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Jones v. State

Court of Appeals of Texas, First District

August 1, 2017


         On Appeal from the 248th District Court Harris County, Texas Trial Court Case No. 1452040

          Panel consists of Justices Jennings, Keyes, and Brown.


          Evelyn V. Keyes Justice.

         A jury convicted appellant, Dedric D'Shawn Jones, of the third-degree felony offense of assault on a family member, second offender.[1] After appellant pleaded true to the allegations in two enhancement paragraphs, the trial court assessed his punishment at twenty-five years' confinement. In two issues, appellant contends that (1) the trial court erroneously limited his cross-examination of a witness by refusing to allow him to cross-examine the witness about her interest in ongoing child-custody proceedings involving appellant's and the complainant's daughter, and (2) the trial court erroneously excluded evidence concerning the complainant's violent character.

         We reverse and remand.


         A. Factual Background

         On December 17, 2014, appellant was living in a house with his girlfriend, the complainant Amy Jimenez, their one-year-old daughter, and Jimenez's mother, Adeline Gonzales. All four of them started watching a movie in the living room of the house. Appellant made inappropriate comments about a scene in the movie, and Jimenez told him to stop because Gonzales was in the room. Gonzales testified that "there was a lot of frustration in the room." She left the room with the baby, and appellant went into the garage. Gonzales later returned to the living room and told Jimenez that the baby needed some items from the store for school. Appellant's and Gonzales's accounts of what happened after this point differ dramatically.

         According to appellant, after he left the living room, he stayed in the garage for about an hour and a half playing a game on his cell phone. Jimenez "came in the garage a few times" and talked to him. Defense counsel asked whether there was a fight every time Jimenez came into the garage, and appellant replied that there was no fight, but "she was trying to pick a fight[.]"

         Appellant was sitting between two cars playing on his phone, basically ignoring Jimenez. She then got "in [his] face" and "karate kick[ed the] phone out of [his] hand." When asked by his counsel whether Jimenez slapped the phone down or kicked it, appellant replied, "She did a pretty good karate kick." He stated that the phone "hit the car, fell on the floor. I'm in a tight little space. She kind of hit my hand pretty hard." Appellant then slapped Jimenez. When asked whether Gonzales saw the confrontation, appellant replied, "I doubt it" because of the tight area and because Jimenez's back was "towards the window of the kitchen by the door" to the garage.

         According to Gonzales, however, Jimenez went out to the garage, and she and appellant started arguing. Jimenez wanted the keys to the car to go to the store, and appellant would not answer her. Gonzales testified that she had the baby in her arms, and she opened the garage door to give Jimenez some money. She saw appellant take "a swing at [Jimenez] and he hit her in the face." The prosecutor then asked her, "Now prior to you seeing that, did you see [Jimenez] make any contact, physical contact with the defendant?" Gonzales replied, "She was trying to get his attention. He had a cell phone in his hand. She whacked the phone in his hand."

         Gonzales did not know what happened to the phone, but, in response to the prosecutor's statement, "So you're saying you saw [Jimenez] make contact with his phone, " she replied, "Right, trying to get his attention." In response to the prosecutor's question, "What did that sound like when he struck your daughter?" Gonzales testified, "I mean, it was pretty hard because her whole face went back. I looked back at her. I saw blood coming out of her face, " out of "[h]er lip, right here, mouth." Gonzales then started screaming to appellant, "I told you not to put your hands on her anymore." She stated, "I had the baby in my arms and I told [Jimenez], I said, Get out, get in your car, go your dad's house." Jimenez looked "pretty scared. She had a look on her face I had never seen before and I'm a mother. I felt what I was looking at and I said, Get out of here, get in your car and go. And I'll call you when you can come back." Gonzales then called 9-1-1. She testified that she did not see Jimenez kick appellant "at any point, " explaining, "I was standing in the middle of them by that time and there was a car there."

         Appellant did not immediately leave after the altercation with Jimenez. He demanded to kiss and hug his daughter. He testified, "[Gonzales] is real possessive of my daughter. She wouldn't let me get my daughter. So I stayed around longer. [Gonzales was] yelling at me. And I'm yelling at her, just trying to see my daughter real quick before I left." No other blows were thrown. Appellant testified that he went back into the house to get his wallet and identification, and when he discovered that Gonzales had called 9-1-1, he jumped the fence and went to the park. Appellant came back to the house after the police arrived, and he was arrested.

         Jimenez had left the scene in response to Gonzales's order before any of this happened. Gonzales testified extensively, however, as to appellant's behavior after Jimenez left. According to her testimony, appellant ransacked the interior of the house and came back into the garage, "[s]creaming obscenities, calling me everything in the book and ransacking what he could. I had [the baby] in my arms. I was more afraid of that than anything else." She stated, "I was afraid to go back in the house." Appellant came back into the garage, and the baby was "crying, crying, " and Gonzales was trying to calm her down. Appellant picked up a jack that was in the garage and started swinging it just a couple of feet from Gonzales while screaming obscenities at her, including "Get your own F'ing baby. This is my F'ing baby. You rotten F'ing B. It was going on and on." She stated that appellant also kicked the doors to her car. She kept screaming, "Get out of here, get out of here, get of here, " and appellant said in response, "I'm going to get out of here when I kiss my baby."

         According to Gonzales, appellant grabbed the baby, saying "I just want to hug my baby, " while Gonzales still held the baby in her arms. Gonzales "kept telling [appellant] to leave [the baby] alone because she started crying. And he grabbed her little leg and he started doing this to her little body. And it scared me, because I said, My God, he could have ripped her spinal cord. I let her go." Appellant stepped away "because he was leaving with [the baby], " holding her "like a rag doll under his arm. And she was crying and crying. He's screaming." Gonzales testified that the baby

was pushing and pushing and she was screaming this loud cry like I never heard it before. [Appellant] finally puts her down because she's wiggling to get away from him. He puts her down and he kind of nudges her and I ran toward her and I grabbed her. I had her in my arms. I wouldn't let her go. He was still screaming at me, I'm going to get her. I'm going to get her. At that point I was going to do whatever I needed to do because I wasn't going to let her go.

         When the police arrived, appellant went back inside the house and escaped out the back door over the fence.

         Gonzales testified that Jimenez drove up a few minutes later, and "[s]he was mad, telling me, Mom, why did you call the police? Why did you call the police. . . . She's upset and she's screaming. I'm trying to regroup to what's just happening. The baby's still crying and it's a whole lot of commotion going on at the same time." Jimenez "had a big ball in her lip. . . . You could see a little dried blood on her face. She had a big ball on her lip here." Both Gonzales and Jimenez were interviewed by the police.

         When asked whether he told his side of the story to the police, appellant testified, "I didn't feel like my story means anything. Two angry women." He also testified that Jimenez did not file charges against him, she failed to receive a letter of non-prosecution to sign that he had sent to her, and she came to visit him every day he was in jail prior to trial. Appellant testified that Jimenez and Gonzales had a volatile relationship, but the court sustained as irrelevant the State's objection to the question of whether appellant had ever seen Jimenez strike her mother. Appellant finally testified that the other cases he had had involving family violence also had to do with knocking a phone out of someone's hand; he was charged and pled guilty in order "[t]o come home and take care of my child."

         Houston Police Department Officer J. Portillo responded to Gonzales's 9-1-1 call. As he approached the house, he saw Gonzales and Jimenez walk into the garage. Both of them "seemed pretty upset and emotional." Officer Portillo observed redness on Jimenez's face and a cut on her upper lip. Although Jimenez ultimately spoke with Officer Portillo, she initially did not want to speak to police. Officer Portillo did not see any damage to property in the garage, and the inside of the house did not appear to have been ransacked, as Gonzales had testified.

         B. Procedural Background

         After voir dire but before the jury was sworn in, defense counsel sought permission to introduce evidence of an ongoing Child Protective Services ("CPS") proceeding to terminate the parental rights of both appellant and Jimenez to their daughter. Counsel argued:

[Defense Counsel]: The third and last point, Judge, it is my understanding that CPS is involved and the welfare of the [child] in whether or not parental rights were taken from the complaining witness, [Jimenez], and the defendant, and that one of the persons who may be-I don't know how to put this gently-would get the grandchild would be the mother. Again, it would go to motive as to why-if she sat up there and saw, based on the police report, if she saw mutual conduct-
The Court: So you want to ask Adeline Gonzales whether there's a CPS investigation and whether she gets the children if that CPS issue was sustained?
[Defense Counsel]: Yes.

         The trial court ruled that this evidence was not relevant. Defense counsel also sought permission to question Gonzales about Jimenez's reputation in the community for violence and, specifically, whether Jimenez had ever been violent towards Gonzales. The trial court ruled that this evidence was not relevant and was inadmissible under Rule of Evidence 608.

         Later in the trial, after Gonzales had testified before the jury, defense counsel made an offer of proof concerning testimony from Gonzales that the trial court had excluded. Gonzales testified that Jimenez had threatened her on a few occasions in the past. She also testified that Jimenez had hit her on several occasions and that Jimenez had been the initial aggressor. With respect to the termination proceedings, defense counsel and Gonzales had the following exchange:

Q. Do you know that there's a CPS-that there's a child custody battle going on to eliminate parental rights of both Amy and Dedric?
A. Yes, sir.
Q. Do you have an interest in that being done?
A. I don't understand what that means.
Q. Do you have a preference?
A. Do I have a preference of what?
Q. That their parental rights be terminated or not?
A. I don't have any say in that. That damage has been done between ...

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