Stoltz v. State
| Decision Date | 27 July 2011 |
| Docket Number | No. 08-10-00048-CR,08-10-00048-CR |
| Parties | ROY STOLTZ, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the
County Court at Law Number Two
of El Paso County, Texas
(TC# 20080C13983)
OPINIONA jury convicted Appellant, Roy Stolz, of family-violence assault. The trial court sentenced Appellant to one-year confinement, suspended the sentence, and placed Appellant on community supervision for twenty months. Appellant presents five issues on appeal alleging that the trial court erred in failing to grant requested jury instructions and in admitting the complainant's hearsay statement, and challenging the legal and factual sufficiency of the evidence. We affirm.
BACKGROUND
At trial, Cruz Limas-Stoltz testified that she and her husband, Appellant, had separated and, when she moved out, she took their preschool aged daughters, Alexis and Audrey, with her and gave her house key to Appellant. In July 2008, Cruz had surgery requiring bed rest and asked Appellant to care for Alexis and Audrey for two weeks. After her post-surgery follow-up visit, Cruz's physician required an additional two-week recovery period. After doctors released Cruz from medical care, Appellant would not return Alexis and Audrey to her, despite Cruz's requests. According to Cruz, Appellant would not answer her phone calls and she believed Appellant was avoiding her. Appellant asserted that Cruz had left their daughters with him in July but did not makeattempts to see or contact them.
On October 21, 2008, Cruz went to Alexis' preschool to pick her up. Appellant's nineteen-year-old daughter, Ashley, was helping at the preschool and notified her father that Cruz was at the school. The preschool teachers would not release Alexis to Cruz. Upon Appellant's arrival, the preschool released Alexis to both parents who had begun to argue. Appellant held one of Alexis' hands while Cruz held the other. As they walked away from the school, Appellant asked Cruz why she was picking up their daughter and told Cruz that she had no business there. Cruz informed Appellant that he had no right to keep Alexis away from her. Appellant picked up Alexis and walked toward a minivan, and Cruz unsuccessfully tried to retrieve Alexis while pushing Appellant. Cruz testified that Appellant pushed her on the arm and, by the time she regained her posture, Appellant had already placed Alexis in a car seat on the driver's side of his minivan and had closed the door. According to Cruz, Appellant pushed her again and she grabbed the minivan's door handle to keep from falling onto the ground. Cruz pulled herself up, opened the minivan door, had her knee on the floor of the vehicle and her upper body in the van, and was attempting to unbuckle Alexis' car seat when Appellant got into the driver's seat and turned on the vehicle's engine. Ignoring Cruz's warning that she was halfway in the van, Appellant started to drive the minivan. Cruz again yelled that she was in the van but instead of stopping, Cruz testified that Appellant "took off," dragging her about four feet and leaving her on the ground. Cruz testified that she felt pain, suffered "road rash" on her left shoulder, an elbow, the palm of her hand, a knee, and her left calf, and developed a bruise on the arm where Appellant had previously pushed her. At trial, photos of Cruz's injuries were admitted into evidence without objection.
Officer Andrew Fonseca of the El Paso Police Department responded to a dispatch on a possible assault. The trial court initially barred the hearsay testimony of Officer Fonseca regardingCruz's statements to him. Officer Fonseca then clarified that he arrived five minutes after being dispatched to the school where he observed that Cruz had dirt stains on her shirt, was upset and had been crying. Officer Fonseca stated that he tried to calm down Cruz "as best as possible" to learn what happened. Thereafter, over Appellant's objection, the trial court permitted Officer Fonseca to testify regarding Cruz's on-scene report to him about the events that occurred. Officer Fonseca observed that Cruz had scrapes on her left leg, left elbow, and right palm, and stated the injuries were consistent with a fall and with being in close proximity to a vehicle that was being driven away. After concluding his interview with Cruz, he returned to the police station to prepare an arrest warrant for Appellant's assault of Cruz.
Upon arriving at the police station, Officer Fonseca was approached by Appellant who was waiting for him. Without objection, Officer Fonseca testified regarding Appellant's report to him. Appellant advised Officer Fonseca that after he put Alexis into the car seat, he closed the sliding door of the minivan and Cruz opened the door again.1 Appellant stated that he physically put his hands on Cruz and shoved her to keep her away. Appellant then closed the door again and noticed that Cruz was attempting to open the rear sliding door. Appellant stated that he left in the minivan with Cruz still hanging onto the vehicle's door handle, and said that once he left, Cruz fell to the ground but had not been dragged. Appellant informed Officer Fonseca that Cruz did not have any part of her body inside the minivan and explained that she fell because she was "hanging" onto the door handle. Appellant never informed Officer Fonseca that Cruz assaulted him, that he suffered any injuries, or that Alexis was harmed during any of the events.
On cross-examination, Officer Fonseca explained that it is unlawful to restrain the movementof a person's vehicle by hanging onto it, that a person possibly trespasses by opening a door and entering a vehicle, and that it is illegal for someone to enter a vehicle and attempt to remove a child therefrom.
A teaching assistant at the preschool, Monica Blanco, testified that although her view was unobstructed and that she did see Appellant put Alexis in the car, close the door, and drive off, she did not see Cruz on the ground, opening the vehicle door, or trying to remove Alexis from the car. Blanco acknowledged that she did see Cruz attempt to enter the vehicle and observed that Appellant ignored Cruz.
Appellant testified that his daughter, Ashley, called him and he went to the school to find out why Cruz was trying to pick up Alexis. He stated that he was nervous because Cruz had informed him on a previous occasion that she and the children were going to move to Denver without his permission. After arriving at the school and arguing with Cruz, Appellant decided to take Alexis after Cruz called her co-worker who was a constable. According to Appellant, Cruz and the constable had stalked him. Appellant took Alexis to his van and said that as he was putting Alexis in her car seat, Cruz shoved him and demanded that he allow her to take Alexis. Appellant closed the door, entered the minivan, and started the vehicle. When Cruz opened the door and began to "yank" Alexis, Appellant got out of the vehicle and "moved" Cruz with his arm, closed and locked the door, and entered the vehicle again. Appellant testified that Cruz told him not to leave because she was not going to let go of the door handle and that when the constable arrived to arrest him, she would leave with the "kids." Appellant stated, "I don't think so," and put the car in the "drive" gear, even though he was aware that Cruz was holding onto the door handle. Appellant testified that he did not accelerate the minivan and that Cruz walked with the vehicle for a few steps but then tripped and fell. He later testified that he saw Cruz on the ground but did not actually see her fall and saidthat he did not know if she tripped because she had on high heels or if she threw herself on the ground. After the car traveled about one car length, Appellant said he pulled up and exited the vehicle to look and see if Cruz was all right because his intention was "not to hurt her." He observed Cruz getting up from the ground and testified that she smiled at him and prepared to make a phone call. Appellant did not ask Cruz if she was all right because, "[t]he smile alone told me she was okay[.]" Appellant reentered the vehicle and drove away with Alexis. Appellant stated that Cruz was never in the car and that he never touched her. Appellant felt it was necessary to drive off because Cruz was yanking on the door handle "like she was going to break it open" and because Cruz was trying to unsuccessfully remove Alexis from her car seat. Appellant also stated that he felt that his daughter's safety may be in danger if he didn't leave because if the constable arrived, "it was going to be him against me, and I was not going to let my daughter be taken away from me." He then called 911 to report an altercation, and eventually went to the police station to speak with Officer Fonseca.
On cross-examination, Appellant testified regarding and demonstrated the manner in which he pushed Cruz to "make personal space between [them]." He also acknowledged that Cruz was pushing with the intent to get to their daughter rather than actually pushing him. According to Appellant, Cruz assaulted him.
The trial court's charge instructed the jury, in relevant part: (1) to find Appellant guilty if, beyond a reasonable doubt, it found the elements of the offense as charged, and to find him not guilty if it did not so find or if reasonable doubt existed; (2) as to self-defense, that if Appellant acted because of a reasonable belief that the force he used was immediately necessary to protect himself against an unlawful use or attempted use of unlawful force by Cruz due to a reasonable apprehension of danger by Appellant when viewing the facts and circumstances from the viewpoint of Appellantalone, or if the prosecution failed to persuade beyond a reasonable doubt that such facts were untrue, it must acquit Appellant and return a not-guilty verdict; (3) as to necessity, that if Appellant reasonably believed, viewed from his...
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