                                                                                                           ACCEPTED
                                                                                                      06-14-00052-CR
                                                                                            SIXTH COURT OF APPEALS
                                                                                                 TEXARKANA, TEXAS
                                                                                               12/30/2014 11:59:31 PM
                                                                                                      DEBBIE AUTREY
                                                                                                               CLERK

                                  No. 06-14-00052-CR

                           IN THE COURT OF APPEALS                FILED IN
                       FOR THE SIXTH DISTRICT OF TEXAS 6thTEXARKANA,
                                                              COURT OF APPEALS
                                                                           TEXAS
                             AT TEXARKANA, TEXAS          12/31/2014 11:43:00 AM
                     ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗ DEBBIE AUTREY
                                                                                    Clerk
                             MARTIN SUAREZ JUAREZ,
                                             APPELLANT

                                               v.

                               THE STATE OF TEXAS,
                                       APPELLEE
                     ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗

                       On Appeal from the 195th Judicial District Court
                            Hon. Fred Tinsley, Judge Presiding
                                   Dallas County, Texas
                               In Cause No.F13-60355-N
                     ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗

                             STATE’S RESPONSE BRIEF
                     ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗

                                       Counsel of Record:

CRAIG WATKINS                                                 TARA CUNNINGHAM
Criminal District Attorney                                    Assistant District Attorney
Dallas County, Texas                                          State Bar No. 24068757
                                                              Frank Crowley Courts Building
                                                              133 N. Riverfront Boulevard, LB-19
                                                              Dallas, Texas 75207-4399
                                                              (214) 653-3828| (214) 653-3643 fax
                                                              Tara.Cunningham@dallascounty.org

                                 Attorneys for the State of Texas




The State requests oral argument only if Appellant argues.
                                                   Table of Contents
Table of Contents .................................................................................................................... i
Table of Authorities .............................................................................................................. iii
Statement of the Case ........................................................................................................... iv
Statement of Facts .................................................................................................................. 1
Summary of the Argument .................................................................................................... 6
Argument ................................................................................................................................. 8
  Response to Issue One ....................................................................................................... 8
  Response to Issue Two .................................................................................................... 11
  Response to Issue Three .................................................................................................. 14
  Response to Issue Four ...................................................................................................... 8
  Response to Issue Five ..................................................................................................... 11
  Response to Issue Six ....................................................................................................... 14
  Response to Issue Seven .................................................................................................. 14
Conclusion ............................................................................................................................. 16
Certificate of Compliance .................................................................................................... 17
Certificate of Service ............................................................................................................ 17




                                                                     i
                             Table of Authorities
Cases
Asberry v. State,
813 S.W.2d 526 (Tex.App.—Dallas 1991, pet. ref’d)………………………………..12
Atkins v. State,
951 S.W.2d 787 (Tex. Crim. App. 1991)……………………………………………..2
Barajas v. State,
93 S.W.3d 36 (Tex. Crim. App. 2002)…….……………… ………………………..2
Bell v. State,
877 S.W.2d 21, 24(Tex. App. Dallas 1994))…….…………… …..……………….7,10
Bigley v. State,
865 S.W.2d 26 (Tex. Crim. App. 1993)....……….…………………………....……..12
Braxton v. State,
226 S.W.3d 602 (Tex. App.—Houston [1st Dist.] 2007, pet. dism'd)………..……3,4,5
Burden v. State,
55 S.W.3d 608 (Tex. Crim. App. 2001)………………..………………..……….7,9,10
Cassidy v. State,
149 S.W.3d 712 (Tex. Crim. App. 2004)………………………………..……..……5
Coble v. State,
 330 S.W.3d 253(Tex. Crim. App. 2010)………………………………….……….7,10
Cook v. State,
 858 S.W.2d 467, 471 (Tex. Crim. App. 1993)……………………………………….6
Davis v. State,
349 S.W.3d 517(Tex. Crim. App. 2011)....…………………………………..….........4
Delacerda v. State,
425 S.W.3d 367 (Tex. App.--Houston [1st Dist.] 2011, pet. ref'd)………...……...…2
Dillon v. State,
2007 Tex. App. LEXIS 9339 (Tex. App. Tyler Nov. 30, 2007, pet. ref’d)…………....7
Lee v. State,
206 S.W.3d 620 (Tex. Crim. App. 2006)………………………………………….…6
Sanchez v. State,
165 S.W.3d 707, 712 (Tex. Crim. App. 2005)…………..……….……………………3
Standefer v. State,
59 S.W.3d 177 (Tex. Crim. App. 2001)…………..………………..…….………..3,4,5
                                      ii
Statutes
Tex. Penal Code § 22.01(a)(1)…..………………………………………….……….12
Tex. Penal Code § 22.02(a)…..………………………………………….….…...…..12
Texas Code of Criminal Procedure, Article 35.16(b)(3)……………………..……….5
Rules
Tex. R. Evid. 401…………………..……………………..……..………………….10
Tex. R. Evid. 402…………………..……………………..……………..………….10
Tex. R. Evid. 801…………………..……………………..………………………….7
Tex. R. App. P. 44.2 (b)………………….………………..……….……………….12




                                 iii
TO THE HONORABLE COURT OF APPEALS:

      The State’s Brief is submitted on behalf of Craig Watkins, the Criminal District

Attorney of Dallas County, Texas, in response to the brief of Appellant, Martin

Suarez Juarez.

                             Statement of the Case

      Appellant was indicted for assault causing bodily injury by impeding the

complainant’s normal breathing and circulation. (CR: 6). The indictment further

alleged that the complainant was a member of Appellant’s family. (CR: 6). Appellant

entered a plea of not guilty. (RR2: 12; RR3: 13). A jury found Appellant guilty and the

trial court sentenced Appellant to 8 years’ confinement. (CR: 53; RR4: 26, 58). This

appeal followed.




                                          iv
                                 Statement of Facts

The facts relevant to this appeal are adequately set forth in the statement of the case

and the arguments sections of this brief.


                           Summary of the Argument

Issue One:

      Voir Dire. The trial court did not abuse its discretion when it overruled

Appellant’s objection to the State’s question during voir dire.

Issue Two:

      Testimony of Officer Regarding 911 Call Notes. The trial court did not

abuse its discretion when it allowed the investigating officer to testify regarding the

911 call notes while describing the course of her investigation.

Issue Three:

      Testimony of Officer Regarding Witness Statement. The trial court did not

abuse its discretion when it allowed the investigating officer to testify regarding the

statement of the complaining witness while describing the course of her investigation.

Issue Four:

      Relevant Testimony. The trial court did not abuse its discretion when it

allowed testimony regarding the emphasis that the Dallas Police Department has put

on family violence.

Issue Five:
                                            1
      Investigator’s Testimony Regarding Appellant’s Immigration Status. The

trial court did not abuse its discretion when it allowed testimony from the State’s

investigator regarding Appellant’s immigration status which fit as an exception to the

hearsay rule.

Issue Six:

      Investigator’s Testimony Regarding Appellant’s Immigration Status. The

trial court did not abuse its discretion when it allowed testimony from the State’s

investigator regarding Appellant’s immigration status because it was not speculative.

Issue Seven:

      Judgment. The Court should reform the judgment to reflect that the correct

offense statute.


                                      Argument

Response to Issue One:

      The trial court did not abuse its discretion when it overruled Appellant’s

objection to the State’s question during voir dire.

Pertinent Facts:

      During voir dire the State explained to jurors that the State was required to

prove beyond a reasonable doubt that Appellant caused bodily injury to the

complainant by impeding the normal breathing and circulation of the complainant's

blood by applying pressure to her throat or neck or by blocking her nose or mouth
                                         2
with the use of a hand and hands. (RR2: 25). The State also let the jurors know that

when she used the word ―choking‖ she was referring to the longer definition of

―caused bodily injury to the complainant by impeding the normal breathing and

circulation of the complainant's blood by applying pressure to her throat or neck or

by blocking her nose or mouth with the use of a hand and hands.‖ (RR2: 26). The

State then asked people to raise their hands if they ―need to see something more than

just bodily injury.‖ Every time a potential juror raised their hand, the State asked them

if they would require the State to prove something in addition to bodily injury. (RR2:

26-32). Three prospective jurors in a row raised their hand and said they would

require the State to prove more than bodily injury. (RR2: 26-32). The State then asked

if Venireperson Thompson felt the same way. (RR2: 32). Thompson said that he

―would like to see a bruise or something‖ in a choking case. (RR2: 32-33). The State

followed up by asking the venireperson if no bruising meant that he would render a

not guilty verdict. (RR2: 33). The venireperson never responded to the question after

the State was interrupted by Appellant’s objection. The State followed up by asking

the venireperson ―You would require the State to prove more than what is required

under the law?‖ to which the venireperson replied, ―Yes.‖


                                 Standard of Review

      The trial court has broad discretion over the process of selecting a jury. Barajas

v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002). A trial court’s ruling on an allegedly

                                           3
improper commitment question during voir dire is reviewed under an abuse of

discretion standard. Atkins v. State, 951 S.W.2d 787, 790 (Tex. Crim. App. 1997);

Delacerda v. State, 425 S.W.3d 367, 381 (Tex. App.--Houston [1st Dist.] 2011, pet.

ref'd).

                                     Applicable Law

          A commitment question is a question that commits a prospective juror to

resolve or to refrain from resolving an issue a certain way after learning of a particular

fact. Commitment questions are impermissible unless the law requires a commitment.

Davis v. State, 349 S.W.3d 517, 518 (Tex. Crim. App. 20011). Improper commitment

questions are prohibited to "ensure that the jury will listen to the evidence with an

open mind—a mind that is impartial and without bias or prejudice—and render a

verdict based upon that evidence." Sanchez v. State, 165 S.W.3d 707, 712 (Tex. Crim.

App. 2005). Not all commitment questions are improper, however. Standefer v. State, 59

S.W.3d 177, 181 (Tex. Crim. App. 2001).

          The Court of Criminal Appeals has articulated a three-part test for determining

whether a voir dire question is an improper commitment question. Id. at 179; Braxton

v. State, 226 S.W.3d 602, 604 (Tex. App.—Houston [1st Dist.] 2007, pet. dism'd). First,

the trial court must determine whether the particular question is a commitment

question. Standefer, 59 S.W.3d at 179. A commitment question is one in which one or

more of the possible answers is that the prospective juror would resolve or refrain

                                             4
from resolving an issue in the case on the basis of one or more facts contained in the

question. Id. at 180. Second, if the question is a commitment question, the trial court

must determine whether it is a proper commitment question. Id. at 181. A

commitment question is proper if one of the possible answers to the question gives

rise to a valid challenge for cause. Id. at 182; Braxton, 226 S.W.3d at 604. Lastly, if the

question gives rise to a valid challenge for cause, then the court must determine

whether the question contains only the facts necessary to test whether the prospective

juror can be challenged for cause. Standefer, 59 S.W.3d at 179. If additional facts are

added beyond what is required to sustain a challenge for cause the question is

improper. Braxton, 226 S.W.3d at 604.


                                        Analysis

      It was clear that the State was referencing the comments of the other

venirepersons who had just responded to her question saying that they would require

more than what the State was required to prove under the law. (RR2: 26-32). He said

that he ―would like to see a bruise or something‖ in a choking case. (RR2: 32-33). The

State followed up by asking the venireperson if no bruising meant that he would

render a not guilty verdict. (RR2: 33). That was a preliminary question to establish a

challenge for cause. The venireperson never responded to the question after

Appellant’s objection. The State followed up by asking the venireperson ―You would


                                            5
require the State to prove more than what is required under the law?‖ to which the

venireperson replied, ―Yes.‖

      The State may challenge for cause any venireman who has a bias or prejudice

against any phase of the law upon which the State is entitled to rely for conviction or

punishment. Texas Code of Criminal Procedure, Article 35.16(b)(3). One phase of the

law upon which the State is entitled to rely is that the jury will not require a greater

burden of proof than beyond a reasonable doubt. Cook v. State, 858 S.W.2d 467, 471

(Tex. Crim. App. 1993). The State was required to prove the elements of the crime

beyond a reasonable doubt. Id. The state was entitled to ask prospective jurors if they

would require more than that. Id.

      The State started off by explaining the burden of proof and then followed up

again with the State’s burden of proof. (RR2: 25, 34). Even though the State didn’t

repeat the burden of proof for every question it was clear that each question was in

the context of the previous explanation. (RR2: 25-34). The questioning of each juror

is not viewed by an appellate court in isolation. Lee v. State, 206 S.W.3d 620 (Tex.

Crim. App. 2006). In context, the State’s later questions are merely short-hand

renditions of the original question that properly elicited whether the venire persons

could follow the law, and it reasonable to presume the venire persons understood the

later questions in that manner.



                                           6
      The venireperson did not respond to the State’s question after Appellant’s

objection. Even if the Court found the State’s question to be an improper

commitment question, which the State does not concede, there was never a

commitment or any response to the question from the potential juror and therefore

there was no harm.

Joint Response to Issues Two and Three:

      The trial court did not abuse its discretion when it allowed the investigating

officer to testify regarding the 911 call notes and statement of the complaining witness

while describing the course of her investigation.


                                  Standard of Review

      Appellate courts review a trial court’s ruling on the admission or exclusion of

evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615

(Tex. Crim. App. 2001). If the trial court’s ruling is within the reasonable zone of

disagreement, appellate courts will not disturb the ruling. Id.


                                    Applicable Law

      Hearsay is a statement, other than one made by the declarant while testifying at

the trial, offered for the truth of the matter asserted. Tex. R. Evid. 801; Coble v. State,

330 S.W.3d 253 (Tex. Crim. App. 2010). Bell v. State, 877 S.W.2d 21, 24(Tex. App.

Dallas 1994). The purpose of the rule is to exclude evidence that is too unreliable to


                                            7
be evaluated accurately by the trier of fact. Id. If the relevancy of the statement does

not hinge on the truthfulness of the statement, it is not hearsay. Id. When the

declarant appears for cross examination there is no constraint on the use of prior

testimonial statements at trial unless it’s offered for the truth of the matter asserted.

Dillon v. State, 2007 Tex. App. LEXIS 9339 (Tex. App. Tyler Nov. 30, 2007)(Pet.

ref’d). A witness may testify regarding statements when they are offered to explain the

actions taken by the witness after the statement was made. Id at 26. Police officer’s

testimony regarding extra-judicial statements are not inadmissible hearsay when they

are admitted not to prove the truth of the matter asserted, but rather to explain how

the defendant came to be a suspect. Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim.

App. 1995); Jones v. State, 843 S.W.2d 487, 499 (Tex.Cr.App. 1992).


                                       Analysis
      Officer Courtney Collins responded to a call from someone at Appellant’s

apartment building regarding a man and woman fighting, and the female screaming,

―let me go, let me go.‖ (RR3: 60-61). Whether what the caller said was true or not had

no bearing on the relevance of the statement, which only served to explain why

Officer Collins Appellant became a suspect and why Officer Collins arrived at

Appellant’s apartment to investigate the disturbance. Officer Collins decided after

investigating the matter to arrest Appellant. (RR3: 66). Office Collins testified that she

was not at the scene when the offense took place, but that her decision to arrest was

                                            8
based on her interview with the complainant which was conducted using a language

line since the complainant spoke Spanish. (RR3: 61, 64-65). Whether statements

made by the complainant to Officer Collins were true had no bearing on the relevance

of Officer Collins testimony, which was simply offered to detail the course of her

investigation and explain why she made the determination to arrest Appellant for the

offence. Similarly, the accuracy of the language line translations did not make a

difference as to the relevance of Officer Collin’s testimony. The statement’s only

significance was that it explained the reasons for Officer Collin’s actions after the

statement was made, not whether it was accurately translated or truthful. Appellant

did not make a specific objection to the 911 call notes during trial. The Court should

overrule Appellant’s objections two and three.

Response to Issue Four:

              The trial court did not abuse its discretion when it allowed testimony

regarding the emphasis that the Dallas Police Department has put on family violence.


                                 Standard of Review

       Appellate courts review a trial court’s ruling on the admission or exclusion of

evidence under an abuse of discretion standard. Burden, 55 S.W.3d at 615. If the trial

court’s ruling is within the reasonable zone of disagreement, appellate courts will not

disturb the ruling. Id.



                                           9
                                   Applicable Law

      Relevant evidence is evidence having the tendency to make a fact of

consequence more probable or less probable. Tex. R. Evid. 401. Evidence that is not

relevant is not admissible. Tex. R. Evid. 402.


                                       Analysis

             Officer Collins testified regarding the importance of family violence

cases. (RR3: 81). The relevance stemmed from cross-examination questions in which

Appellant suggested that police officers do not typically do a thorough investigation

and simply arrest the person who is the largest in size. (RR3: 73, 77-79). Officer

Collins response was relevant in that it helped the jurors to understand that the Dallas

Police Department does take family violence seriously and why they aim to protect

the victim. (RR3: 81). The Court should overrule Appellant’s fourth issue.

Joint Response to Issues Five and Six:

             The trial court did not abuse its discretion when it allowed testimony

from the State’s investigator regarding Appellant’s immigration status which fit as an

exception to the hearsay rule and was not speculative.


                                 Standard of Review

      Appellate courts review a trial court’s ruling on the admission or exclusion of

evidence under an abuse of discretion standard. Burden, 55 S.W.3d at 615. If the trial


                                           10
court’s ruling is within the reasonable zone of disagreement, appellate courts will not

disturb the ruling. Id.


                                    Applicable Law

       Hearsay is a statement, other than one made by the declarant while testifying at

the trial, offered for the truth of the matter asserted. Tex. R. Evid. 801; Coble v. State,

330 S.W.3d 253 (Tex. Crim. App. 2010). Bell v. State, 877 S.W.2d 21, 24(Tex. App.

Dallas 1994). Evidence that a writing authorized by law to be recorded or filed and in

fact recorded or filed in a public office, or a purported public record, report,

statement, or data compilation, in any form, is from the public office where items of

this nature are kept is properly authenticated. Tex. R. Evid 901.


                                        Analysis

              Dallas County District Attorney’s Office Investigator Eraina Longoria

testified that she had the opportunity to review Appellant’s records contained in the

Adult Identification System. The Adult Identification System is a Dallas County is

properly authenticated because it is a public record. Investigator Longoria’s testimony

was not hearsay or speculative because it was based on a public record. Tex. R. Evid

901

Response to Issue 7:

              The trial court did not abuse its discretion when it allowed testimony

regarding the emphasis that the Dallas Police Department has put on family violence.
                                          11
                     Standard of Review and Applicable Law



      The Court has the authority to modify the judgment to speak the truth when it

has the necessary information to do so. Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.

W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.

App. –Dallas 1991, pet. ref’d).


                                       Analysis

             The record provides enough information to correct the judgment in this

case. The judgment reflects that the offense statute in this case is Section 22.02 Penal

Code. (CR: 46). However, Appellant was indicted and found guilty under Section

22.01. (CR: 6, RR4: 26). Therefore, the Court should exercise its authority to correct

the judgment to properly reflect that Appellant was indicted and found guilty under

Section 22.01.


                                    Conclusion

      This Honorable Court should overrule his points of error in issues one through

six and affirm the judgment below. Additionally, the Court should correct the

judgment to properly reflect that Appellant was indicted and found guilty under

Section 22.01.




                                          12
                                  Respectfully submitted,

                                  /s/Tara Cunningham
CRAIG WATKINS                     TARA CUNNINGHAM
Criminal District Attorney        Assistant District Attorney
Dallas County, Texas              State Bar No. 24068757
                                  Frank Crowley Courts Building
                                  133 N. Riverfront Boulevard, LB-19
                                  Dallas, Texas 75207-4399
                                  (214) 653-3828 | (214) 653-3643 fax
                                  Tara.Cunningham@dallascounty.org




                             13
                           Certificate of Compliance

      I certify that this brief contains 3247 words. This word count includes all

necessary parts outlined in Texas Rule of Appellate Procedure 9.4(i)(1), and it was

conducted with Microsoft Word 2010.

                                                             /s/Tara Cunningham
                                                               Tara Cunningham

                               Certificate of Service
      I certify that a true copy of this brief was served on Julie Woods, as appellate

counsel for Martin Suarez Juarez. Service of an electronically-formatted copy of this

brief was made by use of the electronic service function that accompanies the filing of

the brief with this Court through the electronic filing service provider to which the

State subscribes.

                                                             /s/Tara Cunningham
                                                               Tara Cunningham




                                           14
