Gallamore v. State
| Decision Date | 20 April 2016 |
| Docket Number | No. 05-14-01591-CR,05-14-01591-CR |
| Parties | CHARLES LEE GALLAMORE, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the County Court at Law No. 1 Collin County, Texas
Before Justices Fillmore, Stoddart, and Schenck
Opinion by Justice Fillmore
A jury found Charles Lee Gallamore guilty of misdemeanor family violence assault. See TEX. PENAL CODE ANN. § 22.01(a)(1) & (b) (West Supp. 2015). The trial court assessed punishment of confinement for one year and a $500 fine, suspended imposition of the sentence, and placed Gallamore on community supervision for a period of fifteen months. In two points of error, Gallamore asserts (1) the trial court's evidentiary rulings prohibited him from adequately asserting a defensive theory and (2) his counsel was ineffective by waiving recording of voir dire of the jury panel, failing to invoke rule of evidence 614 prior to the testimony of trial witnesses, and failing to retain an expert or request that an expert be appointed by the trial court prior to trial. We affirm the trial court's judgment.
Gallamore and Angela Ryan had been in a dating relationship for several years and were living together in a home they leased. On July 7, 2013, Gallamore and Ryan went to a neighborhood swimming pool at approximately 11:00 a.m. Gallamore and Ryan drank wine at the swimming pool before they returned home about four hours later. A recording of a 9-1-1 telephone call placed by Ryan was admitted into evidence and played for the jury. In that recording, Ryan stated Gallamore grabbed her by the neck and threw her into a mirror, he was intoxicated, and he had left their home in his Camaro.
Wylie police officers Mark Howeth and Jeff Callan were dispatched to Gallamore and Ryan's home in response to Ryan's 9-1-1 telephone call. A videotape recording from a camera in Callan's police vehicle was admitted into evidence and shown to the jury. On that recording, Ryan stated she and Gallamore had been fighting in the closet of their home and that Gallamore grabbed her by the neck with his right hand, pushed her against the wall, and threw her around the bathroom. The recording contains Ryan's statement that when Gallamore grabbed her around the throat, she could hardly breath and, in trying to fight back, her fingernails scraped "across [Gallamore's] face" and her complaint of pain in her wrist from trying to push Gallamore away.
Howeth testified Ryan was crying frantically and told him that Gallamore had assaulted her before leaving their home in his Camaro. He testified that Ryan described the alleged assault as having occurred in the master bedroom closet where Gallamore pushed her against a mirror on the wall. Howeth observed a smudge on the mirror consistent with Ryan's description. There was redness around the top of Ryan's chest and slight redness on her throat which was consistent with what she claimed had occurred.
While Howeth was speaking with Ryan, Gallamore drove by the home in his Camaro, and Howeth and Callan pursued him in their police vehicles. After Gallamore's vehicle was stopped, Gallamore refused field sobriety tests and ultimately was arrested for driving while intoxicated and transported by Callan to the police station. On the videotape recording from the camera in Callan's police vehicle, Gallamore told Callan that he "was in a fight with [his] girlfriend down the street," and Callan indicated that he saw scratches on Gallamore's face.
After Gallamore's arrest, Howeth returned to Gallamore and Ryan's home where he took statements and photographed the master bedroom closet area and Ryan's injuries. Those photographs were admitted into evidence. There were red marks in the center of Ryan's neck and on her mid-chest. Ryan claimed Gallamore lifted her off the ground. Ryan's wrist had begun to bruise and a photograph showed what appeared to be a bruise on Ryan's arm. According to Howeth, Ryan's statements about the alleged assault matched both his observations and the evidence he gathered at the home. Ryan's injuries and the smudge on a mirror were consistent with Ryan's claim that Gallamore pushed her into the mirror hanging on a wall. In her written statement, Ryan stated she had never been physically abused by Gallamore prior to this incident. Howeth did not believe Ryan's version of the events was fabricated.
In Howeth's experience, the type of injuries sustained by Ryan, such as the redness to her neck area, the other physical evidence, such as the smudge on the mirror, and Ryan's account of the altercation between her and Gallamore, suggest that Ryan was not the aggressor in this incident. Howeth acknowledged that a man is permitted to defend himself by using reasonable force against a woman who is hurting him. Howeth did not discern evidence that Gallamore was defending himself from Ryan. Rather, his investigation indicated Ryan was defending herself from Gallamore, although Howeth acknowledged that events described to him by Ryan could have a different and equally logical explanation.
Callan testified regarding his observations and interactions with Ryan after arriving at Gallamore and Ryan's home on July 7, 2013. Ryan claimed Gallamore grabbed her by the throat and pushed her against a mirror. Callan noted redness in the area of the base of Ryan's throat which was consistent with events described by Ryan. Ryan also stated she was experiencing pain in an arm and in both hands. Ryan communicated to Callan that she scratched Gallamore's face during the altercation. In Callan's opinion, the locations of the injuries Ryan sustained were consistent with the rendition of the altercation recounted by Ryan and were not consistent with Ryan being the aggressor in the altercation.
Callan testified that when Gallamore drove by his home, both Callan and Howeth pursued him in their police vehicles and Gallamore's vehicle was stopped by Callan. When Callan handcuffed Gallamore, he smelled an odor of alcoholic beverage and noticed Gallamore's eyes were watery, glassy, and red. Gallamore told Callan he had consumed three large glasses of wine since 11:00 a.m. Callan believed Gallamore was intoxicated. A cooler in the backseat of Gallamore's Camaro contained a bladder from a box of wine containing two to three ounces of wine. Gallamore was arrested for driving while intoxicated, and he was later charged with family violence assault.
Callan observed Gallamore had a "little" scratch on the side of his face. Gallamore told Callan that he and Ryan had gotten into an argument, Ryan hit him multiple times, and he left their home. Callan took photographs of Gallamore after he was taken to the police station, and those photographs were admitted into evidence. In Callan's opinion, the scratches on Gallamore's face and to one of his arms were wounds inflicted by Ryan in defending herself.
On July 8, 2013, Ryan brought to the Wylie police station a note from her physician detailing her injuries and showed Callan bruising that had developed since the previous day. Additional photographs Callan took of Ryan at the police station were admitted into evidenceshowing discoloration around Ryan's throat where she claimed to have been grabbed by Gallamore and bruising on her left wrist.
Based on evidence obtained during his investigation of the altercation and Gallamore's driving-while-intoxicated charge, Callan opined that Gallamore was the aggressor. Callan acknowledged that if Gallamore had been attacked, he had the right to use reasonable force to protect and defend himself. However, Callan noted that Ryan weighed only about one hundred ten pounds and Gallamore was considerably larger than Ryan; accordingly, Callan did not believe Gallamore was in danger from Ryan during the altercation. Callan testified that, with the exception of the redness around Ryan's throat, Ryan's other injuries could have resulted from another plausible explanation. However, Callan believed Ryan was being truthful about what occurred. When questioned about whether his view would be different if he learned Ryan had made allegations against a prior boyfriend, Callan testified that would not change the evidence observed on the day of the altercation between Gallamore and Ryan.
Ryan testified that on July 7, 2013, she and Gallamore had been at a neighborhood swimming pool since 10:30 or 11:00 a.m. Gallamore, who had been drinking, became upset with Ryan talking to another man, and they returned home. Ryan and Gallmore were arguing. Gallamore came into the master bedroom closet where Ryan was changing clothes and pushed her aside. Gallmore placed his hand on the bottom of Ryan's neck above her collarbone, lifted her slightly off the ground with his hand, and pushed her against a mirror hanging on a wall. Gallamore was also "slinging" Ryan around and her arm hit the a bathroom counter or wall and the side of her body hit the sink or a doorframe. Ryan scratched Gallamore in a defensive move, although she did not know if she left marks on Gallamore. She denied hitting Gallamore in the back of his head.
According to Ryan, she placed a 9-1-1 telephone call as Gallamore was leaving their home. Ryan told the police who were dispatched in response to the 9-1-1 telephone call what had transpired between her and Gallamore. In her written statement, Ryan stated Gallamore had never hit her before this incident. The day after the incident, Ryan sought medical treatment because her right hand was swollen and bruised, and she was placed in a temporary cast by medical personnel because a wrist bone had been broken. After Gallamore was released from jail, he apologized to Ryan by means of a text message or email.
Gallamore testified that on the day of the incident, he and Ryan had arrived at a neighborhood swimming pool at approximately 11:00 a.m., and he drank wine there. He and Ryan left the swimming pool and an argument ensued....
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