Jermie Julien v. State ( 2019 )

Opinion issued July 2, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00155-CR
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JERMIE JULIEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Case No. 1549176
MEMORANDUM OPINION
Jermie Julien appeals his conviction for assault of his girlfriend. See TEX.
PENAL CODE § 22.01(a). The jury found him guilty, and Julien pleaded true to an
enhancement paragraph that alleged a prior felony conviction for assault against a
family or household member. The offense was a third-degree felony with the
punishment range of a second-degree felony. See id. §§ 22.01(b)(2) (assault with
prior conviction is a third-degree felony); 12.42(a) (conviction for a third-degree
felony with a prior felony conviction shall be punished as a second-degree felony).
Julien faced a punishment range of no less than two years and no more than 20 years’
imprisonment and a fine up to $10,000. See id. § 12.33. The jury assessed
punishment at 10 years’ imprisonment and a $10,000 fine. On appeal, he contends
that the trial court erred in admitting and excluding evidence against him. We affirm.
Background
In April 2017, Jermie Julien punched his girlfriend Angel Frederick in the face
during an argument in their apartment. Their two-year-old son was at Frederick’s
feet during the assault, and Julien’s ten-year-old son saw the fight. A roommate also
witnessed the altercation. Frederick called the police from outside the apartment, and
Julien packed some of his things and left with his son. Frederick called 911 at least
five times over the course of three hours before law enforcement arrived. During the
calls she reported that she felt threatened by Julien, that he was sending her
threatening messages, and that he had returned to the apartment and was trying to
get in. Detective G. Black arrived at the scene about midnight. Frederick told him
that Julien had punched her several times in the face. Her lip was bleeding, and she
had bruises and marks on her arms. Detective Black also spoke with Julien on
Frederick’s phone. Julien told Detective Black that he was across town staying with
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a friend. Another officer spoke with their roommate who witnessed the fight. As the
officers left the scene, someone in the parking lot told Detective Black that Julien
was at a motel a few blocks away. The two officers went to the motel and found
Julien and his son. As they arrested him, Julien repeatedly told the officers that if he
could just talk to Frederick, she would decline to press charges. He asked multiple
times to speak with her or have his son speak with her.
At trial, the jury heard from Detective Black, the roommate who witnessed
the assault, and a social worker who was an expert in domestic violence. The jury
heard 911 calls made by Frederick and viewed Detective Black’s body camera
videos. Frederick did not testify.
The jury found Julien guilty, he pleaded true to a felony enhancement, and the
jury assessed punishment at ten years’ imprisonment and a $10,000 fine. This appeal
followed.
Confrontation Clause
In his first issue, Julien contends that the admission of Frederick’s statements
contained in body camera video violated his Sixth Amendment right to confrontation
under Crawford v. Washington, 541 U.S. 36 (2004). We review de novo the trial
court’s ruling that admission of Frederick’s statements did not violate Julien’s rights
under the Confrontation Clause. See Cook v. State, 199 S.W.3d 495, 497 (Tex.
App.—Houston [1st Dist.] 2006, no pet.).
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The Confrontation Clause of the Sixth Amendment bars admission of
testimonial statements of a witness who does not appear at trial unless the witness is
unavailable and the defendant had a prior opportunity for cross-examination. See
U.S. CONST. amend VI; see also Davis v. Washington, 547 U.S. 813, 821 (2006)
(quoting Crawford, 541 U.S. at 53–54). Only testimonial statements cause the
declarant to be a witness within the meaning of the Confrontation Clause. Davis, 547
U.S. at 821. Therefore, nontestimonial statements, “[w]hile subject to traditional
limitations upon hearsay evidence, [are] not subject to the Confrontation Clause.”
Id.
The initial question to be addressed under the Confrontation Clause is whether
the statement is “testimonial.” Id. In deciding the issue, we review the totality of the
circumstances and may consider the following non-exclusive factors: (1) whether
the situation was still in progress; (2) whether the police questions sought to
determine what was happening as opposed to what had happened in the past; (3)
whether the primary purpose of the interrogation was to render aid rather than to
memorialize a possible crime; (4) whether the questioning was conducted in a
separate room, away from the alleged attacker; and (5) whether the events were
deliberately recounted in a step-by-step fashion. See Vinson v. State, 252 S.W.3d
336, 339 (Tex. Crim. App. 2008).
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Julien argues that Frederick’s statements to Detective Black were testimonial
because the conversation took place hours after the event occurred and the
emergency was over. We disagree with this conclusion.
The record shows that Detective Black and Frederick believed there was an
ongoing emergency. The body camera footage shows that Detective Black arrived
at Frederick’s home and asked her about what happened. Frederick expressed relief
that the officer finally arrived. She complained about how long it took law
enforcement to respond and said she was lucky to be alive. Within the first minutes,
Detective Black asked her about Julien’s location. Though Julien had left the
apartment, his exact whereabouts were unknown. The primary purpose of the
questioning was not to document a past crime, but instead to assess the situation,
determine the location of the suspect, and ascertain whether the threat remained. See
Davis, 547 U.S. at 829 (suggesting “questions necessary to secure [officers’] safety
or the safety of the public” would be non-testimonial) (quoting New York v. Quarles,
467 U.S. 649, 658–59 (1984)).
The record shows that Frederick feared Julien returning that night to attack
her. During her 911 calls, she repeatedly emphasized that she believed the threat to
her was ongoing and could only be stopped by the police. She called 911 five times
in three hours expressing her ongoing concerns. She told 911 dispatchers that Julien
continued to threaten her. When the officer arrived about midnight, three hours after
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her initial call, Frederick remained concerned that Julien might return to the scene.
See Wilson v. State, 296 S.W.3d 140, 147 (Tex. App.—Houston [14th Dist.] 2009,
pet. ref’d) (information solicited from victim was not testimonial because it was
necessary to enable police to arrest the suspect and resolve emergency); see also
Vinson, 252 S.W.3d at 339–40 (emergency situation continued until assailant had
been arrested and secured in patrol car).
The trial court could reasonably find that the officer was still assessing an
emergency situation and the purpose of the questioning was to enable police
assistance in the ongoing emergency. See Vinson, 252 S.W.3d at 340. Because of the
non-testimonial nature of Frederick’s statements, their admission did not violate the
Confrontation Clause. We overrule Julien’s first issue.
Hearsay
In his second issue, Julien contends that the admission of Frederick’s
statements contained in the body camera video violated the evidentiary bar against
the admission of hearsay because Frederick’s statements were not excited utterances.
See TEX. R. EVID. 803(2). Julien contends that Frederick’s responses to Detective
Black were not excited utterances because Frederick had time for reflection and
deliberation before making the statements. We disagree.
The admission of out-of-court statements is reviewed for abuse of discretion,
and the trial court’s decision will not be reversed unless it falls outside the zone of
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reasonable disagreement. Zuliani v. State, 97 S.W.3d. 589, 595 (Tex. Crim. App.
2003). An excited utterance is a “statement relating to a startling event or condition,
made while the declarant [is] under the stress of excitement that it caused.” TEX. R.
EVID. 803(2). While time can certainly be a factor in determining an excited
utterance, it is not dispositive. Zuliani, 97 S.W.3d at 595–96. The critical
consideration is “whether the declarant [is] still dominated by the emotions,
excitement, fear, or pain of the event.” Id. at 596 (quoting McFarland v. State, 845
S.W.2d 824, 846 (Tex. Crim. App. 1992)).
Detective Black testified that when he arrived, Frederick appeared agitated.
She raised her voice and used short, curt statements. She had fresh bruises and her
lip was bleeding. Frederick did not know where Julien was, and she was concerned
that he could return to the apartment. Frederick had called for help multiple times
before the police arrived, and on one of those occasions, Julien was banging on her
window, trying to enter. The trial court noted that although Frederick was not crying
or hysterical, her gestures demonstrated she was still agitated. Julien argues that this
shows that Frederick was not dominated by emotion. Though the trial court
acknowledged evidence that could weigh against the finding of an excited utterance,
an exception to the hearsay rule need only be proved by a preponderance of the
evidence. See Vinson, 252 S.W.3d at 340 n.14. We hold that the trial court’s ruling
that Frederick’s statements were excited utterances falls within the zone of
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reasonable disagreement and was not an abuse of discretion. See Zuliani, 97 S.W.3d
at 595. We overrule Julien’s second issue.
Exclusion of Frederick’s Statement
In his third issue, Julien complains about the exclusion of one of Frederick’s
statements from body camera footage in the State’s exhibit. Before opening
statements, the court held a hearing on whether to admit the body camera footage.
Defense counsel objected to the admission of parts of the video where the officer
wearing the camera spoke to people other than Frederick. The trial court ordered the
deletion of statements from other parties and ordered that the video stop “right after
the part about the window.” Later the edited exhibit was admitted and published to
the jury during Detective Black’s testimony. Defense counsel did not object.
Nothing in the record shows what was redacted.
After Detective Black and another witness testified but before the State called
its expert witness, defense counsel approached the court and advised that part of
Frederick’s statement was missing from the State’s exhibit. He told the court that he
expected her statement, which he paraphrased as “I already had put one of my baby
daddies in jail behind this or in prison behind this,” to be in the video. Defense
counsel believed the State mistakenly cut the statement, but the court explained that
it intended for the statement to be removed. Counsel argued that the statement was
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relevant as to Frederick’s motive to make a false accusation against Julien. The trial
court overruled this objection.
A party complaining on appeal about a trial court’s exclusion of evidence must
“at the earliest opportunity, have done everything necessary to bring to the judge’s
attention the evidence rule or statute in question and its precise and proper
application to the evidence in question.” Martinez v. State, 91 S.W.3d 331, 335–36
(Tex. Crim. App. 2002) (internal quotations omitted); TEX. R. APP. P. 33.1(a)(1)(A)
(the record must show that the party “stated the grounds for the ruling that [he]
sought from the trial court with sufficient specificity to make the trial court aware of
the complaint. . . .”). While no “hyper-technical or formalistic use of words or
phrases” is required to preserve error, the proffering party must “let the trial judge
know what he wants, why he thinks he is entitled to it, and to do so clearly enough
for the judge to understand him at a time when the judge is in the proper position to
do something about it.” Golliday v. State, 560 S.W.3d 664, 670 (Tex. Crim. App.
2018) (quoting Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012)). Parties
are not permitted to bootstrap a constitutional issue from a routine evidentiary trial
objection, and trial courts must be presented with and have the chance to rule on the
specific constitutional basis for admission. Golliday, 560 S.W.3d at 670 (quoting
Clark, 365 S.W.3d at 340). To preserve error on a ruling to exclude evidence, the
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ruling must affect a substantial right of the party and the party must inform the court
of its substance by an offer of proof. See TEX. R. EVID. 103(a).
1. Constitutional Objection
Julien makes a constitutional argument about the exclusion of the statement
on appeal, but he did not properly preserve it in the trial court. At trial, Julien argued
that the excluded statement was relevant to demonstrate the complainant’s motive
to falsely accuse him. He did not tell the court he was objecting on constitutional
grounds. On appeal, he contends that the exclusion violated his constitutional rights
to due process and confrontation of the evidence against him. “When a defendant’s
objection encompasses complaints under both the Texas Rules of Evidence and the
Confrontation Clause, the objection is not sufficiently specific to preserve error.”
Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (holding an objection
on hearsay did not preserve error on Confrontation Clause grounds); see also
Golliday, 560 S.W.3d at 670–71 (stating in order to preserve an argument that the
exclusion of evidence violates constitutional principles, a defendant must state the
grounds for the ruling that he seeks with sufficient specificity to make the court
aware of these grounds). A general appeal to a proffer’s relevance, or a broad
expression that the jury needs a broader understanding of events “does not
adequately articulate a constitutional basis sufficient to preserve the argument for
appellate review.” Golliday, 560 S.W.3d at 671. Julien did not articulate a
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constitutional basis supporting the admission of the excluded evidence at trial.
Consequently, he did not preserve a constitutional claim for appeal. See TEX. R. APP.
P. 33.1.
2. Evidentiary Complaint
Assuming Julien properly preserved his complaint by making a timely
objection about the relevance of the omitted evidence, the trial court did not abuse
its discretion in overruling his objection. We review a trial court’s decision to admit
or exclude evidence for an abuse of discretion. Henley v. State, 493 S.W.3d 77, 82–
83 (Tex. Crim. App. 2016). We may reverse the trial court only if its decision lies
outside the zone of reasonable disagreement. Id. at 83; see also Dabney v. State, 492
S.W.3d 309, 318 (Tex. Crim. App. 2016) (explaining that appellate court would
misapply abuse-of-discretion standard if it were to reverse merely because it
disagrees with trial court’s evidentiary decision).
Any evidence that someone else was convicted of assaulting Frederick was
not relevant. The record contains no evidence of the previous incident other than
counsel’s characterization of Frederick’s comment. The fact that a woman
presumably was a complainant in two criminal cases does not raise an inference that
she made a false accusation in either of them. The trial court did not abuse its
discretion in excluding the evidence. We overrule Julien’s third issue.
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Extraneous Offense
In his fourth issue, Julien contends that the trial court erred in admitting
evidence of an extraneous offense. The State’s witness, Detective Black, testified
that after he arrested Julien, Julien asked to either speak with Frederick or have his
10-year-old son who was with him speak with Frederick. During this testimony, the
State asked; “[W]hen a defendant makes contact with a complainant and convinces
the complainant to drop charges, what offense arises when that happens?” Julien’s
counsel lodged three objections to this question: (1) “asked and answered;” (2)
relevance; and (3) “this is improper extraneous offense used to show action and
conformity.” The court overruled the objections and the officer responded, “It’s
called tampering.” On appeal, Julien contends that the trial court erred in overruling
his third objection based on an improper extraneous offense. We disagree.
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Henley, 493 S.W.3d at 82–83. We may reverse the trial court only if
its decision lies outside the zone of reasonable disagreement. Id. at 83. Rule of
Evidence 404(b) bars the admission of “[e]vidence of a crime, wrong, or other act . . .
to prove a person’s character in order to show that on a particular occasion the person
acted in accordance with the character.” TEX. R. EVID. 404(b)(1).
Detective Black’s response was not evidence of any prior act by Julien. The
officer simply provided his opinion about a hypothetical situation. An officer’s
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opinion of whether certain acts constitute a criminal offense is not evidence of an
extraneous act. The response also did not raise inferences about Julien’s character or
suggest action in conformity with it. The trial court did not abuse its discretion in
overruling the objection. We overrule Julien’s fourth issue.
Conclusion
We affirm the judgment of the trial court.
Peter Kelly
Justice
Panel consists of Justices Lloyd, Kelly, and Hightower.
Do not publish. TEX. R. APP. P. 47.2(b).
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