COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-07-390-CR

ALAA MOHAMAD WEISS APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM COUNTY CRIMINAL COURT NO. 5 OF TARRANT COUNTY

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MEMORANDUM OPINION1

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I. Introduction

A jury convicted appellant Alaa Mohamad Weiss of assault, assessed his

punishment at 182 days in jail with a $3,000 fine, and the trial court sentenced

him accordingly. Appellant brings ten issues on appeal. We affirm.

1 See Tex. R. App. P. 47.4.
II. Facts

For several days in July 2005, appellant and his wife, Rania, had been

arguing over money. On July 15, 2005, Rania called appellant’s sister Majd

and asked her to help the couple resolve their dispute. That afternoon, Rania

went to Majd’s house and appellant arrived about an hour later. As they aired

their grievances, appellant started cursing Rania’s family. Rania objected to

that and told him to stop. When he persisted, Rania arose from her chair,

crossed the room and placed her bare foot on appellant’s leg, which in their

culture, signals disrespect. Appellant warned her to move away from him or

he would hit her.

When she refused to move away, Majd and her husband Haitham stood

up and moved closer to the couple. Appellant also stood, grabbed a remote

control from the table, looked Rania in the eye, and struck her in the face with

it.

Rania’s face went numb. Haitham told her she was bleeding. Rania tried

to call the police, but her in-laws took the telephone away from her.

For the next two hours, Rania asked to go to the hospital, but was only

given an ice pack and told that she was fine and that she didn’t need to go.

After she tried to leave on her own but swooned against the door, appellant

agreed to take her for medical attention, but instructed her to say that her

2
daughter had hit her with a toy. Appellant and Haitham drove Rania to a

CareNow facility, where personnel referred her to the USMD Hospital

emergency room.

When she arrived at the hospital, Rania was dizzy, weak, had trouble

standing and talking, and her head and eyes hurt. The doctors diagnosed a

concussion. Appellant told the doctor that Rania’s daughter had hit her. City

of Arlington Police Officer Michael Smith came to Rania’s room and appellant

told him the same story.

The doctor ordered a shot and wanted her to wait at the hospital for

thirty minutes, but appellant insisted that she leave after the injection, so he

took Rania back to his sister’s house. Rania spent the night there but awoke

early the next day, gathered her daughter, and drove home.

On the way, Rania felt dizzy and couldn’t see properly. Once she arrived

home, she called a friend who drove her to the police station where she met

with Arlington Police Officer Juan Williams. Officer Williams thought Rania

appeared nervous, frightened, and shaken up. She told him she was in pain and

felt dizzy. He was concerned that she might faint during the interview. After

he took her report, Officer Williams gave her a ride home because she told him

she was afraid appellant might be there waiting for her and that he might

retaliate against her for talking to the police.

3
Appellant was charged with assault bodily injury on a family member and

tried by a jury, which found him guilty, and assessed his sentence at 182 days’

confinement with a $3,000 fine. The trial court sentenced appellant

accordingly.

III. Jury Charge

Appellant’s first issue is a three-part challenge to the jury charge. In part

A, he argues that the trial court erred by combining the defenses of accident

and involuntary conduct in an application paragraph. That paragraph reads as

follows:

Therefore, if you believe from the evidence beyond a reasonable

doubt that [appellant] . . . did then and there intentionally or

knowingly cause bodily injury to RANIA WEISS, a member of

[appellant’s] family or household, by striking her with a remote

control, but you further believe from the evidence or have a

reasonable doubt thereof that the injury was a result of an accident

and was not the voluntary act of [the] conduct of [appellant] you

will acquit [appellant] and say by your verdict “Not Guilty

(emphasis added).”

Appellant and the State agree that “accident” is not a recognized defense

and that the court erred by including it in the charge.

2 Appellant also complains

that the charge erroneously combined accident with involuntary conduct, which

2 See Rogers v. State, 105 S.W.3d 630, 637–38 (Tex. Crim. App.

2003) (“There is no law and defense of accident in the present penal code, and

the bench and bar would be well advised to avoid the term ‘accident’ in

connection with offenses defined by the present penal code.”) (quoting Williams

v. State, 630 S.W.2d 640, 644 (Tex. Crim. App. 1982)).

4
he contends authorized the jury to acquit only upon finding that appellant acted

involuntarily and that the injury was an accident.

Appellant preserved neither of these complaints by objecting in the trial

court. Although he did raise numerous objections to the charge, none of his

objections addressed the word “accident,” the use of accident as a defense, or

the combination of accident and involuntary conduct in the application

paragraph of the charge. Accordingly, we consider whether the error was so

egregious and created such harm as to deprive appellant of a fair trial.

3

Jury-charge error is egregiously harmful if it affects the very basis of the

case, deprives the defendant of a valuable right, or vitally affects a defensive

theory.

4

In determining whether jury-charge error is egregiously harmful, we

consider the entire charge, the evidence, including contested issues and

probative weight, arguments of counsel, and any other relevant information

revealed by the record as a whole.

5

3 See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); Hutch v.

State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996); Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g).

4 Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007);

Hutch, 922 S.W.2d at 171.

5 Stuhler, 218 S.W.3d at 719.

5
The jury in this case was instructed that a person acts intentionally with

respect to a result of his conduct when it is his conscious objective or desire

to cause the result, and acts knowingly with respect to a result of his conduct

when he is aware that his conduct is reasonably certain to cause the result.

The jury was also instructed that it could find appellant guilty only if it found

that he intentionally or knowingly caused bodily injury to Rania Weiss. Viewing

the entire charge, the abstract portion, which contained both the required

mental state and accompanying definitions, sufficiently instructed the jury on

the requisite mental state for the offense. The application paragraph

specifically instructed the jury to find appellant guilty only if it found that he

intentionally or knowingly caused bodily injury to Rania. Further, in the very

next paragraph it instructed, “Unless you so find from the evidence beyond a

reasonable doubt or if you have a reasonable doubt thereof, you will acquit the

Defendant and say by your verdict ‘Not Guilty’.”

As for the contested issues and weight of the probative evidence, both

sides presented straightforward cases that relied largely on the credibility of

their key witnesses. The State maintained that appellant intentionally or

knowingly injured Rania by striking her in the face with a remote control,

whereas appellant’s theory directly contested the intent element and the State’s

allegation of manner and means. In appellant’s opening statement, counsel told

6
the jury that appellant did not intentionally injure Rania and that if she was hit

by anything, it was not by the remote control as alleged by the State’s

information.

Rania’s testimony supported the State’s theory that appellant intentionally

or knowingly injured her by striking her in the face with a remote. She testified

that appellant picked up the remote from the table and that he looked her in the

eye as he smashed it into her face. Majd’s testimony, on the other hand,

supported appellant’s theory. She testified that the fan, suspended from the

low ceiling, was on high because it was summertime, that appellant was under

it gesticulating wildly with the remote in his hand, that the remote flew out of

his hand, that everyone heard a loud noise, that Rania started bleeding, and that

batteries were found near the coffee table, love seat, and an ottoman below the

fan. Because these competing versions came largely through the parties’ two

key witnesses, Rania and Majd, the jury’s resolution of the contested issue in

the case hinged on its determination of which witness it found more believable.

If the jury believed Rania, as it apparently did, it was likely to find appellant

guilty, which it did. If it believed Majd, it was likely not to find him guilty

whether it believed that Rania’s injury was caused by accident, appellant’s

involuntary act, or both. The straightforward nature of the evidence and the

7
contested issues weighs against a finding that including accident in the charge

or combining it with involuntary conduct caused appellant egregious harm.

Considering the arguments of counsel and other relevant information in

the record, during voir dire the prosecutor told the venire that the State was

required to prove that appellant intentionally or knowingly caused bodily injury

to Rania. And during its closing arguments, the State opened and closed by

reiterating its burden to prove beyond a reasonable doubt that appellant

intentionally or knowingly injured Rania. In his closing remarks, defense counsel

noted that while Rania had testified that appellant directly struck her with the

remote, appellant had presented testimony from two eyewitnesses that he

picked up the remote when Haitham asked him to turn down the television, and

that as appellant was talking and moving his hands in an animated way, the

remote flew out and apparently struck the ceiling fan. Counsel for appellant

argued to the jury that appellant was not guilty because he did not intend for

the remote to hit his wife and because he did not knowingly cause her injury

since he could not have known that the remote would hit the fan, bounce off

it, and strike her in the face.

Defense counsel also argued that although he conceded that Rania had

been injured, she had not been injured as alleged in the State’s manner and

means because she had not been injured by the remote; rather she was hit by

8
a battery that came out of it when it shattered upon hitting the fan. Counsel

stressed, “The issue is: Did [appellant] intentionally or knowingly cause bodily

injury to Rania Weiss by striking her with a remote control?”

After considering the entirety of the charge, the evidence, including the

contested issues and weight of the probative evidence, the arguments of

counsel and statements made during the jury selection process, we hold that

the charge did not cause appellant egregious harm.

6 Part A of appellant’s first

issue is overruled.

In part B, appellant complains that the trial court erred by not submitting

in the charge his proposed definition of voluntariness and examples of

involuntary conduct.

Texas Code of Criminal Procedure article 36.14 provides, in pertinent

part, that the trial judge is required to submit to the jury

a written charge distinctly setting forth the law applicable to the

case; not expressing any opinion as to the weight of the evidence,

not summing up the testimony, discussing the facts or using any

argument in his charge calculated to arouse the sympathy or excite

the passions of the jury.

7

A defendant is not entitled to have an instruction in the charge worded

exactly as he requests, as long as the charge correctly states the law and

6 See Stuhler, 218 S.W.3d at 719.

7 Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007).

9
tracks the applicable statute.

8 A jury charge that tracks the language of the

applicable statute properly sets forth the law applicable to the case.

9

The trial court’s charge instructed the jury “that a person commits an

offense only if he voluntarily engages in conduct, including an act, omission, or

possession.” This instruction regarding involuntary conduct tracked the

language of penal code section 6.01(a). We overrule part B of appellant’s first

issue.

In part C, appellant complains that the charge lacked an application

paragraph on the manner and means and that it did not direct the jury to acquit

if it believed Rania was not hit by a remote control.

An instruction on a defensive issue is not called for if it merely negates

an element of the State’s case, rather than independently justifying or excusing

it through a defense set out in the penal code.

10 Here, the State had the burden

of proving that Rania was injured by the remote control. Appellant’s defensive

theory that she was not injured by the remote but actually by a battery merely

8 Thacker v. State, 889 S.W.2d 380, 399 (Tex. App.—Houston [14th

Dist.] 1994, pet. ref’d), cert. denied, 516 U.S. 810 (1995).

9 See Casey v. State, 215 S.W.3d 870, 886–87 (Tex. Crim. App.

2007).

10 Walters v. State, 247 S.W.3d 204, 209 (Tex. Crim. App. 2007).

10
negated an element of which the State had the burden to prove.

11 The trial

court did not err by denying appellant his requested instruction on this issue.

Accordingly, we overrule part C.

Having overruled all its parts, we overrule appellant’s first issue.

IV. Sufficiency of the Evidence

In appellant’s second issue, appellant claims the evidence is legally and

factually insufficient to support the verdict.

In reviewing legal sufficiency, we consider all the evidence in the light

most favorable to the verdict and determine whether a rational juror, based on

the evidence and reasonable inferences supported by the evidence, could have

found the essential elements of the crime beyond a reasonable doubt.

12 We

defer to the responsibility of the trier of fact to fairly resolve conflicts in

testimony, to weigh evidence, and to draw reasonable inferences from basic

facts to ultimate facts.

13

Appellant was tried and convicted for assault causing bodily injury to a

family member. A person commits assault if the person intentionally,

11 See id.

12 Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789

(1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

13 Jackson, 443 U.S. at 318–19, 99 S. Ct. at 2789; Hooper, 214

S.W.3d at 13.

11
knowingly, or recklessly causes bodily injury to another, including the person’s

spouse.

14

Appellant claims the evidence is legally insufficient to show that he

intended to injure his wife. Rania testified that appellant warned her during an

argument to get away from him or he would hit her. She further testified that

when she would not move away from him, he picked up a remote control,

looked her in the eyes, and smashed it against her face. Finally, she testified

that appellant kept her from calling the police, delayed in taking her to the

hospital, and only took her on the condition that she say that her daughter hit

her with a toy. We hold the evidence is legally sufficient to show appellant

intended to injure his wife.

When reviewing factual sufficiency, we view all the evidence in a neutral

light, favoring neither party.

15 We then ask whether the evidence supporting

the conviction, although legally sufficient, is nevertheless so weak that the

factfinder’s determination is clearly wrong and manifestly unjust or whether

conflicting evidence so greatly outweighs the evidence supporting the

14 Tex. Penal Code Ann. § 22.01(a)(1) (Vernon Supp. 2009).

15 Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert.

denied, 129 S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex.

Crim. App. 2006).

12
conviction that the factfinder’s determination is manifestly unjust.

16 To reverse

under the second ground, we must determine, with some objective basis in the

record, that the great weight and preponderance of all the evidence, though

legally sufficient, contradicts the verdict.

17

Appellant argues that the evidence is factually insufficient to support the

verdict because the great weight and preponderance of the evidence showed

that Rania was hit accidentally. The evidence weighing in support of this claim

includes Rania’s statements to medical personnel that her daughter hit her with

a toy and appellant’s sister’s and brother-in-law’s testimony that appellant

picked up the remote to turn down the television and that while gesticulating

during the argument with his wife, the remote flew out of his hand, struck the

low-hanging and fast-spinning ceiling fan, causing the remote to shatter and

expel a battery onto Rania’s face.

The jury is the sole judge of the weight and credibility of the evidence.

18

The defense’s presentation of a version of the facts that differs from the

16 Lancon v. State, 253 S.W.3d 699, 704–05 (Tex. Crim. App. 2008);

Watson, 204 S.W.3d at 414–15, 417.

17 Watson, 204 S.W.3d at 417.

18 See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Margraves

v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000) (disapproved on other

grounds by Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009)).

13
State’s does not render the evidence insufficient.

19 The evidence will be held

factually insufficient only if it is so weak or so overwhelmed by the great

weight and preponderance of the evidence that the verdict shocks the

conscience or is manifestly unjust.

20 Having examined the entire record and

considered appellant’s arguments, we do not find that standard to have been

met in this case. Because the evidence is both legally and factually sufficient

to support the verdict, we overrule appellant’s second issue.

V. Voir Dire

Appellant contends in his third issue that the trial court abused its

discretion by denying his motion for a mistrial after the State informed the

venire of appellant’s prior acts. He claims that no instructions could have cured

the State’s unfairly prejudicial comments and that a fair verdict could not have

been reached.

The record during the State’s examination of the venire reveals the

following:

19 See Maestas v. State, 963 S.W.2d 151, 156 (Tex. App.—Corpus

Christi 1998) (citing Anderson v. State, 701 S.W.2d 868, 872 (Tex. Crim. App.

1985), cert. denied, 479 U.S. 870 (1986)), aff’d, 987 S.W.2d 59 (Tex. Crim.

App.), cert. denied, 528 U.S. 834 (1999).

20 See Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d at 414–15,

417.

14
MS. MEADOR [for the State]: . . . How punishment is

different from the guilt/innocence phase is this. You look at

guilt/innocence like a snapshot. Guilt/innocence phase of this trial

is going to be a snapshot of what happened on that day in

question. That’s all you’re going to get to hear about, just that

day. We can talk about things leading up to it and leading up to

the assault in that day, but that’s it. Punishment is the whole

photo album. Okay.

You’re going to get to hear whether or not this defendant has

ever been in trouble before. You’ll get to hear whether or not the

defendant has ever done this to the victim before or someone else.

You’ll also get to hear what we call character evidence: Is he a

good guy, or is he a bad guy? Does that make sense to everyone?

Ms. Knox, I mean, is it typical in a family violence situation

for it to just be a one-time thing?

PROSPECTIVE JUROR: Statistics say no.

MS. MEADOR: And punishment would be the time you get

to hear about that. Okay. We’ll only get to talk about the assault

that happened on that day. Does that make sense?

PROSPECTIVE JUROR: Yes.

MS. MEADOR: I don’t ever learn. Zigrang?

PROSPECTIVE JUROR: Zigrang.

MR. HUSSAMI: I object. She’s implying. She’s implying

something about she said on this assault on this occasion. She’s

implying that there was another occasion. We move to strike that

and give a proper instruction.

THE COURT: I’ll sustain the objection. The State cannot

imply what the evidence would be in the punishment phase of this

trial. I think she’s just asking you general questions.

15
But be careful.

I will sustain the objection.

MR. HUSSAMI: Disregard the – –

THE COURT: Disregard her last statement.

MR. HUSSAMI: And we move for a mistrial.

THE COURT: Denied.

On appeal, appellant complains about this entire exchange. In order to

preserve a complaint for our review, a party must have presented to the trial

court a timely objection, request, or motion.

21

We review a trial court’s ruling on a motion for mistrial for abuse of

discretion.

22 Mistrial is appropriate only when the trial court is faced with error

so prejudicial that expending further time and expense would be wasteful and

futile.

23 A prompt instruction to disregard usually will cure any prejudice caused

by an improper question and answer.

24 To determine whether the trial court

21 Tex. R. App. P. 33.1(a)(1).

22 Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003),

cert. denied, 542 U.S. 905 (2004); Trevino v. State, 991 S.W.2d 849, 851

(Tex. Crim. App. 1999) (citing State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.

Crim. App. 1993)).

23 Simpson, 119 S.W.3d at 272.

24 Id.

16
abused its discretion in denying the motion for mistrial, we balance three

factors: (1) the severity of the misconduct (prejudicial effect), (2) curative

measures, and (3) the certainty of conviction absent the misconduct.

25

Assuming, without deciding, that appellant’s objection preserved any

error to the prosecutor’s first question about whether family violence is typically

a one-time thing, and to the venireperson’s answer, “Statistics say no,” we

hold that these remarks, especially given the trial court’s prompt instruction, do

not warrant the extreme remedy of a mistrial.

26

As for the prosecutor’s next statement—that if appellant had committed

other assaults, the jury would hear about them during the punishment phase—

assuming it was improper, it was not severe. The trial court’s prompt

instruction, moreover, cured any error. The judge instructed the panel, “The

State cannot imply what the evidence would be in the punishment phase of this

trial. I think she’s just asking you general questions,” and then granted

appellant’s request for an instruction to disregard the prosecutor’s comment.

In determining whether the instruction was sufficient to cure error, we consider

25 Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).

26 See Young v. State, 137 S.W.3d 65, 67–68 (Tex. Crim. App. 2004)

(holding that venireperson’s statement in aggravated sexual assault of a child

case that in twenty-five years’ of social work she had never had a child lie

about being sexually assaulted did not warrant a mistrial because an instruction,

had it been requested, would have cured any prejudice from the remarks).

17
whether the reference was direct or implied, intentional or inadvertent, detailed

or vague, and whether the topic was pursued once the instruction was given.

27

The prosecutor did not directly inform the venire that appellant had committed

other assaults, but she implied that such evidence might exist. No details,

however, were provided. Moreover, the comment was brief and was not

repeated after the trial court’s instruction. We hold, therefore, that the trial

court’s instruction cured any error, and we overrule appellant’s third issue.

VI. Bill of Exceptions

In his fourth issue, appellant complains that the trial court failed to follow

rule of appellate procedure 33.2(c) by filing without signing appellant’s

corrected bill of exceptions, and he asks us to treat the bill as signed because,

otherwise, he would be prevented from presenting his case on appeal.

Alternatively, appellant asks that we defer a decision on this issue until

remedied by the trial court.

Appellant filed a formal bill of exceptions containing grounds for complaint

regarding certain of the trial court’s evidentiary rulings, and to which appellant

attached a deposition and offense report. The trial court found that the bill was

27 See Hill v. State, No. 02-06-00357-CR, 2007 WL 2792863, at *6

(Tex. App.—Fort Worth Sept. 27, 2007, pet. ref’d) (mem. op., not designated

for publication) (citing Kipp v. State, 876 S.W.2d 330, 339 (Tex. Crim. App.

1994)).

18
incorrect and in the space provided for suggesting corrections, wrote, “See

official court’s record.” Later, appellant filed a corrected bill, incorporating the

trial court’s corrections, but attached no order to the bill, therefore, the trial

judge’s signature does not appear on it. Appellant subsequently filed a

bystander’s bill, in which he avers that he presented his corrected bill of

exceptions to the trial court, requested approval and filing, and that the court

informed him that the bill was part of the record, although later appellant

discovered that it had not been signed.

Texas Rule of Appellate Procedure 33.2 requires the trial court to sign and

file a bill of exceptions if the court believes the bill accurately reflects the

proceedings in the court, and if not, the court must prepare, sign, and file such

bill, as will, in the judge’s opinion, accurately reflect the proceedings.

28

Appellant raises each of the complaints to which his bills apply in his fifth,

sixth, seventh, and eighth issues, which we address below. In order to

expedite our decision in this case, we considered appellant’s corrected bill in

reviewing those issues.

29 As discussed below, upon examining those issues

and the record, including appellant’s corrected bill, we have determined that

none of those issues demonstrate harmful error. Because appellant was not

28 Tex. R. App. P. 33.2(c).

29 See Tex. R. App. P. 2.

19
harmed by any error complained of in the issues to which his bill pertains, he

was not harmed by the absence of the trial court’s signature on the bill.

Accordingly, we overrule issue four.

VII. Exclusion of Police Report During Cross-Examination of Rania

In his fifth issue, appellant contends that the trial court abused its

discretion by excluding Officer Williams’s police report during appellant’s crossexamination of Rania.

Appellant argues that Officer Williams’s report should have been admitted

during his cross-examination of Rania because the “Gaskin Rule” codified as

rule of evidence 615 provides that when a State’s witness has made a report

or has given a statement prior to testifying, the defendant, after a timely

request, is entitled to inspect and use such report or statement for crossexamination and impeachment purposes.

30 The rule is limited to a previous

report or statement made by the witness herself who is testifying for the

State.

31

30 See Tex. R. Evid. 615; Gaskin v. State, 172 Tex. Crim. 7, 8–9, 353

S.W.2d 467, 469 (1962) (op. on reh’g).

31 Vaughn v. State, 634 S.W.2d 310, 312–13 (Tex. Crim. App. 1982);

Artell v. State, 372 S.W.2d 944, 945 (Tex. Crim. App.), cert. denied, 375 U.S.

951 (1963).

20
Neither the Gaskin rule nor its codification as rule 615 is a rule of

admissibility.

32

It merely provides for access to a witness’s statements to aid

in cross examining that witness.

33 Appellant concedes that the State provided

Officer Williams’s report to him through discovery. The trial court’s refusal to

admit it in evidence shows no violation of either the Gaskin rule or rule 615.

Appellant also argues that exclusion of the report harmed him by

preventing him from impeaching Rania with prior inconsistent statements.

Specifically, he asserts that he sought to impeach her testimony that the

incident occurred at 7:00 p.m.; that appellant was facing her when she was

struck and that she was not sure where her in-laws were standing; that

appellant grabbed the remote and smashed it into her face; that her in-laws

took the telephones away from her and kept her at the house for two hours

before taking her to the hospital; that she was taken to the hospital only on the

condition that she agreed not to tell the police that appellant hit her; and that

she did not remember telling Officer Williams that she told appellant “if you

want to hit me, come and hit me.”

32 See Tex. R. Evid. 615; Gaskin, 172 Tex. Crim. at 8–9, 353 S.W.2d

at 469.

33 Tex. R. Evid. 615.

21
A party may impeach a witness with evidence of a prior inconsistent

statement only if the party first gives the witness an opportunity to explain or

deny the prior statement.

34 To lay the proper foundation, appellant was

required to (1) identify the statement by time, place, and person to whom made

(2) summarize the contents, and (3) afford the witness an opportunity to

explain or deny the statements.

35

If a party fails to establish this predicate, the

trial court should sustain an objection to extrinsic proof of the prior inconsistent

statement.

36

Before offering Officer Williams’s report, counsel for appellant asked

Rania just three questions about her conversation with Officer Williams, none

of which contradicted the testimony appellant now asserts he sought to

impeach. First, he asked if she remembered telling the officer that her in-laws

helped her by giving her an ice pack, and she agreed that she had told him that.

Second and third, he asked if she had told Officer Williams that her in-laws

decided to take her to the hospital only after she fell against the door and that

they prevented her from leaving. Thus, the record shows that appellant failed

34 Tex. R. Evid. 613(a).

35 See Madry v. State, 200 S.W.3d 766, 769 (Tex. App.—Houston

[14th Dist.] 2006, pet. ref’d).

36 See id.

22
to lay the proper predicate for impeachment with prior inconsistent statements.

Accordingly, the trial court did not abuse its discretion by excluding Officer

Williams’s offense report during the cross-examination of Rania. We overrule

appellant’s fifth issue.

VIII. Exclusion of Police Report During Cross-Examination of the Officer

In his sixth issue, appellant claims that the trial court abused its discretion

by not admitting Officer Williams’s report during appellant’s cross-examination

of Officer Williams. Again, appellant relies on the Gaskin rule, in addition to a

rule requiring disclosure, and the Open Records Act. As with the Gaskin rule,

neither of these two other bases upon which appellant relies are rules of

admissibility of evidence.

37

We uphold a trial court’s evidentiary ruling if it is correct on any theory

reasonably supported by the evidence and applicable to the case.

38 Here,

appellant argued that the hearsay exception of rule 803(8)(C) applied because

the report was offered against the State.

Rule 803(8)(C) provides a hearsay exception for reports of public agencies

setting forth factual findings resulting from an investigation pursuant to

37 See Tex. Code Crim. Proc. Ann. art. 39.14 (Vernon Supp. 2009);

Tex. Gov’t Code Ann. § 552.021 (Vernon 2004); Tex. R. Evid. 615; Gaskin,

172 Tex. Crim. at 8–9, 353 S.W.2d at 469.

38 See Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).

23
authority granted by law, unless the sources of the information or other

circumstances indicate a lack of trustworthiness.

39

Our review of the report shows that it does not consist of “factual

findings resulting from an investigation,” or the officer’s opinions or conclusions

based on such findings. To the contrary, the report is a recitation of

statements made by Rania in reporting the offense. The trial court reasonably

could have excluded the report as outside the scope of the hearsay exception

set out in rule of evidence 803(8)(c).

40

Moreover, appellant offered the report in its entirety. Hearsay statements

contained therein would have been subject to exclusion. A trial court is under

no duty to sift through a report and separate the admissible from that which is

not.

41 We hold, therefore, that the trial court did not err in excluding the entire

39 Tex. R. Evid. 803(8)(C).

40 See Pilgrim’s Pride Corp. v. Smoak, 134 S.W.3d 880, 892 n.2 (Tex.

App.—Texarkana 2004, pet. denied); Perry v. State, 957 S.W.2d 894, 897–98

(Tex. App.—Texarkana 1997, pet. ref’d); Ramirez v. State, No. 14-06-00538-

CR, 2007 WL 2127719, at *7 (Tex. App.—Houston [14th Dist.] July 26,

2007, pet. ref’d) (mem. op., not designated for publication) (holding that police

report prepared by detective and offered against the State did not contain

factual findings contemplated by rule 803(8)(c)).

41 See Crane v. State, 786 S.W.2d 338, 354 (Tex. Crim. App. 1990)

(holding that even if a tape recording itself is admissible under a hearsay

exception, any statements made in that recording are subject to the hearsay

rule); August v. State, No. 02-04-00484-CR, 2006 WL 1174213, at *3 (Tex.

App.—Fort Worth May 4, 2006, pet. ref’d) (mem. op., not designated for

24
report during the cross-examination of Officer Williams. Appellant’s sixth issue

is overruled.

IX. Leading Questions

In his seventh issue, appellant contends that the trial court abused its

discretion and denied appellant’s right to confront and effectively examine an

adverse witness by not permitting him to ask leading questions of a witness he

called and whom he declared halfway through her testimony was adverse.

Appellant called Detective Elizabeth Edmonds-Hayes as a witness during

his case-in-chief. He did not notify the court that he considered her to be an

adverse witness when he first called her to the stand. Twenty pages into her

testimony, the trial court sustained the State’s objection to defense counsel’s

leading questions. Counsel did not, at that point, inform the trial court that he

wished to treat the witness as adverse. Only after the trial court sustained the

State’s second objection to leading did counsel for appellant inform the court

of his desire to treat the witness as adverse.

Texas Rule of Evidence 611 provides that the trial court shall exercise

reasonable control over the mode and order of interrogating witnesses and

presenting evidence so as to (1) make the interrogation and presentation

effective for the ascertainment of the truth, (2) avoid needless consumption of

publication).

25
time, and (3) protect witnesses from harassment or undue embarrassment.

42

The rule also provides that a party may ask leading questions of a witness it

calls who is hostile, an adverse party, or identified with an adverse party.

43

The State concedes that Detective Edmonds-Hayes was a witness

identified with a party adverse to appellant, and that the trial court should have

allowed appellant to ask her leading questions, had he made a timely request

to do so.

Assuming that the trial court erred by requiring appellant to ask

nonleading questions, the error offends rule 611(c). Accordingly, we determine

whether the error was harmful under the standard set out in appellate rule

44.2(b).

44

Under the appropriate standard, we must disregard the error unless it

affects appellant’s “substantial rights.”

45

 A substantial right is affected when

the error had a substantial and injurious effect or influence in determining the

42 Tex. R. Evid. 611(a).

43 Tex. R. Evid. 611(c).

44 See West v. State, 169 S.W.3d 275, 279–80 (Tex. App.—Fort

Worth 2005, pet. ref’d) (holding that, generally, error is nonconstitutional if the

court’s ruling merely offends the rules of evidence).

45 Tex. R. App. P. 44.2(b).

26
jury’s verdict.

46

In making this determination, we must examine the entire

record.

47 Under rule 44.2(b), a conviction should not be reversed when, after

examining the record, the reviewing court has a fair assurance that the error did

not influence the jury or had but a slight effect.

48

Our review of the record shows that appellant was not harmed by the trial

court’s denial of his request to treat Detective Edmonds-Hayes as an adverse

witness. Appellant argues that his inability to lead the witness meant that he

could not ask her what avenues of investigation she failed to follow, what

questions she failed to ask, and why she failed to ask them. He further argues

that through leading questions, he could have established circumstances

surrounding the incident that Rania did not tell the detective, and that he could

have thus highlighted the lack of thoroughness in the detective’s investigation.

In his corrected bill of exceptions, appellant asserted that he would have

asked Detective Edmonds-Hayes about a number of inconsistencies between

Rania’s testimony at trial and her statements to officers investigating the case.

We have compared appellant’s assertions in his bill of exceptions and in his

46 King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).

47 Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002).

48 McDonald v. State, 179 S.W.3d 571, 578 (Tex. Crim. App. 2005).

27
brief with the evidence in the record. All of the inconsistencies he presents

appear in the record.

Moreover, although the trial court may have denied appellant permission

to ask his questions in a leading fashion, it did not prohibit appellant from

inquiring into any of the areas he sought to elicit by leading. In fact, appellant

elicited much of the evidence from Detective Edmonds-Hayes.

Because appellant was not prevented from making inquiry into any of the

areas he asserts he wanted to explore, and because he was able, in fact, to

establish through Detective Edmonds-Hayes that inconsistencies existed

between Rania’s testimony at trial and statements she made to officers,

appellant suffered no harm from the trial court’s refusal to allow him to ask the

detective leading questions.

49 Accordingly, we overrule appellant’s seventh

issue.

49 See Davis v. State, No. 06-05-00222-CR, 2007 WL 858782, at *8

(Tex. App.—Texarkana Mar. 23, 2007, pet. ref’d ) (mem. op., not designated

for publication) (holding even under rule 44.2(a) harm analysis there was no

harm from the trial court’s denial of appellant’s request to treat police officer

as adverse where appellant failed to show how any particular subject matter of

questioning was denied through other means of examination); Baltazar v. State,

No. 08-02-00447-CR, 2004 WL 1078502, at *3–5 (Tex. App.—El Paso May

13, 2004, no pet.) (not designated for publication).

28
X. Rebuttal

In his eighth issue, appellant argues that the trial court abused its

discretion by ruling that the defense had rested and that unless the State had

rebuttal, he could not present rebuttal, and by denying his request to reopen the

evidence.

After calling several witnesses for the defense at guilt–innocence,

appellant informed the trial court that he rested his case, but he wanted to call

a rebuttal witness. The State then closed, and the trial court informed appellant

that because the State had closed without rebuttal, the defense would not be

permitted to call a rebuttal witness. In his corrected bill of exceptions,

appellant states that he intended to call Sabah Nobani. Appellant attached the

deposition of Sabah Nofal, taken in the divorce case between appellant and

Rania, to his original bill of exception. Assuming that Sabah Nofal is Sabah

Nobani, the deposition shows that Sabah testified she had discussed the assault

with Rania, that Rania told her appellant hit her with a remote and gave her a

concussion, that she did not know who started the fight, and that she

remembered Rania saying that she had kicked appellant but did not know if it

was before or after appellant hit her with the remote.

29
We review a trial court’s decision to reopen the evidence under an abuse

of discretion standard.

50 A trial court must allow the introduction of evidence

at any time before the conclusion of argument if it appears necessary to the due

administration of justice.

51

“Due administration of justice” means the trial court

should reopen the case if the evidence would materially change in the

proponent’s favor.

52 To establish a material change, the proponent of the

evidence must show that the evidence is more than “just relevant – – it must

actually make a difference in the case.”

53 Thus, the trial court abuses its

discretion by denying a motion to reopen if the evidence the movant seeks to

present would materially change the case in the movant’s favor.

54

Sabah’s testimony would not have materially changed the case in

appellant’s favor. At trial, appellant never sought to justify his actions as self

defense. Nor did he argue that the seriousness of his striking Rania was

mitigated by her provocation. As discussed above, his theories were that he

had no intent to strike or injure her and that she was not hit by the remote.

50 Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim. App. 2003); Reeves

v. State, 113 S.W.3d 791, 794 (Tex. App.—Dallas 2003, no pet.).

51 Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 2007).

52 Peek, 106 S.W.3d at 79; Reeves, 113 S.W.3d at 794.

53 Peek, 106 S.W.3d at 79.

54 Reeves, 113 S.W.3d at 794.

30
Now he argues that Sabah’s testimony would have shored up Majd’s credibility

by confirming her version of the events: specifically, that Rania kicked

appellant. But Sabah could not say whether Rania kicked appellant before or

after appellant hit her with the remote. Most of her deposition testimony

supported Rania’s testimony at trial. We cannot say that testimony that merely

shores up the testimony of another witness by confirming a single small detail

in that testimony would have materially changed the case in appellant’s favor.

We hold, therefore, that Sabah’s testimony was not necessary to the due

administration of justice and that the trial court did not abuse its discretion in

refusing appellant’s motion to reopen. We overrule appellant’s eighth issue.

XI. Jury Argument

In his ninth issue, appellant contends that two comments by the

prosecutor during closing argument at punishment were improper and harmful.

Appellant first complains of the following comment:

And what’s this really all about? It’s really all about

power and disrespect. Power that he had over his wife

and disrespect that he had . . . not only for Rania

Weiss but for this court, for six of you for this past

four days. The shenanigans, the smoke, mirrors.

31
Appellant did not object to this portion of the State’s argument.

Therefore, he has forfeited his right to complain about it on appeal.

55

Appellant also complains of the State’s argument that when appellant

testified at punishment he denied ever touching Rania, even after the jury had

found him guilty. Appellant objected and the trial court overruled. When the

prosecutor revisited the subject later during her argument, she said, “He sat on

this witness stand, and he doesn’t think he did anything wrong. Nothing.

Nothing.” Appellant did not object to this argument.

To preserve error, a party must continue to object each time

impermissible argument is made.

56 Because appellant failed to object when the

same line of argument was made, he has forfeited his right to complain about

it on appeal.

57 We overrule appellant’s ninth issue.

XII. Medical Report

In his tenth and final issue, appellant complains of the trial court’s

admission of a medical report showing that Rania had a concussion. We review

55 Tex. R. App. P. 33.1(a)(1)(A); Threadgill v. State, 146 S.W.3d 654,

667 (Tex. Crim. App. 2004); Mathis v. State, 67 S.W.3d 918, 926–27 (Tex.

Crim. App. 2002); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App.

1996), cert. denied, 520 U.S. 1173 (1997).

56 Haliburton v. State, 80 S.W.3d 309, 315 (Tex. App.—Fort Worth

2002, no pet.).

57 See id.

32
a trial court’s decision to admit or exclude evidence for an abuse of discretion,

and we will not reverse that decision unless it falls outside the zone of

reasonable disagreement.

58

Appellant first complains that medical records admitted under the

business records hearsay exception and showing that Rania had a concussion

and a contusion or a bruise should not have been admitted without a sponsoring

expert. If a medical condition is a matter of common knowledge or is within

the experience of a layman, expert testimony is not required to explain it.

59

 It

was within the trial court’s discretion to conclude that a concussion and a

contusion are medical conditions that are not outside common knowledge or the

experience of a layman and therefore do not need an expert to explain them.

Therefore, the trial court did not err by admitting the medical records on the

basis that they referred to appellant having a concussion and a contusion.

Appellant also complains about a handwritten notation on a page of the

medical records titled “Disposition Summary,” which refers to appellant refusing

to let Rania to stay at the hospital after getting a shot.

58 Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001).

59 See Hood v. Phillips, 554 S.W.2d 160, 165–66 (Tex. 1977); cf. Reed

v. State, 59 S.W.3d 278, 282 (Tex. App.—Fort Worth 2001, pet. ref’d)

(holding that medical records were properly excluded when the defendant

offered them without a sponsoring expert to support her argument that her

confession was involuntary).

33
Rania testified that she remembered getting a shot at the hospital, that

the doctors wanted her to stay, but that appellant made her leave. Appellant

did not object to this testimony; therefore he has forfeited his right to complain

on appeal about its admission elsewhere in the record.

60

Before admitting the medical records, the trial court allowed appellant to

make his objections to each individual page outside the presence of the jury.

Appellant objected to only two pages on confrontation clause grounds.

On appeal, appellant argues these pages contained testimonial statements

of a doctor and a nurse that are inadmissible under Crawford v. Washington.

61

Medical records created for purposes of treatment and admitted under the

business records exception are not testimonial under Crawford.

62 Accordingly,

60 See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998);

Beheler v. State, 3 S.W.3d 182, 187 (Tex. App.—Fort Worth 1999, pet. ref’d)

(the unobjected-to introduction of evidence from one source forfeits subsequent

complaints about the same evidence from another source).

61 541 U.S. 36, 124 S. Ct. 1354 (2004).

62 Melendez-Diaz v. Massachusetts, — U.S. —, 129 S. Ct. 2527, 2533

n.2 (2009); See Crawford, 541 U.S. at 42, 56, 124 S. Ct. at 1359, 1367;

Berkley v. State, —S.W.3d—, No. 04-08-00381-CR, 2009 WL 2524926, at *3

(Tex. App.—San Antonio Aug. 19, 2009, no pet.); Sullivan v. State, 248

S.W.3d 746, 750 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (holding that

substance abuse counselor's notes on appellant's history of drinking, which

were contained in medical records, were not testimonial, and their admission

in evidence did not violate the Confrontation Clause); Felix v. State, No. 05-04-

01322-CR, 2005 WL 3163677, at *5 (Tex. App.—Dallas Nov. 29, 2005, no

pet.) (not designated for publication) (holding that results of blood alcohol test

34
introduction of the medical records did not violate appellant’s confrontation

rights.

We overrule appellant’s tenth issue.

XIII. Conclusion

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

trial court.

63

PER CURIAM

PANEL: CAYCE, C.J.; GARDNER and WALKER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: December 10, 2009

are not testimonial); Eslora v. State, No. 04-04-00112-CR, 2005 WL 763233,

at *4 (Tex. App.—San Antonio Apr. 6, 2005, pet. ref’d) (mem. op., not

designated for publication) (holding that medical records are not testimonial).

63 The State raised a single cross point on appeal contending that the

trial court erred by including in the jury charge an instruction on voluntary

conduct, and appellant filed a motion to quash the cross point. Because of our

disposition of this appeal, we need not address the State’s cross point. We,

therefore, deny appellant’s motion to quash as moot.

35