Martin Suarez Juarez v. State

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-14-00052-CR

MARTIN SUAREZ JUAREZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 195th District Court
Dallas County, Texas
Trial Court No. F-1360355-N

Before Morriss, C.J., Moseley and Burgess, JJ.
Opinion by Justice Burgess
 OPINION
The State charged Martin Suarez Juarez with assault family violence against Juana

Morcia, the mother of his child. 1 See TEX. PENAL CODE ANN. § 22.01(b)(2)(B) (West Supp.

2014). The jury found Juarez guilty and sentenced him to eight years’ imprisonment. On

appeal, 2 Juarez (1) argues that the trial court erred in overruling his objection during voir dire to

the State’s allegedly improper commitment question, (2) brings five points of error complaining

of several of the trial court’s evidentiary rulings, and (3) argues that the written judgment of

conviction lists the incorrect statute of offense. Because we find that the trial court did not abuse

its discretion in either overruling Juarez’ objection during voir dire or in deciding the evidentiary

issues which Juarez actually preserved, we overrule Juarez’ first six points of error. However,

we modify the judgment to reflect that Juarez was convicted under Section 22.01(b)(2)(B) of the

Texas Penal Code and affirm the trial court’s judgment, as modified.

I. The Trial Court Did Not Abuse Its Discretion in Overruling Juarez’ Objection
During Voir Dire

A. Background

During voir dire, the State engaged in the following conversation with several venire

members regarding the State’s evidentiary burden:

[BY THE STATE]: . . . . So correct me if I’m wrong. But what I hear you
saying that if, for example, it’s just a he-said-she-said type of deal that that would
not be sufficient for you; that you would require that the State bring something
1
Specifically, Juarez was charged with assault family violence by impeding the normal breathing or circulation of
the blood of Morcia by applying pressure to her throat or neck and by blocking her nose or mouth.
2
Originally appealed to the Fifth Court of Appeals in Dallas, this case was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We
follow the precedent of the Fifth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.

2
else -- another witness, some DNA, something else other than the word of one
person against another.

THE VENIREPERSON: Yes.

[BY THE STATE]: Are you saying that you would require the State of
Texas to prove its case in a particular manner? In other words, something more
than just one person?

THE VENIREPERSON: Yes.

[BY THE STATE]: Okay. Anybody else in the second row? . . . .

THE VENIREPERSON: I would have to see bodily injury as opposed to
just judging somebody on credibility, on what he said and what she said.

[BY THE STATE]: Okay. Sure. I just want to make sure we’re all on the
same page here. You understand that bodily injury is defined legally as physical
injury, illness or impairment of the physical condition.

THE VENIREPERSON: Right.

[BY THE STATE]: You understand that could mean [that there] are no
visible injuries on someone. That’s what the law says. What I hear you telling
me that even though that’s what the law says, you’re not comfortable with that.
You would need to see some type of blood or guts or something more serious than
maybe just physical pain and that you would require the State of Texas to prove
something more than what is required under the law. Is that what you’re saying?

THE VENIREPERSON: Correct.

....

Due to the seriousness of this and the allegations, yes, I would need more;
some type of physical evidence.

[BY THE STATE]: And again I’m just going to kind of cover the same
thing. You understand what the law requires.

THE VENIREPERSON: Yes, ma’am.

3
 [BY THE STATE]: And what you’re telling me is that that is not
sufficient for you in this case?

THE VENIREPERSON: Correct.

....

[BY THE STATE]: Anybody in the second row feel like some of you feel
already? How about Mr. Thompson?

THE VENIREPERSON: Talking about choking somebody, if we’re
talking about choking, I would like to see a bruise or something rather than she
said he choked me.

[BY THE STATE]: Now, you understand Mr. Thompson that the law
requires that we show evidence that bodily injury was sustained through -- we’re
going to call it choking because that whole long definition is too long to repeat.
You understand we have to prove that to you beyond a reasonable doubt. And are
you telling me you would require that proof to be in the form of some type of
bruising?

THE VENIREPERSON: Yes.

The State then asked the following question of Venireperson Thompson, which prompted an

objection from Juarez’ trial counsel:

[BY THE STATE]: And if that bruising wasn’t there, then you would be
inclined to find somebody not guilty --

[BY THE DEFENSE]: Judge, I’m going to object as to that being a
commitment question.

THE COURT: Overruled.

[BY THE STATE]: You would require the State to prove more than what
is required under the law?

THE VENIREPERSON: Yes.

Juarez contends that the State asked an improper commitment question.

4
 B. Standard of Review

In Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001), the Texas Court of

Criminal Appeals established the test for determining whether a question is an improper

commitment question: (1) whether the question is a commitment question; (2) if so, whether the

commitment question gives rise to a valid challenge for cause; and (3) if it does, whether the

question adds facts beyond those necessary for a challenge for cause. Id. at 179–84; see also Lee

v. State, 206 S.W.3d 620, 621–23 (Tex. Crim. App. 2006). Improper commitment questions are

prohibited in order “to ensure that the jury will listen to the evidence with an open mind—a mind

that is impartial and without bias or prejudice—and render a verdict based upon that evidence.”

Sanchez v. State, 165 S.W.3d 707, 712 (Tex. Crim. App. 2005). The trial court’s ruling is

reviewed under the abuse of discretion standard. Fuller v. State, 363 S.W.3d 583, 585 (Tex.

Crim. App. 2012) (citing Sells v. State, 121 S.W.3d 748, 756 (Tex. Crim. App. 2003)); see

Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002).

C. Analysis

We first determine whether the question is a commitment question. Standefer, 59 S.W.3d

at 179; Braxton v. State, 226 S.W.3d 602, 604 (Tex. App.—Houston [1st Dist.] 2007, pet.

dism’d, untimely filed). A commitment question ‘“attempt[s] to bind or commit a prospective

juror to a verdict based on a hypothetical set of facts.’” Standefer, 59 S.W.3d at 179 (quoting

Allridge v. State, 850 S.W.2d 471, 480 (Tex. Crim. App. 1991)). Commitment questions

“require a venireman to promise that he will base his verdict or course of action on some specific

set of facts before he has heard any evidence, much less all of the evidence in its proper context.”

5
Sanchez, 165 S.W.3d at 712. Finally, a question is a commitment question “if one or more of the

possible answers is that the prospective juror would resolve or refrain from resolving an issue in

the case on the basis of one or more facts contained in the question.” Standefer, 59 S.W.3d at

180.

Here, the State does not challenge Juarez’ contention that the question was a commitment

question. The question “if bruising wasn’t there, then you would be inclined to find somebody

not guilty” has two possible answers, “yes” or “no.” A yes answer would resolve the issue of

guilt based upon the absence of bruising alone. Consequently, “one . . . of the possible answers

is that the prospective juror would resolve . . . an issue in the case on the basis of . . . facts

contained in the question,” and the question is a commitment question. See Delacerda v. State,

425 S.W.3d 367, 382 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (finding question asking

whether jury members could convict defendant in absence of physical evidence to be

commitment question).

Next, we consider whether the question gave rise to a valid challenge for cause. “[J]urors

must be open-minded and persuadable, with no extreme or absolute positions regarding the

credibility of any witness.” Ladd v. State, 3 S.W.3d 547, 560 (Tex. Crim. App. 1999). A

veniremember may be challenged for cause if he “has a bias or prejudice against any phase of the

law upon which the State is entitled to rely for conviction or punishment.” TEX. CODE CRIM.

PROC. ANN. art. 35.16(b)(3) (West 2006); see Delacerda, 425 S.W.3d at 382. “The State may

properly challenge a prospective juror for cause when the juror would hold the State to a burden

6
higher than beyond a reasonable doubt.” Delacerda, 425 S.W.3d at 382 (citing Mason v. State,

116 S.W.3d 248, 255 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d)).

The Texas Penal Code defines “bodily injury” as “physical pain, illness, or any

impairment of physical condition.” TEX. PENAL CODE ANN. § 1.07(a)(8) (West Supp. 2014).

During voir dire, the State explained that the term “bodily injury” included any type of physical

pain and inquired whether the prospective jurors would be able to find the bodily-injury element

in this case without physical evidence, prompting Thompson’s reply. The State’s question to

Thompson was designed to demonstrate that Thompson would require physical evidence in

addition to testimony to establish bodily injury. Thus, we find that the answer would give rise to

a proper challenge for cause. See Delacerda, 425 S.W.3d at 382 (citing Blackwell v. State, 193

S.W.3d 1, 20 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (“[A] juror who would require

more evidence than necessary to prove a case beyond a reasonable doubt would be subject to a

challenge for cause.”); Harris v. State, 122 S.W.3d 871, 880 (Tex. App.—Fort Worth 2003, pet.

ref’d) (“Although the State may not bind a prospective juror to a specific set of facts, the State is

permitted to determine whether a prospective juror will require evidence the law does not require

to convict a defendant.”)); see also Kaiser v. State, No. 05-07-00575-CR, 2008 WL 2611367, at

*2 (Tex. App.—Dallas July 3, 2008, pet. ref’d) (not designated for publication). 3

Finally, we must determine whether the question “contain[s] only those facts necessary to

test whether a prospective juror is challengeable for cause.” Standefer, 59 S.W.3d at 182.

Standefer established the rule that a commitment question is improper when “the State’s question

3
Although unpublished cases have no precedential value, we may take guidance from them “as an aid in developing
reasoning that may be employed.” Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d).
7
suppli[es] facts beyond what [i]s necessary to sustain a challenge for cause.” Id. (emphasis

added); see Braxton, 226 S.W.3d at 604. As a preliminary matter, the record clarifies that

Thompson supplied the additional facts that in addition to victim testimony, he would require

physical evidence such as bruising in order to find the bodily-injury element. Accordingly, the

State’s question was not based on facts interjected by it, but on the hypothetical facts interjected

by Thompson. See Avila v. State, No. 05-13-00673-CR, 2014 WL 5475459 (Tex. App.—Dallas

2014, no pet.) (mem. op., not designated for publication). Therefore, the State did not add more

facts than were “necessary to test whether a prospective juror is challengeable for cause.”

Standefer, 59 S.W.3d at 182.

Yet, even if the State had interjected bruising into the question by responding to

Thompson’s answer, the question was not an improper commitment question because its

objective was proper—to find jurors who would not follow the law and challenge them for cause.

In Sanchez, the Court of Criminal Appeals held that legitimate voir dire questions seek “to elicit

information which would establish a basis for a challenge for cause” and “to facilitate the

intelligent use of peremptory challenges.” Sanchez, 165 S.W.3d at 710–11. The court also

identified the specific harm created by improper commitment questions, namely,

“indoctrinat[ing] the juror on the party’s theory of the case” to such an extent that “the jury or

any specific juror [is] ‘poisoned’ by the State’s improper commitment questions on a legal issue

or fact that [is] important to the determination of the verdict or sentence.” Id. at 711, 713. 4

4
Justice Womack stated in his concurring opinion, “I feel sure that no member of the Court thinks that
‘indocrinat[ing] the jurors’ is a legitimate purpose [of voir dire].” Sanchez, 165 S.W.3d at 715 (Womack, J.,
concurring).
8
Thus, the ultimate issue is whether the question’s objective is proper or improper, i.e., whether

the question seeks information to support the exercise of a challenge for-cause or peremptory

challenge or merely attempts to indoctrinate the veniremembers on the party’s theory of the case.

In the present case, the State theorized that Juarez assaulted Morcia by choking her. The

law did not require the State to show evidence of bruising in order to convict. The objective in

asking the question was not to convince veniremembers to convict Juarez without evidence of

bruising, but to identify those jurors who would never convict in the absence of bruising so they

could be challenged for cause. Obtaining a commitment from jurors that they would not acquit

simply because of a lack of bruising, regardless of the evidence, did not foreclose the jury’s

options to acquit Juarez for any other legitimate reason, such as witness credibility or weight of

the evidence. Accordingly, the State did not seek to indoctrinate Venireperson Thompson or any

other juror to convict Juarez on any particular evidence, but rather sought to determine if the

venire member could follow the law by not requiring the State to prove more than was legally

required. We overrule Juarez’ first point of error. 5

II. There Was No Abuse of Discretion in the Trial Court’s Evidentiary Rulings

Juarez next argues that the trial court abused its discretion (1) in overruling his objection

to the responding police officer’s testimony about the 9-1-1 dispatcher’s comments, (2) in

overruling his hearsay objection to the police officer’s testimony about the victim’s statements,

(3) in overruling his relevance objection to the officer’s testimony that the Dallas Police

5
As demonstrated by the voir-dire excerpts, Thompson did not answer the question of which Juarez complains.
Instead, after Juarez’ objection, the State modified its question to omit the specific facts that Thompson had
interjected into the voir dire.
9
Department places importance on family violence cases, (4) in overruling his hearsay objection

to an investigator’s testimony regarding his previous aliases and immigration hold during

punishment, and (5) in allowing a Dallas County District Attorney’s Office investigator’s

speculative testimony about Juarez’ immigration status. “A trial judge’s decision on the

admissibility of evidence is reviewed under an abuse of discretion standard and will not be

reversed if it is within the zone of reasonable disagreement.” Tillman v. State, 354 S.W.3d 425,

435 (Tex. Crim. App. 2011) (citing Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010);

Russeau v. State, 291 S.W.3d 426, 438 (Tex. Crim. App. 2009)).

A. The Victim’s Trial Testimony

Morcia was the State’s first witness at Juarez’ trial. Morcia testified that on the night of

the incident, she accidentally locked herself out of her home in the middle of the night and went

to Juarez’ apartment with their daughter to sleep. She laid in Juarez’ bed while he lulled the

child to sleep. Morcia testified when he returned to bed that she smelled alcohol on his breath

and realized, for the first time since she had arrived, that he was drunk. She promptly told him

that she would leave. According to Morcia, Juarez then threatened to rape her and attempted to

force himself on her. As Morcia tried to escape, Juarez grabbed her hair, took off her clothes,

and threw her on the bed. Morcia testified,

He was pulling my hair and then he grabbed my neck. He took it really hard and
then he would squeeze and then he let go. He grabbed me again and I wasn’t
breathing. I couldn’t breathe. And I think I was shouting. I was so desperate.
And I -- I looked for his face and was hitting him with my hand and hitting him
with my hand for him to let me go. . . . He was looking at me with a violent,
aggressive look. I didn’t recognize him. And I didn’t think I was going to get out
of there with my life.

10
In order to free herself, Morcia hit Juarez with her hands and feet. She testified that Juarez let

her go, slapped her face, and walked away toward the kitchen.

After this attack subsided, Morica woke the child and was about to leave when Juarez

again pulled her by the hair and cursed at her. According to Morcia, the child, who was five

years old at the time of trial, asked Juarez to calm down and let them go. Morcia testified that

Juarez grabbed her by the shirt and prevented her from leaving after they both heard police sirens

approaching.

Without objection, the State introduced photographs of Morcia taken immediately after

the incident. The photographs showed that Morcia’s shirt had been ripped at the collar and that

the shirt’s neckline had been stretched downward. Morcia testified that the shirt had been

damaged when Juarez removed it from her by force. When asked to show whether the

photographs depicted evidence of the choking, Morcia testified, “You practically can’t see it, but

he was squeezing me tight.”

B. There Was No Abuse of Discretion in Overruling Objections to the Officer’s
Testimony

1. Juarez Failed to Preserve Complaint Relating to Officer’s Testimony
about Dispatcher Comments

As its second witness, the State called Courtney Collins, an officer with the Dallas Police

Department. Collins testified, “We responded to a call off of Forest Lane in regards to an

independent caller who was not either the complainant or . . . the arrested person. There was

another person that was at the apartment with them who made the 9-1-1 call but didn’t have

anything to do with it.” Collins then said, “The comments were that he heard, a man and woman

11
arguing.” Juarez immediately interposed a general, unspecified objection that the trial court

overruled.

On appeal, Juarez argues that the trial court erred in allowing Collins to testify about the

dispatcher’s comments because (1) the 9-1-1 caller did not testify and (2) the statement

constitutes hearsay. 6 Yet, without further objection, Collins testified to the following:

The computer lets you know what type of call you’re getting, which I told
you family violence calls says major disturbances. It gives you the time of the
call, who made the call, and gives you some comments. Usually when you call in
to 9-1-1, it will say do you have an injury and what the emergency will be. They
try to keep you on the line as long as they can, too. The comments on the call,
which I stated earlier stated that someone called and they had heard a male and
female arguing. And the female was screaming, Let me go, let me go.

Sometimes callers are anonymous and they refuse. But his name is Byron
Martinez. And that was our caller.

Also, the 9-1-1 call in which Martinez made the statements Collins referred to during her

testimony was later admitted into evidence and played for the jury, both without objection.

“To preserve error, it has been consistently held that one must object each and every time

inadmissible evidence is offered.” Long v. State, 10 S.W.3d 389, 399 (Tex. App.—Texarkana

2000, pet. ref’d) (citing Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991)); see

Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); Martin v. State, 151 S.W.3d 236,

240 (Tex. App.—Texarkana 2004, pet. ref’d). “Where a party fails to make a timely objection

6
To preserve error, a party must not only object but also state the grounds for the objection “with sufficient
specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the
context.” TEX. R. APP. P. 33.1(a)(1)(A). A general objection suffices to preserve error “only if the legal basis for
the objection is obvious to the court and to opposing counsel.” Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim.
App. 2006). “When the objection is not specific, and the legal basis is not obvious, it does not serve the purpose of
the contemporaneous-objection rule for an appellate court to reach the merits of a forfeitable issue that is essentially
raised for the first time on appeal.” Id. For the purpose of this analysis, we find that the basis of Juarez’ objection
was obvious.
12
each time particular testimony is offered, no reversible error is presented.” Martin, 151 S.W.3d

at 242. Here, because Juarez did not object to either Collins’ continued testimony or the 9-1-1

call, we find that he failed to preserve this issue for our review.

2. Trial Court Did Not Abuse Discretion in Admitting Victim’s Excited
Utterance as Hearsay Exception

Next, Juarez argues that the trial court erred in allowing Collins to testify about

statements Morcia made to her after the incident. Collins testified that Morcia was “sitting on

the couch crying” when officers entered Juarez’ apartment. Collins continued,

The language line[7] had explained to us that the two had gotten into an argument
and that he had choked her and he had said, bitch, get the ambulance.
So he had pulled her hair, dragged her and brought her back. Which she
felt a little embarrassed. She [did not] know [that] . . . we got there because we
received a call. That was basically the situation. The offense had occurred inside
of the bedroom while they -- [Morcia] had stated to me she had tried to stay at her
apartment. Which they did not live together.

Juarez objected to Collins’ testimony as “continuous hearsay.” 8 The trial court overruled Juarez’

objection and allowed him a running hearsay objection.

7
Although it is not specified in the record, reading between the lines, it appears that the language line is a means
through which Dallas area emergency services can communicate with non-English speakers.
8
“As a prerequisite to presenting a complaint for appellate review,” a party must have made a timely request,
objection, or motion to the trial court “with sufficient specificity to make the trial court aware of the complaint,
unless the specific grounds were apparent from the context.” TEX. R. APP. P. 33.1(a)(1)(A); see Hines v. State, 269
S.W.3d 209, 216 (Tex. App.—Texarkana 2008, pet. ref’d). A general hearsay objection does not preserve a double-
hearsay issue. Freeman v. State, 230 S.W.3d 392, 403 (Tex. App.—Eastland 2007, pet. ref’d); Ricketts v. State, 89
S.W.3d 312, 319 n.1 (Tex. App.—Fort Worth 2002, pet. ref’d). It is unclear from Juarez’ trial counsel’s objection to
“continuous hearsay” whether he was objecting to hearsay within hearsay (i.e, Collins’ testimony at trial about what
the language line told her about what Morcia told it) or simply to Collins’ testimony about Morcia’s out-of-court
statement. We addressed a similarly ambiguous objection in Martin, 151 S.W.3d at 240, in the context of embedded
hearsay, where the defendant, Martin, was charged with murder. At trial, Martin’s brother, Gerald, testified that on
the night of the murder, he was visiting at Martin’s home when Martin arrived and Gerald told him to leave. Gerald
testified that the reason he told Martin to leave was because Martin’s wife had told him that Martin had “killed
somebody.” Id. We found that Martin’s general hearsay objection did not preserve error as to Martin’s wife’s
“embedded hearsay” statement to Gerald because “when the hearsay objections were made, the trial court clearly
13
 We “must uphold a trial court’s ruling if there is any legitimate ground for doing so.”

Duren v. State, 87 S.W.3d 719, 728 (Tex. App.—Texarkana 2002, pet. struck) (citing Metts v.

State, 22 S.W.3d 544, 550 (Tex. App.—Fort Worth 2000, no pet.)). Rule 801 of the Texas Rules

of Evidence defines hearsay as “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

TEX. R. EVID. 801(d). The Rules of Evidence provide an exception to the hearsay rule for

excited utterances. See TEX. R. EVID. 803(2). An excited utterance is defined as “[a] statement

relating to a startling event or condition made while the declarant was under the stress of

excitement caused by the event or condition.” Id.

We have previously summarized the law governing applicability of the excited-utterance

exception as follows:

For the excited-utterance exception to apply, three conditions must be met:
(1) the statement must be a product of a startling occurrence that produces a state
of nervous excitement in the declarant and renders the utterance spontaneous and
unreflecting, (2) the state of excitement must still so dominate the declarant’s
mind that there is no time or opportunity to contrive or misrepresent, and (3) the
statement must relate to the circumstances of the occurrence preceding it.

Goodman v. State, 302 S.W.3d 462, 471–72 (Tex. App.—Texarkana 2009, pet. ref’d) (citing

Sellers v. State, 588 S.W.2d 915, 918 (Tex. Crim. App. [Panel Op.] 1979); Mumphrey v. State,

believed counsel’s concern was just about what Gerald said. At no time did counsel point out to the trial court that
the real concern was over the sister-in-law’s embedded hearsay statement that Martin had ‘killed somebody.’” Id.
Although we examined embedded hearsay rather than hearsay within hearsay in Martin, the principle is the same:
trial counsel failed to specifically object to the second portion of the hearsay statement. Likewise, Juarez’ objection
did not inform the trial court of any double hearsay complaint. Further, the record does not demonstrate that the trial
judge understood Juarez’ objection as an objection to hearsay within hearsay. Thus, to the extent Juarez’ brief
complains of double hearsay, the issue is not preserved. We also note that no complaint about the application of the
language conduit rule has been preserved. See generally Saavedra v. State, 297 S.W.3d 342 (Tex. Crim. App. 2009)
(discussing the language conduit rule).
14
155 S.W.3d 651, 663 (Tex. App.—Texarkana 2005, pet. ref’d)). “The critical factor in

determining when a statement is an excited utterance under Rule 803(2) ‘is whether the declarant

was still dominated by the emotions, excitement, fear, or pain of the event.’” Id. at 472 (quoting

Lawton v. State, 913 S.W.2d 542, 553 (Tex. Crim. App. 1995), overruled on other grounds by

Mosely v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998)); see Neal v. State, 186 S.W.3d 690,

693 (Tex. App.—Dallas 2006, no pet.). “The time elapsed between the occurrence of the event

and the utterance is only one factor considered in determining the admissibility of the hearsay

statement.” Goodman, 302 S.W.3d at 472 (citing Lawton, 913 S.W.2d at 553). “That the

declaration was a response to questions is likewise only one factor to be considered and does not

alone render the statement inadmissible.” Id. (citing Lawton, 913 S.W.2d at 553).

Here, the evidence established that Collins encountered Morcia mere moments after she

had been the victim of a startling event. Because Collins testified that Morcia was crying during

the police intervention, the trial court could find that the state of excitement still dominated

Morcia’s mind and that there was no time or opportunity to contrive or misrepresent the

statements made to the language line about the circumstances of the occurrence. Consequently,

we cannot conclude that the trial court abused its discretion in overruling Juarez’ hearsay

objection. 9

Juarez’ brief does not address any applicable exceptions to the hearsay rule. Rather, he

writes,
9
Moreover, Collins’ statement was cumulative of Morcia’s testimony. “[A]dmission of inadmissible evidence is
harmless error if other evidence that proves the same fact that the inadmissible evidence sought to prove is admitted
without objection at trial.” Broderick v. State, 35 S.W.3d 67, 75 (Tex. App.—Texarkana 2000, pet. ref’d); see Allen
v. State, 436 S.W.3d 815, 822 (Tex. App.—Texarkana 2014, pet. ref’d); see also Ross v. State, 763 S.W.2d 897, 903
(Tex. App.—Dallas 1998, pet. ref’d).
15
 It is unclear from the record in Appellant’s case whether the language line
consisted of an actual person translating the complaining witness’s statements or
some sort of computerized translation program. In any event, the manner of
translation is irrelevant in Appellant’s case because neither a translator nor a person
familiar with computerized translation testified during the trial and there is no
evidence in the record that the translation was sworn.

This particular complaint was not brought before the trial court.

The point of error on appeal must comport with the objection made at trial. See Swain v.

State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005); Wilson v. State, 71 S.W.3d 346, 349 (Tex.

Crim. App. 2002). Because Juarez’ complaint on appeal concerning the language line was not

asserted below, it does not comport with his objections at trial and is not preserved for our

review. See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009).

3. Trial Court Did Not Abuse Discretion in Allowing Officer to Explain
Her Reason for Arresting Juarez

In his last point of error related to Collins’ testimony, Juarez complains of the trial court’s

ruling on his relevance objection:

Q. [BY THE STATE] Would you mind explaining to the jury some
of the importance family violence has had in particular with the Dallas Police
Department?

[BY THE DEFENSE]: Your Honor, I object to that as irrelevant.

THE COURT: What’s the relevance?

[BY THE STATE]: Defense counsel on cross-examination said the
witness is testifying solely about the defendant’s size as it relates to why she made
an arrest. I think it’s relevant to the emphasis that the City has put on domestic
violence cases in particular violence in the home. I just want her to be able to
explain just a little bit about the importance of that by the City.

THE COURT: Then the objections is [sic] overruled. Please continue.

16
 A. [BY COLLINS] Family violence is a large, viable cause that we
receive. Oftentimes it can happen on more than one occasion with the same
person.
So when we’re called, just as the attorney had stated, out to a location in
the middle of the night, you think of it just like in my private complex, we don’t
want to the hear noises all night, things like that. We come in and make a
decision. We want to make the best decision that’s going to be for the welfare
and safety of anybody.
If something were to happen when we walk away when we had responded
to that call, then we would be liable for that. So we have to make sure that we go
-- see what we have to do in order to do diffuse the situation.

“Relevant evidence” is “evidence having any tendency to make the existence of any fact

that is of consequence . . . more probable or less probable than it would be without the evidence.”

TEX. R. EVID. 401. Juarez argues that the City’s stance on domestic violence had no bearing on

any fact of consequence in Juarez’ case. We examine the record to determine whether the

State’s explanation of its need for the evidence was related to the defensive theory.

Morcia testified that she hit Juarez in her attempt to escape his chokehold. Photographs

of Juarez’ injuries were shown to the jury. On direct examination, Collins, who had received

special field training on responding to domestic violence cases, testified that police officers

“have to determine who the aggressor is and make an arrest to prevent the furtherance or

continuance of family violence.” She explained that she arrested Juarez after determining that he

was the primary aggressor. During his cross-examination of Collins, Juarez asked, “If you make

a determination that there is some sort of disturbance and possibility of a problem, the safe thing

is to arrest somebody and get them out of that situation instead of just leaving them there going

off and not arresting them. Correct?” Collins responded, “Correct. But that’s after the

17
investigation.” Thereafter, Collins testified that the physical size of Morcia and Juarez played a

role in determining that Juarez was the primary aggressor.

Whether Juarez was the primary aggressor was a fact of consequence to the case. The

defensive theory was that Juarez, who sustained visible injury, was not the primary aggressor

against Morcia, who did not appear to have any visible injuries. Juarez’ cross-examination of

Collins suggested that her investigation, which concluded that Juarez was the primary aggressor,

was cursory and that her decision to arrest Juarez was based solely on his size. The State

clarified that its purpose in asking the question Juarez complains of was not to elicit a moving

speech on the negative effects of family violence, but (1) to explain that, due to the importance

placed on family violence cases by the Dallas Police Department and the special training its

officers receive, Collins’ investigation was not cursory, (2) to rebut the idea that Collins arrested

Juarez based solely on his size, and (3) to explain the policy and reason behind Collins’ decision

to arrest Juarez.

Through his cross-examination of Collins, Juarez implied that Collins merely arrested

him because he was larger than Morcia, not because she believed he was the primary aggressor.

If left un-rebutted, the jury could have doubted the sincerity of her belief, thereby creating doubt

that Juarez was, in fact, the first aggressor. The State’s evidence regarding the City’s stance on

family violence helped rebut that implication by giving context to Collins’ decision to arrest

Juarez. Therefore, the evidence was relevant to a fact of consequence in this case. We find that

the trial court did not abuse its discretion in overruling Juarez’ relevance objection.

We overrule Juarez’ three evidentiary points of error relating to Collins’ testimony.

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III. There Was No Abuse of Discretion In Overruling Objections to the Investigator’s
Testimony During Punishment

A. Investigator’s Testimony About Immigration Hold Was Admissible

During punishment, the State called Eraina Longoria, an investigator with the Dallas

County District Attorney’s Office, who testified in the following manner on direct-examination:

Q. [BY THE STATE] Have you had an opportunity to log into the
Adult Identification System?

A. [BY LONGORIA] Yes, sir.

Q. And have you looked at the defendant, Martin Juarez, on that
identification system?

A. Yes, I did.

Q. And did he go by a couple of different aliases?

A. Yes.

Q. In particular, he also has a hold in the system; is that correct?

A. Yes.[10]

[BY THE DEFENSE]: Judge, I’m going to object to hearsay.

THE COURT: Overrule.

Q. (BY [THE STATE]) What type of holds does he have?

A. It’s an immigration status and ICE hold.[11]

10
In its notice of extraneous offenses, the State put Juarez on notice that it intended to introduce evidence that he was
illegally residing in the United States.
11
The State does not argue that Juarez waived his hearsay objection by failing to reiterate it after the State asked
what type of hold Juarez had. Here, we decline to resolve Juarez’ point of error on the basis of preservation.
Redundant objections to the same matter for the same reason are not necessary if the circumstances indicate they
would have been futile. See Graham v. State, 710 S.W.2d 588, 591 (Tex. Crim. App. 1986); Kelly v. State, 321
19
 On appeal, Juarez argues that the trial court erred in overruling his hearsay objection to

Longoria’s testimony because “the contents of and information in AIS[12]specifically related to

[Juarez] was hearsay.” 13 Longoria testified that the AIS system reported an immigration hold.

“If a report contains some hearsay statement, the hearsay statement must fall under some hearsay

exception of its own because neither the public records and reports exception nor the records of

regularly conducted activities exception protects hearsay within hearsay.” Perry v. State, 957

S.W.2d 894, 899–900 (Tex. App.—Texarkana 1997, pet. ref’d); see Khoshayand v. State, 179

S.W.3d 779, 784 (Tex. App.—Dallas 2005, no pet.); Philpot v. State, 897 S.W.2d 848, 851 (Tex.

App.—Dallas 1995, pet. ref’d).

The public records and reports exception to the hearsay rule allows the admission in

evidence of

S.W.3d 583, 598 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (citing Cardenas v. State, 787 S.W.2d 160, 162
(Tex. App.—Houston [1st Dist.] 1990, pet. ref’d)).
12
The term AIS is not defined in the appellate record. However, Juarez defines the term AIS as Adult Information
Systems in his brief.
13
Juarez did not timely object to Longoria’s testimony regarding Juarez’ aliases. Further, during guilt/innocence,
Collins had already testified, without objection, about Juarez’ use of aliases, as demonstrated in the following
excerpt:

A. . . . . If you don’t have a physical ID, they do a life scan. That identifies that
person; who they are. We didn’t have any ID for the AP, Mr. Juarez, so we ended up doing a life
scan at the jail, which came back as Nicanor Sanchez.
Q. So if I understand you correctly, Officer Collins, inside of the reports both
names are used, but both of those names are, in fact, the same individual sitting in court with us.
Is that correct?
A. Yes, it is.
Q. You didn’t determine his true name or the alias name until you actually did the
life scan at the jail.
A. Correct, sir.

Thus, we find that Juarez has not preserved any complaint relating to Longoria’s testimony regarding his aliases.
See TEX. R. APP. P. 33.1(a)(1); Long, 10 S.W.3d at 399.
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 [r]ecords, reports, statements, or data compilations, in any form, of public offices
or agencies setting forth: . . . . (B) matters observed pursuant to duty imposed by
law as to which matters there was a duty to report, excluding, . . . matters
observed by police officers and other law enforcement personnel, . . . unless the
sources of information or other circumstances indicate a lack of trustworthiness.

TEX. R. EVID. 803(8). 14 “Rule 803(8) presumes admissibility, and the party opposing the

report’s admission must prove the report’s untrustworthiness.” Lozano v. State, 359 S.W.3d 790,

818 (Tex. App.—Fort Worth 2012, pet. ref’d). “The general policy behind this exception is that

public records and reports are inherently reliable because of the presumptions that officers will

perform their duties, that officers lack a motive to make false reports, and that public inspection

of the reports will disclose inaccuracies.” Perry, 957 S.W.2d at 897.

Under Rule 803(8)(B), official reports are not admissible if they contain “matters

observed by police officers and other law enforcement personnel.” TEX. R. EVID. 803(8)(B).

“This limitation is based on the presumption that observations by an officer at a scene of a crime

are not as reliable as observations by other public officials . . . due to the adversarial nature of the

confrontation between the defendant and the police in the criminal context.” Perry, 957 S.W.2d

at 898–99 (citations omitted).

Yet, despite Rule 803(8)(B)’s limitation, not all law enforcement reports are

inadmissible. Smith v. State, 895 S.W.2d 449, 455 (Tex. App.—Dallas 1995, pet. ref’d) (citing

Cole v. State, 839 S.W.2d 798, 804–05, 809–10 (Tex. Crim. App. 1990) (op. on reh’g) (per

curiam)). An example of a public record that falls under the Rule 803(8)(B) exception is a
14
Under Rule 803(8)(A), records that a public agency keeps of its own activities are admissible. TEX. R. EVID.
803(8)(A). Under this exception, the Fort Worth Court of Appeals held that a criminal case list printed from a
district attorney’s office computer constituted a public record that was admissible over a hearsay objection. Watson
v. State, 917 S.W.2d 65, 67 (Tex. App.—Fort Worth 1996, pet. ref’d). Here, the AIS system compiled records kept
both by the district attorney’s office and the United States Department of Homeland Security.
21
driving record because a document of this nature records “‘routine, objective observations, made

as part of the everyday function of the’” Department of Public Safety and contains “ministerial,

objective observations of an unambiguous factual nature.” Id. (quoting Cole, 839 S.W.2d at

804–05; Tanner v. State, 875 S.W.2d 8, 9 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d)); see

Perry, 957 S.W.2d at 899. Moreover, “[t]he fact that an individual’s driving record may be used

in a criminal prosecution does not implicate the same concern of unreliability involved when

reports are prepared in contemplation of litigation.” Smith, 895 S.W.2d at 455.

To determine whether Longoria’s testimony about Juarez’ immigration status falls into

the Rule 803(8)(B) exception, “[w]e may look to federal cases that interpret the Federal Rules of

Evidence for guidance as to the scope and applicability of the Texas Rules of Criminal Evidence

because our rules were patterned after the federal rules.” Perry, 857 S.W.2d at 897; see Cole,

839 S.W.2d at 801. In United States v. Hernandez-Rojas, the United States Court of Appeals for

the Ninth Circuit found that the purpose behind Rule 803(8)(B)’s exclusion of matters observed

by law enforcement personnel was inapplicable to a warrant of deportation because (1) “the

notation that [the defendant] was deported to Mexico was a ministerial, objective observation,

which has inherent reliability because of the Government’s need to keep accurate records of the

movement of aliens” and (2) the record had “none of the features of the subjective report made

by a law enforcement official in an on-the-scene investigation, which . . . lack[s] sufficient

guarantees of trustworthiness because they are made in an adversary setting and likely to be used

in litigation.” United States v. Hernandez-Rojas, 617 F.2d 533, 535 (9th Cir. 1980). In reaching

the same conclusion, the Fifth Circuit discussed Hernandez-Rojas and also decided that a

22
warrant of deportation was admissible under Rule 803(8)(B). United States v. Quezada, 754

F.2d 1190, 1193–94 (5th Cir. 1985). Both Hernandez-Rojas and Quezada have been cited by

Texas courts with favor. Fischer v. State, 252 S.W.3d 375, 382, n.29 (Tex. Crim. App. 2008);

Pondexter v. State, 942 S.W.2d 577, 585 (Tex. Crim. App. 1996); Cole, 839 S.W.2d at 803–04.

Here, we find that the trial court could have concluded (1) that the AIS system’s report

was similar to a driving record in that it documented routine, objective observations made as a

part of the agency’s everyday function and (2) that the AIS system’s report that Juarez had an

immigration hold was “information [of] ‘ministerial, objective observations of an unambiguous

factual nature.’” Smith, 895 S.W.2d at 455 (quoting Cole, 839 S.W.2d at 804–05). Accordingly,

we find that the trial court did not abuse its discretion in admitting Longoria’s testimony.

A. Speculation Objection Was Not Preserved

After Longoria testified that Juarez had an immigration hold, the State asked Longoria to

interpret the meaning of the hold, as demonstrated by this excerpt:

Q. What does that alert you to, if anything?

A. That he’s not a legal U.S. citizen or legal resident of the United
States.

Q. And are you familiar with kind of what -- what does that mean?
Was [sic] does that sign [sic] to you as an investigator --

A. That he will be deported.

[BY THE DEFENSE]: Judge, I object to that as being speculation
--

THE COURT: You’ll have a chance to exercise your right to
cross-examine this defendant as to whether or not she’s an expert. Overrule.

23
Juarez chose not to cross-examine Longoria. However, he argues that Longoria’s testimony that

he would be deported was speculative because the State failed to establish that Longoria had the

personal knowledge to interpret the hold status.

Before the State asked the objectionable question, Longoria had already testified that

Juarez was not a legal citizen or resident of the United States. Longoria also testified that Juarez

would be deported before the speculation objection was raised. A party’s objection must be

timely in order to preserve error. See TEX. R. APP. P. 33.1(a)(1). “If a party ‘fails to object until

after an objectionable question has been asked and answered, and he can show no legitimate

reason to justify the delay, his objection is untimely and error is waived.’” Grant v. State, 345

S.W.3d 509, 512 (Tex. App.—Waco 2011, pet. ref’d) (quoting Dinkins v. State, 894 S.W.2d 330,

355 (Tex. Crim. App. 1995)); see Irving v. State, No. 05-12-00221-CR, 2013 WL 2297075, at *8

(Tex. App.—Dallas May 23, 2013, pet. ref’d) (mem. op., not designated for publication)). Here,

because Juarez does not explain the delay in asserting his speculation objection, we find his

objection untimely and overrule his last point of error relating to the trial court’s evidentiary

rulings. 15

IV. We Modify the Judgment to Reflect the Correct Statute of Offense

The Texas Rules of Appellate Procedure give this Court authority to modify judgments to

make the record speak the truth when the matter has been called to our attention by any source.

TEX. R. APP. P. 43.2; French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v.

15
Further, we note that the jury’s guilty verdict subjected Juarez to mandatory deportation. See 8 U.S.C.A.
§§ 1227(a)(2)(A)(iii), 1101(a)(43)(F), (a)(48)(A) (West, Westlaw through P.L. 113-296 (excluding P.L. 113-235,
113-287, and 113-291) approved Dec. 19, 2014).
24
State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.); Asberry v. State, 813 S.W.2d

526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d).

While the trial court’s judgment correctly described the offense for which Juarez was

convicted, the judgment incorrectly lists the statute for the offense as Section 22.02 of the Texas

Penal Code, which sets forth the elements of aggravated assault. See TEX. PENAL CODE ANN.

§ 22.02 (West 2011). Our review of the record shows that the correct statute for the offense is

Section 22.01(b)(2)(B) of the Texas Penal Code. See TEX. PENAL CODE ANN. § 22.01(b)(2)(B).

The State concedes the mistake.

We find that Juarez’ suggested modification of the trial court’s judgment is necessary to

make the record speak the truth. TEX. R. APP. P. 43.2; French, 830 S.W.2d at 609; Smith v.

State, No. 05-10-01642-CR, 2012 WL 2926201, at *3 (Tex. App.—Dallas July 19, 2012, pet.

ref’d) (not designated for publication). Therefore, we hereby modify the judgment to indicate

that the statute under which Juarez was convicted is Section 22.01(b)(2)(B) of the Texas Penal

Code.

V. Conclusion

We affirm the judgment of the trial court, as modified.

Ralph K. Burgess
Justice

Date Submitted: January 21, 2015
Date Decided: March 24, 2015

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