Wang v. State

ZHIGANG WANG, Appellant v. THE STATE OF TEXAS, Appellee

NO. 09-17-00462-CR

Court of Appeals Ninth District of Texas at Beaumont

Submitted on April 1, 2019

October 9, 2019

On Appeal from the County Court of Law No. 5 Montgomery County, Texas

Trial Cause No. 16-316220

MEMORANDUM OPINION

Zhigang Wang appeals his conviction for assault-family violence, a class A misdemeanor. Tex. Penal Code. Ann. § 22.01(a)(1), (b) (West 2019); Tex. Fam. Code Ann. §§ 71.0021(b), 71.003-.005 (West 2019). In thirteen issues, Wang challenges the sufficiency of the evidence to sustain his conviction, the sufficiency of the evidence to support a finding of family violence, the trial court's rulings during jury selection on a Batson challenge and a challenge for cause, the trial court's decision to allow an undisclosed witness to testify, the trial court's decision to admit a recording of a previous argument between Wang and the victim, the trial court's decisions regarding translations of recordings admitted during trial, the trial court's decision to deny Wang's motion for new trial, and the terms of his community supervision. For the reasons stated below, we affirm the judgment of the trial court.

I. Background

The victim, G.W.¹ testified at trial that she is married to Wang and they have an eight-year-old daughter, S.W. On August 10, 2016, the family returned to their residence from a beach vacation. According to G.W., following their return, Wang told S.W. to "go . . . study." When S.W. did not immediately do so, Wang threatened to put her in the "black room" as punishment. G.W. explained that the "black room . . . is a closet inside our bedroom . . . [with] no window." G.W. stated Wang yelled at S.W., and she intervened and told Wang not speak to their daughter in that manner. This exchange erupted into an argument between G.W. and Wang. G.W. testified that she was seated on the couch when they began arguing, and Wang stood on the other side of the couch. G.W. testified that Wang insulted her family and she in turn spoke about his family, prompting Wang to throw his cell phone at her, hitting her in the face. The cell phone hit her nose and eyebrow. Wang then charged at G.W. and began hitting her with his fists on her head, face, and wrist. G.W testified that S.W. witnessed the attack and that Wang only stopped hitting her "[b]ecause my daughter was screaming and crying." As a result of Wang's attack, G.W.'s nose was cut, bleeding, and she had bruising around her eye and on her arms. G.W. said she felt pain because of the attack. Wang left the residence, and G.W. called the police to report the attack.

S.W. also testified at trial. She stated that the family went on vacation, and when they arrived back at their house, her father told her to go do her homework. S.W. said she did not start her homework as instructed by her father. She did not remember if her father was upset at her but testified that her parents began arguing. S.W. stated that she did not see her father throw anything at or hit her mother, but the police arrived at their house and her mother went to the hospital. S.W. testified that her mother "was bleeding on her nose and up on her eyebrows." Upon cross-examination, S.W denied telling the State a different version of her testimony, but she admitted that her mother "[k]ind of" told her to lie.

Deputy Ryan McClintock testified that he responded to the domestic violence 911 call placed by G.W. The Deputy stated that upon arrival, he observed a male standing in the driveway who he identified at trial as Wang. According to McClintock, Wang voluntarily admitted that he threw the cell phone at G.W.'s face. McClintock then interviewed G.W., who was crying, had visible wounds to her nose, and a "contusion on the right side of her face." The Deputy stated that G.W.'s wounds appeared to be defensive, explaining that defensive wounds "are on hands, basically blocking any type of object on the inside of your hands, scrapes or anything of that nature[,]" and did not appear to be self-inflicted. He believed the wounds were consistent with Wang's statement that he hit G.W. in the face with a cell phone. G.W.'s other wounds were consistent with someone punching her. McClintock took photographs of both G.W. and Wang, which the State admitted at trial.

Video footage of McClintock's dash cam was also admitted at trial and according to the Deputy, S.W. can be heard telling the police that "daddy hit her in the arms, too." EMT records were also admitted that stated "[p]er patient's daughter, patient was punched in the left eye and right shoulder, as well as struck on the nose with a phone." Additional medical records admitted by the State also show S.W. provided hospital personnel with the same information. Based on his investigation, his physical observations of G.W., and Wang's admission that he hit G.W. with a cell phone, McClintock arrested Wang for a "class A assault family violence."

At trial, Wang denied that he and G.W. were married or currently dating and testified they only reside in the same house with the child. On August 10, 2016, they had just returned from a beach vacation and he was "very happy." Wang wanted S.W. to study, and S.W. wanted to play longer. Wang testified that he allowed S.W. to play ten more minutes, but when she refused to study again, he punished her by putting her in the closet. Wang stated that G.W. did not agree with sending S.W. to the closet and they began arguing, but he believed G.W. was really upset because he would not "sponsor [G.W.] to get a legal status [in the United States.]"

Wang denied causing the injuries to G.W. Wang explained that when he told the officer he threw the phone at G.W., he was not "clear- minded." He had just returned from the beach and it was a very hot day. His described his head as "dizzy and not clear[,]" and when he spoke to the officer, other police officers surrounded him. According to Wang, "[his] native tongue is Chinese" which created a language barrier further hindering communication. Wang testified that at the time he wanted to say he threw the cell phone at "her direction."

A jury found Wang guilty of assault. The trial court found there was family violence and assessed punishment at confinement of one year in the Montgomery County Jail but suspended the confinement and placed Wang on community supervision for twenty months. The trial court also ordered Wang to pay a $2000 fine and, as a term of his community supervision, pay reasonable expenses for G.W.'s counseling as needed for one year. Wang timely filed this appeal.

II. The Sufficiency of the Evidence

Wang challenges the sufficiency of the evidence to convict him of assault family violence. Wang argues the "claim that [G.W.] was struck with a closed fist and kicked is not supported by the evidence[,]" and the rubber case around his cell phone was incapable of causing a laceration.

When there is a challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the essential elements of the offense beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 99 (1979)) (concluding the Jackson standard "is the only standard that a reviewing court should apply" when examining the sufficiency of the evidence); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). "[We] must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible." Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) (citations omitted). The jury is the sole judge of the witnesses' credibility and weight to be given to their testimony. Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016) (citations omitted). Juries may draw multiple reasonable inferences from facts so long as each inference is supported by the evidence presented at trial. Id. Accordingly, we must defer to the jury's determinations of weight and credibility of the witnesses. See Brooks, 323 S.W.3d at 899.

To prove assault family violence, the State had the burden to establish beyond a reasonable doubt that Wang "intentionally, knowingly, or recklessly cause[d] bodily injury to [G.W] . . . by striking the complainant with [his] hands, and with [his] cell phone[.]" The State further had the burden to establish that Wang committed family violence against G.W. because G.W. was a member of Wang's household or a person with whom he had a dating relationship. Photographs admitted at trial showed that G.W. had visible injuries to her face. G.W.'s testimony described Wang throwing a cell phone that hit her in the face and that after Wang hit her with the cell phone, he assaulted her by punching her face and body. Deputy McClintock's testimony verified the existence of visible wounds on G.W.'s face consistent with being hit by a cell phone and defensive wounds on her arms and hands. According to McClintock, Wang admitted to throwing his cell phone at G.W. In addition, the record shows that S.W. told multiple sources, including law enforcement and medical personnel, that she witnessed Wang hit G.W. in the face.

Household is defined as "a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other." Tex. Fam. Code Ann. § 71.005. Testimony at trial conflicted regarding whether Wang and G.W. were married, but Wang and G.W. agreed they shared the same residence. "The focus of the family-violence finding is thus on the relationship between the defendant and the specific victim of the offense. If the victim of the specific offense is a member of the defendant's family or household, then the affirmative finding is justified." Agbogwe v. State, 414 S.W.3d 820, 840 (Tex. App.—Houston [1st. Dist.] 2013, no pet.) (citing Tex. Code. Crim. Proc. Ann. art. 42.013 (West 2018); Tex. Fam. Code...