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Date: 08-30-2020
Case Style:
Jesus Pacheco v. The State of Texas
Case Number: 01-18-00605-CR
Judge: Memorandum Opinion by Justice Countiss
Court: Court of Appeals For The First District of Texas
Plaintiff's Attorney: Andrea Simmons
Defendant's Attorney:
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Call 888-853-4800 if you need a Criminal Defense Attorney in Texas .
Description:
Nadia Watson, the complainant, testified that appellant, with whom she was
in an “on and off” dating relationship for around four or five years, was the father of
her child. At some point after their child was born, and while the complainant and
appellant were “on a[] break” from their relationship, the complainant became
pregnant with another child. Although appellant was not the father of the
complainant’s second child, the complainant told appellant that he was the child’s
father. Ultimately, the complainant “gave her [second child] up for adoption.”
In 2015 and 2016, the complainant and appellant continued to date, and in
December 2016, the complainant lived at the home of appellant’s father in Denton
2 See TEX. PENAL CODE ANN. § 22.02(a)(1), (b)(1); see also TEX. CODE CRIM. PROC.
art. 42.013; TEX. FAM. CODE ANN. §§ 71.0021(b), 71.003–.005.
3
County, Texas. The complainant testified that appellant lived in the home as well.
3
On December 10, 2016, while she took a shower, appellant began “[g]oing through”
the complainant’s cellular telephone. And after reading a conversation between the
complainant and the adoptive mother of the complainant’s second child, appellant
learned that he was not the father of that child. This caused appellant to become
angry.
After the complainant got out of the shower, appellant threw the
complainant’s cellular telephone and started yelling and calling her names, like
“whore” and “bitch.” Appellant pulled the complainant’s hair, and while she lay on
the bed against the wall in the fetal position, appellant kicked her in her abdomen.
Appellant also “bash[ed]” the complainant’s head with a shoe, kicked her, hit her,
and spit on her. The complainant explained that appellant used “[a] lot” of force
when he hit and kicked her and she felt excruciating pain. Although the complainant
asked appellant to stop, he did not. Appellant was mad, and the complainant felt
scared.
The complainant further testified that appellant hit her with a black dress shoe,
his fist, and his foot, and he struck her with his knee. And he hit her on the back of
her head, her abdomen, and her back. She also noted that her child was in the room
3 The complainant also testified that she and her first child had their own room in the
home, and appellant would come visit the child in the room.
4
at the time of the assault and was crying. The child also asked appellant to stop
hitting the complainant.
The assault lasted “an hour or two,” and it ended when the complainant told
appellant that she “needed to seek medical attention because [she] was in a lot of
pain” and she “knew something was broken.” Although appellant said “okay,” he
said that she could seek medical care “later.” Appellant then stayed with the
complainant for a time, but eventually left for a couple of hours. The complainant
stated that she did not “call for help” while appellant was away because he had
broken her cellular telephone, although on cross-examination, she testified that her
cellular telephone was not broken. Even so, after appellant returned, the
complainant asked to go to the hospital, but appellant would not let her leave the
house.
Two or three days after the assault, while trying to clean her room, the
complainant felt pain. Appellant’s father saw that she was in pain, and the
complainant asked him to take her to the hospital. The complainant explained that
she was scared, she had been in constant pain for those two or three days, and
appellant would not let her leave the house during that time.
At the hospital, the complainant told hospital personnel that she injured
herself when she “tripped” and “fell on a rock.” The complainant stayed in the
hospital for two weeks because she had sustained a spleen laceration and four broken
5
ribs. After being released from the hospital, the complainant kept experiencing
abdominal pain, and she wastaken back to the hospital because she had more internal
bleeding. At the time of trial, the complainant continued to attend follow-up
appointments related to her injuries.
In February 2017, the complainant spoke to a law enforcement officer about
the December 10, 2016 assault. The complainant clarified at trial that she did not
“fall on any rocks.”
Dr. Elizabeth Kim, who served as the trauma medical director at Medical City
of Lewisville Hospital, testified that on December 11, 2016, while working at the
hospital, she treated the complainant. Dr. Kim explained that the complainant told
hospital personnel that she had fallen down two days before she arrived at the
hospital.
An emergency room doctor first examined the complainant, and a computed
tomography (“CT”) scan revealed that she had two rib fractures on her left side and
“at least a grade 3 splenic injury.”4
The splenic injury included “a crush injury on
part of the spleen,” meaning that the spleen “got crushed”; “[t]here [was] a tear in it,
and it kind of got smashed.” The splenic injury also included a “4 to 5 centimeter
laceration.” Dr. Kim stated that the complainant “had a bunch of bleeding in [her]
4 According to Dr. Kim, a grade 1 splenic injury is a minor injury and a grade 5
splenic injury is “the most severe injury” that can be sustained.
6
pelvis . . . as well as around [her] spleen” and the internal bleeding was because of
the complainant’s splenic injury. The complainant was admitted into the intensive
care unit (“ICU”) at the hospital.
Dr. Kim further testified that as the complainant’s injuries were being
monitored by hospital personnel, the complainant’s “hemoglobin continued to
drop.” And because of this, Dr. Kim believed that the complainant was actively
bleeding internally because of her splenic injury. Thus, Dr. Kim “called the
radiologist to come in and embolize” the spleen because that would hopefully slow
down the bleeding enough that the complainant’s spleen would not have to be
surgically removed. Ultimately, the embolization of the complainant’s spleen
stopped “a lot of [the internal] bleeding.” The complainant stayed in the hospital for
around a week.
As for the spleen in general, Dr. Kim noted that the spleen is in the left upper
part of an individual’s abdomen and it can tear easily from any kind of trauma.
Because the spleen helps an individual “fight bacteria,” a person who does not have
a functioning spleen is more likely to get certain types of illnesses. And although
the spleen can be surgically removed, a person without a spleen must have certain
vaccinations to survive.5
According to Dr. Kim, if the complainant’s spleen had
5 Dr. Kim explained that the “spleen vaccines” are “three shots plus the general flu
vaccine.”
7
continued to bleed due to the splenic laceration that she sustained and if the
complainant did not receive medical treatment for her splenic injury, the
complainant would have had a substantial risk of death.
Finally, Dr. Kim explained that a “repeat CT scan . . . from like a year or two”
after the assault showed that a majority of the complainant’s spleen had begun
functioning again. Even so, Dr. Kim explained that a portion of the complainant’s
spleen still was not functioning like it should. In Dr. Kim’s opinion, the
complainant’s splenic laceration could have been caused by blunt force trauma and
“a fist or a foot or an object” would have been capable of causing the injury.
The trial court admitted into evidence, without objection, the complainant’s
medical records. The records state that the complainant, when she arrived at the
hospital, reported that she had fallen while running two days prior and had “hit some
rocks.” The complainant stated that she immediately felt rib pain on her left side
and a shortness of breath. She also experienced left upper quadrant abdominal pain
that “radiated into her pelvis.” The pain worsened over the next two days, and by
the time she arrived at the hospital, she rated her pain as an eight out of ten.
According to the complainant, movement made her pain worse. The complainant
appeared to have “multiple [other] bruises not related to [any] fall.”6
6 The complainant’s medical records state the following related to the complainant:
“suspected physical and emotional abuse.”
8
The complainant’s medical records also note that a CT scan of the
complainant showed a “[s]evere splenic laceration,” as well as “[l]eft lateral sixth
and seventh rib fractures.” And the complainant had a “[l]arge amount of free fluid
in [her] pelvis and [a] small [amount of] free fluid in the left upper quadrant adjacent
to [her] spleen.” The complainant was diagnosed with a “[g]rade 3 splenic injury”7
and two rib fractures, and she was admitted to the ICU at the hospital. The
complainant’s medical records contain a notation from the complainant’s
emergency-room doctor stating that “[t]he services [that he] provided to [the
complainant],” such as “consultant collaboration regarding findings and treatment
options, medication orders and management, direct patient care, re-evaluations, vital
sign assessments and ordering, interpreting, and reviewing diagnostic studies/lab
tests,” were to “treat and/or prevent clinically significant deterioration that could
result in severe disability or death.”
According to the complainant’s medical records, while in the hospital, the
complainant underwent a splenic embolization, and a report related to the
embolization states that there were multiple areas of active bleeding in the
complainant’s spleen. But, through the embolization procedure, about ninety
percent of the blood flow to the spleen was cutoff which helped reduce the
7
In certain portions of the complainant’s medical records, her diagnosis or injury is
described as a “[g]rade 4 [s]plenic [i]njury.”
9
complainant’s active internal bleeding. The embolization report classifies the
splenic laceration that the complainant sustained as a “grade 4 splenic laceration.”
Further, the complainant’s medical records describe her splenic injury as “a
severe traumatic injury” and state that the laceration that she sustained to her spleen
was large, “measuring approximately 4 x 4 cm.” The medical records also show that
the complainant stayed in the hospital for seven days, and while in the hospital, she
participated in physical therapy and received pain medications. The complainant
reported continued pain throughout her hospital stay, and she was diagnosed with
these conditions while at the hospital: “[p]leural effusion,” “[s]plenic laceration,”
“[l]eft rib fracture,” “[s]inus tachycardia,” “systemic inflammatory response
syndrome,” and “[p]ossible pneumonia.” Before being discharged from the hospital,
the complainant received splenic vaccines. The complainant’s discharge notes state
that although she was “stable” at the time she was discharged from the hospital, she
could “follow up with surgery as needed.” And the complainant was told to “present
to the nearest Emergency Department or call 911 should [her] symptoms return or
worsen.”
When the complainant received a CT scan in May 2017, the results showed
“low density in [her] inferior spleen” likely because of her December 2016 splenic
injury. The remaining part of her spleen “appear[ed] to enhance appropriately.”
10
Sufficiency of Evidence
In his second issue, appellant argues that the evidence is legally insufficient
to support his conviction because “[t]he State did not further inquire of Dr. Kim or
solicit testimony from [her] . . . to prove serious bodily injury.”
We review the legal sufficiency of the evidence by considering all of the
evidence in the light most favorable to the jury’s verdict to determine whether any
“rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role is that of a due process
safeguard, ensuring only the rationality of the trier of fact’s finding of the elements
of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866,
867 (Tex. Crim. App. 1988). We defer to the responsibility of the fact finder to
resolve conflicts fairly in testimony, weigh evidence, and draw reasonable inferences
from the facts. Williams, 235 S.W.3d at 750. That said, our duty requires us to
“ensure that the evidence presented actually supports a conclusion that the defendant
committed” the criminal offense of which he is accused. Id.
We note that in reviewing the sufficiency of the evidence, a court must
consider both direct and circumstantial evidence and any reasonable inferences that
may be drawn from the evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex.
Crim. App. 2007); see also Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.
11
2012) (evidence-sufficiency standard of review same for both direct and
circumstantial evidence). Circumstantial evidence is just as probative as direct
evidence in establishing the guilt of an actor, and circumstantial evidence alone can
be sufficient to establish guilt. See Clayton, 235 S.W.3d at 778; Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007). For evidence to be sufficient, the State
need not disprove all reasonable alternative hypotheses that are inconsistent with a
defendant’s guilt. See Wise, 364 S.W.3d at 903; Cantu v. State, 395 S.W.3d 202,
207–08 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). Rather, a court considers
only whether the inferences necessary to establish guilt are reasonable based on the
cumulative force of all the evidence when considered in the light most favorable to
the jury’s verdict. Wise, 364 S.W.3d at 903; Hooper, 214 S.W.3d at 13.
A person commits an assault if he “intentionally, knowingly, or recklessly
causes bodily injury to another.” TEX. PENAL CODE ANN. § 22.01(a)(1). A person
commits the offense of aggravated assault if he commits assault, as defined in Texas
Penal Code section 22.01, and he “causes serious bodily injury to another.” Id.
§ 22.02(a)(1). As applicable here, a person commits the first-degree-felony offense
of aggravated assault of a family member if he uses a deadly weapon during the
commission of the assault and causes serious bodily injury to a person who is a
member of his family, who is a member of his household, or with whom he is in a
“dating relationship.” Id. § 22.02(b)(1); see also TEX. FAM. CODE ANN.
12
§§ 71.0021(b) (defining “dating relationship” (internal quotations omitted)), 71.003
(defining “[f]amily” to include “individuals who are the parents of the same child,
without regard to marriage” (internal quotations omitted)), 71.005 (defining
“[h]ousehold” (internal quotations omitted)).
“Bodily injury” means “physical pain, illness, or any impairment of physical
condition.” TEX. PENAL CODE ANN. § 1.07(a)(8) (internal quotations omitted). And
“[s]erious bodily injury” means “bodily injury that creates a substantial risk of death
or that causes death, serious permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.” Id. § 1.07(a)(46)
(internal quotations omitted). “[P]rotracted” means “extended, lengthened,
prolonged, or continued.” Nash v. State, 123 S.W.3d 534, 538 (Tex. App.—Fort
Worth 2003, pet. ref’d) (internal quotations omitted); see also Moore v. State, 739
S.W.2d 347, 352 (Tex. Crim. App. 1987) (protracted loss or impairment
synonymous with continuing, lingering, long-continued, ongoing, or prolonged
injury). Whether an injury qualifies as a serious bodily injury must be determined
on a case-by-case basis. Eustis v. State, 191 S.W.3d 879, 884 (Tex. App.—Houston
[14th Dist.] 2006, pet. ref’d). The complainant is qualified to express an opinion
about the seriousness of her injuries. See Hart v. State, 581 S.W.2d 675, 677 (Tex.
Crim. App. [Panel Op.] 1979); Coshatt v. State, 744 S.W.2d 633, 636 (Tex. App.—
Dallas 1987, pet. ref’d).
13
Appellant asserts that “the only evidence presented by the State” as for serious
bodily injury was “one sentence from the medical records read by Dr. Kim and her
own testimony that [the complainant’s injuries] could subject the complainant to a
substantial risk of death.” (Emphasis omitted.) We disagree.
Here, the evidence shows that during the assault, which lasted “an hour or
two,” appellant pulled the complainant’s hair, “bash[ed]” her head, kicked her, hit
her, and spit on her as the complainant lay in the fetal position. Appellant hit the
complainant with a black dress shoe, his fist, and his foot, and he struck her with his
knee. He hit the complainant on the back of her head, her abdomen, and her back.
Appellant used “[a] lot” of force when he hit and kicked the complainant, and the
complainant felt excruciating pain. She told appellant that she “needed to seek
medical attention because [she] was in a lot of pain” and she “knew something was
broken.” Right after the complainant sustained her injuries, she felt rib pain on her
left side and a shortness of breath. She also experienced left upper quadrant
abdominal pain that “radiated into her pelvis.” The constant pain she felt worsened
over the next two days, and by the time she arrived at the hospital, she rated her pain
as an eight out of ten. Moving made the complainant’s pain worse.
At the hospital, a CT scan of the complainant revealed two rib fractures8
and
a “[g]rade 3” or a “[g]rade 4” splenic injury. The complainant’s splenic injury was
8 The complainant testified that she was diagnosed with “four broken ribs.”
14
described as “a severe traumatic injury.” The splenic injury included “a crush injury
on part of the spleen,” meaning that the spleen “got crushed”; “[t]here [was] a tear
in it, and it kind of got smashed.” The splenic injury also included a “4 to 5
centimeter laceration.” The splenic laceration was described as a “grade 4 splenic
laceration,” large, and severe.
The evidence at trial also shows that the complainant “had a bunch of bleeding
in [her] pelvis . . . as well as around [her] spleen,” the internal bleeding was because
of the complainant’s splenic injury, and the complainant had to be admitted into the
ICU at the hospital. While the complainant’s injuries were being observed by
hospital personnel, the complainant’s “hemoglobin continued to drop.” And because
of this, the complainant’s doctor believed that the complainant was actively bleeding
internally because of her splenic injury. Thus, a radiologist was called “to come in
and embolize” the complainant’s spleen to hopefully slow down the bleeding enough
that the spleen would not have to be surgically removed. A report related to the
embolization states that there were multiple areas of active bleeding in the
complainant’s spleen, and through the embolization procedure, about ninety percent
of the blood flow to the spleen was cut-off, which helped reduced the complainant’s
active internal bleeding.
The complainant’s doctor explained that the spleen is in the left upper part of
an individual’s abdomen and it can tear easily from any kind of trauma. Because the
15
spleen helps an individual “fight bacteria,” a person who does not have a functioning
spleen is more likely to get certain types of illnesses. And although the spleen can
be surgically removed, a person without a spleen must have certain vaccinations to
survive. According to the complainant’s doctor, if the complainant’s spleen had
continued to bleed due to the splenic laceration that she sustained and if the
complainant did not receive medical treatment for her splenic injury, the
complainant would have had a substantial risk of death.9
As a result of her injuries, the complainant stayed in the hospital for at least
one week.10
While in the hospital, the complainant participated in physical therapy
and received pain medications. The complainant reported pain throughout her
hospital stay, and she was diagnosed with these conditions while at the hospital:
“[p]leural effusion,” “[s]plenic laceration,” “[l]eft rib fracture,” “[s]inus
tachycardia,” “systemic inflammatory response syndrome,” and “[p]ossible
pneumonia.” The complainant also received splenic vaccines before she was
discharged from the hospital. And although the complainant’s discharge notes state
that she was “stable” at the time she was discharged, they also state that she could
“follow up with surgery as needed.” The complainant was further told to “present
9 The complainant’s emergency-room doctor stated, in the complainant’s medical
records, that “[t]he services [that he] provided to [the complainant],” including
direct patient care, were to “treat and/or prevent clinically significant deterioration
that could result in severe disability or death.” (Emphasis added.)
10 The complainant testified that she stayed in the hospital for two weeks.
16
to the nearest Emergency Department or call 911 should [her] symptoms return or
worsen.”
After being released from the hospital, the complainant kept experiencing
abdominal pain, and she returned to the hospital because she had more internal
bleeding. At the time of trial, the complainant continued to attend follow-up
appointments related to her injuries. A “repeat CT scan . . . from like a year or two”
after the assault showed that a portion of the complainant’s spleen still was not
functioning like it should.
Based on the evidence, the jury could have found that the complainant’s
injuries either created a substantial risk of death or a protracted loss or impairment
of the function of a bodily member or organ. See TEX. PENAL CODE ANN.
§ 1.07(a)(46); Blea v. State, 483 S.W.3d 29, 35 (Tex. Crim. App. 2016) (evidence
sufficient to support finding injuries created substantial risk of death where
complainant sustained organ laceration and required hospitalization; hospital
personnel testified injury was serious injury to organ); Moore, 739 S.W.2d at 352
(protracted loss or impairment synonymous with continuing, lingering,
long-continued, ongoing, or prolonged injury); Quezada v. State, 553 S.W.3d 537,
548 (Tex. App.—El Paso 2018, no pet.) (evidence sufficient to support serious
bodily injury finding where complainant hospitalized for two weeks); Botello v.
State, 693 S.W.2d 528, 530 (Tex. App.—Corpus Christi–Edinburg 1985, pet. ref’d)
17
(evidence complainant could no longer use his hand as well as before assault was
sufficient to support conviction for aggravated assault); see also Montgomery v.
State, No. 14-16-00365-CR, 2017 WL 2484375, at *2–4 (Tex. App.—Houston [14th
Dist.] June 8, 2017, pet. ref’d) (mem. op., not designated for publication) (evidence
sufficient to support finding injuries created substantial risk of death or protracted
loss or impairment of function where defendant kicked complainant in ribs,
complainant was in pain and rated pain as eight out of ten at hospital, complainant
suffered three broken ribs, complainant received pain medication and stayed in
hospital for four days, and nine months after assault complainant “still felt rib pain”).
Thus, viewing all of the evidence in the light most favorable to the jury’s
verdict, we conclude that a rational trier of fact could have found that the
complainant sustained serious bodily injury. See TEX. PENAL CODE ANN.
§ 22.02(a)(1); see also id. § 1.07(a)(46). And we hold that the evidence is sufficient
to support appellant’s conviction.
We overrule appellant’s second issue.
Admission of Evidence
In his first issue, appellant argues that the trial court erred in admitting, during
the punishment phase at trial, the testimony of former Lewisville Police Department
(“LPD”) Officer C. McConnell about “what . . . [a]ppellant told him about an
extraneous act wherein damage was done to [appellant’s] . . . [car]” because the
18
evidence was “an effort to bolster the State’s evidence of bad acts committed by
[a]ppellant” and it was not “included in the State’s Notice or Amended Notice of
Intent to Use Evidence of Other Crimes, Wrongs or Acts Pursuant to Article 37.07,
Rule 404(b) or Rule 609(f).” Appellant also argues that the trial court erred in
admitting, during the punishment phase at trial, the testimony of LPD Officer L.
Smith about “a different alleged offense involving [a]ppellant” because appellant
had “an absolute right under the Confrontation Clause of the Sixth Amendment to
confront witnesses brought against him,” the trial court “denied him an opportunity
to cross examine the complaining witness” involved in the alleged offense, and the
statements made by the complaining witness to Smith constituted hearsay.
During the punishment phase of trial, evidence as to any matter deemed
relevant to sentencing may be admitted. TEX. CODE CRIM. PROC. ANN. art. 37.07,
§ 3(a)(1); Rodriguez v. State, 546 S.W.3d 843, 862 (Tex. App.—Houston [1st Dist.]
2018, no pet.). We review a trial court’s decision to admit evidence for an abuse of
discretion. See Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006). A
trial court abuses its discretion if it acts arbitrarily, unreasonably, or without
reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372,
380 (Tex. Crim. App. 1990). When considering a trial court’s decision to admit
evidence, we will not reverse the trial court’s ruling unless it falls outside the “zone
of reasonable disagreement.” Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App.
19
1996) (internal quotations omitted). We will uphold a trial court’s evidentiary ruling
if it is correct on any theory of law applicable to that ruling. De La Paz v. State, 279
S.W.3d 336, 344 (Tex. Crim. App. 2009).
A. Officer McConnell
Texas law permits the admission of a defendant’s extraneous offenses or bad
acts only under certain circumstances. See TEX. R. EVID. 403, 404(b). Under rule
404(b), on timely request by a defendant, the State must provide reasonable notice
before trial that it intends to introduce extraneous offense evidence in its
case-in-chief. TEX. R. EVID. 404(b). Texas Code of Criminal Procedure article
37.07 contains a similar requirement for the State to provide notice of intent to
introduce extraneous offense evidence “in the same manner required by [r]ule
404(b)” when a defendant has timely requested that notice. TEX. CODE CRIM. PROC.
ANN. art. 37.07 § 3(g); see Leza v. State, 351 S.W.3d 344, 359 (Tex. Crim. App.
2011).
During the punishment phase of trial, Officer McConnell testified that on
September 17, 2009, he was dispatched in response to a “welfare concern call” from
a mother who was concerned that her daughter, Ioana Coronado, was being held
against her will. When McConnell found Coronado, she was crying and holding an
infant. From speaking with Coronado, McConnell learned that appellant had
assaulted Coronado inside a car. Coronado had “a large welt on her forehead,”
20
which appellant caused. And the car was damaged. According to McConnell,
“[t]here was very heavy exterior body damage” to the car, the hood of the car was
very damaged, and the roof of the car “had been kicked in.” The shoe prints on the
car matched the shoes that appellant was wearing that day. When asked if he
“learn[ed] who caused the damage” to the car, McConnell responded, “Yes, I
did. . . . It was [appellant].”11
The trial court admitted into evidence, without
objection, photographs of Coronado and the car.
On appeal, appellant complains about one portion of Officer McConnell’s
testimony:
[State]: At some point did you meet with and talk
with [appellant] that evening?
[McConnell]: Yes, I did.
[State]: And did you ask him about the damage to
th[e] [car]?
[McConnell]: Yes, I did.
[State]: And what, if anything, did he tell you?
[Appellant’s Counsel]: Objection, hearsay.
The Court: Objection is overruled.
11 Appellant’s counsel did not object to any of the aforementioned testimony by
Officer McConnell. See Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004)
(“[E]rror [if any] in the admission of evidence is cured where the same evidence
comes in elsewhere without objection.” (second alteration in original) (internal
quotations omitted)).
21
[McConnell]: He advised me that he had caused the
damage to the [car], and that he had also
punched the [car] as Ms. Coronado was
driving away.
[State]: So all the damage that we just saw, he
admitted to causing all of that?
[McConnell]: Yes.[12]
To preserve a complaint for appellate review, a defendant must show that he
made his complaint to the trial court by a timely and specific request, objection, or
motion, and the trial court either ruled on his request, objection, or motion, or refused
to rule, and he objected to that refusal. TEX. R. APP. P. 33.1(a); Griggs v. State, 213
S.W.3d 923, 927 (Tex. Crim. App. 2007); Geuder v. State, 115 S.W.3d 11, 13 (Tex.
Crim. App. 2003). The rationale of rule 33.1 is that if an objection is raised before
the trial court as soon as error becomes foreseeable, the error may be addressed and
possibly corrected or avoided. Moore v. State, 295 S.W.3d 329, 333 (Tex. Crim.
App. 2009). Almost all error, even constitutional error, must be preserved by
objection or it is waived. See Hull v. State, 67 S.W.3d 215, 216–18 (Tex. Crim. App.
2002); Holland v. State, 802 S.W.2d 696, 700 (Tex. Crim. App. 1991); Briggs v.
State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990).
12 See Lagaite v. State, 995 S.W.2d 860, 863 (Tex. App.—Houston [1st Dist.] 1999,
pet. ref’d) (“A defendant’s statements are not considered hearsay if they are offered
by the State.”).
22
To preserve error, “a party must be specific enough so as to ‘let the trial [court]
know what he wants, why he thinks himself entitled to it, and do so clearly enough
for the [trial court] to understand him at a time when the trial court is in a proper
position to do something about it.’” Resendez v. State, 306 S.W.3d 308, 312–13
(Tex. Crim. App. 2009) (internal quotations omitted). “The purpose of requiring a
specific objection in the trial court is twofold: (1) to inform the trial [court] of the
basis of the objection and give [it] the opportunity to rule . . . ; [and] (2) to give
opposing counsel the opportunity to respond to the complaint.” Id. at 312.
A party also fails to preserve error when the contention urged on appeal does
not match with the specific complaint made in the trial court. Lovill v. State, 319
S.W.3d 687, 691–92 (Tex. Crim. App. 2009). In other words, an objection stating
one legal basis may not be used to support a different legal theory on appeal. See
Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004).
At trial, appellant objected, based on hearsay, to Officer McConnell’s
testimony about what, “if anything,” appellant told him “about the damage to th[e]
[car].” On appeal, appellant argues that the trial court erred in admitting the
complained-of testimony of McConnell because the “State failed to provide notice
that it intended to offer testimony of that bad act.” See Braxton v. State, 909 S.W.2d
912, 918 (Tex. Crim. App. 1995) (“An objection stating one legal theory may not be
used to support a different legal theory on appeal.” (internal quotations omitted));
23
Wright v. State, 154 S.W.3d 235, 241 (Tex. App.—Texarkana, pet. ref’d) (“Where
a trial objection does not comport with the issue raised on appeal, the appellant has
preserved nothing for review.”); see also Clark v. State, No. 03-00-00615-CV, 2001
WL 1164101, at *2 (Tex. App.—Austin Oct. 4, 2001, no pet.) (not designated for
publication) (hearsay and relevancy objections at trial did not preserve complaint on
appeal that State’s notice was inadequate). Because appellant’s complaint on appeal
does not match the specific objection that he made in the trial court, we hold that
appellant has not preserved his complaint about this portion of McConnell’s
testimony for our review.
We note that appellant, in his brief, while discussing his first issue, cites
another portion of Officer McConnell’s testimony:
[State]: When you met with [appellant], did you also
ask him how . . . Coronado obtained those
injuries?
[McConnell]: I did.
[Appellant’s Counsel]: Objection, hearsay.
The Court: Overruled.
[McConnell]: Yes, I did.
[State]: And what did he say?
[Appellant’s Counsel]: Objection, hearsay.
The Court: Overruled.
24
[McConnell]: He advised that he didn’t know how she
obtained the injuries.
[13]
(Emphasis added.)
To assert an issue on appeal, an appellant’s brief “must contain a clear and
concise argument for the contentions made, with appropriate citations to
authorities.” TEX. R. APP. P. 38.1(i). An appellant waives an issue on appeal if he
does not adequately brief that issue by not presenting supporting arguments,
substantive analysis, and citation to authorities. See id.; Russeau v. State, 171
S.W.3d 871, 881 (Tex. Crim. App. 2005); Cardenas v. State, 30 S.W.3d 384, 393
(Tex. Crim. App. 2000); Wilson v. State, 473 S.W.3d 889, 901 (Tex. App.—Houston
[1st Dist.] 2015, pet. ref’d). Here, appellant only provides a record cite to the above
testimony; he does not provide any argument or analysis about why the trial court
erred in admitting this particular testimony of Officer McConnell. See TEX. R. APP.
P. 38.1(i). Instead, his brief focuses on the trial court’s purportedly erroneous
admission of McConnell’s testimony about what, “if anything,” appellant told him
“about the damage to th[e] [car].” Thus, we hold that appellant has waived any
complaint about McConnell’s testimony on what appellant told him about
Coronado’s injuries.
13 See id.
25
B. Officer Smith
“Hearsay” is an out-of-court statement offered in evidence to prove the truth
of the matter asserted in the statement. TEX. R. EVID. 801(d) (internal quotations
omitted). Hearsay is generally not admissible unless allowed by statute or rule. TEX.
R. EVID. 802.
The Confrontation Clause of the United States Constitution provides that “[i]n
all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him.” U.S. CONST. amend. VI; see also Sohail v. State, 264
S.W.3d 251, 258 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (“A defendant
has a constitutional right to confront and cross-examine the witnesses against him.”).
The Confrontation Clause provides two types of protections for a criminal
defendant: the right physically to face those who testify against him and the right to
conduct cross-examination. Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987); see
also Coy v. Iowa, 487 U.S. 1012, 1016 (1988) (Confrontation Clause “guarantees
[a] defendant a face-to-face meeting with witnesses appearing before the trier of
fact”). The Confrontation Clause bars the admission of testimonial statements of a
witness who does not appear at trial unless that witness is unavailable and the
defendant had a prior opportunity for cross-examination. Crawford v. Washington,
541 U.S. 36, 59 (2004); Russeau, 171 S.W.3d at 880; see also Dixon v. State, 244
26
S.W.3d 472, 482–83 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d)
(Confrontation Clause applies during punishment phase of trial).
During the punishment phase of trial, Officer Smith testified that on March
26, 2013, she was dispatched in response to “an assault call” at a dental office after
Coronado, an employee, had been assaulted. When she met with Coronado,
Coronado was crying and “looked like she had been beaten up.” Both of her eyes
were swollen and bruised. Her lip was also swollen and cut on the inside. And her
hands were bruised.
During Officer Smith’s testimony, the trial court admitted into evidence,
without objection, photographs of Coronado. While viewing the photographs at
trial, Smith testified in more detail about Coronado’s injuries. She explained that
Coronado’s eyes were swollen, bruised, “raised,” and had “visible redness” which
appeared to be recent. Her lip was swollen and had a small laceration. Her lip was
also “starting to bruise in the corner and then it [was] split in the center.” Coronado
had a small abrasion on her left arm and bruising, her hands were swollen and
“starting to bruise,” her right arm had another bruise on it, her left leg had a bruise,
and there was a large bruise beginning to form on her hip. Smith testified that based
on her investigation, she determined that appellant caused the injuries to Coronado.
When asked whether the bruising on Coronado’s hands was causing her any
difficulties, Smith testified, without objection, that Coronado was “employed as a
27
dental assistant, and she wasn’t able to assist the dentist because her hands were
sore.”
On appeal, appellant complains about one portion of Officer Smith’s
testimony:
[State]: When you made contact with her, what sort
of initial observations did you make?
[Smith]: . . . She was crying, saying that she was
gonna be sent home from work because she
couldn’t perform her job.
[Appellant’s counsel]: Objection, hearsay.
. . .
The Court: Overruled.
(Emphasis added.)
We note that appellant did not object at trial that the complained-of testimony
of Officer Smith violated his right to confrontation. See TEX. R. APP. P. 33.1(a).
And a defendant waives his constitutional right to confrontation if he does not make
a timely and specific objection at trial based on that right. See Davis v. State, 313
S.W.3d 317, 347 (Tex. Crim. App. 2010); Reyna v. State, 168 S.W.3d 173, 179–80
(Tex. Crim. App. 2005); see also Smith v. State, 420 S.W.3d 207, 222 (Tex. App.—
Houston [1st Dist.] 2013, pet. ref’d) (“General rules of preservation must be
followed to preserve error on Confrontation Clause grounds.”). Thus, even though
appellant complains on appeal that the trial court erred in admitting the
28
aforementioned portion of Smith’s testimony because he had “an absolute right
under the Confrontation Clause of the Sixth Amendment to confront witnesses
against him” and the trial court “denied him an opportunity to cross examine
[Coronado]” by “allow[ing] . . . Smith to testify as to [the] statements made by”
Coronado, we hold that appellant has not preserved his complaint for appellate
review. See Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004) (holding
Confrontation Clause argument not preserved because of failure to object on that
ground in trial court); see also Carter v. State, No. 01-16-00799-CR, 2017 WL
4682187, at *2–3 (Tex. App.—Houston [1st Dist.] Oct. 19, 2017, pet. ref’d) (mem.
op., not designated for publication) (Confrontation Clause complaint not preserved
where defendant did not refer to Confrontation Clause as basis for admitting exhibit
into evidence or questioning complainant about it).
As for appellant’s assertion that the complained-of portion of Officer Smith’s
testimony constituted hearsay,14 and so the trial court erred in overruling his
objection to it, we note that the State also adduced the following testimony from
Smith, without objection:
[State]: You said you noticed bruising on her hands?
[Officer Smith]: Yes.
[State]: Was that causing her any difficulties?
14 We need not determine whether the complained-of testimony of Officer Smith
actually constituted hearsay. See TEX. R. APP. P. 47.1.
29
[Officer Smith]: Yes.
[State]: What difficulties was that causing?
[Officer Smith]: She was employed as a dental assistant, and
she wasn’t able to assist the dentist because
her hands were sore.
(Emphasis added.) And Smith, at another point during her testimony, stated, without
objection, that when she met Coronado, Coronado was crying.
To preserve error, a party must continue to object each time the purportedly
objectionable evidence is offered. See Geuder v. State, 115 S.W.3d 11, 13 (Tex.
Crim. App. 2003); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003);
Lumsden v. State, 564 S.W.3d 858, 892–93 (Tex. App.—Fort Worth 2018, pet.
ref’d). And a trial court’s erroneous admission of evidence will not require reversal
when other such evidence was received without objection, either before or after the
complained-of ruling. See Lane v. State, 151 S.W.3d 188, 192–93 (Tex. Crim. App.
2004) (error in admission of evidence cured where same evidence comes in
elsewhere without objection); Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App.
1998); Lumsden, 564 S.W.3d at 892–93. Because appellant did not object to the
other portions of Officer Smith’s testimony that were virtually identical to the
portion of testimony that he now complains about on appeal, we hold that appellant
has not preserved his hearsay complaint for appellate review. See Lumsden, 564
S.W.3d at 892–93; see also Ethington v. State, 819 S.W.2d 854, 859–60 (Tex. Crim.
30
App. 1991) (holding appellant’s objection to first question asked of witness did not
preserve error for next three questions and answers on same subject when appellant
failed to obtain running objection or request hearing outside presence of jury so that
he would not have to keep objecting).
Sentencing
In his third issue, appellant argues that the trial court erred in cumulating his
sentence “with a sentence [for] a prior offense” because the trial court “basically
chang[ed] the judgment in the prior case” and when appellant “entered into the plea
bargain” in the prior case “to plead true . . . on the motion to adjudicate guilt,” his
“sentence[s] w[ere] to run concurrently.”
Cumulative sentencing is permitted by law only as provided by statute. See
Beedy v. State, 194 S.W.3d 595, 597 (Tex. App.—Houston [1st Dist.] 2006), aff’d,
250 S.W.3d 107 (Tex. Crim. App. 2008). Texas Code of Criminal Procedure article
42.08(a) provides:
When the same defendant has been convicted in two or more cases,
judgment and sentence shall be pronounced in each case in the same
manner as if there had been but one conviction. Except as provided by
[s]ubsections (b) and (c), in the discretion of the court, the judgment in
the second and subsequent convictions may either be that the sentence
imposed or suspended shall begin when the judgment and the sentence
imposed or suspended in the preceding conviction has ceased to
operate, or that the sentence imposed or suspended shall run
concurrently with the other case or cases, and sentence and execution
shall be accordingly; provided, however, that the cumulative total of
suspended sentences in felony cases shall not exceed 10 years, and the
cumulative total of suspended sentences in misdemeanor cases shall not
31
exceed the maximum period of confinement in jail applicable to the
misdemeanor offenses, though in no event more than three years,
including extensions of periods of community supervision under
[a]rticle 42A.752(a)(2), if none of the offenses are offenses under
Chapter 49, Penal Code, or four years, including extensions, if any of
the offenses are offenses under Chapter 49, Penal Code.
TEX. CODE CRIM. PROC. ANN. art. 42.08(a). The trial court has the discretion to
decide whether to order the sentences for two or more separate convictions to run
consecutively or concurrently. See id.; Beedy, 250 S.W.3d at 110. A trial court
abuses its discretion when its decision falls outside the “zone of reasonable
disagreement.” Green, 934 S.W.2d at 101–02 (internal quotations omitted).
On June 9, 2017, in The State of Texas v. Jesus Pacheco, cause number
F-2013-2526-F, in the 431st District Court of Denton County, Texas, the trial court
adjudicated appellant guilty of the felony offense of assault of a family member,
enhanced by a prior conviction, and assessed his punishment at confinement for
eight years. A copy of the trial court’s June 9, 2017 judgment adjudicating appellant
guilty in that case was admitted into evidence during the punishment phase of trial
in this case.
After the jury, in this case, found appellant guilty of the felony offense of
aggravated assault of a family member and assessed his punishment at confinement
for forty years, the trial court, “pursuant to [Texas] Code of Criminal Procedure
[a]rticle 42.08,” “order[ed] that the judgment in th[e] [instant] case [will] begin when
the judgment and the sentence imposed are suspended [and] the preceding
32
conviction in Cause No. F-2013-2526-F has ceased to operate.” In other words, the
trial court ordered the sentence in this case to “run cumulatively rather than
concurrently.” The written judgment in this case similarly states that appellant’s
sentence of forty years’ confinement shall run “consecutively with F-2013-2526-F.”
Appellant asserts that he had pleaded true to certain allegations in a motion to
adjudicate guilt filed by the State in cause number F-2013-2526-F because he had
an “agreed plea bargain”—the terms of which are purportedly reflected in the trial
court’s June 9, 2017 judgment adjudicating him guilty. Thus, because the June 9,
2017 judgment states “that the sentence [in that case] w[ould] run concurrently,”
appellant argues that the trial court erred in ordering appellant’s sentence of forty
years’ confinement in this case to run “consecutively with F-2013-2526-F.” We
disagree.
First, the record contains little information about the terms of appellant’s
purported “agreed plea bargain” in cause number F-2013-2526-F. The trial court’s
June 9, 2017 judgment adjudicating appellant guilty simply states: “Terms of Plea
Bargain: Plead True Receives 8 Yrs. TDCJ/$500. Fine (Original).” It does not
include any information about an agreement that appellant’s sentence in that case
would run concurrently with any other sentence. See Whitehead v. State, 130 S.W.3d
866, 872 (Tex. Crim. App. 2004) (appellate court may not consider factual assertions
or evidence not in appellate record).
33
Second, the Court of Criminal Appeals has explained that “in the context of
revocation proceedings, the [L]egislature has not authorized binding plea
agreements, has not required the [trial] court to inquire as to the existence of a plea
agreement or [to] admonish [a] defendant pursuant to [Texas Code of Criminal
Procedure article] 26.13, and has not provided for withdrawal of a plea after
sentencing.” Gutierrez v. State, 108 S.W.3d 304, 309–10 (Tex. Crim. App. 2003).
Thus, “[e]ven if the parties purport to have a plea bargain as to the sentence to be
assessed after [an] adjudication [of guilt], the trial court is not bound by the rules
that apply to plea bargains at an original sentencing; . . . once the trial court proceeds
to adjudication, it is restricted in the sentence it imposes only by the relevant
statutory limits.” Ex parte Huskins, 176 S.W.3d 818, 819 (Tex. Crim. App. 2005)
(internal quotations omitted); see also Torres v. State, No. 09-13-00405-CR, 2014
WL 989705, at *1–2 (Tex. App.—Beaumont Mar. 12, 2104, no pet.) (mem. op., not
designated for publication) (“The trial court was not obligated to follow the
purported plea-bargain agreement as to what [the defendant’s] punishment would be
upon revocation . . . .”). Thus, here, the trial court was not bound to follow any terms
of appellant’s “agreed plea bargain” in cause number F-2013-2526-F, including any
purported term that his sentence in cause number F-2013-2526-F “was to run
concurrently.”
34
Finally, we note that when the trial court signed its June 9, 2017 judgment
adjudicating appellant guilty in cause number F-2013-2526-F, it could not have
ordered appellant’s sentence of confinement for eight years to run concurrently with
the trial court’s later imposed sentence of confinement for forty years in this case.
Simply put, the trial court’s sentence of confinement for forty years did not exist in
2017, when the trial court adjudicated appellant guilty of the felony offense of
assault of a family member, enhanced by a prior conviction, and assessed his
punishment at confinement for eight years. A trial court may only order two or more
sentences to run either concurrently or consecutively, when appellant has been
convicted in two or more cases. See TEX. CODE CRIM. PROC. ANN. art. 42.08(a);
Beedy, 194 S.W.3d at 597 (“When a defendant has been convicted in two or more
cases, the trial court has discretion to order the judgment and sentence imposed in
the second conviction either (1) to begin to run after the judgment and sentence
imposed in the preceding conviction has ceased to operate or (2) to run concurrently
with the judgment and sentence imposed in the preceding conviction.”). In June
2017, appellant’s sentence in cause number F-2013-2526-F could not have been
ordered to run concurrently with appellant’s sentence in this case because appellant
had not yet been convicted in two or more cases; there was only one conviction: the
June 9, 2017 judgment adjudicating appellant guilty of the felony offense of assault
of a family member, enhanced by a prior conviction. See Ex parte Garza, 192
35
S.W.3d 658, 661–62 (Tex. App.—Corpus Christi–Edinburg 2006, no pet.) (article
42.08(a) does not apply when “there is only one sentence involved”).
Before being convicted in this case, appellant was convicted of the felony
offense of assault of a family member, enhanced by a prior conviction, in cause
number F-2013-2526-F. Generally, a defendant has no right to concurrently serve
sentences imposed for different offenses. DeLeon v. State, 294 S.W.3d 742, 745
(Tex. App.—Amarillo 2009, pet. ref’d); Coleman v. State, 898 S.W.2d 327, 329
(Tex. App.—Tyler 1993), aff’d, Basden v. State, 897 S.W.2d 319 (Tex. Crim. App.
1995). A trial court is vested with the discretion to order two or more sentences to
run either concurrently or consecutively. See TEX. CODE CRIM. PROC. ANN. art.
42.08(a); Beedy, 250 S.W.3d at 110. Appellant points to no evidence in the record
that shows that the trial court abused its discretion in ordering that appellant’s
sentence in this case run consecutively with appellant’s previous conviction in cause
number F-2013-2526-F. See Rivera v. State, 885 S.W.2d 581, 585–86 (Tex. App.—
El Paso 1994, no pet.); Moscatelli v. State, 822 S.W.2d 693, 697 (Tex. App.—
Corpus Christi–Edinburg 1991, no pet.) (article 42.08 “allows trial [courts] to stake
a state sentence upon a preceding one, whether it be one imposed by a Texas
judgment or federal”). We therefore hold that the trial court did not err in cumulating
appellant’s sentence.
We overrule appellant’s third issue.
36
Outcome: We affirm the judgment of the trial court.
Plaintiff's Experts:
Defendant's Experts:
Comments: