Gonzalez v. State
| Docket Number | 03-22-00287-CR |
| Decision Date | 27 October 2023 |
| Parties | Michael Gonzalez, Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
Do Not Publish
FROM THE 35TH DISTRICT COURT OF MILLS COUNTY NO. 3519, THE HONORABLE MIKE SMITH, JUDGE PRESIDING
Before Chief Justice Byrne, Justices Triana and Theofanis
Appellant Michael Gonzalez was convicted by a jury of aggravated assault with a deadly weapon against Tammie Duffy, a person with whom he was in a dating relationship. See Tex Penal Code § 22.02(a), (b)(1)(A). Following a hearing on punishment, he was sentenced to seventy years' confinement. In 13 issues, he contends that the trial court erred by: (1) admitting 33[1] photographs depicting Tammie's injuries; (2) admitting evidence of hospital staff's "emotional or mental" reactions to the injuries (3) requiring defense counsel to use a hypothetical when cross-examining a witness for the State; (4) not permitting defense counsel to cross-examine the grand-jury foreman about burdens of proof; (5) admitting evidence of extraneous offenses committed by appellant; (6) excluding evidence of Tammie's drug use and criminal history; (7) admitting improper lay-opinion testimony; (8) admitting hearsay statements (9) allowing a witness for the State to testify about matters of which she lacked personal knowledge; (10) admitting evidence of items seized in violation of the Fourth Amendment; (11) admitting an irrelevant and unfairly prejudicial jail call; (12) instructing the jury on the law of parties; and (13) allowing the State in its closing argument to comment on appellant's failure to testify. We will affirm the trial court's judgment of conviction.
Appellant was charged by indictment with causing serious bodily injury to Tammie, a member of his household or a person with whom he had a dating relationship, "by using blunt force of a source unknown to the grand jury"; "striking her with his hand, foot, or some other object unknown to the grand jury"; or "forcibly causing her to ingest hair." The indictment also alleged that appellant used or exhibited a deadly weapon during the offense.
At trial, Tammie testified at length about her relationship with appellant. He had seen her profile on Facebook and begun messaging her. The two met in mid-July 2020 and began dating. Their relationship worsened in August of that year, however when he "tore up [her] entire bedroom . . . in a fit of rage" after losing his phone. She nevertheless began staying with him at the end of the month, and he became physically abusive. He would also verbally abuse her, control her communications with friends and family, force her to take time off of work, isolate her, break her phones, and physically prevent her from leaving. She moved into his family's home in October, but the couple soon got their own duplex apartment in Goldthwaite on November 1st.
Following the move, appellant started going out more and became "more obsessive, jealous, [and] constantly accus[ed her] of messaging somebody else." He made her delete her Facebook account, demanded that she remove or cover-up a memorial tattoo of a deceased ex-boyfriend, and beat her if she mentioned her exes. Around their apartment, he placed statutes of Santa Muerte,[2] which he said was his "god." Shortly after they met, he had told her that he worshipped Santa Muerte, that she needed "blood sacrifice," and that "somebody had been murdered and their blood had to be spilt over her."
Tammie and appellant would smoke marijuana together, and he also used methamphetamine, cocaine, and prescription medication. Although she tested positive for marijuana following the alleged assault, she testified that she last used it three days before the incident. In addition, she had been prescribed Xanax for anxiety, and appellant would confiscate her pills. In the week before the alleged assault, his drug use "was becoming heavy," and he was mixing cocaine, Xanax, and alcohol. The night before the incident, he drank, used cocaine, and smoked marijuana; the following morning, he again used cocaine and "popped some of the Xanax."
Tammie testified about the events of November 20th, the day of the alleged assault. Appellant began texting her from work around 6 a.m., but she was asleep and did not respond. His texts became increasingly ugly and threatening, and he accused her of being unfaithful. The two argued by text and call throughout the day. Around 2 or 3 p.m., she started reaching out to various family members, asking them to give her a ride to Brownwood because she was afraid. Although she had a vehicle, she did not drive herself and could not explain her decision not to do so.
In their text exchange, photographs of which were admitted at trial, Tammie- who testified that she had been diagnosed with depression and anxiety and was suffering a "mental episode" that morning-accused appellant of cheating in turn; told him that he was not "movin' nowhere"; threatened to destroy photographs of his mother, who had recently passed; and sent him a photograph of approximately 40-50 antidepressant pills with the text, "You think that's enough?" She explained that she had not been contemplating suicide but wanted only to make appellant feel bad. She also explained that he had previously thrown her deceased ex's belongings in the trash and that while she had threatened to destroy appellant's photographs, she would not have done so but was trying only to upset him.
Appellant responded by telling her that he "was faken . . . all along" and insisting that Tammie could not force him to stay or to be with her. He told her that he would have his teenage niece pick up his belongings, but Tammie replied that she would only give them to him. When she later attempted to call him, he did not answer but texted, "I aint doin shit my santa muerte is."
Appellant's coworkers dropped him off at his family's home, and he drove to the apartment with his niece. At around 6 p.m., he "busted through the door, had beers in his hand, [and was] cussing" at Tammie. She told him that they were not going to argue in front of his niece, so he drove the teen back to his family's home, returning to the apartment approximately 10 minutes later. He continued to cuss at and threaten Tammie, and, when she sat on the couch, he kicked her in the mouth with a steel-toed boot. Knowing that it would be "a way to boil his blood," she threw one of his Santa Muerte statutes onto the floor, smashing it and causing him to "spiral[] out of control" and become "very, very angry."
While he was hitting and yelling at her, her anxiety was "through the roof," and she grabbed a bottle of Xanax from a nearby table and took up to 15 pills. She testified that she was not trying to commit suicide but that the dose was five times her normal daily amount, that Xanax is a sedative, and that she can usually sleep after taking one pill.
She went to the bedroom and attempted to call 911. Appellant slapped the phone out of her hand, but she picked it up, dialed again, and does not remember "anything after that." She testified that her memory "cut[] off" approximately 15 to 20 minutes after she took the Xanax and that she has only "flashes" of memory: of appellant hitting her with his fists on her head, face, and body; of appellant's brother, Edward, and Edward's girlfriend, Daniela; and of trying to cover herself. She also testified that she believed that the memory loss resulted from her "brain blocking out the trauma" and from the Xanax.
Her next memory was of waking up in the IC U.She did not have any hair, had a new scar across her memorial tattoo, and had undergone bowel surgery. Appellant later told her that he had cut off her hair with a "razor knife."
She communicated with appellant for a few months following the assault and at one point submitted an affidavit of non-prosecution asking that the DA's Office dismiss the charge against him. At trial, she testified that he was "in [her] head again . . . [w]ith his controlling, aggressive, abusive stuff" but that she was able to "break completely away" from him on July 3, 2021, when he told her that he remembered everything and did not regret any of it. In her affidavit, she averred that she did not believe that he had intended to harm her and that "some of the injuries were due to [her] own actions." She testified that she no longer wanted the charge dismissed and that she had no doubt that appellant assaulted her.
Killeen Police Department (KPD) Detective Tim Koellner testified about Tammie's arrival at Advent Health Hospital in Killeen at approximately 8 a.m. on November 21 2020.[3] He was working off-duty as a security guard at the hospital when he was told that an apparent assault victim, who was unconscious and whose hair was "real[ly] choppy and different lengths," had been dropped off at the ER by a man driving a Chevrolet Camaro; that the man had moved the Camaro to the hospital's parking lot; and that he had then gotten into a truck with two others and left. Koellner was also told that the man appeared to be Hispanic and had face tattoos. Later, a nurse informed Koellner that someone was calling about the patient. He answered the phone, and the caller-who identified himself as appellant-stated that he was checking on his girlfriend, that she had taken Xanax and "freaked out," and that he had to defend himself. Koellner asked appellant to return to the hospital, but he replied that he was on his way to work and would need to check with his boss. When asked why he had passed another hospital on his way to Advent Health, appellant answered that Tammie had requested to go there. Koellner testified that he did not believe that sh...
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