James v. State , 02–09–00334–CR.

• Decision Date: 10 February 2011
• Docket Number: No. 02–09–00334–CR.,02–09–00334–CR.
• Citation: 335 S.W.3d 719
• Parties: Ogden JAMES, Appellant,v.The STATE of Texas, State.
• Court: Texas Court of Appeals

335 S.W.3d 719

Ogden JAMES, Appellant,

v.The STATE of Texas, State.

No. 02–09–00334–CR.

Court of Appeals of Texas, Fort Worth.

Feb. 10, 2011.

Brian Salvant, The Salvant Law Firm, Fort Worth, for Appellant.Paul Johnson, Crim. Dist. Atty., Charles E. Orbison, Chief, Appellate Division, Catherine Luft, Ryan Calvert, Matthew J. Shovlin, Asst, Crim. Dist. Attys., for Denton County, Denton, for State.PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

OPINION

BILL MEIER, Justice.

I. INTRODUCTION

Appellant Ogden James appeals his conviction for assault-family violence. In two issues, James argues that the trial court erred by admitting a police officer's improper expert opinion testimony and by prohibiting him from questioning the complainant about a prior incident in which she allegedly attacked him. We will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

Ogden James and Maggie Bryan had a dating relationship and lived together. On March 20, 2009, Maggie was sitting on her porch when James, who was mad that he had to move out, kicked her in her back. Maggie fell off the porch and struggled to prevent James from hitting her.

At about 10:15 p.m. that night, Officer Jamie Fletcher responded to a domestic disturbance call at Maggie's residence. James was standing in the front yard when Officer Fletcher arrived. He told Officer Fletcher that Maggie had accused him of sleeping with another woman and had attacked him. Officer Fletcher noticed that James had a couple of scratches on his face. She went inside and found Maggie, who was “kind of shaking” and had been crying. Maggie told Officer Fletcher that James had assaulted her; she said James had choked her, and she pointed out a small cut on her leg and a mark on one of her arms where she said James had grabbed her.¹ Officer Fletcher noticed that both James and Maggie had been drinking and that Maggie was more intoxicated than James, but that both were at the “lower end” of the intoxication scale. Concluding that both James and Maggie were “aggressors” in the incident and that neither one had injuries that were any worse than the other's injuries, Officer Fletcher decided not to arrest either one but to try to separate them to prevent any further arguments or violence.² James agreed to leave, and Officer Fletcher advised him that “if you come back and something happens and there's another altercation, somebody is going to go to jail.” Maggie went to bed.

Sometime later that night, James burst through Maggie's front door and attacked her, hitting her multiple times on her face and head with his fist. Terrified, Maggie tried to call 911 in the midst of the assault.

At about 1:42 a.m., Officer Fletcher received a second call regarding Maggie's residence and was the first officer to respond. She approached the house and heard yelling, screaming, and “banging around” from inside; it sounded to Officer Fletcher like someone or something was getting thrown around. After backup arrived, Officer Fletcher knocked on the door. Maggie opened the door with James right behind her. Officer Fletcher observed that Maggie was under the strain of some kind of trauma that she had just experienced and that she looked different than she did earlier in the evening when Officer Fletcher responded to the first call; her face was covered in blood, her left eye was “completely bruised and swollen shut,” she had blood coming out of her eye, and she had a cut on her swollen face. Crying and very upset, Maggie told Officer Fletcher, “he did this to me,” which Officer Fletcher interpreted to be in reference to James. Officer Fletcher called an ambulance that transported Maggie to the hospital. Maggie's injuries included a one-inch laceration under her left eye and multiple bruises and abrasions all over her body and face.

James told Officer Fletcher that Maggie had called or texted him to come back to the house after he had left, that he was worried she would do something to his property, that she attacked him when he returned, and that he had acted in self-defense. Officer Fletcher examined James for new injuries, but she did not notice that he had suffered any injuries that he did not have when she saw him during the first call earlier in the evening. Officer Fletcher arrested James, and her backup officer took him to jail.

A jury convicted James of assault—family violence and sentenced him to twenty years' confinement. James appeals.

III. OBJECTIONS TO OFFICER FLETCHER'S TESTIMONY

A. Testimony About Maggie's Condition

In the first of two arguments James raises in his first issue, he contends that the trial court abused its discretion by permitting Officer Fletcher to explain that she called an ambulance for Maggie because Maggie had the “crap” beat out of her. The following exchange occurred at trial:

Q. And tell me why you did that. Why did you call for an ambulance?

A. Because she had just had the crap beat out of her and she needed immediate medical attention.

[Defense Counsel]: Objection, Your Honor. She testified she thought she needed medical attention, but “he beat the crap out of her” is speculation on her part. It's a characterization.

THE WITNESS: I used to be an EMT, so I do have medical training.

THE COURT: What is your legal objection?

[Defense Counsel]: Asking for a ruling on the objection. I believe it's a statement of opinion on her part, and also, it's something she's not qualified to testify to. She can state that she thought she needed medical attention; I don't have a problem with that. But she called the medic.

THE COURT: Overruled.

James argues that Officer Fletcher's testimony that Maggie “had just had the crap beat out of her and she needed immediate medical attention” (1) was an improper causation or medical opinion because “there were no qualifications given by Officer Fletcher prior to her opinion that [James] beat the ‘crap’ out of the victim” and (2) amounted to a legal conclusion because it “dealt with the ultimate issue of whether [James] assaulted the alleged victim.”

We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex.Crim.App.), cert. denied, 549 U.S. 1056, 127 S.Ct. 664, 166 L.Ed.2d 521 (2006); Montgomery v. State, 810 S.W.2d 372, 379 (Tex.Crim.App.1991) (op. on reh'g). We reverse only when the trial court's decision was so clearly wrong as to fall outside the zone of reasonable disagreement. See Oprean v. State, 201 S.W.3d 724, 726 (Tex.Crim.App.2006). We uphold the trial court's ruling if it is reasonably supported by the record and correct under any theory of law applicable to the case. See Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App.2002).

Rule 701 covers the testimony of a “traditional” witness—one who personally witnessed or participated in the events about which he is testifying. Ellison v. State, 201 S.W.3d 714, 723 (Tex.Crim.App.2006) (citing Osbourn v. State, 92 S.W.3d 531, 535 (Tex.Crim.App.2002)). It provides that such a “witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.” Tex.R. Evid. 701; Ex parte White, 160 S.W.3d 46, 53 (Tex.Crim.App.2004). The requirement that an opinion be rationally based on the perception of the witness is composed of two parts: (1) the witness must establish personal knowledge of the events from which his opinion is drawn and (2) the opinion drawn must be rationally based on that knowledge. Fairow v. State, 943 S.W.2d 895, 898 (Tex.Crim.App.1997); Scott v. State, 222 S.W.3d 820, 828 (Tex.App.-Houston [14th Dist.] 2007, no pet.).

In this case, Officer Fletcher testified that she responded to two separate disturbance calls at Maggie's residence. At the first call, Maggie told Officer Fletcher that James had assaulted her; she said that James had choked her, and she pointed out a small cut on her leg and a mark on one of her arms where she said James had grabbed her. Officer Fletcher observed that Maggie was “kind of shaking” and had been crying.

At the second call, before knocking on the front door, Officer Fletcher heard yelling, screaming, and “banging around” from inside Maggie's house. She testified that it sounded like someone or something was getting thrown around. When Maggie opened the front door, Officer Fletcher observed that Maggie looked different than she did at the first call—her face was covered in blood, her left eye was “completely bruised and swollen shut,” she had blood coming out of her eye, and she had a cut on her swollen face. Maggie was also crying and very upset, and she told Officer Fletcher, “he did this to me.” Officer Fletcher interpreted Maggie's statement to be in reference to James, who was the only other person there.

Officer Fletcher's opinion that Maggie “had just had the crap beat out of her” was thus based on and derived from her cumulative personal knowledge that James and Maggie had a physical altercation earlier in the evening; that she heard yelling, screaming, and “banging around” from inside Maggie's house; that Maggie answered the door with a swollen, bloody face and a swollen, shut eye that she did not have at the first call; and that Maggie told her that James “did this.” See Fairow, 943 S.W.2d at 898. Based on her personal knowledge of these facts, her opinion was also rational. See id. Accordingly, Officer Fletcher's opinion that Maggie “had just had the crap beat out of her” was rationally based on events that she personally perceived during the calls at Maggie's residence and, therefore, met rule 701's criteria that opinion testimony by a lay witness be based on events that the witness personally perceived. See Tex.R. Evid. 701.

Regarding rule 701's other requirement, Officer Fletcher's opinion was helpful to the determination of a fact in...