      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-06-00035-CR



                                 Garland Edwin Gross, Appellant

                                                   v.

                                    The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
        NO. 2034169, HONORABLE BRENDA P. KENNEDY, JUDGE PRESIDING



                              MEMORANDUM OPINION


                 A jury convicted appellant Garland Edwin Gross, Jr. of assault against a public

servant, a third-degree felony. See Tex. Penal Code Ann. § 22.01(b)(1) (West Supp. 2006).

Appellant elected to have punishment assessed by the judge, who assessed a sentence of five years’

imprisonment, but suspended that sentence and placed appellant on community supervision for five

years. The trial court also assessed a $2,500 fine and ordered appellant to complete 200 hours of

community service. Appellant argues on appeal that the evidence was factually insufficient to

support his conviction and that the trial court erred in allowing the State to improperly impeach both

appellant and his son. We affirm the judgment of conviction.


                                          BACKGROUND

                 On October 13, 2003, appellant’s daughter Brittany,1 twenty-two years old at the time,

called the Lakeway Police Department in response to a family disturbance at the Gross household.


       1
           For convenience, we refer to the members of the Gross family using their first names.
The full details of this family disturbance are not clear from the record, but there is testimony that

appellant and his eighteen-year-old son Jeffrey were engaged in a physical altercation and that both

Brittany and appellant’s wife Stephanie unsuccessfully tried to intercede and break up the fight.

Appellant left the house after the police were called but before they arrived. Appellant testified that

he did not know that the police had been called. Officer Hector Almaguer was dispatched to the

Gross household to respond to Brittany’s call. He entered the house on the first floor through the

side door and encountered Stephanie, Brittany, and Jeffrey.

               The Gross house is divided into three levels. The first floor includes a bedroom and

the game room with a side door that opens to the outside. The second floor contains the front

entrance to the house, and a staircase with seven steps connects this floor to the first floor below.

The third floor is where the dining room is located, and there are stairs connecting it to the second

floor.

               Almaguer proceeded to interview Stephanie, Brittany, and Jeffrey in the dining room

on the third floor of the house. All of appellant’s family members indicated that they did not want

to press charges against appellant for anything that occurred during the family disturbance. Shortly

after beginning the interviews, Almaguer received a radio transmission from Sergeant Mary Proctor,

who had also been dispatched to the scene and was outside the house. Proctor told Almaguer that

appellant had returned and was entering the residence.

               Almaguer testified that upon receiving the radio transmission, he stood up from the

dining room table, as did appellant’s family members. They moved to the back portion of the third

floor, while Almaguer descended to the second-floor landing where he encountered appellant coming

up the stairs from the first floor. Almaguer testified that he told appellant to stop and put his hands



                                                  2
behind his back because he was under arrest for family violence. Almaguer testified that he repeated

this command three times. The officer testified that then, without saying a word or even making eye

contact, appellant “rushed him,” delivered an upper-ridge chop to Almaguer’s throat with his right

hand, and punched Almaguer in the chest with his left hand. Almaguer recounted being immediately

incapacitated by this attack, and stated that appellant then grabbed Almaguer’s shirt and pulled him

down the stairs. Almaguer testified that both he and appellant landed at the bottom of the stairwell,

where Lakeway Police Officer Damien Perez, who had recently arrived at the scene, pulled appellant

off of Almaguer. Almaguer testified that as appellant was taken into custody he said that he had

taken on bigger and better police departments and would likely be filing a lawsuit against Almaguer.

Almaguer also testified that although he did not remember where appellant’s wife and children were

during the incident, they would be lying if they testified that they were right behind him.

               Appellant, Stephanie, Brittany, and Jeffrey all testified to a different version of the

incident, often using the same words. All three of appellant’s family members testified that when

Almaguer was alerted that appellant had returned to the residence, they followed Almaguer down

the stairs to the second-floor landing and were standing approximately three feet behind him with

a good view of the incident when it happened. This contradicted Almaguer’s testimony that the

Gross family members were not behind him. It also contradicted Proctor’s testimony that when she

and Perez entered the house as appellant and Almaguer landed at the bottom of the stairs she saw

Jeffrey, Brittany, and Stephanie standing on the third floor. Proctor also testified that the family

members all told her at the time that they did not see the incident, although she did not note this in

her written report.



                                                  3
               Appellant and his family members all testified that appellant, who is right-handed,

was holding a can of soda in his right hand on the stairwell. Appellant and his children testified that

Almaguer screamed at appellant to “put your fucking hands behind your back” because he was under

arrest; Stephanie could not remember whether Almaguer had cursed. All four testified that appellant

told Almaguer that he had come home to check on his family, and appellant and his children testified

that appellant said “this is wrong” or “you’ve got it wrong.” Appellant and his family all denied that

appellant struck Almaguer with his hands. Instead they said Almaguer grabbed appellant’s side,

presumably to spin him around to put him in handcuffs, when both appellant and Almaguer tumbled

down the stairs. The family members testified that Almaguer landed on top of appellant and that

Perez “flopped” on top of both of them at the bottom of the stairwell.

               Appellant acknowledged that after being taken into custody he told the officers that

he had taken on bigger and better police departments and that he would probably file a lawsuit

against Almaguer. Appellant testified that the officers were “trash-talking” to him, so he did it right

back. A videotape that was filmed from the patrol cars outside the house picked up some audio from

inside the house through the officers’ microphones; it was entered into evidence. On the tape,

appellant can be heard stating that Almaguer pushed him down the stairs and that he was attacked

in his own home. On another such tape, Almaguer can be heard stating that he was the one pushed

down the stairs.

               After appellant was in custody, Proctor took digital photographs of Almaguer’s

injuries. Proctor also took statements from Stephanie, Brittany, and Jeffrey about the family




                                                  4
disturbance that brought the police to the Gross household in the first place. However, Proctor did

not inquire about the incident involving Almaguer and appellant.

               In his first issue on appeal, appellant argues that the evidence was factually

insufficient to support a conviction. Specifically, he argues that the only evidence that appellant

struck Almaguer was Almaguer’s testimony. Appellant argues that Almaguer’s testimony was self-

serving because at the time of the criminal trial Almaguer had a pending civil lawsuit against

appellant for money damages arising out of the incident in question. In his second issue, appellant

argues that the trial court erred by allowing the State to impeach Jeffrey by introducing two

contradictory statements that Jeffrey made about the initial family disturbance—one made to Proctor

on the day of the incident, and one made to appellant’s lawyer over a month later. Appellant argues

that this constituted improper impeachment on a collateral matter. In his third issue, appellant argues

that the trial court erred by allowing the State to question appellant about his previous long-running

disputes with the Deer Park Police Department and the Harris County Sheriff’s Department.

Appellant argues that this line of questioning was improper impeachment on a collateral matter and

that the danger of unfair prejudice substantially outweighed any probative value.


                                           DISCUSSION


Factual Sufficiency

               In conducting a factual sufficiency review, only one question is presented:

Considering all the evidence in a neutral light, was the jury rationally justified in finding guilt

beyond a reasonable doubt? Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).



                                                  5
However, there are two ways in which the evidence may be insufficient. First, evidence supporting

the verdict, considered by itself, may be too weak to support a finding of guilt beyond a reasonable

doubt. Id. Second, evidence contrary to the verdict may be so strong that the beyond-a-reasonable-

doubt standard could not have been met, despite the evidence supporting the verdict. Id. at 484-85.

Where, as here, most of the evidence is testimonial, unless the record clearly reveals that a different

result is appropriate, an appellate court must defer to the jury’s determination concerning what

weight to give contradictory testimonial evidence because resolution often turns on an evaluation

of credibility and demeanor, and the jurors were in attendance when the testimony was delivered.

Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).

               Almaguer’s testimony, considered by itself, is enough to support a finding of

appellant’s guilt beyond a reasonable doubt. See Goodman v. State, 66 S.W.3d 283, 285-86 (Tex.

Crim. App. 2001) (stating that the testimony of a person with five perjury convictions, standing

alone, is factually sufficient to support a beyond-a-reasonable-doubt finding). But we must

determine whether appellant presented contrary evidence so strong that the beyond-a-reasonable-

doubt standard could not have been met. The evidence that appellant presented was his testimony

and the testimony of his wife and children. Appellant argues that the testimony that he was carrying

a can of soda in his right hand and the videotape showing him carrying the can as he entered the

house show that it was impossible for him to have struck Almaguer with his right hand. The State

argued at trial that appellant could have dropped the can before striking Almaguer.

               The jury apparently concluded that Almaguer was a credible witness and that

appellant and his family were not credible witnesses. Appellant argues that Almaguer’s testimony



                                                  6
was self-serving because of the civil lawsuit he had filed against appellant. However, defense

counsel questioned Almaguer about the civil suit; the jurors were aware of its existence when they

made their credibility determination. There is nothing in the record that indicates that the jury could

not have rationally believed Almaguer and disbelieved appellant and his family. With regard to the

soda can, it is for the jury to choose between two equally competing theories of the case. Goodman,

66 S.W.3d at 287; LaPointe v. State, 196 S.W.3d 831, 838 (Tex. App.—Austin 2006, no pet.). We

overrule appellant’s first issue.


Improper Impeachment of Jeffrey

                The State concedes that the trial court erred by allowing the State to question Jeffrey

about two contradictory statements he made concerning the initial family disturbance. This line of

questioning constituted improper impeachment on a collateral matter. A matter is collateral if it

could not be shown in evidence for any purpose other than contradiction. Gutierrez v. State, 764

S.W.2d 796, 798 (Tex. Crim. App. 1989). Here, Jeffrey’s statements concerned a collateral matter

because the State could not have proved the details of the initial family disturbance as part of its

case-in-chief. Generally, using prior inconsistent statements to impeach a witness on a collateral

matter is impermissible. Flannery v. State, 676 S.W.2d 369, 370 (Tex. Crim. App. 1984). An

exception applies when a witness testifies gratuitously as to a collateral matter. Hammett v. State,

713 S.W.2d 102, 105 (Tex. Crim. App. 1986). In that situation, the witness may be impeached by

showing that he lied or is mistaken about that collateral matter. Id. However, the State may not

bootstrap its way to such impeachment by eliciting the offending statement on cross-examination.

Id. at 105 n.4. The other exception allowing impeachment as to a collateral matter occurs when a

                                                  7
witness leaves a false impression concerning a matter related to his credibility. Daggett v. State, 187

S.W.3d 444, 453 (Tex. Crim. App. 2005). But this exception does not apply when the false

impression is created by the State’s cross-examination. Shipman v. State, 604 S.W.2d 182, 184-85

(Tex. Crim. App. 1980). As the State concedes, neither exception applies here. However, the State

contends that the error was harmless.

               The erroneous admission of evidence is nonconstitutional error if the trial court’s

ruling merely offends the rules of evidence. Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App.

2001). This Court must disregard nonconstitutional error unless it affected substantial rights of the

defendant. Tex. R. App. P. 44.2(b). Substantial rights are not affected by the erroneous admission

of evidence if the appellate court, after examining the record as a whole, has fair assurance that the

error did not influence the jury or had only a slight effect. Solomon, 49 S.W.3d at 365.

               Appellant argues that this impeachment was harmful because Jeffrey was the first of

the family members to testify, and the impeachment of Jeffrey caused the jury to discredit the

substantially similar testimony of the other family members. While this may have had some effect

on the jury, the mere fact that the family members’ testimony was so similar may itself have aroused

the jury’s suspicions. Furthermore, Brittany and Jeffrey were also impeached on permissible

grounds. On cross-examination, Jeffrey admitted that his parents pay for his school, his car, and his

apartment. Jeffrey also stated that Brittany gets excited too quickly on occasion and that she

overreacts “a lot.”    On cross-examination, Brittany was questioned about the contradictory

statements she made about the family disturbance preceding appellant’s alleged assault on Almaguer.

Like Jeffrey, Brittany made a statement about the family altercation to police on the day of the



                                                  8
incident that contradicted her statement to appellant’s lawyer over a month later. Appellant did not

object to the State’s questioning of Brittany about the inconsistencies between the two statements.

               Also, appellant himself undermined the credibility of Jeffrey and Brittany. Appellant

testified that Jeffrey “probably . . . fabricated” his statement to the police because of his emotional

state and that Brittany was “storytelling” in the statement she gave police.

               The jury also heard Almaguer’s testimony that he was assaulted, and the jury was

provided with copies of Almaguer’s medical records from his hospital visit on the day in question,

which corroborated his version of events. The medical records indicate that Almaguer was

diagnosed with a chest wall contusion and neck contusions. This is consistent with Almaguer’s

testimony that he was hit in the chest and the throat by appellant. Appellant argues that the injuries

are also consistent with merely falling down the stairs, but he did not present any evidence on this

point.

               Because the jury heard substantially similar testimony from others, including

Stephanie, who was not impeached, because Jeffrey and Brittany’s testimony was otherwise

impeached in a permissible manner, and because the jury heard sufficient evidence to find appellant

guilty beyond a reasonable doubt apart from Jeffrey’s testimony, we hold that appellant’s substantial

rights were not affected by the improper impeachment of Jeffrey. We overrule appellant’s second

issue.


Improper Impeachment of Appellant

               Appellant argues in his third issue that the following exchange constituted improper

impeachment of appellant on a collateral matter and that any probative value from this line of

questioning was substantially outweighed by the danger of unfair prejudice:

                                                  9
Q.                   Okay. Have you ever filed a $5 million lawsuit against a
                     police department for harassment?

A.                   Yes.

Q.                   The Houston Press has a chronicle out—it’s actually—

[Defense counsel]:   Your Honor, I am going to object to that type of
                     impeachment. That’s not a sworn statement to impeach by.

The Court:           If he hasn’t offered a statement yet.

[Defense counsel]:   And the proper way, if I understand correctly, Your Honor, is
                     that he asked, have you ever made that statement.

The Court:           No, he asked him if he had ever filed a lawsuit.

[Defense counsel]:   Oh.

Q.                   The Houston Press is a periodical out of Houston, isn’t it?

A.                   Correct.

Q.                   And you have been interviewed by a person who writes for
                     that named Richard Connelly; isn’t that correct?

A.                   I don’t remember his name. I have been interviewed by him.

Q.                   And this was back in 1998; isn’t that correct?

A.                   That’s correct.

Q.                   And in that, you explained to him how you have been
                     basically harassed by the Deer Park police; isn’t that right?

A.                   That’s correct.

Q.                   And so you sued them for $5 million?

A.                   That is correct.

Q.                   Now, your wife knew about this lawsuit, right?

                                        10
A.   Not really.

Q.   Not really?

A.   No.

Q.   Husband files a suit for $5 million and the wife doesn’t know
     about it; is that right?

A.   That’s correct.

Q.   Okay. So when you told me a second ago that when you
     made the statement, “I have taken on better police
     departments than you,” you said, “I didn’t really mean
     anything by that,” you actually have done that, haven’t you?

A.   No.

Q.   Well, you sued them, right?

A.   I sued them and I dropped it.

Q.   Well, that is not what I am asking. You sued them?

A.   I sued them.

Q.   For $5 million?

A.   That’s correct.

Q.   Okay. You made allegations about all kinds of harassment by
     the police department, didn’t you?

A.   Yes, sir.

Q.   You made allegations of beating by the Deer Park police; is
     that correct?

A.   May I see it?

Q.   Sure. If you can, read that statement that he attributed to you.

                       11
A.                   I didn’t accuse Deer Park of doing it.

Q.                   Oh, excuse me, Harris County Sheriff’s Department.

A.                   That’s correct.

Q.                   So you have accused Harris County Sheriff’s Department of
                     beating you?

A.                   That’s correct.

Q.                   But you sued Deer Park police?

A.                   I sued both.

Q.                   So you have sued both. So you have taken on the Harris
                     County Sheriff’s Department and the Deer Park Police
                     Department?

A.                   That’s correct.

Q.                   You also made the allegation that at one point the police—

[Defense counsel]:   Judge, I am going to object to this being impeachment on a
                     collateral issue.

[Discussion between the attorneys and the trial court, and question and answer
outside the presence of the jury]

Q.                   May I continue, Your Honor?

The Court:           You may.

Q.                   Mr. Gross, when this reporter interviewed you, you made
                     allegations that on one occasion the Deer Park police got a
                     Harris County deputy to beat on you, and that you told the
                     reporter when he started beating on you, you started counting,
                     and he struck you 27 times; is that correct?

A.                   That is correct.



                                        12
Q.   You said you have been fighting with the police department
     for ten years; is that correct?

A.   That sounds right.

Q.   So you had a ten-year long fight with the Deer Park police and
     the Harris County Sheriff’s Department?

A.   Not the Harris County Sheriff’s Department.

Q.   But they are the ones that beat you—

A.   That’s correct.

Q.   —at Deer Park’s instructions; is that right?

A.   Correct.

Q.   You made allegations that a deputy at the Deer Park police’s
     instructions grabbed you by the ankle and dragged you across
     the floor because—

A.   I think that’s what it says incorrectly. It was a Harris County
     deputy.

Q.   Okay. So it was a Harris County deputy that dragged you
     across the floor at the Deer Park police’s—

A.   No, at the Harris County facility.

Q.   So a Harris County deputy did it because the Harris County
     wanted to do that to you?

A.   I have no idea why.

Q.   You made allegations on that same occasion when you were
     dragged that the police took 5,000 in cash from you; is that
     right?

A.   That is correct.

Q.   But you have no way to prove that because it was just cash?

                        13
A.   That is correct.

Q.   And this was just an allegation by you, right?

A.   It was the truth by me.

Q.   And it was basically a six-page article, and the only purpose
     of the interview is the police are harassing you; isn’t that
     right?

A.   The purpose of the article?

Q.   Yeah.

A.   I don’t know what the purpose of the Houston Press coming
     out and interviewing me was.

Q.   Well, I mean, that was the whole topic of this interview that
     was—

A.   Well, I don’t know what their purpose was.

Q.   Okay. My question is now, that’s the whole topic, is you
     making allegations that can’t be proved by anybody but you,
     correct?

A.   No, there’s other people.

Q.   Well, you dropped your lawsuit?

A.   I dropped my lawsuit.

Q.   Would you agree with me that if anybody was beat 27 times
     by a police department, that would be pretty easy to prove?
     I mean, you would have injuries all over; agree?

A.   I did.

Q.   Okay. But you dropped the lawsuit?

A.   That’s correct.

                        14
       Q.                      The police department just flat out said you were lying about
                               all of that; isn’t that correct?

       A.                      They did; they denied everything.



               The State first argues that appellant opened the door to this line of questioning by

testifying that “I would not ever hit a police, nor would I ever challenge a police.” See Daggett v.

State, 187 S.W.3d 444, 453 (Tex. Crim. App. 2005) (holding that impeachment on a collateral matter

is permissible to correct a false impression created by the witness). In response to a follow-up

question by the State, appellant testified, “I think you are talking about a verbal as opposed to a

physical, and I would never challenge a police officer with a physical.” Appellant made clear that

he was testifying that he would not physically challenge a police officer. This did not leave a false

impression that appellant would not challenge a police department in court. We reject the State’s

argument that appellant opened the door to such questioning.

               The State next argues that any error in allowing this line of questioning was rendered

harmless by appellant’s testimony prior to the impeachment on a collateral matter objection made

by defense counsel. See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (holding that

the erroneous admission of evidence will not result in reversal when the same evidence was

elsewhere received without objection). We agree. When the State began to ask appellant questions

about his lawsuit against the Deer Park Police Department and the Harris County Sheriff’s

Department, appellant objected on a different basis than he raises on appeal and did not receive an

adverse ruling. Thus, appellant has failed to preserve error for review regarding the testimony prior



                                                 15
to appellant’s impeachment on a collateral issue objection. See Tex. R. App. P. 33.1(a)(2) (providing

that error is preserved only if the trial court made an adverse ruling or refused to rule and the

complaining party objected to the refusal). The trial court overruled appellant’s objections that this

line of questioning constituted impeachment on a collateral matter and was more unfairly prejudicial

than probative. Thus, appellant preserved error from that point forward.

                   Appellant failed to preserve error regarding his testimony that he sued the Deer Park

Police Department and Harris County Sheriff’s Department for $5 million for harassment and for

a beating, and that he eventually dropped this lawsuit. Appellant preserved error regarding his

testimony that he was struck 27 times during the beating, that the harassment by the Deer Park police

lasted for ten years, that the Deer Park police instructed a Harris County deputy to beat him, that the

police stole $5,000 from him on the same day the beating took place, and that the police denied all

his allegations.

                   We hold that any error regarding the testimony for which error was preserved was

harmless.    See Tex. R. App. P. 44.2(b) (providing that appellate courts must disregard

nonconstitutional error that does not affect substantial rights). The jury had already heard evidence

that appellant sued two police departments for $5 million because they harassed and beat him, and

that he eventually dropped the lawsuit before the testimony in question. The testimony that is

properly preserved for review by this Court includes the duration of the conflict between appellant

and the Deer Park police, the number of times he was struck during the beating, the reason for the

beating, an allegation of theft by the police, and the denial of these allegations by the police. We

have fair assurance that this testimony did not influence the jury or had only a slight effect in

producing appellant’s conviction for assault against a public servant. See Solomon v. State, 49


                                                    16
S.W.3d 356, 365 (Tex. Crim. App. 2001). This is because the testimony in question merely fleshed

out some details regarding an issue that was already before the jury without objection. We overrule

appellant’s third issue.


                                         CONCLUSION

               Having overruled all of appellant’s issues on appeal, we affirm the judgment of

conviction entered by the trial court.




                                                            ______________________________

                                                            Bea Ann Smith, Justice

Before Justices B. A. Smith, Puryear and Waldrop

Affirmed

Filed: October 3, 2006

Do Not Publish




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