                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-15-00102-CR


DAVID MICHAEL SCHUMM                                               APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


                                    ----------

            FROM COUNTY COURT AT LAW OF HOOD COUNTY
                      TRIAL COURT NO. 46723

                                    ----------

                                   OPINION

                                    ----------

      A jury convicted Appellant David Michael Schumm of interfering with an

emergency call of his former wife, the complainant, and assessed his punishment

at nine months’ confinement in the Hood County jail with no fine. The trial court

sentenced him accordingly. Appellant does not challenge the sufficiency of the

evidence supporting his conviction. Instead, in his sole point, Appellant argues

that he was denied due process in presenting his own testimony in his defense
because the jury was not allowed to consider that he had been acquitted of the

purported underlying felony assault to which the thwarted 911 emergency call

pertained. Because Appellant failed to preserve his due process claim and the

trial court did not abuse its discretion by excluding the evidence on relevance

grounds, we affirm the trial court’s judgment.

      According to the complainant’s testimony in this case, in February 2014,

she and Appellant were arguing in their home when she tried to place a 911 call,

and Appellant physically prevented her from doing so by taking her cell phone

from her. The complainant testified that she ran outside and screamed for help.

She also testified that Appellant followed her, dragged her onto the porch,

pushed her face-first against the door jamb, and pushed his body weight on top

of her. She further testified that Appellant reached around her neck with his arm,

put pressure on her neck, and began “strangling” her. In his testimony, Appellant

denied any assaultive conduct and denied touching her cell phone.

      Appellant was charged in this case with interfering with an emergency

call, 1 but he was also charged separately in a district court with assaulting the

complainant by impeding her breathing, a felony. 2 He was acquitted of the felony

assault in a separate trial before the trial in the case at bar. Although the jury in

this case was allowed to hear that he had been accused and tried for the felony

      1
       See Tex. Penal Code Ann. § 42.062 (West Supp. 2015).
      2
       See id. § 22.01(b)(2)(B).



                                         2
assault, the jury was not allowed to hear that he had been acquitted of the felony

assault.

      Before Appellant began testifying before the jury in this case, he advised

the trial court that he had a certified judgment of acquittal by the district court on

the felony assault case. Counsel stated,

            And given the history and the back and forth and so much
      coming in from the previous trial and the fact that the underlying
      cause of it is the choking charge and the fact that there was an
      acquittal in this other case, I would like to offer that [a copy of the
      felony indictment and the certified judgment of acquittal] into
      evidence Your Honor.

      The trial court said, “Well, I'll let you do that by way of a bill, but, I mean,

my previous ruling relative to acquittals on cases that—in the felony case

stands.” Counsel then submitted his bill of exceptions. The trial court granted

the State’s relevance objection and then denied Appellant’s request that the

felony indictment and judgment of acquittal be admitted for “limited consideration

by the jury, not—with the instruction that it is not determinative of this case, but

it’s only considered as evidence.”

      Although Appellant now presents state and federal constitutional authority

for the general proposition that a defendant is entitled to testify and to present a

defense, he directs us to no place in the record where he raised a constitutional

basis for admitting the excluded evidence. He has therefore not preserved his




                                          3
due process claim or any other constitutional claim. 3 We liberally construe the

remainder of his point as a complaint that the trial court abused its discretion by

excluding the evidence on relevance grounds.

      The applicable elements of interfering with an emergency call are that (1)

an individual (2) knowingly (3) prevents or interferes with (4) another individual’s

(5) ability to place an emergency call or to request assistance, including a

request for assistance using an electronic communications device, (6) in an

emergency (7) from a law enforcement agency. 4          Appellant argues that the

excluded evidence is relevant to the element of “emergency,” defined in the

statute as “a condition or circumstance in which any individual is . . . in fear of

imminent assault.” 5 He claims that the acquittal is “important evidence that there

was a reasonable doubt that an emergency existed.”

      Yet the judgment of acquittal Appellant sought to admit did not show that

the felony jury had specifically found no emergency. That is, the felony jury did

not find that the complainant was not in fear of imminent assault at the time

Appellant allegedly prevented her from calling 911.        Rather, the felony jury

acquitted Appellant of “intentionally, knowingly, or recklessly imped[ing] the

normal breathing or circulation of the blood by applying pressure to the throat or

      3
       See Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005).
      4
       Tex. Penal Code Ann. § 42.062.
      5
       Id. § 42.062(d).



                                         4
neck of [the complainant],” an event that the complainant alleges happened after

Appellant took her cell phone. “Emergency” is not an element of assault by

impeding normal breathing or blood flow. 6 Similarly, a completed assault, of any

type, is not an element of the offense of interference with an emergency call. 7

      In sum, Appellant was prevented from offering evidence that another jury

acquitted him of “intentionally, knowingly, or recklessly imped[ing] the normal

breathing or circulation of the blood by applying pressure to the [complainant’s]

throat or neck,” but that evidence had no bearing on whether the complainant

feared an imminent assault when she attempted to make a 911 call. The trial

court therefore did not abuse its discretion by excluding the evidence on

relevance grounds. We overrule Appellant’s sole point and affirm the trial court’s

judgment.




      6
       See id. § 22.01(b)(2)(B).
      7
       See id. § 42.062.



                                         5
                                           /s/ Lee Ann Dauphinot
                                           LEE ANN DAUPHINOT
                                           JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

WALKER, J., concurs without opinion.

PUBLISH

DELIVERED: December 3, 2015




                                       6
