Hammons, Houston Samuel

Hammons was convicted of family violence assault by impeding breath or circulation.  On appeal, counsel complained that Deputy McCann’s testimony “about how strangulation can result in organ failure, memory loss, petechiae on the brain, traumatic brain injuries and anoxic brain injuries” was errantly admitted.  Although McCann “had some specialized training and experience in family violence cases[,]” Hammons argued, “he had no medical training sufficient to permit him to opine as an expert on human anatomy, the functions of the jugular vein, the workings of the carotid artery and role of the trachea.”  Hammons explained that, “Whether [the victim]’s breath or blood had been occluded was central to the proof of an element of the offense[,]” and concluded, “Because it directly related to the proof of an element of the crime, this Court should reverse.”

The court of appeals did not address this point of error, saying, “even if we concluded that its admission were error, Hammons does not argue in his brief that he was harmed by its admission.”  It relied on Tex. R. App. P. 38.1(i)—requiring that briefs contain “clear and concise argument for the contentions made”—to hold that harm was inadequately briefed.  It also cited cases that hold the error is waived under such circumstances.

Hammons maintains that the two above statements adequately explained the harm.  Regardless, he points out that the Court of Criminal Appeals has consistently disclaimed any burden on the defendant to prove harm on direct appeal.  Rather, it is the court of appeals’s responsibility to assess harm.  Most courts of appeals recognize this, but it is not universally held.