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Wilkinson v. State

Court of Appeals of Texas, Fourteenth District

April 27, 2017


         On Appeal from the County Criminal Court at Law No. 11 Harris County, Texas Trial Court Cause No. 2015799

          Panel consists of Justices Jamison, Wise, and Jewell.


          Martha Hill Jamison Justice.

         Appellant Jeffrey Lynn Wilkinson appeals from his misdemeanor conviction for assault involving family violence. After a jury found appellant guilty, the trial court assessed his punishment at one year confinement and suspended that sentence for two years. In five issues, appellant contends the trial court erred in admitting certain hearsay evidence, including an EMS incident report, Facebook posts by the complainant, and several statements by the complainant and her friend. We affirm.


         Appellant was charged with assaulting his wife; however, by the time of trial, the complainant had recanted her earlier statements, and she testified that she did not know how she sustained her injuries. The State therefore relied on other evidence to prove appellant's guilt. Crystal Farr, the complainant's friend, testified that in the early morning hours of March 20, 2015, she observed posts from the complainant on Facebook that caused her concern. Screenshots of the Facebook posts in question were admitted as State's exhibit 1 over a hearsay objection. The posts included the following statements, apparently by the complainant: "My husband is angry again I and [sic] can't stop being scared . . . trying, tried, nobody will listen. I was afraid to tell anyone. I finally did and it seems like I didn't. Can anyone hear me? Don't know what to do." "Always drunk at night and in a rant. Why am I here? He's yelling right now telling me I come from a family w/o money." "I'm scared and freaking ou[]t." Exhibit 1 also reveals that Farr was one of the people communicating with the complainant on Facebook that morning. At one point, Farr posted "I have been trying to call you[, ] your phone is going straight to voicemail and mailbox is full." Another person asked the complainant if appellant had "layed [sic] a hand on her" and requested the complainant text the person, but the complainant replied "can't." Another person then posted, "Anyone know where she lives have the police go by there check on her [sic]."

         Farr, who lived about three hours away from the complainant, called 9-1-1 and requested a "welfare check" on the complainant. Farr then managed to reach the complainant on the phone after numerous attempts. According to Farr, the complainant was crying, fearful, panicked, and hysterical. The complainant told Farr that appellant had hit her, that they had been drinking, they argued, and then he hit her. The complainant then left the house and drove away in her car. Farr further stated that the complainant texted two photographs of herself to Farr, showing a cut above her eye that was bleeding. At some point, a police officer called Farr from the complainant and appellant's residence. Based on her conversation with the officer, Farr instructed the complainant to drive to a police station. Farr also said that she could hear appellant in the background during the call with the officer, and appellant said, "That b**** called the cops on me. Wait until she gets here. I'll get her."

         Farr further testified that in the afternoon of the same day, she again talked to the complainant on the phone. The complainant said that the abuse had been going on since right after she became pregnant with the couple's toddler son. The complainant further expressed fear that her ex-husband, not appellant, would take custody of her older daughter because of the abuse. A few days later, when Farr and the complainant spoke again, the complainant indicated that she had been verbally and emotionally abused in addition to physically. The complainant also revealed that she was again living with appellant. By August 2015, the complainant said that she was not afraid of appellant and did not want the case against him to go forward. Farr indicated that she and the complainant were no longer friends. Farr also said that she lost the pictures of the complainant's injuries.

         Deputy Harris County Constable Kristen Boethel testified that she was one of the officers who went to the complainant and appellant's residence on March 20, 2015 to perform a welfare check. According to Boethel, appellant took about five minutes to answer the door and then became aggressive, angry, and belligerent towards the officers. Boethel spoke to Farr on the telephone, and Farr reported that the complainant had been assaulted by appellant and Farr had received photographs of the complainant's injuries. Boethel also talked with the complainant on the telephone. The complainant sounded frightened and was crying, and she confirmed that appellant had hit and injured her. The complainant agreed to come to the police station, where Boethel observed her disheveled, scared, shaking, and crying, with a cut above her left eye and a knot just below the hairline, blood running down the left side of her face, and with red markings on her cheeks, neck, shoulders, and arms. The facial injuries appeared to be consistent with the complainant being punched in the face. Photographs of the injuries were taken at the station and admitted into evidence. Boethel said that the complainant did not appear intoxicated or otherwise impaired.

         Boethel called EMS to examine the complainant, and the EMS incident report was admitted into evidence over appellant's hearsay objection. The report states in relevant part:

42 year old female was having a verbal argument with her husband. Patient told EMS that the two were arguing when the patient's husband started to hit her repeatedly in the face. Patient was pushed in to closet and struck in the face with per patient possibly a closed fist. Patient told EMS that she did not loose [sic] consciousness. . . . Patient was assessed with only findings being a small abrasion with some swelling to the left side of patient's forehead. Patient also had some dried blood in the same area. . . .

         The complainant signed the report as refusing transport to a hospital.[1]

         The defense called the complainant and appellant to testify. The complainant stated that she told the prosecutor that she did not want appellant prosecuted; in fact, she still lives with appellant, says she is not afraid of him, and previously went to court to urge the judge to allow appellant to stay in their home. She explained that she suffers from panic attacks and takes Xanax for anxiety. She said that the attacks can affect her memory and acknowledged that her Xanax prescription bottle listed a warning to avoid ingesting alcohol while on the medication. The complainant said that on the morning in question she had a couple of beers with a friend at a restaurant, and she and appellant argued when she got home because he was angry that she had been out drinking. She had two more beers during the course of the argument and eventually took a Xanax because she was stressed by the argument and wanted to go to sleep. At some point, she went into the couple's walk-in closet to get away from appellant and go to sleep. When she woke up, she realized that her face had been injured; she became scared and left the house. She said that at the time, she thought appellant had hit her. Now, however, she thinks that the combination of the beers and the Xanax makes her memory of how she got hurt "blurry." Regarding whether appellant hit her that evening, the complainant stated, "I no longer am sure about that." She also said that she could not say for sure that he did not hit her. She thinks he followed her into the closet that morning but her memory is blurry.

         The complainant additionally recounted that about two weeks before the alleged assault, appellant had gotten angry at her, raised his fist, and said "I wish I could. I wish I could." She thinks that this might explain why she thought he had hit her on the morning in question. She also described appellant on more than one occasion pointing his fingers in the shape of a gun at her head and saying he understood why a man would kill his wife.

         On cross-examination, the prosecutor asked the complainant about a written statement she made for Officer Boethel on the morning of the alleged assault. The complainant testified that she believed the statement at the time she wrote it. In the statement, the complainant said that appellant was yelling at her and calling her a horrible mother and would not stop, so she went to the closet to get away from him. The statement further recounts that appellant opened the closet door, screamed at the complainant, and hit her. The complainant left the house scared and drove away.[2]

         In his testimony, appellant acknowledged that he consumed 4-6 beers during the course of the night and early morning hours and that he and the complainant argued about her going out, but he denied hitting her. He also acknowledged becoming aggressive with the officers that came to his house to check on the complainant, but he explained that his reaction was in response to one of the officer's planting a foot inside his doorway.

         Standards ...

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