Joe W. Dimock and E. W. Moran Drilling Company v. Louise Kadane, Michael L. Gustafon, and Carr Staley as Co-Trustees of the Edward George Kadane II Trust, the Matthew Byron Kadane Trust, and the Louis

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 11th District Court of Appeals » 2003 » Joe W. Dimock and E. W. Moran Drilling Company v. Louise Kadane, Michael L. Gustafon, and Carr Staley as Co-Trustees of the Edward George Kadane II Trust, the Matthew Byron Kadane Trust, and the Louis

State: Texas

Court: Texas Northern District Court

Docket No: 11-01-00353-CV

Case Date: 03/06/2003

Plaintiff: Joe W. Dimock and E. W. Moran Drilling Company

Defendant: Louise Kadane, Michael L. Gustafon, and Carr Staley as Co-Trustees of the Edward George Kadane II T

Preview:Steven Alexander Jones v. The State of Texas--Appeal
from Co Crim Ct at Law No 12 of Harris County
MAJORITY | MAJORITY
Steven Alexander Jones v. State /**/
IN THE
TENTH COURT OF APPEALS
No. 10-98-157-CR
STEVEN ALEXANDER JONES,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Criminal Court at Law #12
Harris County, Texas
Trial Court # 98-00018
O P I N I O N
Appellant Jones appeals his conviction for misdemeanor assault, for which he was assessed a fine of $800 and
sentenced to one year in the county jail, probated for one year.
Appellant was charged by information with intentionally causing bodily harm to Rebecca Jones by grabbing her by the
hair on her head and by pulling her by the hair. Appellant pled not guilty.
Rebecca Jones, age 21 and wife of Appellant, testified that at about 11:30 p.m. on January 1, 1998, she and Appellant
arrived at their home in Houston from Las Vegas; that Appellant became angry when he discovered she had not
packed his toothbrush; that he grabbed her by her hair and pulled her through the living room; that this lasted about ten
seconds and caused her pain. Rebecca ran out of her house to Janie Orta's house next door and called the police. She
testified she was afraid of Appellant.
Janie Orta testified that on January 1, 1998, Rebecca came to her house about midnight crying; told her that she and
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her husband had a fight and that he had dragged her by her hair; and that Rebecca called 9-1-1 for the police.
Deputy Woelic testified he responded to the 9-1-1 call on January 1, 1998; that Rebecca said she had been assaulted
by her husband by having her hair pulled. He also testified he went next door and talked with Appellant who stated,
"She's lying, nothing happened." Deputy Woelic took Appellant into custody.
James Atkins testified that Appellant was hard-working, very honest and he never saw him lose his temper; that
appellant had been married three times before his marriage to Rebecca; and that he was not aware of any internal
problems in the Jones' marriage.
Appellant's daughter, Amy Jones, age 20, testified her father was a peaceful and law-abiding citizen.
Appellant's mother, Josie Jones, age 70, testified that Rebecca took some of her property from her house and that she
had made a theft report. She also testified that Appellant was a peaceful person and had never been in trouble in his
life.
Appellant, who is 50 years of age, testified he met Rebecca in 1993 in Florida where she was a receptionist; that she
followed him to Las Vegas and moved in with him for three years; and that they married in 1996. In his testimony he
said Rebecca had threatened to bruise herself and then sue him for everything he owned; and that she had hit him a
number of times. He also testified that he did not assault Rebecca; that after returning from Las Vegas he asked
Rebecca about his toothbrush and that she responded she had not packed it; that a heated discussion, disagreement or
argument began; that he reminded her of her past infidelities, which drove her into a rage. He stated she then threw a
cordless telephone at him striking him in the mouth; that she then came at him and he grabbed her hair and said, "Stop
it, what's wrong you?" He then released her, went into the TV room, and heard her go out the front door.
The jury found Appellant guilty. The judge assessed punishment at a fine of $800 and one year in jail, probated for
one year.
By different counsel Appellant appeals on three points of error.
In point one Appellant asserts that the trial court reversibly erred and abused its discretion in sustaining the State's
relevance objection on whether the complainant herself paid to have her teeth fixed.
Rebecca denied that Appellant had been generous with her in money matters and testified she even had to pay to have
her own teeth fixed.
In an attempt to impeach Rebecca s credibility Appellant was asked:
DEFENSE COUNSEL: Today, we talked about fixing her teeth. Do you know what she was talking about?
DEFENDANT: Yes.
DEFENSE COUNSEL: And what was it?
PROSECUTOR: I object to the relevance.
THE COURT: Sustained.
DEFENSE COUNSEL: Did she fix her teeth with her money?
PROSECUTOR: Object as to relevance.
THE COURT: Sustained.
DEFENSE COUNSEL: I believe it goes to the credibility of the person.
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THE COURT: Objection is sustained.
In point two Appellant complains that the trial court reversibly erred and abused its discretion in sustaining the State s
relevance objection to testimony by Appellant concerning his compliance with a no-contact provision on his
appearance bond.
Rebecca testified that she had requested and had been granted a no-contact order as a condition of Appellant s bond,
and that he attempted to contact her in violation of same.
Appellant, in an attempt to rebut and impeach Rebecca, was asked:
DEFENSE COUNSEL: You ve heard some comments about a no-contact provision?
DEFENDANT: I recall that, yes.
PROSECUTOR: I object, Your Honor, to the relevance of this.
DEFENSE COUNSEL: You know they had a big thing about it yesterday. I think the jury needs to have that cleared
up.
THE COURT: Sustained. I don t want to hear any more about a no-contact provision. It has nothing to do with this
case whatsoever. That is an administrative function of this court. It has no bearing on the guilt or innocence and you
are not to consider it for any purpose whatsoever.
Point three complains of the trial court s ruling excluding evidence to impeach the credibility of Rebecca.
Rebecca testified she did not tell Appellant s mother, over the telephone after this incident occurred, that she loved
Appellant and didn t want this thing to go this far, that she didn t
want to leave, and that she wanted him to take her back.
Thereafter Appellant s mother, Josie Jones, testified to the following:
DEFENSE COUNSEL: Did you have occasion after January 1, 1998, to talk with Rebecca by telephone?
WITNESS: Yes.
DEFENSE COUNSEL: Could you determine from the conversations that you had with her whether she wanted to go
back as the wife of Steven, or not?
WITNESS: Yes.
PROSECUTOR: That s backdoor hearsay.
DEFENSE COUNSEL: That is not backdoor hearsay. I m not going into conversations. The lady was on the witness
stand.
PROSECUTOR: Objection, speaking objection, Your Honor.
THE COURT: Objection is sustained.
PROSECUTOR: Thank you, Your Honor, may the jury be instructed to disregard the witness answers.
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THE COURT: Jury so instructed.
Rule 801(a), Texas Rules of Evidence, defines hearsay as:
Hearsay is a statement, other than one made by the declarant while testifying at the trial, offered in evidence to prove
the truth of the matter asserted.
However, when a witness has been given the opportunity to admit the making of a statement under circumstances
reflecting that the witness is aware of the substance of the statement and the time and person to whom it was made,
extrinsic evidence of the statement is admissible under the prior inconsistent statement rule. Tex. R. Evid. 613(a).
Extrinsic evidence of the statement is admissible to show the existence of the statement and not the truth of the matter
asserted in the statement. Under these circumstances the statement is not hearsay and is admissible for the purpose of
impeachment. Staley v. State, 888 S.W.2d 45, 49 (Tex. App. Tyler 1994, no pet.).
In excluding evidence of Rebecca s statements to Josie Jones, which were inconsistent with Rebecca s testimony and
the existence of which Rebecca denied, the trial court focused exclusively on the issue of hearsay. Because the
statements were not being offered for the truth of the matter asserted, but rather as proof that the statements were made
and to impeach the credibility of the complainant, the trial court acted without reference to any guiding rules and
principles and thus acted arbitrarily and unreasonably. Therefore, the court abused its discretion in sustaining the State
s objection. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
This case turned on whether the jury believed Rebecca, who testified Appellant assaulted her by pulling her across the
floor by her hair, or whether the jury believed Appellant, who testified that he did not do so, and/or whether whatever
he did was in self-defense or was otherwise justified.
The evidence excluded and referred to in points one, two and three was offered to impeach the credibility of
complainant and as such should have been admitted.
We nevertheless overrule points 1 and 2 since the record does not show what the excluded testimony would have been.
Point 3 is sustained.
We next consider whether the trial court s errors constituted reversible error under Rule 44.2, Texas Rules of
Appellate Procedure.
Rule 44.2. Reversible error in criminal cases provides in (b) Other errors (than constitutional errors) . Any other error,
defect, irregularity, or variance that does not affect substantial rights must be disregarded.
Since the result of this case depended primarily on whether the jury believed the complainant, or believed the
appellant, and since the trial court denied the jury evidence which, if believed, would directly affect the credibility of
the complainant, we hold that the trial court s error affected the substantial rights of Appellant and thus should not be
disregarded.
The judgment is reversed and the cause remanded for a new trial.
FRANK G. McDONALD
Chief Justice (Retired)
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Before Chief Justice Davis,
Justice Gray and
Chief Justice McDonald (Retired)
(Justice Gray dissenting)
Reversed and remanded
Opinion delivered and filed August 18, 1999
Do not publish
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