*1 The trial court’s order states that motion, response,
court considered the I “supporting evidence.” Just as would expect trial court to have taken the deposition time to read the eleven pages excerpts attached to Intco’s motion and response, referenced Blake in I expect Berry the same of this court. See Reno, (Tex. 128, City (conduct 2003, pet.) App.-Fort Worth no ing close of 90 pages summary review judgment evidence in reviewing whether
summary judgment properly granted); Co., 225, Barraza v. Eureka 229-30 (Tex.App.-El pet. Paso de nied) (distinguishing which Guthrie is cited by majority where record totaled 278 novo).
pages reviewing record de Af reviewing ter these I excerpts, would hold that the deposition excerpts genu raise a ine material challenged issue of fact on the
elements. Because majority holds to I contrary, respectfully dissent. DIETZ, Appellant, Texas, Appellee.
The STATE of No. 04-02-00771-CR. Texas, Appeals Court Antonio. San Oct. 2003. Rehearing Overruled Nov. *2 LÓPEZ, L. Chief
Sitting: ALMA Justice, SANDEE SPEEDLIN, Justice, J. Justice. PHYLIS OPINION LÓPEZ, L. Chief by ALMA Opinion Justice. by jury Dietz was convicted appeal,
assault. On asserts him from precluding trial court erred Specifical- complete defense. court ly, contends that the trial permitted him to wit- question have should re- habitual regarding Christine’s nesses sustain sponse arguments. We error, trial court’s reverse the point of cause to judgment, and remand the trial court for a new trial.
Background 25, 2001,
On November Dietz had a barbecue at drinking. been Around home. Both had a.m., argued. 2:30 Richard and Christine alter- physical The in a argument resulted cation, and Christine and both Richard injuries. sustained began that Richard Christine testified accusing her “be- with her and arguing somebody.” ing with As Christine her mother on attempting phone, hit her on the side eye. Richard then her face around her ground, pinned knocked Christine floor, her. kept hitting her to the was straddled Because Richard her, legs. could not move her finger Richard on his Christine bit got up After Richard him off of her. room, neighbor’s to a left the Christine ran house, police. neighbor called the Ritenour, Jr., Attorney At John ‘Bud’ J. swollen, eye and her face Christine’s Law, Antonio, Appellant. San for depicting Photographs was bruised. evi- injury were admitted into Dist. Christine’s Battaglia, Alan E. Asst. Criminal dence, records. Antonio, together with her medical Atty., Appellee. for San hospital diagnosed injury party, Christine “was out at the eye as a fractured socket. kitchen table.” Jones believed that Chris- enough consumed alcohol make cross-examination, On Christine denied *3 home, out. her After Jones returned pass being passed out at the kitchen table. She door, her crying Christine came to and drunk, being stating denied that she saying that hit her. Richard Jones called surroundings. was aware her Christine that police. Christine told Jones she did not remember who was the last not happened. did know what stat- Jones party. to leave Christine denied that it ed that seemed out of character for a drinking problem during she had her violent, to Richard be and did not she Richard; however, to marriage Christine provoked what it. know that admitted Richard’s mother suggested get counseling that she because Richard’s mother, Bettie, Richard’s testified that thought drinking Christine had a Richard called to her and asked her come problem. Christine admitted that Richard arrived, to house. When Bettie Chris- and had “rocky marriage,” she would tine told her that she did not know what arguments, often have verbal and occasion- happening. any was Bettie did see not ally physical would have altercations. Christine, bruises on but that she noticed physical Christine admitted that the alter- Christine’s wrists red. was were Christine happened” “particularly they cations when holding pack an ice to her face. Bettie were intoxicated. that Christine stated testified that she seen drink had Christine she not telling neighbor did remember her and excess that Bettie believed that or Richard’s mother that she did not re- drinking Christine had been to excess that happened that night. member Chris- night. suggested previously Bettie had tine also admitted that her statement get counseling Christine for an alcohol occurred, two after the events taken problem. she stated that she did not remember that drinking Richard testified he was argument “how happened” or how she beer at the and that barbecue Christine “got hit in the face.” drinking tequila. beer and shots of Officer Todd Smith received a dispatch the last left guest party, When Chris- at 3:26 a.m. for an in progress. assault tine was out the table. Richard explained Richard to Officer Smith that he approached go- her to ask her “about her dispute. and Christine having were ing boyfriend.” to be with her When him Richard showed that he had a bleed- finally opened eyes, Christine her she ing bite mark on his hand. told Christine She bit screaming. started Richard Officer they argument Smith an stomach and scratched his back. Richard thought because Richard Christine went Christine’s mother “like he seeing someone else. Officer Smith noted did,” always but slapped Christine eye had a and some Christine bruised phone away. hit Christine and kicked scrapes on her face. told Officer wrists, grabbed Richard. Richard her and finger Smith that she bit Richard’s in self- ground. fell to the was on defense. Based on the stories he was trying of Christine her from keep given, Officer Smith decided that Richard him in kicking groin again. aggressor was the arrested and him. stated he believed Christine was still Jones, last neighbor danger
Rebecca to him she on her back when party, leave floor than stronger she is because had been Rich- drinking struggling, a lot. When Jones he is. Christine was the immediate present at he had been to hold because “she trying ard was in clean- fight assisted of a aftermath head and hard.” turned her hits ing glass that both Christine up Richard’s biting started thumb. broke. ard him Christine told was hurt- “swung finger for [his] wherever eye.” ... hit ing [Christine] arguments be- that the Richard testified finger out hit became violent and he tween Christine routinely and Chris- got up, her mouth. Richard most the time. Richard they were parents Photo- neighbor’s ran to a house. call Christine’s settle her down. ones who could injuries, depicting Richard’s which graphs *4 Chris- also call his mother. Richard would the alterca- taken a few after were violently during argu- act would tion, evidence. were introduced into ments, at throwing things Richard testimony, the foregoing Based on the try get to him. Richard would hitting assault, jury guilty found Richard re- by going in another away from Christine theory. jecting Richard’s self-defense in room outside his truck. or to or ex- A admit trial court’s decision Discussion is under an abuse clude evidence reviewed error, Richard point In his sole con- State, 71 Torres of discretion standard. v. preclud- in that the trial court erred tends An (Tex.Crim.App.2002). 760 complete him de- ing a trial appellate court will not reverse fense which violated his constitutional out- ruling ruling falls court’s unless to Richard made an right process. due disagreement. side zone of reasonable the proof through exception offer bill trial decision is correct judge’s Id. If the testimony sought to following the that he case, theory any applicable of law have introduced. when trial it will even the be sustained her normal re- Christine denied that the for his deci- judge gives wrong reason to violent sponse arguments was v. sion. Romero things. and throw admitted that Christine (Tex.Crim.App.1990). response of the time Richard’s would some contends the excluded evidence Richard go be to into another room or leave the rule 406 evidence was admissible under as house. also that Rich- Christine admitted responds of habit. State called her routinely parents ard evidence ard failed to establish the Christine and Richard ar- when a habit. The State rose to the level of gued. testimony of responds that the further Bettie testified that when Richard and which individu- regarding and Mann Bettie typically argued, Christine Christine was in the aggressor fights al was the routinely and, walked intoxicated. what Richard told them based on away from and called Bettie. therefore, hearsay. Christine was inadmissible Mann, friend, Richard’s David regard testimony ofMost Mann’s problems that Richard and Christine ing aggressor being marriage. in their Mann attributed the is fights between infidelity. When problems by made statements based on fought, Richard and Christine statement, “Hearsay” is a other Mann. and she usually aggressor, would by tes made the declarant while than one house,” always things, trial, prove “trash break in evidence to tifying at offered asserted. and hit and scratch Richard. the truth of matter Tex.R. 801(d). the statements Because usually leave. Mann testified that Evid. by made regarding Richard to Mann We must now determine whether the ex- aggressor in being fights clusion is of constitutional were hearsay, testimony Mann’s was inad- magnitude. missible, and trial court did not err rights “Few are more fundamen excluding See Tex.R. Evid. tal than of an accused to present witnesses his own defense.” Chambers testimony
Bettie’s
based
284, 303,
Mississippi,
410 U.S.
93 S.Ct.
hearsay.
inadmissible
Bettie’s testimo
(1973).
1038,
Since the
the Texas
of Mann and
Court
properly
Appeals
Bettie was
of Criminal
hearsay,
excluded as
cited DePetris as
only testimony
comporting
the
to be
in
with the
set by
considered
standard
determining
Supreme
whether the
Court’s
in evaluating
evidence
ad
decisions
missible as
of a
evidence
habit under rule whether
exclusion of evidence amounts
DePetris,
406 was the
to a
In
testimony
excluded
Dietz
constitutional violation.
of
asserting
Christine. Texas Rule of
the defendant was
Evidence
self-defense
provides
in response
406
that evidence
of
to a
of murder.
charge
of a habit
a
239
person, whether corroborated or not and F.3d at 1058. The trial court excluded the
regardless
journal
presence
eyewitnesses,
of the
of
handwritten
the defendant’s
of
husband,
victim,
relevant
prove
is
the conduct of the
which contained his
“chilling
on a
account of
violent
particular occasion was in
his
behavior
conformity with
habit.
toward his first wife and others.”
Id. at
Tex.R. Evid.
406. In
1059. The court
that
testimony
order for
excluded
noted
the defen-
credibility
of Richard
dant’s
of
and Christine to be admissible
state mind were
habit,
as evidence of
the central
in
case. Id.
required
Richard was
issues
at 1059.
“a regular practice
to demonstrate
of The court further noted that “where a
meeting
particular
guilt hinges largely
a
kind of
defendant’s
situation with
the tes-
specific
witness,
of a
timony
prosecution’s
a
kind of conduct.”
v.
Anderson
the er-
State,
177,
15
exclusion
S.W.3d
183
roneous
of evidence critical to
(Tex.App.-Texar
2000,
State,
assessing
kana
of that
pet.); Bishop
credibility
no
837
witness vi-
olates the
Id. at 1062.
(Tex.App.-Beaumont
435
Constitution.”
1992),
(Tex.Crim.
aff'd,
court then asserted that
success of the
In this Dietz SANDEE dissenting. that would duce evidence establish argu during violent Christine became majority evi- that the agree I with the attempt ments that he introduce about sought Dietz dence officer away investigating from her. The physical altercations past and Christine’s both that Dietz had and Dietz under “habit” admissible evidence In eval bleeding finger. bite mark on his However, I Rule Evidence Texas mark the re uating whether the bite excluding in error do not believe the her de aggression of Christine’s or sult testimony was of constitutional proffered herself, evidence of Christine’s fense harm, or reversible magnitude resulted aggressive was critical. past behavior therefore, I dissent. respectfully exclusion The State contends held Appeals has The Court Criminal prevent not Richard from the evidence did the exclusion of defensive his defense because he testified presenting if error to the level of constitutional rises regarding version of the events portion “forms such vital the evidence show other evidence was introduced to effectively pre- the case exclusion that Christine did not recall the details presenting from the defendant cludes started, happened, fight how defense.” Potier ques- hit night or how she was Here, exclu- (Tex.Crim.App.2002). Although tion. this other calls preclude not Dietz of the evidence did sion question ability to into Christine’s later his defense. *6 tran- recount the details of the events that trial, of jury At heard Dietz’s version de- spired, success Dietz’s defense injuries. the events that led Christine’s entirely jury’s be- pended almost had he and Christine Dietz testified both lieving his was drinking during party hosted been aggressor. ag- Christine’s habit was couple, but gressive goes behavior the heart By the last drunk. the time it have cor- Dietz’s defense because would on a passed was out party, Christine roborated Dietz’s The habit to call kitchen table. Dietz said tried critical, was corroborative evi- he decided to talk before habit dence. Because the exclusion of the man seeing another about her significantly a funda- undermined get over he wanted to someone because defense, hold mental element of Dietz’s we “in trouble.” He said got there before he that the error dimen- constitutional Christine, spoke to she when he “When sion. Because we cannot determine be- out finally opened eyes, her she came doubt that the exclusion yond reasonable screaming bit me stomach of the evidence did not contribute to point, me in face.” At this scratched conviction, ard’s the error is reversible. mother, but he tried Tex.R.App. 44.2(a). P. phone out of slapped grabbed He said he her wrists wall. Conclusion He ground. fell to the is re- judgment of the trial court her, him. trying stop kicking her from versed, and the cause is remanded her, away from but said he tried to He for a trial. trial court new him. to hit not because she continued could wife she was said he hit his Dissenting Opinion by SANDEE He her, he hit she left biting finger. After Justice. stayed house and he in the house until police arrived. NASH, Appellant, Roderick evidence, trial, Other admitted at tended to support Dietz’s version of the incident. Jones, couple’s
Rebecca neighbor, was The STATE of Texas. the last to party. leave the She testified No. 2-01-038-CR.
to Christine’s drinking and she said Chris- out on the table when she Texas, Court of Appeals of party. left the Shortly after Jones re- Fort Worth. home, turned to her own Christine rang doorbell, crying saying defendant Oct. 2003. had hit her. Jones stated that Christine said she did not know what started the Rehearing Overruled Nov. fight or what happened. Jones said it was “out of character” for defendant to be
violent. Dietz’s mother said that when she couple’s
arrived at the home after the inci- dent, Christine told her she did not know happened. In Christine’s statement to police, given incident, two after the
Christine said she did not remember how the fight started or got how she hit.
Although erroneously excluded evi- relevant, dence was its exclusion did not prevent Dietz from presenting the sub- Therefore,
stance his defense. the er- ror was not of constitutional dimension.
“Exclusions of evidence are unconstitution- al if ‘significantly undermine fundamental elements of the accused’s de- ” fense.’ “That ‘[the defendant] was un- present
able to his case to the extent and in the form he prejudicial desired is not
where, here, as prevented was not
presenting the substance of his defense to
” Potier,
(cita-
jury.’
tions see also Valle v. 506-07 (Tex.Crim.App.2003) same). (holding Because Dietz’s substan- rights affected, tial have not been I would affirm the trial judgment. court’s See Tex.R.App. 103(a); 44.2(b); P.
Tex.R. Evid. Potier, 68 at S.W.Sd