TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-17-00327-CR
Timothy Anthony, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 4 OF TRAVIS COUNTY
NO. D-1-DC-12-907260, HONORABLE MIKE DENTON, JUDGE PRESIDING
MEMORANDUM OPINION
Timothy Anthony was charged with two counts of felony assault family violence and
one count of continuous violence against the family. See Tex. Penal Code §§ 22.01(a)(1), (b)(2)(A);
25.11(a), (e). He pleaded guilty to all three offenses and his punishment for each was assessed at
five years’ imprisonment. The trial court suspended imposition of the sentences and placed Anthony
on community supervision for five years in accordance with the terms of his plea agreement.
The State later moved to revoke Anthony’s community supervision alleging that he
violated the conditions of supervision by, among other things, assaulting his wife, Sandra Horyski.1
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The State’s amended motion to revoke also alleged that Anthony failed to report to his
supervision officer on three separate dates; changed his residence without permission; failed to pay
his supervision fees, becoming delinquent by $180.00; and failed to complete his remaining 35.75
hours of community-service restitution.
At the conclusion of the revocation hearing, the trial court found that Anthony violated the terms and
conditions of his community supervision, revoked his community supervision, and sentenced him
to five years’ imprisonment for each offense with the sentences running concurrently. Anthony filed
a motion for new trial alleging that his counsel was ineffective for not calling Horyski as a witness
during the revocation proceedings. After a hearing, in which Horyski testified and recanted her prior
statements against Anthony, the trial court determined that its prior revocation ruling would stand.
On appeal, Anthony contends that the trial court abused its discretion by allowing
Deputy David Patrick Spittler of the Burleson County Sheriff’s Office to testify about statements that
Horyski made to him during his investigation. Anthony contends that such testimony was hearsay
and violated his Sixth Amendment right of confrontation. We will affirm the trial court’s judgments
revoking Anthony’s community supervision.
BACKGROUND
At the revocation hearing, Anthony and five other witnesses testified, including two
community-supervision officers, a victim’s assistance coordinator, a registered nurse, and Deputy
Spittler.2 Deputy Spittler testified that he responded to a call about a disturbance at an RV park and
that he saw Horyski as she left the restroom of the RV park’s laundry facility. He stated that she
seemed upset, her face was red around her eyes and nose as if she had been crying, she had swelling
to her face, she showed him that her finger was broken, and she had used makeup to cover “an old
black eye.”
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We limit our discussion of the facts to those necessary for the resolution of Anthony’s
appellate issue. See Tex. R. App. P. 47.1.
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Deputy Spittler also testified, over defense counsel’s objections asserting hearsay and
violation of the Sixth Amendment right to cross-examination, about certain statements that Horyski
made to him, including her fear of her husband Timothy Anthony and her request for protection
while she collected her belongings to flee from Anthony to a shelter. Deputy Spittler further testified
that Horyski told him she had sustained her injuries during an incident the week before in which
Mr. Anthony used a closed fist and struck her five to six times on the left side of her
face and head. She also advised that she had an inoperable brain aneurysm and Mr.
Anthony was aware of the fact that she had this aneurysm and he told her that he
could end her life any time he wanted. . . . She also mentioned that during that
incident Mr. Anthony pressed the open blade of a pocket knife to her left cheek and
told her that if he cut her, that he was going to have to finish her.
As part of his investigation, Deputy Spittler also accessed recordings of jailhouse calls that Anthony
made to Horyski. Those recordings were admitted into evidence and played for the court. Deputy
Spittler noted that in those recordings, Anthony kept telling Horyski to “go back to the trailer” and
“don’t talk to that deputy.” In the recordings, Anthony also told Horyski that she was making herself
“look like a victim” by staying at a battered women’s shelter, that he would be kept in jail as long
as she stayed there, and that she needed to tell the magistrate that he “didn’t do anything” and this
was a “big misunderstanding.”
Krista Anderson, a registered nurse who saw Horyski in a hospital emergency room,
testified that Horyski complained of “being struck in the head and still having a headache[, h]er face
feeling numb and problems with her vision.” Anderson also testified that Horyski told her how she
sustained those injuries, saying “a week prior to coming in, that her husband had hit her with a closed
fist in the head.” Hospital records containing Horyski’s statements about her injuries were admitted
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into evidence after defense counsel affirmatively stated that he had “no objection” to them. The
records include an entry that Horyski
[s]tates that 6 days ago she was assaulted by her husband. Reports she was hit with
a closed fist on the left side of her face and with the ‘butt of a knife’ on the top of her
head. . . . She reports that she has had persistent pain in the left side of her face and
left ear, and the feeling in the left side of her head like ‘carbonation.’
At the conclusion of the hearing on the motion to revoke, the trial court found that
Anthony violated the terms and conditions of his community supervision, revoked his community
supervision, and rendered judgments with the aforementioned sentences. Anthony filed a motion
for new trial that was heard and denied. This appeal followed.
DISCUSSION
Anthony contends that the trial court allowed hearsay evidence and violated his Sixth
Amendment right of confrontation by overruling his objection to Deputy Spittler’s testimony. See
U.S. Const. amend. VI (providing that “[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him”). We review a trial court’s ruling on the
admission of evidence under an abuse-of-discretion standard. Gonzalez v. State, 544 S.W.3d 363,
370 (Tex. Crim. App. 2018). We uphold the trial court’s ruling unless it is outside the zone of
reasonable disagreement. Id. Error in the admission of evidence will not result in reversal when
other such evidence was received without objection, either before or after the complained-of ruling.
Coble v. State, 330 S.W.3d 253, 282 (Tex. Crim. App. 2010); Estrada v. State, 313 S.W.3d 274, 302
n.29 (Tex. Crim. App. 2010) (concluding that any error in admission of evidence was harmless in
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light of “very similar” evidence admitted without objection); Benitez v. State, No. 05-13-00199-CR,
2014 Tex. App. LEXIS 7651, at *16 (Tex. App.—Dallas July 15, 2014, pet. ref’d) (not designated
for publication) (concluding that any error in admission of evidence is rendered harmless when
“substantially the same evidence” is admitted elsewhere without objection).
Initially, we note that—aside from his challenge to the assault—Anthony raises no
challenge to the other violations that were the bases for revocation of his community supervision.
Proof by a preponderance of evidence of a single violation of a condition of community supervision
is sufficient to support revocation. Hacker v. State, 389 S.W.3d 860, 864-65 (Tex. Crim. App.
2013); Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009); Figueroa v. State, No.
03-16-00805-CR, 2017 Tex. App. LEXIS 6109, at *7 (Tex. App.—Austin June 29, 2017, no pet.)
(mem. op., not designated for publication). Thus, we could affirm the trial court’s judgments
revoking Anthony’s community supervision based on its findings as to the other “noncriminal act
violations” that Anthony has not challenged on appeal.
But even if Anthony had challenged all the violations of his community supervision,
we could not conclude that he has demonstrated harm from the ruling on the complained-of
testimony entitling him to reversal on appeal. See Tex. R. App. P. 44.2(b). One reason is that
Anderson’s testimony about what Horyski told her in the emergency room provided substantially the
same evidence of Anthony’s assault as the testimony that Anthony sought to exclude from Deputy
Spittler. See Coble, 330 S.W.3d at 282; Estrada, 313 S.W.3d at 302 n.29; Benitez, 2014 Tex. App.
LEXIS 7651, at *16; Loya v. State, No. 05-11-00845-CR, 2012 Tex. App. LEXIS 8640, at *19 (Tex.
App.—Dallas Oct. 16, 2012, no pet.) (mem. op., not designated for publication) (noting that even
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if victim’s statement to forensic interviewer was inadmissible because interviewer was not proper
outcry witness, admission of that statement was harmless where evidence of victim’s statements that
defendant assaulted her was admitted without objection during testimony from nurse and through
sexual assault forensic examination form). Horyski’s statements to Anderson are exceptions to the
hearsay rule as statements made for the purpose of medical diagnosis or treatment. See Tex. R. Evid.
803(4) (providing exception to hearsay rule, regardless of whether declarant is available as witness,
for statement that is made for—and reasonably pertinent to—medical diagnosis or treatment
and that describes medical history, past or present symptoms or sensations, their inception, or their
general cause).
Further, we note that the right to confrontation has been held inapplicable to hearings
for the revocation of probation, supervised release, or parole because they are not a stage or phase
of “criminal prosecution” under the Sixth Amendment. See, e.g., United States v. Reese,
775 F.3d 1327, 1329 (11th Cir. 2015) (collecting cases from eight other circuit courts); Pickins v.
State, No. 02-17-00050-CR, 2018 Tex. App. LEXIS 5528, at *9-10 (Tex. App.—Fort Worth
July 19, 2018, no pet.) (mem. op., not designated for publication); Roberts v. State,
No. 05-16-00338-CR, 2017 Tex. App. LEXIS 589, at *7 (Tex. App.—Dallas Jan. 24, 2017, pet.
dism’d) (mem. op., not designated for publication); see also U.S. Const. amend. VI (“In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”).
Accordingly, we conclude that any error in admitting Deputy Spittler’s testimony
about Horyski’s statements to him was harmless, and we overrule Anthony’s complaint about its
admission. See Tex. R. App. P. 44.2(b).
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CONCLUSION
We affirm the trial court’s judgments revoking Anthony’s community supervision.
Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Triana and Smith
Affirmed
Filed: February 15, 2019
Do Not Publish
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