Zuliani v. State

• Decision Date: 05 February 2003
• Docket Number: No. 1168-01.,1168-01.
• Parties: Gerald ZULIANI, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

97 S.W.3d 589

Gerald ZULIANI, Appellant, v. The STATE of Texas.

No. 1168-01.

Court of Criminal Appeals of Texas.

February 5, 2003.

COPYRIGHT MATERIAL OMITTED

Ray Bass, Austin, for appellant.

Ken Oden, County Attorney, Matthew Paul, State's Attorney, Austin, for state.

PRICE, J., delivered the unanimous opinion of the Court.

In this case, we determine whether the Court of Appeals applied the proper factual sufficiency standard concerning the jury's rejection of self-defense, and whether a statement made twenty hours after an altercation, made in response to a question, and made after the declarant appeared to be thinking about her answer was an excited utterance. We believe that the hearsay statement is an excited utterance but, because the Court of Appeals did not apply the correct factual sufficiency standard, we will reverse.¹

FACTS

On February 2, 1999, the appellant and Patti Dwinell had an argument that escalated into a physical confrontation. The appellant pushed Dwinell backwards, which caused her to fall, hit her head on a bookcase and cut her scalp. It is this conduct that eventually led to the appellant's conviction for assault. The events preceding the injury, however, are in dispute because Dwinell has told two different versions of what happened that night.

Dwinell's first version was told to her sister, Judy Tobey. Tobey, her husband, and the police went to the appellant's and Dwinell's home on February 3, 1999. Tobey received a call from Dwinell's employer that Dwinell had not come into work. Tobey was unable to contact Dwinell, but Tobey's husband eventually reached Dwinell on the telephone. Dwinell's responses on the telephone were disjointed and she whispered, "help me, help me, help me." The Tobeys called the police and then went to Dwinell's residence.

When the police arrived at the residence, the appellant said that Dwinell was sick, taking medication, and needed rest.² The officer said that he needed to make sure that everyone was all right, and Dwinell came out of the bedroom. Dwinell appeared meek, withdrawn, and fearful, and the cut on her head was visible. She whispered, "help me" to the officer, but she refused to tell the officer what had happened. Tobey and her husband then arrived.

At the request of the officer, Tobey took Dwinell into a separate room to try to find out what had happened. According to Tobey, Dwinell was reluctant to say what had happened. Tobey described Dwinell as despondent and like a scared little girl. Tobey could sense that Dwinell wanted to tell, so she took Dwinell's hands, looked her in the eye, and asked what had happened. After a few seconds, Dwinell eventually told Tobey that she and the appellant had been fighting, that the appellant had restrained her, that she pushed the appellant down, and that the appellant got back up and pushed her down, causing the cut on her scalp.³

Dwinell told her second version at trial. Dwinell was called by the State, but invoked her Fifth Amendment privilege against self-incrimination and refused to testify. After testimonial immunity was granted, Dwinell said that she and the appellant had been arguing about her daughter. The appellant took a cigarette out of her mouth and reminded her that as part of her recovery from thyroid surgery, she was not to smoke. Dwinell became angry, insults were exchanged, and Dwinell slapped the appellant. The appellant put Dwinell in a bear hug and made her promise to stop hitting him. When the appellant released Dwinell, Dwinell pushed him down. As he began to get back up, Dwinell swung at the appellant. The appellant put his arm out and pushed Dwinell away, which caused Dwinell to fall and cut her head. After hearing this conflicting testimony, the jury found appellant guilty of assault.

On appeal, the appellant argued inter alia that the finding that the appellant did not act in self-defense is factually insufficient, and that the trial court erred in allowing Tobey to repeat the Dwinell's hearsay statements. Zuliani v. State, 52 $.W.3d 825 (Tex.AppAustin, 2001). The Court of Appeals held that the rejection of the appellant's self-defense issue was not against the great weight and preponderance of the evidence. Id. at 833. The Court of Appeals also held that, even though what Dwinell told Tobey was in response to a question and twenty hours after the fight, the trial court could have found Dwinell's statement was an excited utterance. Id. at 828. In this Court, the appellant argues that the Court of Appeals incorrectly analyzed the factual sufficiency issue and erred by holding Dwinell's statement to Tobey was an excited utterance. We agree with the appellant that the Court of Appeals incorrectly analyzed the factual sufficiency issue and will reverse.

A. Factual Sufficiency

The Texas Constitution vests the courts of appeals with the ability to conclusively review questions of fact brought before them. TEX. CONST. art. V, § 6; Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997). Although we may not do our own factual sufficiency review,⁴ this Court has jurisdiction to determine whether the courts of appeals have applied the correct standard of review and the correct rule of law concerning the factual sufficiency of the evidence. Ibid.

Evidence can be factually insufficient in one of two ways: (1) the evidence is so weak as to be clearly wrong or manifestly unjust, or (2) the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000). These standards encompass the complete civil appellate law formulation for factual insufficiency. Ibid.

Which standard applies generally depends on whether the complaining party had the burden of proof at trial. Id. at 9-10. If the complaining party did not have the burden of proof at trial, then the first or manifestly unjust standard applies. Id. at 10. If the complaining party on appeal had the burden of proof at trial, then the second or against the great weight and preponderance standard applies. Ibid.

We have, however, slightly modified this approach when a defendant challenges the factual sufficiency of a guilt finding. If the defendant challenges the factual sufficiency of the elements of the offense on appeal, even though the State has the burden of proof, the reviewing court must review the evidence using both standards. Id. at 11; see also Goodman v. State, 66 S.W.3d 283, 285 (Tex.Crim.App. 2001). In other words, the reviewing court asks whether "a neutral review of all the evidence ... demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson, 23 S.W.3d at 11.

In the context of a rejected affirmative defense on a defendant's appeal, the reviewing court uses the second standard and determines whether the finding against the affirmative defense was so against the great weight and preponderance of the evidence as to be clearly wrong. See id. at 10. However, in this case, we are dealing with self-defense, which is classified as a defense, as opposed to an affirmative defense. With a defense, the burdens at trial alternate between the defense and the State.

In Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App.1991), we explained the burdens involved in a defense under Penal Code section 2.03 and the proper analysis under a legal sufficiency challenge. We said a defendant bears the burden of production, which requires the production of some evidence that supports the particular defense. Id. at 913. Once the defendant produces such evidence, the State then bears the burden of persuasion to disprove the raised defense. Id. at 913-14. The burden of persuasion is not one that requires the production of evidence, rather it requires only that the State prove its case beyond a reasonable doubt. Id. at 913. When a jury finds the defendant guilty, there is an implicit finding against the defensive theory. Id. at 914.

We have not discussed the proper standard of review in light of Johnson⁵ when analyzing a defense. Lower courts of appeals have reviewed such challenges under Clewis v. State, 922 S.W.2d 126 (1996), which expressly enunciated the "against the great weight and preponderance" standard of review.⁶ E.g., Shaw v. State, 995 S.W.2d 867, 868 (Tex.App.-Waco 1999, no pet.) (applying Clewis standard to self-defense review); Reaves v. State, 970 S.W.2d 111, 116 (Tex.App.-Dallas 1998, no pet.) (same).

Before Johnson clarified Clewis, the Dallas Court of Appeals combined the standards in Clewis and Saxton to formulate a factual sufficiency standard involving the rejection of a defense. Reaves, 970 S.W.2d at 115-16. Under Reaves, in determining a challenge to the sufficiency of the evidence to support the jury's finding, beyond a reasonable doubt, against a defendant's self-defense issues, the court considered all of the evidence in the record probative of the defendant's guilt. Also, the court considered all of the evidence in the record probative of defendant's selfdefense issues and decided if the finding of guilt, beyond a reasonable doubt, and the implied finding against the self-defense issues, beyond a reasonable doubt, are so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 116. We agree with this approach, but we must modify it in light of Johnson.

As explained above, the State has the ultimate burden of persuasion when confronted with a section 2.03 defense. Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim.App.1991). The State's burden is proving its case beyond a reasonable doubt. Id. at 913. Therefore, we hold that when a defendant challenges the factual sufficiency of the rejection of a defense, the reviewing court reviews all of the evidence in a neutral light and asks whether the State's evidence...