Wigiert v. State

948 S.W.2d 54, 1997 Tex. App. LEXIS 3229, 1997 WL 333791
CourtCourt of Appeals of Texas
DecidedJune 19, 1997
Docket2-96-108-CR
StatusPublished
Cited by16 cases

This text of 948 S.W.2d 54 (Wigiert v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wigiert v. State, 948 S.W.2d 54, 1997 Tex. App. LEXIS 3229, 1997 WL 333791 (Tex. Ct. App. 1997).

Opinion

OPINION

DAY, Justice.

A jury found appellant John Martin Wig-iert guilty of false imprisonment and sentenced him to 31 days in the Denton County Jail and a $500 fine. He appeals and raises five points of error. He first complains that the trial court erred by admitting evidence of an uncharged extraneous offense, contending that it was not relevant to a material issue other than character and its probative value was outweighed by its prejudicial effect. Next, he argues that the trial court erred by admitting hearsay testimony of an extraneous offense because the State used it as evidence of the offense charged and no issue relating to the extraneous offense was before the jury. In points of error three and four, Wigiert asserts that the trial court erred in two instances by permitting a State’s witness to read to the jury part of a prior statement given to police. He argues that the prior statement was inadmissible hearsay evidence that is not encompassed by the recorded recollection hearsay exception. Finally, he complains that the trial court erred by allowing the State to impermissibly bolster the complainant’s unimpeaehed testimony. We affirm the judgment of the trial court.

BACKGROUND

The complainant Joy Sneed testified that Wigiert falsely imprisoned her. She testified that in response to a message on her answering machine, she telephoned Valerie Moreno, a friend of hers and Wigiert’s. Wigiert answered and pretended to be talking to Moreno and another friend, Jaylene. He told Sneed that Moreno and Jaylene wanted her to come over and talk with them. Sneed then went to Moreno’s apartment. Wigiert answered the door and let her in. After entering the apartment and looking around, she realized that Moreno and Jaylene were not there.

Sneed further testified that she tried to leave, but Wigiert would not let her get by him to the door. He shoved her against the wall and poked her on the shoulder with his fingertips. He also pushed her backwards, causing her hip to hit a doorknob. Sneed finally maneuvered her way to the door and discovered the doorknob and dead bolt were locked. As she tried to unlock the door, Wigiert pushed himself between her and the door and repeatedly pushed her hands away from the lock. He then pinned her up against the door and threatened her. She testified that he told her: “Don’t come around here;” “Don’t mess with my friends;” “If you come over here, I’m gonna to kill you;” “I’ll destroy your car;” and “You’ll never be able to go back to school.”

*56 Sneed then testified that she managed to pick up a shovel leaning against a coffee table. She swung it at Wigiert, but he grabbed it away and shoved her with it, striking her in the ribs with the handle. She eventually managed to escape and ran to a police officer she saw on the street in front of the apartment complex. She told the officer what had happened and he returned with her to the apartment. Wigiert would not answer the door. They left, and she later gave the police a written statement.

Moreno also testified, but stated that she could not remember anything about her contact with Wigiert on that day. However, she had given police a statement near the date of the offense. She testified that she remembered making the statement, that it was written in her handwriting, and that she had signed it before a witness. She then read parts of the statement to the jury.

[STATE’S ATTORNEY:] Ms. Moreno, I would ask that you only read this first paragraph right here to the jury. Please do not read anything else below this.
[MORENO:] Okay. “On Saturday, October 12th, I confronted John Wigiert about [Sneed]. He told me that he made her believe that Jaylene and myself were in the apartment E-9 on Hickory Street, Alton House Apartments. He said he got her over there and locked the door behind her and started to harass her. He said all this and stood there smiling. He told me that he set it up.”
Q. If you could just read about the—
A “Joy did call the night of the 12th, because we had plans. Otherwise, she wouldn’t have called.”

Daniel Conrad, the police officer that Sneed approached when she escaped from the apartment, testified that he was conducting a traffic stop when Sneed ran up to him crying and upset. Sneed told him that she had been “assaulted.” He went with her to the apartment, but Wigiert would not answer the door. Conrad testified that he could tell that someone was at home. He stated that he reported the offense as an assault and that he did not include any facts in his report that made him believe it was a false imprisonment report. He further stated that based on all the facts that Sneed had told him, he believed Wigiert’s actions would also constitute the offense of false imprisonment by physical force.

Guy Williamson, the police officer to whom the case was assigned, testified that he contacted Sneed and Moreno and took their statements. He further testified that he filed a probable cause affidavit on the offense of assault, but he believed the facts would also constitute probable cause for false imprisonment.

STANDARD OF REVIEW

All Wigiert’s points of error challenge evi-dentiary rulings by the trial court. As an appellate court, we review the trial court’s decision to admit or exclude evidence under an abuse of discretion standard. See Green v. State, 934 S.W.2d 92, 102 (Tex.Crim.App.1996), ce rt. denied, - U.S. -, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997). Such issues are largely dependent on the individual judge’s perception of common experience, and reasonable persons may often disagree. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991) (op. on reh’g). Thus, reviewing courts should hesitate to substitute their own perceptions for those of the trial judge. See id. Therefore, provided a trial court ruling is “at least within the zone of reasonable disagreement, the appellate court will not intercede.” Id.

Non-extraneous Offense

In his first point of error, Wigiert complains that the trial court erred by admitting evidence of “assault” during his prosecution for false imprisonment. He contends the evidence was not relevant to a material issue other than character and its probative value was outweighed by its prejudicial effect. Thus, it was inadmissible under Texas Rule of Criminal Evidence 404(b). Wigiert complains specifically about Conrad’s testimony that Sneed approached him and told him about Wigiert’s assaulting her with a shovel and Sneed’s testimony that Wigiert threatened to harm her.

*57 However, viewing the evidence in the light most favorable to the trial court’s ruling, it is reasonable to conclude that the “assault” occurred in the same transaction as the false imprisonment. To prove the offense of false imprisonment, the State had to prove that Wigiert restrained the victim. “A person commits [false imprisonment] if he intentionally or knowingly restrains another person.” Tex. Penal Code Ann. § 20.02

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Bluebook (online)
948 S.W.2d 54, 1997 Tex. App. LEXIS 3229, 1997 WL 333791, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wigiert-v-state-texapp-1997.