with Ford began about "me not getting a job"; that Ford began throwing his belongings into the yard which he repeatedly retrieved; and that he started a shouting march with Ford.Appellant explained that when Ford started to throw a cup of coffee on him, he slapped the cup from her hand and hit her with an open hand causing her to fall on the floor.Appellant reported that Ford got up and "ran up on me," that he pushed her "maybe a little too hard," and that she fell on the couch.Appellant admitted that he then pressed his index finger on the side of Ford's head.He was pushing on Ford's temple when "something just said let her go and I just stopped."Appellant acknowledged that he knew what he was doing when he hit Ford and knew it hurt her, but afterwards he knew it was a mistake.

Appellant related that the rope found in the living room was his.He used it to pull his lawn mowing equipment from yard to yard.Appellant denied that he had used the rope on Ford or that he had choked her.He testified that they were just talking when the police officers arrived.

On cross-examination, appellant acknowledged that he had been involved in a romantic relationship with Ford before the incident in question.Appellant stated that, at the time of the assault he was six feet one inch tall and weighed 198 pounds and that Ford was five feet four inches tall and weighed 135 pounds.Appellant was aware that Ford suffered from asthma and diabetes.When appellant was shown State's exhibit no. 2, a photograph of Ford, the record reflects:

Q.And do the injuries in that picture reflect the injuries that you inflicted on her as you described when you struck her?

A.Yes ma'am.

At the conclusion of the guilt/innocence stage of the trial at which Patricia Ford never testified, the jury found appellant guilty.

Discussion

The sole issue presented by this appeal is whether appellant was deprived of his federal constitutional right of confrontation of witnesses against him and the inclusive right of cross-examination guaranteed by the Sixth Amendment to the United States Constitution.²Appellant contends that the complainant in this aggravated assault case, Patricia Ford, did not testify, and was not shown to be unavailable to the prosecution, and that there was no prior opportunity for the appellant to cross-examine her.Appellant urges that the admission of Ford's hearsay statements incriminating him made to Officer Canizales was an unacceptable substitute for the constitutional right of confrontation.The alleged error was duly preserved for review.In deciding the constitutional issue presented, we review the trial court's rulingde novo.Muttoni v. State,25 S.W.3d 300, 304(Tex.App.-Austin 2000, no pet.).

The Sixth Amendment right of confrontation is a fundamental right and is applicable to the states by virtue of the Fourteenth Amendment.Pointer v. State,380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923(1965);Shelby v. State,819 S.W.2d 544, 546(Tex.Crim.App.1991).³

While this appeal was pending,⁴ the United States Supreme Court handed down its decision in Crawford v. Washington,541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177(2004), which held that, without exception, testimonial hearsay statements of witnesses absent from trial are admissible over a Sixth Amendment Confrontation Clause objection only where the declarant is unavailable and where the defendant has had a prior opportunity to cross-examine the declarant.Crawford,541 U.S. at 57-60, 124 S.Ct. at 1368-69.

Crawford traced the history of the principle of confrontation from ancient Rome through eighteenth century Europe and from the colonial period in this country through the 1791 adoption of the Sixth Amendment and the cases decided under it early on.Id.,541 U.S. at 36-50, 124...