Reed v. State

• Decision Date: 26 August 2016
• Docket Number: NO. 02-15-00173-CR,02-15-00173-CR
• Parties: DON REED APPELLANT v. THE STATE OF TEXAS STATE
• Court: Texas Court of Appeals

DON REED APPELLANT v. THE STATE OF TEXAS STATE

NO. 02-15-00173-CR

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

August 26, 2016

FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

TRIAL COURT NO. F-2012-2654-C

MEMORANDUM OPINION¹

In three issues, Appellant Don Reed appeals his conviction for assault. See Tex. Penal Code Ann. § 22.01 (West Supp. 2016). We affirm.

Background

This appeal arises out of an altercation between Appellant and his girlfriend, Miriam.² As a result of the altercation, Appellant was indicted forassaulting Miriam, a person with whom he had a dating relationship, by impeding her breath, a third-degree felony. See id. § 22.01(a), (b)(2)(B).

At trial, the jury heard the audio recording of a 9-1-1 call placed shortly after midnight on July 15, 2012, by Kendra, Miriam's then-11-year-old grandchild.³ Kendra's first words in the recording were, "My Pawpaw is putting his hands on my grandma." In the background, a man and a woman could be heard arguing. Kendra then began to cry audibly as she told the 9-1-1 operator that she was scared and that her grandfather was hitting and slapping her grandmother. After almost five minutes, Miriam got on the phone and told the 9-1-1 operator that Appellant had entered the home and "jumped on [her]." She said that he hit her and was "choking her" and that she "had scratches." She also said that he was drunk, banging on her door, and trying to get the keys to drive his car away.

Officers Jennifer Cackler and Joseph Kaufman of the Carrollton Police Department responded separately to the 9-1-1 call dispatch. Officer Kaufman reached the apartment first and made the initial contact with Miriam. At trial, Officer Kaufman described Miriam as "distraught" and testified that it took him some time to "get her to calm down to where [he] could actually kind of makesense of what was going on."⁴ Officer Kaufman also testified that he noticed scratches along Miriam's neck and chest area.

A video recording taken by a camera on Officer Kaufman's police car did not visibly capture his conversations with Miriam, but it did record some of the audio of their interactions.⁵ This video was admitted into evidence and played for the jury. On the video, Miriam can be heard describing the altercation:

Miriam: [inaudible] my girlfriend had took me to the [inaudible] on Belt Line and Midway. I came back, he had told me I was lying, call her, he had the phone, he yanked it out of my hand, I was trying to call her, he just started hitting me. So I—I—I tried to defend myself the best that I could because he's a big man so—he just kept on, he broke all that stuff, slammed it over me, all of it, did all of this [inaudible] he—he was trying to kill me.

Officer Kaufman: He was strangling you?

Miriam: He was strangling me.

While Officer Kaufman spoke to Miriam, Officer Cackler located Appellant in the apartment complex's pool area, where he appeared to be attempting to hide underneath a lawn chair.⁶ Officer Cackler asked Appellant, who she described as cooperative, to come over to her, and he climbed over the gate leading into the pool area to reach her. At this point Officer Cackler noticed thatAppellant smelled of alcohol and had red, bloodshot eyes. According to Officer Cackler, Appellant told her that "he had been in a verbal argument with his girlfriend but there had not been any kind of physical altercation between the two." At that point, Officer Cackler summoned Officer Kaufman over to speak with Appellant.

Officer Kaufman testified, "I asked him what had happened. He admitted that they had gotten into it. He was upset that when he called no one answered, and so he was afraid that the granddaughter was home alone. He admitted to a verbal disturbance but said there was nothing physical."⁷ Officer Kaufman also observed signs of intoxication—describing Appellant as unsteady on his feet, swaying back and forth, with "droopy, watery, bloodshot eyes" and a "strong odor of an alcoholic beverage about his person."

Officer Kaufman placed Appellant under arrest, and Officer Cackler transported him to jail⁸ while Officer Kaufman returned to the apartment in order to obtain a written statement from Miriam. Officer Kaufman also obtained a written statement from a neighbor and took photos of Miriam and the apartment.

In the video recording, Miriam can be heard telling Officer Kaufman that Appellant broke the phone when she tried to call 9-1-1, and that he also broke her glasses and her lamp. At trial, Officer Kaufman recalled that Miriam told him that Appellant strangled her for approximately one to two minutes, that she had almost lost consciousness, and that while Appellant was choking her, she had been afraid that she was going to die. Officer Kaufman testified, "I recall asking her about how hard she thought he was squeezing around her neck, and she—she said, in her words, a hundred percent."

Officer Kaufman testified that Miriam also reported to him that she "had somewhat of a sore throat and was having difficulty swallowing." On the video recording, Miriam answered "Yes" when Officer Kaufman asked if she had experienced difficulty breathing when Appellant was choking her. When Officer Kaufman asked if Appellant had hurt her before, Miriam responded, "No. This was his first and last." She also asked for an emergency protective order and said she would not invite him back to the house.

Officer Kaufman took photos of Miriam before leaving the scene, and these photos depict visible scratches on Miriam's chest leading to her neck. Officer Kaufman testified that there were no handprints on her neck, but he added that, in his experience, it is not uncommon for no visible hand or thumbprints to be left behind when someone is strangled.

At trial, Miriam testified that she dated Appellant on and off for about ten years, and although they were no longer dating at the time of trial, they remainedfriends, and she still loved him. On the night of July 14, 2012, Miriam had gone out to a Mexican restaurant with a girlfriend to celebrate her upcoming birthday. Miriam testified that while she was at the restaurant, Appellant called the home, spoke with Kendra, and became concerned that Kendra was home alone. Shortly after Miriam returned home, Appellant arrived at the apartment, came into her bedroom where she was sitting on the bed, and asked her where she had been. Miriam testified that he was not upset with her, but she also testified that Appellant did not believe that she had been out with a girlfriend. According to Miriam, when she tried to call her girlfriend on the phone to verify the truth of her story, Appellant became upset, and he took the phone out of her hand and broke it. Appellant and Miriam then began to argue, and at some point he hit her on the arm. Miriam then picked up a lamp to use to strike Appellant with, and she testified that she was "pretty sure" she was successful in doing so.

Miriam admitted that she did not want to testify, and she vacillated in her testimony as to whether Appellant had choked her.⁹ At times, Miriam denied that Appellant had choked her and testified that they were both fighting with each other. When asked if Appellant put his hands around her throat, Miriam responded that he held her down, but "not around [her] neck," because she had a box cutter in her hand. But Miriam also admitted that Appellant said, "B***h, I'llkill you," when he was choking her, that she told Officer Kaufman that Appellant had strangled her, and that she had provided a written statement to the police that he had choked her.

Miriam tried to explain her statements to police by saying that she was mad at the time, that she could "handle [her]self,"¹⁰ and that it had been a mutual fight. Miriam testified that she did not recall telling the officer how much force Appellant used, whether it had prevented her from breathing, whether her throat was sore, whether she had any trouble swallowing, whether she was lightheaded or going to pass out, or that she thought Appellant was going to kill her. When asked if she thought that she may have exaggerated the events of that evening because she was upset, Miriam said, "Yes." When asked, "And you're telling this jury at no point did [Appellant] put his hands around your neck?" Miriam answered, "He—he did not, ma'am." She further testified, "it's done and it's over with. [Appellant] is a good man. . . . [C]ome on now. I just want it done with. It's been prolonged for three years. Three years is a long time."

Miriam explained that she had signed two affidavits of nonprosecution, one in 2013 and one in January of 2014, both requesting that the District Attorney not prosecute the charges against Appellant. In the first affidavit of nonprosecution, Miriam stated that she had not told the officer everything on the night of the altercation and that she and Appellant had been in a mutual fight.

Investigator Gerald Hoenig of the District Attorney's Office testified that he had worked on this case and that Miriam was initially cooperative but became less so as time went on, stating that "she became more difficult and more reluctant to be cooperative" each time he attempted to serve her with a subpoena to appear in court. Investigator Hoenig continued, "In fact, she said that she did not want to come to court and she just wanted the whole issue to go away."

Cassidy Baker, a former victim intervention specialist in the felony family violence division of the District Attorney's Office,¹¹ also testified to Miriam's initial cooperation and her later reluctance to cooperate. Baker testified that she had spoken to Miriam on August 8, 2012, shortly after the altercation, and Miriam had confirmed the accuracy of the statement she had given to the police on July 15. Miriam also reported to Baker during that phone call that Appellant had apologized for the altercation and told her that he was willing to face the consequences of his actions. Baker testified that Miriam never told her...