NUMBER 13-12-00601-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOSE LUIS DAVILA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 430th District Court of
Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza and Benavides
Memorandum Opinion by Justice Garza
A jury convicted appellant, Jose Luis Davila, of assault-family violence, elevated
to a third-degree felony offense by a prior assault-family violence conviction. See TEX.
PENAL CODE ANN. § 22.01(a), (b)(2)(A) (West, Westlaw through 2013 3d C.S). The trial
court assessed punishment at sixty-six months’ imprisonment. See id. § 12.34
(establishing punishment range for third-degree felony at two to ten years’ imprisonment
and a maximum $10,000 fine). By a single issue, appellant contends the trial court erred
in admitting into evidence the judgment and police report from a prior assault-family
violence conviction. We affirm.
I. BACKGROUND
Deputy Juan Gomez of the Hidalgo County Sheriff’s Department testified that he
responded to a domestic disturbance call at a home on Thanksgiving Day in 2011. When
he arrived at the home, he found Maria Davila, appellant’s wife, with bruises on her face
and arm. Appellant was not present; he had left the home when Maria called for
assistance. Maria was afraid of appellant. Approximately an hour and a half later, Deputy
Gomez was called back to the home. The front door was broken in, and Deputy Gomez
heard appellant arguing with Maria. Deputy Gomez arrested appellant.
Maria testified that on the day of the assault, appellant broke the front door. He
entered the home and slapped her, pushed her onto the bed, and “violated” her.
Jesus Joel Vargas, an investigator with the Hidalgo County Sheriff’s Department,
testified that he investigated appellant’s criminal history. The State offered into evidence
State Exhibit 1, appellant’s judgment of conviction for assault-family violence in 2005 and
State Exhibit 2, the police report for the 2005 offense. Defense counsel objected to the
exhibits on grounds that: (1) the documents were not properly authenticated by
Investigator Vargas; and (2) there was no evidence establishing that the individual named
in the 2005 documents was appellant. The trial court overruled the objections and
admitted the exhibits. The prosecutor requested permission to publish the documents to
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the jury. Defense counsel then objected to publication of the documents to the jury under
rules of evidence “402 or 403, and 404(b).” See TEX. R. EVID. 402, 403, 404(b). The trial
court overruled defense counsel’s objections to publication on “all three grounds.”
After Investigator Vargas reviewed appellant’s name, the date of the offense, and
other information from the 2005 judgment, the prosecutor turned his attention to the 2005
offense report. Defense counsel re-urged his objection to “reading the offense report to
the jury,” stating that doing so “under 404(b) is propensity evidence, character evidence,
and it’s inappropriate.” The prosecutor responded that he did not intend to read the
offense report, but only needed to establish that the date on the offense report matched
the date on the judgment, that appellant was named in both documents, and that the
victim was a family member. The trial court stated that defense counsel’s objection was
“sustained in part and overruled in part”; the court ruled that the prosecutor could establish
basic information, but was not permitted to go into “the facts of the case.” Defense
counsel then stipulated that appellant was the person named in the 2005 offense and that
he had pleaded guilty and was convicted of family violence. The trial court accepted the
stipulation and sustained defense counsel’s objection. Defense counsel did not request
a limiting instruction or a mistrial.
II. DISCUSSION
By a single issue, appellant contends the trial court erred in admitting the judgment
and police report from appellant’s 2005 assault-family violence conviction into evidence.
The State responds that appellant failed to preserve any issue for our review because the
basis for his objection to the admission of the documents at trial differs from his complaint
on appeal. We agree with the State.
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On appeal, appellant argues that the evidence was irrelevant under rule 402, that
its probative value was outweighed by the danger of unfair prejudice under rule 403, and
that it constituted character evidence under rule 404(b). See id. However, the record
reflects that at trial, appellant only objected to admission of the documents on grounds
that they were improperly authenticated and there was no evidence establishing appellant
was the individual named in the 2005 documents. Although appellant subsequently
objected to publication of the documents to the jury on the grounds he now urges on
appeal, he did not object to the admission of the documents on those grounds. “Grounds
of error urged on appeal must comport with the objections made at trial or error is not
preserved.” Denison v. State, 651 S.W.2d 754, 762 (Tex. Crim. App. 1983); see TEX. R.
APP. P. 33.1; see also Graves v. State, No. 13-11-617-CR, 2013 WL 3326826, at *3 (Tex.
App.—Corpus Christi June 27, 2013, no pet.) (mem. op., not designated for publication)
(same); Toliver v. State, No. 12-06-388-CR, 2008 WL 726378, at *6 (Tex. App.—Tyler
March 19, 2008, pet. ref’d) (mem. op., not designated for publication) (“If a party fails to
object until after an objectionable exhibit has been admitted into evidence, his objection
is untimely and error is waived.”). We therefore conclude that appellant failed to preserve
any issue for our review.
Moreover, even if appellant had preserved his issue, appellant has not shown he
was harmed by admission of the exhibits. Appellant’s entire harm analysis consists of
the following: “The harm here occurred by allowing the jury to take back into the jury
room, documents containing hearsay and extraneous conduct. Evidence which they
should not have been allowed to be privy to, let alone consider in the jury room.”
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Generally, the erroneous admission of evidence is non-constitutional error subject
to a harm analysis under Texas Rule of Appellate Procedure 44.2(b). See Russell v.
State, 155 S.W.3d 176, 181 (Tex. Crim. App. 2005) (holding that violation of evidentiary
rule is non-constitutional error). We disregard non-constitutional errors that do not affect
the appellant's substantial rights. TEX. R. APP. P. 44.2(b); Robinson v. State, 236 S.W.3d
260, 269 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd). An error affects a substantial
right only when the error had a substantial and injurious effect or influence on the jury's
verdict. Robinson, 236 S.W.3d at 269 (citing King v. State, 953 S.W.2d 266, 271 (Tex.
Crim. App. 1997)). The error is harmless if it had only a slight influence on the verdict.
Id. In determining whether the error was harmless, we consider the nature of the evidence
supporting the verdict, the character of the alleged error, and how the error might be
considered in connection with other evidence in the case. Id. We also consider other
factors, including whether the State emphasized the error and whether the erroneously
admitted evidence was cumulative. Id. When conducting a harm analysis, we consider
the entirety of the record, including evidence of the defendant's guilt, as well as the jury
instructions and closing arguments. Motilla v. State, 78 S.W.3d 352, 355–56 (Tex. Crim.
App. 2002).
Here, Maria testified that appellant assaulted her on Thanksgiving Day 2011. The
prosecutor did not describe the facts or circumstances regarding the 2005 incident and
there was no testimony concerning that incident. During closing argument, the prosecutor
did not refer to the events of the 2005 offense.1 Accordingly, we cannot say that, even if
1 The only reference to the 2005 offense was a brief reference when the prosecutor noted that
appellant’s sister, who testified, did not know of the 2005 offense.
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the trial court erred in admitting State’s Exhibits 1 and 2, that appellant was harmed. See
TEX. R. APP. P. 44.2(b); Robinson, 236 S.W.3d at 269.
We overrule appellant’s sole issue.
III. CONCLUSION
We affirm the trial court’s judgment.
DORI CONTRERAS GARZA,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
21st day of August, 2014.
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