Norman v. State

HOLDEN NORMAN, APPELLANT v. THE STATE OF TEXAS, APPELLEE

No. 07-18-00218-CR

Court of Appeals Seventh District of Texas at Amarillo

August 1, 2019

On Appeal from the 364th District Court Lubbock County, Texas

Trial Court No. 2017-412,687; Honorable William R. Eichman II, Presiding

MEMORANDUM OPINION

Before QUINN, CJ., and PIRTLE and PARKER, JJ.

Appellant, Holden Norman, was convicted following a jury trial of the offense of domestic assault and sentenced by the court to fifteen years confinement.¹ On appeal,he raises three issues. He asserts the trial court erred by (1) admitting an inculpatory statement made in the course of a custodial interrogation undertaken by two law enforcement officers without administering the proper warnings, (2) denying a request for a jury instruction for a lesser-included offense, and (3) submitting the case to the jury when the evidence was insufficient. We affirm the trial court's judgment.

BACKGROUND

In April 2018, an amended indictment alleged that on June 15, 2017, Appellant intentionally, knowingly, or recklessly caused bodily injury to Betty Norman, a member of his family/household, as described by sections 71.003 and 71.005 of the Texas Family Code, and an individual sixty-five years or older, by grabbing her with his hand or arm, or by causing her to strike a hard object, or striking her with a hard object. The amended indictment further alleged that in October 2013, in Lubbock County, Appellant had previously been convicted of an offense under chapter 22 of the Texas Penal Code against a member of Appellant's family or a member of his household or a person with whom he had a dating relationship as described by sections 71.003, 71.005, and 71.002(b) of the Family Code.

The State's first witness was a crime scene investigator, Officer Steve Fulgham. Officer Fulgham photographed Betty, Appellant's grandmother, at her residence shortly after the incident. He described a trail of blood originating on the garage floor leading inside the house. He also testified that bruising was present on her forehead and around her left eye, her nose was swollen, and there were red marks on the bridge of her nose and upper lip.

Betty testified that she was eighty-two years old and Appellant was her grandson who had lived with her all his life. She testified that on the day of the incident she had fallen on a couch when Appellant attempted to retrieve from her a box she was holding. After he retrieved the box, he knocked a piece of pizza away from her mouth and told her not to eat the pizza until she had washed her hands. She further testified that after the pizza incident, two unknown women rushed out of her house, knocking her into a door, thereby injuring her face, head, and nose. Shortly after the women left, Appellant borrowed her car and she called 9-1-1 to find out whether the police would keep a lookout for her car because she did not know where her grandson was going. Before she completed the call, however, Appellant returned with the car and went to his room. On the way to his room, Appellant flipped over a couch because he was angry that the two women had taken his wallet and some other object.

Officer Tyler Dowell responded to Betty's 9-1-1 call. His body camera recorded his investigation and the video was played for the jury while he commented on its contents.² The video showed that when he arrived at the residence, he noticed Betty looking at her car in the garage. On approaching, he immediately noticed her nose and one eye were purple and the wounds were recent. He asked her, "[w]hat happened to[your] nose?" She told the officers that her grandson was out of control, throwing things, and tearing things up. She intimated that she feared he would become more combative when the officers left. In response to Officer Dowell's questions, she indicated that she was in the garage when Appellant intentionally pushed her with his hands because he was mad. She told the officers to go in and speak with her grandson.

When the officers entered the living room, Appellant was holding a large glass bottle of whiskey that was half empty. Officer Dowell asked him to stand up and speak with him. Appellant remained sitting and asked whether he could have another drink. After Officer Dowell responded, "[n]o," Appellant took a drink from the bottle. The second officer told Appellant he had had enough to drink and to relax. Appellant took another drink and then set the bottle down. Officer Dowell moved the bottle away from Appellant and the two officers handcuffed him behind his back. Officer Dowell then asked Appellant, "[w]hat was going on?" and "[w]hat happened to [his] grandmother's nose?"

Appellant responded that he had earlier thrown a piece of pizza at his grandmother. He told the officers that he didn't "bust" her nose but only threw a piece of pizza at her in the process of trying to protect her. He said the incident was accidental.

Officer Dowell subsequently questioned Betty a second time and she told him that Appellant had hit her. She explained that when she grabbed a long-tubed object in a box, she spilled what was in the container and Appellant became angry and grabbed the object. He then grabbed her neck but did not impede her breathing. He also cause her to fall. She also indicated that the blood spots in the house and garage were from her nose. At first, she denied Appellant threw pizza at her but then stated that he may have.

After the video's conclusion, Officer Dowell testified without objection that Betty told him many times that Appellant had hit her. During the police investigation, Betty did not mention the presence of two women in the house and there was no physical evidence of anyone else having been in the house. Officer Dowell also testified that Appellant stated he hit his grandmother with a piece of pizza but did not mention the presence of any women in the house. By his appearance and odor, Officer Dowell concluded Appellant was intoxicated.

Officer Dowell further testified that Appellant was handcuffed because he was being detained in order to complete the investigation into the circumstances that resulted in Betty's injuries. He was also concerned Appellant was intoxicated and noncompliant, would not quit drinking, and was holding a large glass bottle which could be used as a weapon.³ Officer Dowell testified that when the police entered the room, they had no intention of placing Appellant under arrest and handcuffed him solely to assure their safety. Appellant was detained because he had not been interviewed and the officers wanted to hear both sides of the story. Based on the grandmother's statements outside the house and the fact that her injuries did not appear to be the result of being hit with a piece of pizza, the officers escorted Appellant to a police car where he was placed under arrest.

In jailhouse visitation videos between Appellant and his grandmother,⁴ he talked over her and bossed, cursed, and degraded her. He ordered her to sign a non-prosecution affidavit telling law enforcement that she was injured in a fall. He asked her to tell the police that he did not give her a nosebleed and that she lied in her previous statement to the police at her residence on the day of the incident.

During one visitation with his grandmother, he introduced a theory that there were two girls in the house when Betty grabbed a bong and fell over the couch hitting her head on a pizza box. He indicated that he was trying to keep the bong away from her because there were drugs inside the bong, and he wanted to protect her from those drugs. He told her she needed to meet with his attorney and sign an affidavit telling how she was injured by a pizza box and then have his attorney sell the same story to the district attorney. During the remaining visitations, he continued to forcefully assert that there were two women in the house that caused her injuries, she lied in her statement to the officers, it was her fault he was going to prison, and "[i]f she loved [him], [she] would tell them."

Following the presentation of the videotaped visitations to the jury, the State rested and Appellant rested. At the charge conference, Appellant requested an instruction on a lesser-included offense or Class C misdemeanor assault. See TEX. PENAL CODE ANN. § 22.01(a)(3), (c) (West 2019). The trial court overruled his request for the submission of the lesser-included offense, and thereafter, the jury found Appellant guilty as charged. Appellant pleaded true to a prior felony conviction making his offense punishable as a felony of the second degree and he was sentenced by the court to fifteen years confinement. Appellant gave timely notice of appeal and this appeal followed.

ISSUE ONE—CUSTODIAL INTERROGATION

In his first issue, Appellant complains that the trial court erred in admitting statements he made on an officer's body video camera in response to a custodial interrogation without being provided the requisite Miranda warnings.⁵ We disagree.

We review a trial court's evidentiary rulings for an abuse of discretion. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). The trial court abuses its discretion when it acts without reference to any guiding rules and principles or acts arbitrarily or unreasonably. Id. (citing Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991)). The trial court does not abuse its discretion if the decision to admit or exclude the evidence is within the zone of reasonable disagreement. See Rhomer, 569 S.W.3d at 677. If the trial court's evidentiary decision is supported by the record and there is any theory of law that would support the ruling, it is not an abuse of discretion. See Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002).

For a statement obtained during a custodial interrogation to be admissible against a suspect, the United States Constitution requires that the suspect be warned by police that "he has the right to remain silent,...