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Gonzalez v. State

Court of Appeals of Texas, Fourteenth District

November 21, 2017


         On Appeal from the 230th District Court Harris County, Texas Trial Court Cause No. 1484835

          Panel consists of Chief Justice Frost and Justices Boyce and Jewell.


          Kevin Jewell Justice.

         Appellant Andrew Gonzalez, Jr. appeals his conviction for assault on a family member as a second offender. In three issues, appellant argues the trial court erred in: (1) overruling his objection to the admissibility of the charging instrument for a prior assault against the same complainant; (2) failing to give a limiting instruction when admitting the charging instrument of the prior assault; and (3) overruling appellant's objection to the State's allegedly improper jury argument.

         We affirm.


         A grand jury indicted appellant for the offense of assault against a family member as a second offender. The State alleged that appellant assaulted his girlfriend, Patty, [1] with whom appellant had a dating relationship and shared an apartment. The indictment further alleged that appellant was previously convicted of assault against a family member. Appellant pleaded "not guilty" to the charged offense, and the case proceeded to trial.

         Jennifer Terriquez and her boyfriend, Stephen Gutierrez, visited appellant and Patty at the latter couple's apartment on the night of the alleged assault. At some point during the evening, appellant began yelling at Patty. Patty packed a bag and started to leave the apartment. According to Jennifer, appellant grabbed Patty's bag, threw it aside, and hit Patty in the back of her head as she exited the apartment. Patty ran down the stairs to the ground level, and appellant chased her. Jennifer and Stephen followed. When Jennifer caught up, she saw appellant kicking Patty and pulling her hair as she lay on the ground. Jennifer called 911.

         Stephen's sister, Ericka, lived next-door. Ericka was at home when she heard a man and a woman screaming outside. Ericka opened the front door and saw appellant kicking Patty, who was "crouched down" on the ground. Ericka also called 911, and then went outside to help Patty. Ericka helped Patty walk to Ericka's porch, and Ericka locked the gate in front of her house to prevent appellant from entering the property.

         Paramedics arrived and treated Patty. The paramedics' report documented that Patty was five months' pregnant; that Patty told the paramedics she fought with her boyfriend, who pushed her to the ground; and that Patty said she "needed HPD [Houston Police Department] to file a report, " but that otherwise she was "fine" and had "no belly pain . . . [and] no bleeding." Patty refused transportation to the hospital for further observation or treatment.

         HPD officers David Carrucini-Ruiz and Jesus Gutierrez (no apparent relation to Ericka or Stephen) responded to the 911 call. Upon arriving, Officer Carrucini-Ruiz spoke with Patty, who told him that she was pregnant and appellant had grabbed her by the hair, pushed her to the ground, kicked her in the stomach, and attempted to choke her. Officer Carrucini-Ruiz testified that he did not see any visible injuries on Patty.

         Though appellant fled the scene when Ericka came to assist Patty, he returned about twenty minutes later while police were investigating. Jennifer and Ericka identified appellant to the officers as the person who assaulted Patty. According to Officer Carrucini-Ruiz, appellant also matched the description from the 911 call. Officer Carrucini-Ruiz approached appellant and asked if he assaulted Patty. Appellant said no. At that point, appellant "started getting loud, " and the police officers decided to detain him in a patrol car. Resisting the officers' efforts, appellant attempted to kick the officers, at which time the officers placed appellant in leg restraints. As Patty watched, she told the officers that she was going to record them on her cell phone. Then, contradicting her prior statements to the officers, and contradicting the statements of Jennifer and Ericka, Patty insisted appellant did not assault her and she "made everything up." According to Officer Carrucini-Ruiz, once the officers placed appellant in the patrol car, Patty said to appellant, "I love you, Baby. I'm going to drop the charges." Patty did not testify at trial to either confirm or refute the officer's testimony.

         The State desired to elevate the charged offense to a felony, which required proof of one prior family-violence assault conviction.[2] The charged offense allegedly occurred on October 12, 2015. A latent fingerprint examiner with the Harris County Sheriff's Office matched appellant's fingerprints to fingerprints on a 2014 judgment in Cause Number 1450952, in the 232nd District Court of Harris County, which documented appellant's conviction for assault of a family member. The court also admitted the charging instrument (the "complaint") related to the prior conviction. Appellant objected to admission of the complaint based on Texas Rule of Evidence 404(b) because the complaint specifically named Patty as the complainant.

         The jury found appellant guilty of the charged offense. The trial court then arraigned appellant on two enhancements, to which appellant pleaded "not true." The jury found the first enhancement paragraph (regarding an attempted burglary conviction) not true, and found the second enhancement paragraph (regarding a robbery conviction) true. The jury assessed appellant's punishment at eleven years' confinement.

         Appellant now appeals his conviction.


         A. Evidentiary Ruling

         In his first issue, appellant argues that the trial court erred in overruling his objection to the admissibility of the complaint resulting in his 2014 conviction for assault of a family member. Appellant contends the complaint's admission into evidence violated Rule 404(b) because the complaint identified Patty as the complainant in 2014, when Patty was also the complainant as to the charged offense. According to appellant, admission of the 2014 complaint erroneously permitted the jury to find him guilty of assaulting Patty on October 12, 2015, based on his conviction for assaulting Patty in 2014. We disagree.

         1. Standard of review and governing law

         Evidence of a person's crime, wrong, or other act is not admissible to prove that person's character in order to show that the person acted in conformity with that character when allegedly committing the charged offense. See Tex. R. Evid. 404(b)(1); see also Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001); Montgomery v. State, 810 S.W.2d 372, 386-88 (Tex. Crim. App. 1990) (op. on reh'g). Evidence of other offenses, however, may be admissible when the evidence is relevant to a fact of consequence in the case. See Tex. R. Evid. 404(b)(2); Montgomery, 810 S.W.2d at 387-88. For instance, evidence of other crimes or wrongs may be admissible if it tends to establish some elemental fact, such as identity, intent, or knowledge; tends to establish some evidentiary fact, such as motive, opportunity, plan, or preparation, leading inferentially to an elemental fact; or rebuts a defensive theory by showing, e.g., absence of mistake or lack of accident. Montgomery, 810 S.W.2d at 387-88; see also Tex. R. Evid. 404(b)(2). If the trial court determines the offered evidence has independent relevance apart from or beyond character conformity, the trial court may admit the evidence and instruct the jury the evidence is limited to the specific purpose the proponent advocated. See Prince v. State, 192 S.W.3d 49, 54 (Tex. App.-Houston [14th Dist.] 2006, pet. ref'd) (citing Montgomery, 810 S.W.2d at 387-88).

         Because trial courts are best-suited to decide these substantive admissibility questions, an appellate court reviews admissibility rulings under an abuse of discretion standard. Powell, 63 S.W.3d at 438. This standard requires that we affirm admissibility rulings when they are within the zone of reasonable disagreement. Id.

         2. The parties' arguments

         During the guilt-innocence phase of trial, the State offered the complaint and judgment associated with appellant's prior conviction for assault of a family member. Appellant did not object to admission of the judgment, but objected to the complaint because it named Patty as the complainant. Appellant argued that admitting the complaint was unnecessary because only the judgment of conviction was needed to enhance the charge to a felony. The prior complaint, appellant contended, served no purpose other than to show "that if he did it once before, he probably did it again." The trial court overruled appellant's objection.

         The trial court did not explain the basis for its ruling, but the State urged two grounds for the complaint's admissibility. First, the State argued it was relevant under Code of Criminal Procedure article 38.371, which allows, among other things, testimony or evidence concerning the nature of the relationship between the actor and the alleged victim in certain offenses involving family or dating violence. See Tex. Code Crim. Proc. art. 38.371(b). According to the State, the complaint was relevant to explain material, non-character-conformity fact issues, such as why Patty recanted her initial allegation, why the jury should credit Patty's initial allegation, and why Patty was absent from trial.

         Alternatively, the State argued that the complaint was relevant to prove that appellant and Patty were in a dating relationship, which is one way of establishing one of the elements of the charged offense.[3]

         Article 38.371 provides, for certain family-violence offenses, including the one ...

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