Simmons v. State

590 S.W.3d 702

D'Warren Lamar SIMMONS, Appellant

v.The STATE of Texas, Appellee

No. 10-18-00269-CR

Court of Appeals of Texas, Waco.

Opinion delivered and filed November 27, 2019

Sterling A. Harmon, Seminole, Barry N. Johnson, Plano, Gabriel Price, McLennan County Assistant District Attorney, Waco, for Appellee.

E. Alan Bennett, Sheehy, Lovelace & Mayfield, P.C., Waco, for Appellant.

Before Chief Justice Gray, Justice Davis, and Justice Neill

JOHN E. NEILL, Justice

In three issues, appellant, D'Warren Lamar Simmons, challenges his conviction for assault family violence with a prior conviction for assault family violence. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2)(A). (West 2019). Specifically, Simmons contends that: (1) the trial court abused its discretion by excluding recorded statements made by the complainant, Selsa Herrera; (2) the trial court failed to properly instruct the jury regarding the charged offense; and (3) the court cost imposed for the time-payment fee is unconstitutional. We affirm as modified.

I. HERRERA'S RECORDED STATEMENTS

In his first issue, Simmons argues that the trial court abused its discretion by excluding recorded statements Herrera gave to the District Attorney's office in which she admitted to lying to the police and stating that someone other than Simmons actually assaulted her. Simmons asserts that the statements should have been admitted because they are against Herrera's penal interest and exposed her to criminal liability for making a false police report, and because the statements were sufficiently corroborated. We disagree.

A. Standard of Review

A trial court is given broad discretion in determining the admissibility of evidence. Allridge v. State , 850 S.W.2d 471, 492 (Tex. Crim. App. 1991). As such, we review a trial court's admission or exclusion of evidence under an abuse-of-discretion standard. Martinez v. State , 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A reviewing court should not reverse a trial court's ruling on the admissibility of evidence that falls within the "zone of reasonable disagreement." Montgomery v. State , 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g).

B. Discussion

At trial, Simmons proffered Herrera's recorded statements under the statement-against-interest exception to the hearsay rule outlined in Texas Rule of Evidence 803(24), which defines a statement against interest as,

A statement that:

(A) a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability or to make the declarant an object of hatred, ridicule, or disgrace; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

TEX. R. EVID. 803(24).

Much of the arguments at trial and on appeal center on subsection (B) of Rule 803(24) —the corroboration requirement.¹ Simmons admits in his brief that he offered no independent evidence to corroborate Herrera's recorded statements. However, Simmons contends that the circumstances surrounding the statements render the statements self-corroborating.

The Court of Criminal Appeals has listed a number of factors that are relevant when considering the trustworthiness of an inculpatory statement made by a declarant, including,

(1) whether the guilt of the declarant is inconsistent with the guilt of the defendant; (2) whether the declarant was so situated that he might have committed the crime; (3) the timing of the declaration; (4) the spontaneity of the declaration; (5) the relationship between the declarant and the party to whom the statement was made; and (6) the existence of independent corroborative facts.

Woods v. State , 152 S.W.3d 105, 113 (Tex. Crim. App. 2004).

Herrera testified that the statements made in the recording were false and that her boyfriend, Simmons, came up with the story and encouraged her to tell the District Attorney's office that her injuries were caused by a fight with other girls. As an impetus for the fight, the story continued that Simmons had cheated on Herrera with these girls. Herrera further noted that she and Simmons "practiced it and practiced it" prior to making the recorded statements. The record reflected that the assault occurred on May 28, 2015, yet Herrera made the recorded statements approximately a year later in April and June 2016. As for the reason she made the recorded statements, Herrera explained that she did not want to get Simmons in trouble and that she was willing to go to jail for filing a false report because she "thought he loved [her]."

The record included an eyewitness, Bobbie Barrett, who observed and described the May 28, 2015 assault of Herrera by Simmons. This testimony contradicts the statements made in the recording and undermines their veracity. Furthermore, Barrett recounted Herrera's fresh injuries, including fresh blood and scratches, which also contradicts Herrera's recorded statements that the injuries were sustained earlier in the day from a fight with the above-mentioned girls.

Based on the foregoing testimony, and because Simmons does not cite to authority holding that recorded statements similar to those made by Herrera are self-corroborating, and because Simmons did not proffer independent, corroborating evidence, we cannot say that the record contains sufficient corroborating circumstances to indicate the trustworthiness of Herrera's recorded statements. See id. at 113 ; see also Cunningham v. State , 877 S.W.2d 310, 312 (Tex. Crim. App. 1994) (noting that a statement against penal interest may be corroborated by "proof that the statement was against the declarant's interest to an unusual or devastating degree, that the declarant repeated his story often and consistently, or that he could not have been motivated to falsify for the benefit of the accused"). As such, we cannot conclude that the trial court abused its discretion by excluding the recorded statements. See TEX. R. EVID. 803(24) ; see also Martinez , 327 S.W.3d at 736 ; Montgomery , 810 S.W.2d at 391.

In any event, even if we were to conclude that Simmons sufficiently corroborated Herrera's recorded statements, the failure of the trial court to admit the evidence was harmless. See TEX. R. APP. P. 44.2(b). This is because the substance of the recorded statements was admitted elsewhere in the trial without objection. Cf. Lane v. State , 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (holding that any error in the admission of evidence is cured when the same evidence is admitted elsewhere without objection); see also Leday v. State , 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (same). In fact, the State and defense counsel spent a significant amount of time questioning Herrera about the veracity, content, and circumstances surrounding the making of the recorded statements.

And to the extent that it can be argued that the recorded statements should have been admitted for impeachment purposes, we note that Herrera did not deny making the recorded statements and admitted to the content of the statements. Thus, the recorded statements were not admissible under Texas Rule of Evidence 613(a)(4). See TEX. R. EVID. 613(a)(4) ("Extrinsic evidence of a witness's prior inconsistent statement is not admissible unless the witness is first examined about the statement and fails to unequivocally admit making the statement."). We overrule Simmons's first issue.

II. THE JURY CHARGE

In his second issue, Simmons complains about errors in the jury charge. In particular, he argues that: (1) the abstract portion of the charge only instructed the jury regarding assault against a family member or household member and not the commission of such an offense against a person with whom the defendant has a dating relationship; (2) the abstract portion of the charge failed to provide statutory definitions for family and household, and the charge did not provide a complete statutory definition for dating relationship; and (3) the application paragraph omitted two of the three types of relationships alleged in the indictment—namely, family or household member. In its brief, the State concedes, and we agree, that the charge contains error. The State contends that the error was not egregiously harmful to Simmons.

A. Applicable Law

In reviewing a jury-charge issue, an appellate court's first duty is to determine whether error exists in the jury charge. Hutch v. State , 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). If error is found, the appellate court must analyze that error for harm. Middleton v. State , 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was properly preserved by objection, reversal will be necessary if the error is not harmless. Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was not preserved at trial by a proper objection, as was the case here, a reversal will be granted only if the error present egregious harm. Id. To obtain a reversal for jury-charge error, Simmons must have suffered actual harm and not just merely theoretical harm. Sanchez v. State , 376 S.W.3d 767, 775 (Tex. Crim. App. 2012) ; Arline v. State , 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).

Because Simmons did not object to the charge in the trial court, we must analyze any error for egregious harm. In doing so, we consider: (1) the entire jury charge; (2) the state of the evidence, including the contested issues and the weight of the probative evidence; (3) the final arguments of the parties; and (4) any other relevant information revealed by the trial court as a whole. Allen v. State , 253 S.W.3d 260, 264 (Tex. Crim. App. 2008). Jury-charge error is egregiously harmful if it affects the very basis of the case,...