Albert Martinez, Jr. v. State

NO. 07-08-00523-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

MARCH 24, 2010

ALBERT MARTINEZ, JR., APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2005-408,839; HONORABLE BRADLEY S. UNDERWOOD, JUDGE

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

OPINION

Appellant, Albert Martinez, Jr., appeals his conviction for the offense of capital

murder and sentence of life imprisonment in the Institutional Division of the Texas

Department of Criminal Justice. We affirm.

Background

On October 26, 1996, Eva Garcia was murdered and her battered and naked

body was left behind a row of bushes next to a Lubbock church. Police were called to

the scene by the pastor of the church after he discovered the body on the morning of
October 27. Officer Bruce Short, one of the investigating police officers, opined that

Garcia had struggled against her assailant and that it appeared that her clothes had

been forcibly removed. Short further opined that it appeared that Garcia had been

strangled and had received multiple blunt force trauma injuries. The police recovered

multiple items from the scene that were submitted to the Department of Public Safety

Crime Laboratory in Lubbock for analysis and testing. None of the analysis and testing

provided the police any leads and, in fact, excluded the only suspects. As a result, the

case became a “cold case.”

Two days after the discovery of the body, a blood stain was discovered on the

wall of the church some distance away from where the body had been located. A swab

was taken of this blood stain and it was submitted for testing. The results of the testing

excluded Garcia as the source of the blood. In December of 2003, the swab of blood

taken from the church wall was retested and the results of that testing was entered into

the Combined DNA Index System (CODIS), a national database that stores known DNA

profiles to generate leads in unsolved cases. In 2004, the Lubbock Police Department

was notified by CODIS that the DNA found in the blood swab had been matched to an

individual within the database. According to a CODIS report, the DNA found in the

blood swab matched appellant’s DNA. The Lubbock Police Department obtained a

blood sample from appellant and compared it to the blood swab obtained from the

location of Garcia’s body. The result of this comparison was that appellant could not be

excluded as the contributor of the blood found at the location where Garcia’s body was

discovered and that the probability of selecting a random Hispanic person that could be

the source of the blood stain would be 26.44 quadrillion to one.
2
 As a result of the genetic matching of appellant to the blood stain found at the

scene of the crime, appellant became the primary suspect in the murder of Garcia.

Appellant was taken into custody while the case was investigated. As part of the

investigation, appellant was interviewed by Detective Martinez four times over the

course of a week. During these interviews, appellant gave statements to Martinez in

which appellant accepted responsibility “for what happened to” Garcia and admitted to

beating a woman on October 26. Further, while in custody, appellant made phone calls

in which he admitted his involvement in the murder of Garcia, but stated that he did not

act alone. In one of these calls, appellant stated that “I was there when they were

hitting her and the fucking, you know? but I wasn’t the only one, you hear me?” 1

Appellant was tried for the offense of capital murder. Following the trial, the jury

returned a verdict finding appellant guilty of capital murder, as charged in the

indictment. Following the jury verdict, the trial court sentenced appellant to a capital life

sentence in the Institutional Division of the Texas Department of Criminal Justice.

Appellant timely filed notice of appeal of the conviction and sentence.

By three issues, appellant challenges the trial court’s Judgment of Conviction by

Jury. By his first issue, appellant contends that the trial court violated appellant’s Sixth

Amendment right to confront and cross-examine witnesses against him when it allowed

Dr. Thomas Beaver to testify from an autopsy report prepared by another doctor. By his

1
  Appellant’s phone conversation alternated between English and Spanish and
the quoted statement was made in Spanish. However, at trial, the State had the
conversations translated and transcribed and the transcription of these calls were
offered as demonstrative evidence to aid those jury members that do not understand
Spanish. Appellant stated that he had no objection to these transcriptions.
3
second and third issues, appellant contends that the evidence was legally and factually

insufficient to support the jury’s verdict that appellant committed murder during the

course of committing or attempting to commit aggravated sexual assault. We will

address appellant’s sufficiency challenges first.

Sufficiency of the Evidence

By his second and third issues, appellant challenges both the legal and factual

sufficiency of the evidence, specifically as it relates to the sufficiency of the evidence to

support the finding that he committed murder during the course of committing or

attempting to commit aggravated sexual assault. When both legal and factual

sufficiency is challenged, we are required to conduct an analysis of the legal sufficiency

of the evidence first and then, only if we find the evidence to be legally sufficient, do we

analyze the factual sufficiency of the evidence. See Clewis v. State, 922 S.W.2d 126,

133 (Tex.Crim.App. 1996).

Standard of Review

In assessing the legal sufficiency of the evidence, we review all the evidence in

the light most favorable to the verdict to determine whether a rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Clayton v. State,

235 S.W.3d 772, 778 (Tex.Crim.App. 2007). In conducting a legal sufficiency review, it

is assumed that the trier of fact resolved conflicts in the testimony, weighed the

evidence, and drew reasonable inferences in a manner that supports the verdict.

4
Clayton, 235 S.W.3d at 778. An appellate court may not sit as a thirteenth juror, but

rather must uphold the jury’s verdict unless it is irrational or unsupported by more than a

mere modicum of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.

1988).

When an appellant challenges the factual sufficiency of the evidence supporting

his conviction, the reviewing court must determine whether, considering all the evidence

in a neutral light, the jury was rationally justified in finding the appellant guilty beyond a

reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006).

In performing a factual sufficiency review, we must give deference to the fact finder’s

determinations if supported by evidence and may not order a new trial simply because

we may disagree with the verdict. See id. at 417. As an appellate court, we are not

justified in ordering a new trial unless there is some objective basis in the record

demonstrating that the great weight and preponderance of the evidence contradicts the

jury’s verdict. See id. Additionally, an appellate opinion addressing factual sufficiency

must include a discussion of the most important evidence that appellant claims

undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).

To prove appellant guilty of the indicted offense, the State had to prove: 1)

appellant, 2) intentionally, 3) caused the death of Garcia, 4) while in the course of

committing or attempting to commit the offense of aggravated sexual assault of Garcia.

TEX. PENAL CODE ANN. § 19.03(a)(2) (Vernon Supp. 2009). As applicable to the case

before us, a person commits the offense of aggravated sexual assault if the person

intentionally or knowingly causes the penetration of the sexual organ of another by any

5
means, without that person’s consent. Id. § 22.021(a)(1)(A)(i). In a capital murder

case, the intent to commit aggravated sexual assault must be formed prior to or

concurrent with the murder. See Herrin v. State, 125 S.W.3d 436, 441 (Tex.Crim.App.

2002).

Legal Sufficiency

Appellant contends that the State failed to present legally sufficient evidence to

establish that he murdered Garcia during the course of committing or attempting to

commit aggravated sexual assault. However, evidence was presented to the jury that

Garcia’s clothes had been forcibly ripped from her body and her body was found naked.

Further, Garcia’s body was found with abrasions, lacerations, and contusions in the

external genitalia as well as a severe laceration in her vagina. Finally, the jury heard

appellant’s phone conversation in which he stated, “I was there when they were hitting

her and the fucking, you know? but I wasn’t the only one, you hear me?” From this

evidence, viewed in the light most favorable to the verdict, we cannot say that the jury

acted irrationally in finding appellant guilty of capital murder beyond a reasonable doubt.

See Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778.

Factual Sufficiency

Because we find the evidence to be legally sufficient, we must next review the

evidence in a neutral manner to determine whether the jury was rationally justified in

finding appellant guilty beyond a reasonable doubt. Watson, 204 S.W.3d at 415. When

conducting a factual sufficiency review, we must remain mindful that the jury has

6
already passed on the evidence and their conclusions are entitled to deference when

supported by the evidence. Id. at 417. Further, we cannot supplant the jury’s verdict

simply because we might disagree, rather we must be able to state with particularity

where the deficiency in the evidence to support the jury’s determination exists. Id.

Appellant contends that there is a “complete lack of forensic evidence

demonstrating a sexual assault occurred.” Appellant points to the fact that the

laceration of Garcia’s vagina was established to have occurred postmortem and

contends that this is the only evidence of penetration of Garcia’s sexual organ.

While appellant’s characterization of the evidence is correct, his contention that

this makes the evidence factually insufficient is in error. It is sufficient to find that

appellant committed capital murder if the evidence supports that appellant murdered

Garcia while attempting to commit aggravated sexual assault. See TEX. PENAL CODE

ANN. § 19.03(a)(2). As such, the State was not required to prove that appellant actually

committed aggravated sexual assault on Garcia. The evidence that Garcia’s clothes

had been forcibly removed, the antemortem injuries to Garcia’s genitals, and appellant’s

statement that he was present during the “fucking” of Garcia 2 is sufficient evidence to

2
 Appellant contends that the context of the use of the word that was translated to
“fucking” makes it apparent that appellant was referring to beating Garcia and not to
sexual activity. However, appellant raised no objection to the use of the translation as a
demonstrative aid in the trial court and, in cross-examination of the translator, presented
evidence to the jury that the word used by appellant could be translated as a sexual act,
messing around, or messing someone up. However, the jury was tasked with
determining the facts, specifically what was the proper translation, and the weight that
should be afforded to this evidence. See TEX. CODE CRIM. PROC. ANN. arts. 36.13, 38.04
(Vernon 2007); Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). We must
defer to the jury’s determination.
7
allow a rational jury to conclude that appellant murdered Garcia while attempting to

commit aggravated sexual assault.

Accordingly, we find that the evidence to support appellant’s conviction for the

offense of capital murder was both legally and factually sufficient. Therefore, we

overrule appellant’s second and third issues.

Confrontation

By his first issue, appellant contends that his Sixth Amendment right to confront

the witnesses against him was violated by the admission of testimonial hearsay

evidence, specifically information contained in the report from the autopsy on Garcia’s

body. The medical examiner who conducted the autopsy, Dr. Randy Frost, did not

testify. Instead, the State called the chief medical examiner for Lubbock County, Dr.

Thomas R. Beaver, who was not present at the autopsy, to testify regarding the

examination of the body and to give his opinions regarding Garcia’s injuries and the

cause of her death. Appellant contends that he was denied his constitutional right to

confront Frost and challenge his findings and conclusions contained in his autopsy

report.

Standard of Review

The Sixth Amendment 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. The confrontation right also applies to out-of-court statements that are

testimonial in nature. Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158

8
L.Ed.2d 177 (2004). The Confrontation Clause forbids the admission of testimonial

hearsay unless the declarant is unavailable to testify and the defendant had a prior

opportunity to cross-examine the declarant. Id. at 68. Whether a particular out-of-court

statement is testimonial is a question of law. De La Paz v. State, 273 S.W.3d 671, 680

(Tex.Crim.App. 2008). Generally speaking, a hearsay statement is testimonial when the

surrounding circumstances objectively indicate that the primary purpose of the interview

or interrogation is to establish or prove past events potentially relevant to later criminal

prosecution. Id. Error in admitting evidence in violation of a defendant’s confrontation

right is constitutional error, which necessitates reversal unless the reviewing court

determines beyond a reasonable doubt that the error did not contribute to the conviction

or punishment. See TEX. R. APP. P. 44.2(a); Wood v. State, 299 S.W.3d 200, 214

(Tex.App.—Austin 2009, pet. filed).

The Autopsy Report

Appellant contends that the contents and results of Frost’s autopsy report were

testimonial out-of-court statements that, as such, are subject to the Confrontation

Clause of the Sixth Amendment. Appellant contends that the admissibility of statements

contained in Frost’s autopsy report depends on an evaluation of the reasons the

declarant made the statements. If these statements were made in anticipation for use

in a later criminal trial, they are testimonial and subject to appellant’s confrontation right.

Appellant relies on Melendez-Diaz v. Massachusetts, 2009 U.S. LEXIS 4734, 129 S.Ct.

2527, 174 L.Ed.2d 314 (2009), to support his argument.

9
 The State contends that the recent Wood decision of the Austin Court of Appeals

was wrongly decided and should not be followed by this Court. The court, in Wood,

construes Melendez-Diaz in much the same way that appellant does in this appeal 3 and

concludes that the autopsy report involved in that case was testimonial hearsay subject

to the Confrontation Clause of the Sixth Amendment. See Wood, 299 S.W.3d at 209-

10. The State argues that Wood overlooked a distinction drawn in Melendez-Diaz, 2009

U.S. LEXIS 4734, at *27-*28, between business records created as a regular part of a

business’s activity and business records created for use in the courts. In making its

argument, the State relies upon the statutory requirement that a medical examiner

conduct an inquest whenever there is an unexplained death, regardless of whether

there is suspicion that a crime has occurred. See TEX. CODE CRIM. PROC. ANN. art.

49.25, § 6(a).

The Austin Court of Appeals acknowledged that a medical examiner is statutorily

required to conduct an inquest whenever the cause of a person’s death is unknown.

Wood, 299 S.W.3d at 209. However, the court also noted that the statute specifically

requires the medical examiner to perform an autopsy when a person dies under

circumstances warranting the suspicion that death was caused by unlawful means. Id.

(citing TEX. CODE CRIM. PROC. ANN. art. 49.25, § 6(a)(4)). If the cause of death is

determined beyond a reasonable doubt, the medical examiner must file a report stating

the cause of death with the district, criminal district, or county attorney. Id. (citing TEX.

CODE CRIM. PROC. ANN. art. 49.25, § 9(a)). Further, an autopsy must be performed if

3
  Appellant’s brief does not directly address the Wood decision. Appellant’s brief
was filed with this Court on August 25, 2009, while the Wood decision was issued on
October 7, 2009. Appellant did not file a reply brief. 
10
requested by the district, criminal district, or county attorney. Id. Because the statutory

prerequisites giving rise to the medical examiner’s duty to perform an autopsy varies

greatly, the Austin court expressly stated that, “We do not hold that all autopsy reports

are categorically testimonial.” Id. The court then analyzed the facts of that case and

held that, because the circumstances surrounding the victim’s death warranted the

police in the suspicion that his death was a homicide, the police evidence specialist

attended the autopsy, and it was a reasonable assumption that the medical examiner

performing the autopsy understood that the report containing her findings and

conclusions would be used prosecutorially, the autopsy report was a testimonial

statement and the medical examiner performing the autopsy was a witness against the

defendant within the meaning of the Confrontation Clause. Id. at 209-10.

We agree with the analysis of our sister court in Wood. That the medical

examiner may be required to perform an autopsy on a body when there is no suspicion

that the death was tied to criminal activity does not justify this Court abdicating its duty

to determine whether the primary purpose of the autopsy report was to establish or

prove past events potentially relevant to later criminal prosecution. See De La Paz, 273

S.W.3d at 680. In the present case, the circumstances surrounding Garcia’s death

warranted the police to suspect that Garcia had been killed, an officer attended the

autopsy and took photographs of the body, and it was reasonable for Frost to have

assumed that his autopsy report would be used prosecutorially. Since the statutory

basis giving rise to Frost’s duty to perform the autopsy was that the circumstances

surrounding Garcia’s death warranted the suspicion that the death was caused by

unlawful means, see TEX. CODE CRIM. PROC. ANN. art. 49.25, § 6(a)(4), we hold that
11
Frost’s autopsy report was a testimonial statement and that Frost was a witness within

the meaning of the Confrontation Clause of the Sixth Amendment.

Beaver’s Testimony

However, while we have found Frost’s autopsy report to be testimonial, the

autopsy report was not admitted into evidence in appellant’s trial. Rather, Beaver

testified to his own opinions regarding Garcia’s injuries and death and was, of course,

subject to cross-examination by appellant. Beaver did, however, testify that he relied on

the contents of the autopsy report as a basis for his opinions.

After Beaver introduced himself and briefly summarized his education and

experience, the prosecutor asked him if he could read Frost’s autopsy report and view

the photographs and substantiate the findings made by Frost. Appellant indicated that

he had an objection and requested a conference at the bench. At the bench

conference, appellant stated, “we would object to this witness testifying as to the

autopsy report. Initially its hearsay, but we’re also in violation of confrontation clause

under Crawford versus Washington, Your Honor.” The trial court overruled appellant’s

objection without further discussion. 4 While this objection was sufficient to preserve

error in regard to the contents and conclusions contained in the autopsy report, it did not

notify the trial court of any error in the admission of the photographs upon which Beaver

based his testimony.

4
  The State concedes that this objection was sufficient to preserve error in the
admission of any statements from the autopsy report. See Martinez v. State, 98 S.W.3d
189, 193 (Tex.Crim.App. 2003).
12
 Reviewing Beaver’s testimony, it is clear that the majority of his testimony was

based on his review of the photographs taken during the autopsy. Based on these

photos, Beaver opined that Garcia suffered extensive blunt force trauma injuries, but

that she most likely died from asphyxia or, in other words, strangulation.

During Beaver’s testimony, he was asked, on two separate occasions, about his

opinion based on his review of the photographs and Frost’s autopsy report. 5 Under

Texas Rule of Evidence 703, an expert witness may base an opinion on facts or data

that are not admissible in evidence, provided that the inadmissible facts or data are of a

type reasonably relied upon by experts in the particular field. TEX. R. EVID. 703. The

Confrontation Clause is not violated merely because an expert bases an opinion on

inadmissible testimonial hearsay. Wood, 299 S.W.3d at 213. This is so because the

testifying expert’s opinion is not hearsay and the testifying expert is available for cross-

examination regarding his opinion. Id. Because in these specific instances Beaver did

not disclose the testimonial hearsay upon which his expert opinion was based, the jury

only heard the direct, in-court testimony of Beaver and appellant’s confrontation rights

were not violated. See Id.

However, Beaver did disclose to the jury certain testimonial statements contained

in the autopsy report. Texas Rule of Evidence 705(d) permits an expert to disclose

inadmissible facts or data underlying his opinion, but only if the value of the inadmissible

evidence disclosed is not outweighed by the danger that the inadmissible evidence will

5
  Specifically, Beaver was asked “And from your review of the autopsy report and
the photographs taken in this case, do you believe that a thorough job was done and a
correct job was done,” and “But they [the photographs] were, in your opinion, necessary
to explain the findings of Dr. Frost in his autopsy report.”
13
be used for another, impermissible purpose. TEX. R. EVID. 705(d); Wood, 299 S.W.3d at

213. In the present case, the facts and data in the autopsy report explained and

supported Beaver’s opinions only if those facts and that data were deemed true. Thus,

under the circumstances of this case, the disclosure of the out-of-court testimonial

statements underlying Beaver’s opinions, even if offered only for the purpose of

explaining and supporting those opinions, constituted the use of testimonial statements

to prove the truth of the matters asserted in violation of the Confrontation Clause.

Wood, 299 S.W.3d at 213.

Harm Analysis

Having found that portions of Beaver’s testimony violated appellant’s

confrontation rights, we must analyze the erroneously admitted evidence to determine if

it was harmful to appellant. Because the error was constitutional error, we must reverse

appellant’s conviction unless we are satisfied beyond a reasonable doubt that the error

did not contribute to the conviction or punishment. See TEX. R. APP. P. 44.2(a);

Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986);

Langham v. State, No. PD-1780-08, 2010 Tex.Crim.App. LEXIS 21, at *34-*35

(Tex.Crim.App. March 3, 2010). In determining whether constitutional error under

Crawford may be declared harmless beyond a reasonable doubt . . . the following

factors are relevant: 1) how important was the out-of-court statement to the State's

case; 2) whether the out-of-court statement was cumulative of other evidence; 3) the

presence or absence of evidence corroborating or contradicting the out-of-court

statement on material points; and 4) the overall strength of the prosecution's case.

14
Langham, 2010 Tex.Crim.App. LEXIS 21, at *35 (quoting Scott v. State, 227 S.W.3d

670, 690-91 (Tex.Crim.App. 2007)). Appellant contends that Beaver’s use of

inadmissible testimonial hearsay harmed him because it was used to establish the

manner and means of Garcia’s death, it was used to prove that appellant was guilty of

murder rather than aggravated assault, and failure to reverse appellant’s conviction

could encourage the State to repeat the violation of the Confrontation Clause found in

this case.

None of appellant’s contentions are persuasive. As to the cause of death,

Beaver testified that it was his opinion, based on the photographs, that Garcia had been

choked, the choking had caused numerous abrasions to Garcia’s neck as the

assailant’s hands shifted on her neck, and Garcia died from “. . . some sort of

strangulation, some sort of asphyxia death.” None of this testimony was in violation of

the Confrontation Clause because it constituted the opinions of the expert witness that

was on the stand and subject to cross-examination. See Wood, 299 S.W.3d at 213.

Thus, while it is true that Beaver informed the jury that Frost had found the cause of

Garcia’s death to be asphyxiation, Frost’s opinion is cumulative of other, properly

admitted evidence and, as such, is harmless beyond a reasonable doubt. See

Langham, 2010 Tex.Crim.App. LEXIS 21, at *35. As to appellant’s contention that

Frost’s testimonial hearsay was used to establish that appellant was guilty of murder

rather than aggravated assault, appellant relies on a confessional statement that he

made in which he stated that Garcia was alive when he left the scene of the crime.

However, Beaver testified that neither he nor Frost were able to determine a time of

death. Nothing in Beaver’s testimony refuted appellant’s defensive theory that he was
15
guilty of only aggravated assault. As a result, we conclude that the jury must have

found appellant guilty of capital murder based on other evidence. Finally, appellant

contends that the failure to reverse appellant’s conviction could have the effect of

encouraging the State to repeat the error found in this case by using sponsoring

witnesses in lieu of the actual medical examiner that performed the autopsy. However,

the potential of future abuses by the State is not demonstrated by appellant’s analysis to

have caused harm in this case.

Looking specifically to those statements from Frost’s autopsy report that were

admitted into evidence through Beaver’s testimony, we conclude that the error was

harmless. Beaver identified that Frost concluded that the cause of Garcia’s death was

asphyxiation. However, as discussed above, Frost’s conclusion regarding cause of

death was cumulative of Beaver’s opinion and of the photographs that showed

extensive injuries to Garcia’s neck consistent with strangulation. Additionally, we note

that the indictment of appellant indicated that the cause of Garcia’s death was either

strangulation or blunt force trauma. All of the evidence presented regarding the injuries

suffered by Garcia were consistent with either strangulation or blunt force trauma.

Beaver also testified regarding the livor findings made by Frost. Initially, we note that

this testimony was elicited by appellant during cross-examination. Further, the

testimony regarding the livor found in Garcia’s body was never tied to anything that

would make this testimony relevant to the issue of whether appellant was guilty of

murder. The only testimonial hearsay evidence that was admitted that was not

cumulative or irrelevant actually favored appellant. Beaver testified that Frost’s report

found that Garcia’s blood-alcohol level was at a .20 and that Garcia had pharmaceutical
16
narcotics in her urine. While Beaver opined that these findings did not contribute to

Garcia’s death, the evidence that Garcia was intoxicated was potentially exculpatory in

that it might have suggested that Garcia died as a result of an accident.

Looking to the factors that we must consider in determining whether error in this

case may be declared harmless beyond a reasonable doubt, the disclosure of Frost’s

conclusion regarding the cause of Garcia’s death was cumulative of other evidence that

was properly presented to the jury and, as such, was not of great import to the State’s

case. Further, significant evidence was admitted that would corroborate that appellant

murdered Garcia by strangulation or blunt force trauma and the State’s case against

appellant, even without considering the inadmissible testimony regarding Frost’s

opinions, was strong. See Langham, 2010 Tex.Crim.App. LEXIS 21, at *35. While the

admission of the testimonial hearsay from Frost’s autopsy report violated the

Confrontation Clause, we are satisfied beyond a reasonable doubt that the disclosure of

this information did not contribute to appellant’s conviction or punishment. See TEX. R.

APP. P. 44.2(a); Wood, 299 S.W.3d at 215.

For the foregoing reasons, appellant’s first issue is overruled.

Conclusion

Having overruled each of appellant’s issues, we affirm the judgment of the trial

court.

Mackey K. Hancock
Justice
Publish.
17