Sohail v. State

• Decision Date: 21 February 2008
• Docket Number: No. 01-06-00682-CR.,01-06-00682-CR.
• Citation: 264 S.W.3d 251
• Parties: Sheikh Mohammed SOHAIL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

264 S.W.3d 251

Sheikh Mohammed SOHAIL, Appellant, v. The STATE of Texas, Appellee.

No. 01-06-00682-CR.

Court of Appeals of Texas, Houston (1st Dist.).

February 21, 2008.

Rehearing Overruled April 8, 2008.

Discretionary Review Refused October 1, 2008.

Stephen A. Doggett, Richmond, for Appellant.

John F. Healey Jr., Fort Bend County District Attorneys Office, Chad E. Bridges, Assistant Criminal District Attorney, Fort Bend County, Richmond, TX, for Appellee.

Panel consists of Justices TAFT, KEYES, and ALCALA.

OPINION

ELSA ALCALA, Justice.

Appellant, Sheikh Mohammed Sohail, appeals from a judgment convicting him for Class A misdemeanor domestic violence assault. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b) (Vernon 2007). Appellant pleaded not guilty. The jury found him guilty and the trial court sentenced him to 365 days in jail, suspended for two years' community supervision, and a $2000 fine. After complainant refused to testify by invoking her right against self-incrimination, the trial court determined appellant's misconduct was the cause of complainant's unavailability and allowed the State to introduce her out-of-court statements that appellant punched her in the face. In three issues, appellant challenges the trial court's evidentiary rulings that (1) admitted complainant's out-of-court statements relating that appellant assaulted her; (2) excluded complainant's out-of-court statements denying that appellant assaulted her; and (3) disallowed appellant's attorney's questions to complainant to determine her reasons for invoking her right not to testify. We conclude that the trial court did not abuse its discretion by admitting the out-of-court statements offered by the State and by disallowing appellant's repeated questioning of complainant about her reasons for invoking her right not to testify. However, the trial court did abuse its discretion by refusing to allow appellant's sister to testify about inconsistent statements made by complainant, but we conclude that the error was harmless. We affirm the judgment of the trial court.

Background

Complainant, Saima Qureshi, and appellant were joined through an arranged marriage in 1991, in a union that produced four children. It is undisputed that, on the morning of September 30, 2004, when complainant was eight months pregnant, appellant struck her on the right side of her face while they were at their house in Sugar Land. According to appellant and his mother, who was present at the house, appellant accidentally hit complainant in a reflex action when she spilled hot tea on him. Complainant, however, described the strike by stating that appellant intentionally hit her. After she was struck, complainant flew from Houston to Carrollton in Dallas County, Texas to her parents' house, bringing nothing with her but the clothes she was wearing. While complainant was on the way to her parents' house, appellant called them, stating, "I have sent your daughter back and I'm going to see you in court."

When complainant arrived at her parents' home, she was shaking and crying. Complainant's parents saw a bruise on her right eye. After complainant's mother learned from complainant what happened in Houston, she telephoned the local police. Complainant did not want to call the police because, according to complainant's mother complainant said that appellant threatened to kill their children if she called the police.

Sergeant McCraw of the Carrollton Police Department obtained a statement from complainant on the same day as the assault. When he spoke to complainant, she was upset and crying. The Sergeant said that he saw a large bump on the side of her head near her right eye that was beginning to bruise, as well as a large red abrasion in that area. The injuries were recorded in photographs.

When complainant returned to Sugar Land a day or two later, accompanied by her mother, she met Officer Liedy of the Sugar Land Police Department, who took complainant's statement, wrote a report, and photographed the injuries. Officer Liedy saw complainant's black eye. Sugar Land Police Department Officer Cummins, who later met complainant, also observed the black eye and bump on complainant's head. Complainant, her mother, Officer Cummins, and another officer went to complainant's house to retrieve complainant's hearing aid, medications, and some clothing, but they could not enter the house because no one answered the door and complainant did not have a key.

When the group returned to the house later that day, appellant answered. Officer Cummins described complainant's reaction to seeing appellant was that complainant "wouldn't move; and she—it was very apparent that she was scared." Officer Cummins said that complainant would look at appellant and then look away. Complainant asked appellant permission to enter the house. When the officer asked appellant about the claims against him, he became visibly upset as he raised his voice. As the group left the residence, appellant started screaming in a "very aggressive" tone in a language that the officer did not understand. Later that night, complainant called the officer to report that appellant was calling her, threatening to take her kids away from her. The officer called appellant to tell him not to call complainant. The following day, Officer Cummins returned to the residence for a welfare check on appellant. Appellant said that complainant's family would not let him speak to complainant because he hit her. Appellant did not tell the officer that the physical strike was a mistake or accident.

In the week while her mother was in Sugar Land, complainant stayed with a friend and obtained a protective order. At around the time the protective order was issued, appellant agreed with members of the Pakistani community to allow complainant to live in the house while he resided elsewhere. During a visit to a hospital to see a sick relative, complainant's mother was approached by appellant and his mother, who asked for forgiveness as they fell to complainant's mother's feet. Complainant's mother told them to leave because the hospital room was not the proper place for that behavior. Soon after complainant's mother left for Dallas, complainant dropped the protective order because, according to complainant's mother, "he forced her to." Appellant moved back into the house, where he has stayed since.

Complainant called her obstetrician, Dr. Durrani, to explain why she missed her appointment that was scheduled for October 1. When complainant appeared on October 6, the doctor was concerned about physical trauma that could injure the fetus. Dr. Durrani testified from complainant's medical records that were admitted into evidence. The doctor explained that the information about the physical confrontation was "utilized in assessing her medical treatment." The doctor testified that he saw a bruise on her right eye and he felt a bump on her head. The doctor recommended that, at least until the birth of the child, complainant reside separately from appellant, and complainant agreed with his recommendation. Appellant introduced evidence that, during the medical examination, complainant's mother, who was present the entire time, said complainant "is abused."

At trial, the State called complainant as its first witness. After stating her name and address, complainant invoked her right against self-incrimination. Outside the presence of the jury, counsel for the State guaranteed complainant transactional immunity for anything stated at trial about the assault, but she persisted in her refusal to testify. The trial court held complainant in contempt of court, but complainant continued to refuse to testify. Complainant had her own attorney present during the hearing. Appellant later attempted to make a bill of exception by asking complainant to state her reasons for not testifying, but she refused to state the reasons by stating nothing more than that she was invoking her right against self-incrimination.

The trial court conducted a hearing outside the presence of the jury to determine whether complainant's out-of-court statements would be admitted at trial. The State's theory was that the out-of-court statements were admissible because the reason that complainant was unavailable as a witness was appellant's threats against her. Appellant's position was that the law allowed the out-of-court statements if the State proved appellant's wrongdoing was done with the intention of preventing the complainant from testifying, but that the State could not prove that here because the complainant's refusal to testify was not due to appellant's misconduct. Appellant's theory for complainant's refusal to testify was that she feared prosecution for perjury because she gave inconsistent statements about whether appellant had intentionally struck her. Outside the presence of the jury, the State presented witnesses to support its theory that appellant's wrongdoing caused complainant's failure to testify. The trial court ruled that complainant's refusal to testify was due to appellant's wrongdoing and allowed the admission of the out-of-court statements offered by the State.

The State introduced out-of-court statements by complainant, over appellant's objections that the statements were hearsay admitted in violation of appellant's federal and state constitutional rights to confrontation and cross-examination. Sergeant McCraw, who saw complainant in Carrollton on September 30, testified that complainant said that appellant assaulted her that day by striking her head with his closed fist, causing her pain. She also told him that she attempted to call 911 to report the assault but appellant grabbed the telephone from her to strike her on the head with it before throwing it across the room. Complainant's mother testified that she was told by complainant, "My husband hit me with a closed fist in my eye and then I tried to call 911. So, he yanked the phone from my...