Macon v. State
| Decision Date | 02 May 2019 |
| Docket Number | NO. 14-18-00103-CR,14-18-00103-CR |
| Parties | STANLEY LESHAWN MACON, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 177th District Court Harris County, Texas
Appellant Stanley LeShawn Macon was charged with continuous family violence for committing two acts of assault within twelve months against women with whom he had dating relationships. The jury convicted him of the lesser offense of assault, and appellant appeals the conviction on the ground that the trial court violated appellant's rights under the Confrontation Clause by admitting part of the recording of a 911 call by an outcry witness who did not appear at trial. We conclude that any error in the admission of this evidence was harmless beyond a reasonable doubt. Thus, we affirm the conviction.
Appellant was indicted for the March 1, 2014, assault of Carla Brantley and the December 27, 2014, assault of Antonisha Montgomery. Because the trial court's alleged error pertains only to the alleged assault of Montgomery, we summarize the evidence pertaining to Brantley only briefly.
Brantley testified that on her second date with appellant, the two went to a restaurant in her car, then stopped at a store before Brantley drove appellant back to his apartment. Brantley stated that when they arrived at appellant's home in the early morning hours of March 1, 2014, appellant pulled her out of the car, causing her to fall and injure her shoulder. Brantley stated that when she stood, appellant began pushing her to his door and punching her in the back of the head. Inside the apartment, appellant allegedly punched Brantley in the eye and took her keys, then went to Brantley's car and retrieved her purse and phone. According to Brantley, appellant kept her locked in his apartment for over two days, letting her go at 6:00 a.m. the following Monday. Brantley immediately called her brother and the police, who met her at her house. Both she and appellant gave statements to the police, and a recording of appellant's statement was played for the jury. According to appellant, he did not hold Brantley against her will, and her bruises were sustained from her own lack of coordination while intoxicated. Appellant's counsel argued that Brantley, who is a certified nurse assistant, injured her shoulder while lifting patients.
Montgomery testified that she met appellant in April 2014 and that she and her daughter moved in with appellant in early December 2014. Montgomery testified that on Saturday, December 27, 2014, she was making dinner when appellant, who had been drinking, said that Montgomery was not listening to him and struck her face. When Montgomery began to clean up a drink that had spilled on the floor, appellant twisted her arm until she screamed, then began kicking her. Montgomery stated that she stood and tried to continue making dinner, but appellant began punching her in her ribs and stomach. Montgomery fell, and appellant allegedly began stomping on her legs, arms, and stomach. According to Montgomery, appellant then put a gun to her head and said,
Montgomery testified that the next day, the left side of her face was swollen; her vision was blurry; she was dizzy; and she could barely walk. She stated that appellant had to help her in and out of the bathtub. On the second day after the assault, she told appellant that she was in pain and had difficulty breathing, but he insisted that she cook for him. Montgomery testified that all that day appellant remained in the apartment and "continued to tell me that I was a dumb B and that he could have blown my brains across that kitchen floor and that it was my fault."
On Tuesday, December 30, 2014, Montgomery knew appellant had a physical-therapy appointment. She testified, "I knew Tuesday was my out and if I was ever going to get out, it was going to have to be Tuesday." She called her cousin Melody Lowery in Humble for help but warned Lowery that appellant had a gun. Montgomery testified that she was afraid for her safety, but she also was afraid of what appellant would do to her cousin if appellant caught Montgomery trying to leave. She concluded that "he would have to be gone in order for me to leave."
Lowery traveled to Houston and waited "around the corner" from appellant's apartment. When appellant left the apartment again that day, Montgomery called Lowery. Lowery and their friend Arnecia Simmons picked Montgomery up from appellant's apartment and drove her to the parking lot of some adjacent apartments. Both Lowery and Simmons called 911, but Lowery hung up after Simmons began speaking with the dispatcher.
Lowery testified that when she saw Montgomery, Montgomery "had a lot of bruises, broken ribs, torn clothes, just really beaten really bad." Lowery further stated that Montgomery could not walk normally and had to be helped into the car. Officer Soren Nguyen, who responded to the call, similarly testified that Montgomery "was hurt really bad" and had "bruises all over her body, her eyes and then she [was] saying her ribs are hurt." Nguyen called for medical assistance, and the responding emergency medical personnel told Montgomery that she needed to be seen in an emergency room, but Montgomery decided to defer going to the hospital. When she did go to the emergency room on January 1, 2015, she was found to have two broken ribs.
Simmons did not testify at trial, but a portion of her 911 call was played to the jury over appellant's objection that admitting this evidence violated his rights under the Confrontation Clause. The jury convicted appellant of the lesser offense of assault, and the trial court sentenced him to one year's confinement in the county jail. Appellant appeals his conviction on the ground that the trial court committed harmful constitutional error in overruling his objection to the redacted recording played for the jury.
The Sixth Amendment's Confrontation Clause provides that a defendant in a criminal prosecution "shall enjoy the right . . . to be confronted with the witnesses against him." See U.S. CONST. amend. VI. This right applies not only to in-court testimony, but also to out-of-court statements that are testimonial in nature. See Crawford v. Washington, 541 U.S. 36, 50-52 (2004). If the statement is testimonial, then the evidence is inadmissible unless the witness who made the statement either (a) takes the stand to be cross-examined at trial, or (b) is unavailable, and the accused had a prior opportunity to cross-examine the witness. Id., 51 U.S. at 54, 124 S. Ct. 1354, 158 L. Ed. 2d 177. Because Simmons did not appear at trial and appellant had no prior opportunity to cross-examine her, neither exception applies in this case. The State argues that the statements were non-testimonial, relying on Davis v Washington, 547 U.S. 813, 822 (2006).
If evidence is erroneously admitted during the guilt-or-innocence phase of the trial in violation of the accused's rights under the Confrontation Clause, we must reverse the conviction unless we determine beyond a reasonable doubt that the error did not contribute to the conviction. See TEX. R. APP. P. 44.2(a); Woodall v. State, 336 S.W.3d 634, 639 n.6 (Tex. Crim. App. 2011); Davis v. State, 203 S.W.3d 845, 852-53 (Tex. Crim. App. 2006). To make that determination, we consider (a) the importance of the out-of-court statement to the State's case, (b) whether the out-of-court statement was cumulative of other evidence, (c) the presence or absence of evidence corroborating or contradicting the out-of-court statement on material points, and (d) the overall strength of the prosecution's case. See Davis, 203 S.W.3d at 852. We also may consider (e) the source and nature of the error, (f) the extent to which the State emphasized the erroneously admitted out-of-court statement, and (g) "how weighty the jury may have found the erroneously admitted evidence to becompared to the balance of the evidence with respect to the element or defensive issue to which it is relevant." Scott v. State, 227 S.W.3d 670, 690-91 (Tex. Crim. App. 2007). Any error in the admission of evidence "is cured where the same evidence comes in elsewhere without objection." Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003); see also Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) ().
We need not decide which of Simmons's recorded statements, if any, were testimonial, because on the record before us,1 we conclude beyond a reasonable doubt that the content of the 911 call played to the jury did not contribute to appellant's conviction. We begin with the content of Simmons's statements.
After Simmons answered the dispatcher's questions about her name, phone number, and location, Simmons and the dispatcher had the following exchange, often speaking at the same time:
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