Jackson v. State

Decision Date26 June 2003
Docket NumberNo. 14-02-00551-CR.,14-02-00551-CR.
Citation110 S.W.3d 626
PartiesMichael Wayne JACKSON, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

James M. Leitner, Houston, for appellant.

Amanda Joy Peters, Houston, for appellee.

Panel consists of Justices ANDERSON, SEYMORE, and GUZMAN.

OPINION

JOHN S. ANDERSON, Justice.

Appellant, Michael Wayne Jackson, was charged by indictment with aggravated assault with a deadly weapon, enhanced by two prior felony convictions. See TEX. PEN. CODE ANN. §§ 22.01(a)(1), .02(a)(2) (Vernon 2003); see also TEX. PEN.CODE ANN. § 12.42(d) (Vernon 2003). A jury found appellant guilty as charged in the indictment, found the two enhancements true, and assessed appellant's punishment at twenty-five years confinement. The trial court sentenced appellant accordingly.

In point of error one, appellant challenges the trial court's denial of his motion to dismiss; in point two, the trial court's denial of his request for a self-defense instruction; in points three through five, the admission of hearsay statements; and in points six and seven, the legal and factual sufficiency of the evidence. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Houston Police Department patrol officer David Curry was dispatched to an assault at an apartment complex on March 11, 2001 at 7:30 a.m. When he arrived, he saw emergency personnel carrying the complainant, Mary Roberson, down the apartment stairs. Curry saw Roberson had wounds to her face and was crying. She appeared frightened and excited, and was worried about her children.

Curry learned the assault had occurred about fifteen to twenty minutes before Curry's arrival at the scene.1 Roberson told Curry her boyfriend had assaulted her. She also told Curry she had moved to a new apartment in an effort to get away from her boyfriend, but he came to the apartment and asked her to give him a ride to work in the U-Haul vehicle she had rented for the move. Roberson initially stalled by saying she could not find her identification or was waiting for someone. She eventually refused to take appellant. Roberson told Curry appellant then picked up a 30 to 35 pound end table and threw it at Roberson. They struggled over the table, and Roberson fell onto the sofa. Roberson tried to hide her face under the pillows, but, according to what Roberson told Curry, appellant repeatedly struck her with the end table.

After Curry finished talking to Roberson, he spoke with Roberson's daughter Shacota, who was standing by her mother near the ambulance. According to Curry, Shacota was upset and crying because her mother was being taken away in the ambulance and had been assaulted. Shacota also appeared excited. Shacota said she saw appellant strike her mother with the table. Appellant also struck Shacota with the table. Because they were in the process of moving, they did not have a telephone in the apartment, so Shacota told her brother to leave, find a telephone, and call the police. Shacota also told Curry they had moved to get away from appellant.

Within five minutes of Curry's arrival and fifteen minutes from the time of the assault, Curry also spoke with Shaneque, Roberson's niece. According to Curry, Shaneque appeared excited, fearful, and angry. Shaneque stated she saw appellant strike Roberson with the end table. Shaneque said she grabbed an iron and hit appellant in the head to prevent him from striking Roberson any more. Shaneque stated when she tried to intervene, appellant hit her with the "night stand," as well.

Roberson was transported to the hospital with fractures to her eye sockets and face and severe swelling to her eyes, nose, and face. Curry testified he saw the table inside the apartment and believed it could cause serious bodily injury or death if used as a weapon.

After obtaining the information from the witnesses at the scene, Curry attempted to locate appellant. Officer Darrell Frank accompanied Curry, and the two officers went to a nearby townhouse where one of appellant's relatives lived. A person at the townhouse led Curry inside. The person also called for appellant to come downstairs. While Curry was inside the front part of the house, Frank went to the back. Curry heard Frank telling appellant to "get down." Curry ran to the back of the house where he saw appellant on a patio cover outside a second story window. The officers ordered appellant to get down as appellant screamed profanities at the officers. Frank described appellant's demeanor as "very hostile."

Appellant eventually climbed back through the window. Frank stayed near the backyard while Curry went to the front of the house. Curry told Frank over the radio that appellant had run out the front door, and Curry was chasing appellant on foot. Frank initially joined the chase, but eventually returned to get his patrol car. Curry chased appellant through two apartment complexes and over fences before he apprehended him. After Curry captured appellant, Frank and Officer Richard Lowe assisted Curry in handcuffing appellant and placing him in the patrol car. Once appellant was in custody, the officers noticed appellant had a cut on his head, a cut Curry believed was consistent with what Shaneque had told Curry about hitting appellant with the iron.

Appellant testified at trial, admitting he had been convicted of two felonies and had been arrested or convicted for several criminal offenses. He stated he never hit Roberson with the table or any other object. Instead, Shacota, Shaneque, and Roberson's teenage son began attacking appellant after appellant got into a verbal argument with Roberson. Appellant testified he never hit Roberson, and Roberson never hit him. Although he did not see who was hitting whom, appellant knew someone hit him and someone hit Roberson. Appellant claimed he never grabbed a table because everything was still packed. He testified he fled to his aunt's house to wait until everything cooled down. He said, if he had known Roberson's son had called the police, he would have left his aunt's house because he was on parole and did not want to go back to jail.

Jennifer Varela, a social worker and expert in the psychological aspects of domestic violence, testified for the defense and also in rebuttal for the State. After observing appellant's testimony, Varela testified he exhibited the typical behavior pattern of a domestic batterer. Specifically, she stated the fact appellant minimized his responsibility, used the passive voice, characterized Roberson and the children as overreacting to the argument, and fled with the intention of coming back when Roberson calmed down were common or typical behavior patterns of people who commit family violence. Varela testified she was under the impression Roberson was not cooperating with the State in this prosecution. Finally, Varela stated it was not uncommon for victims of domestic abuse to refuse to cooperate because of financial reasons, emotional attachments to the batterer, or fear.

DISCUSSION
Point of Error One: Denial of Appellant's Motion to Dismiss

In point of error one, appellant contends the trial court committed reversible error in denying his motion to dismiss. In the trial court, appellant argued (1) there was insufficient evidence to continue prosecution of the case and (2) the complaining witness requested dismissal. In support of his motion, appellant submitted an affidavit from the complainant stating (1) she did not wish the State to continue prosecution, (2) she did not see who hit her, (3) she did not receive injuries from appellant, and (4) after she returned from the hospital, she was told appellant had not injured her. On appeal, the gravamen of appellant's argument is that, in light of the complainant's affidavit of non-prosecution, there was insufficient evidence to support a determination of probable cause to indict.

Generally, a trial court does not have the power to dismiss a case unless the prosecutor requests dismissal. Ex parte Seidel, 39 S.W.3d 221, 223 (Tex. Crim.App.2001) (citing State v. Johnson, 821 S.W.2d 609, 613 (Tex.Crim.App.1991)). In addition, "[t]his court cannot review the sufficiency of the evidence to support an indictment, or question whether the grand jury had probable cause to indict." Brochu v. State, 927 S.W.2d 745, 749 (Tex. App.-Houston [14th Dist.] 1996, pet. ref'd). Finally, we note that a criminal conviction, which requires proof beyond a reasonable doubt, may rest on hearsay despite the lack of the complainant's testimony or even the complainant's recantation. See, e.g., Salley v. State, 25 S.W.3d 878, 881 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (holding evidence legally sufficient although largely presented through responding officer when complainant testified she could not remember any of the events leading to husband's arrest); Peters v. State, 997 S.W.2d 377, 382-83 (Tex.App.-Beaumont 1999, no pet.) (holding evidence legally sufficient to establish sexual assault despite being based largely on unobjected to hearsay in face of complainant's recantation); Tejeda v. State, 905 S.W.2d 313, 318 (Tex.App.-San Antonio 1995, pet. ref'd) (holding hearsay evidence of responding officer and physical evidence of cuts and bruises legally sufficient despite complaint's having claimed spousal privilege not to testify against husband).

We overrule appellant's point of error one.

Point of Error Two: Denial of Appellant's Request for an Instruction on Self-Defense

In his second point of error, appellant contends the trial court committed reversible error in denying his request for an instruction on self-defense. A defendant is entitled to an instruction on any properly requested defensive issue raised by the evidence, regardless of whether the evidence is weak or strong, unimpeached or contradicted, or credible or not credible. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim.App.1999); Hamel v. State, 916 S.W.2d 491, 493 (...

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