Opinion issued March 19, 2020
In The
Court of Appeals
For The
First District of Texas
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NO. 01-19-00066-CR
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OSCAR ALEXANDER GOMEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Case No. 1397023
MEMORANDUM OPINION
Appellant Oscar Alexander Gomez pleaded guilty to the first-degree offense
of possession with intent to deliver a controlled substance, weighing at least 200
grams but less than 399 grams. Gomez was placed on 10 years’ deferred-
adjudication community supervision. Three years later, the State filed a motion to
adjudicate guilt. Based on evidence admitted at the adjudication hearing, the trial
court found that Gomez had violated conditions of his community supervision,
including that Gomez had committed the offenses of sexual assault and burglary.
The trial court adjudged Gomez guilty and sentenced him to 25 years in prison. In
two issues, Gomez challenges the adjudication of his guilt.
We affirm.
Background
In March 2014, the trial court placed Gomez on deferred-adjudication
community supervision after he pleaded guilty to the first-degree offense of
possession with intent to deliver a controlled substance. The terms and conditions of
his community supervision included that he would not commit any new offenses
while on community supervision. The conditions also required Gomez to have
suitable employment and to make monthly payments for certain fines, fees, and
costs.
In December 2017, the State filed a motion to adjudicate Gomez’s guilt. The
State asserted that Gomez had violated six of the conditions of his community
supervision. Among these, the State alleged that Gomez had committed a new
criminal offense. Specifically, the State averred that Gomez had committed the
offense of sexual assault in February 2017 against an adult woman, B.D. The State
alleged that Gomez had “unlawfully, intentionally and knowingly cause[d] the
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penetration of the anus and sexual organ of [B.D.] . . . by placing [his] sexual organ
in the anus and sexual organ of [B.D.], without [her] consent.” The State further
alleged that Gomez compelled B.D. “to submit and participate” in the sexual assault
by using “physical force and violence.” The State alleged that B.D. had “not
consented” and that Gomez knew that B.D. “was unconscious and physically unable
to resist” and “was unaware that the sexual assault was occurring.”
In September 2018, the State amended its motion to adjudicate guilt, alleging
that Gomez had committed another violation of the law. Specifically, the State
alleged that Gomez had committed the offense of burglary.
In January 2019, the trial court conducted an evidentiary hearing on the
motion to adjudicate. The State presented evidence to prove that, since being placed
on deferred-adjudication community supervision, Gomez had committed the
offenses of burglary and sexual assault.
Regarding the sexual-assault offense, the State presented the testimony of
B.D., the complainant. B.D. testified that, on February 11, 2017, she went to a
downtown Houston club to meet some friends. While there, she met Gomez, and he
bought her drinks. She said that she had never met Gomez before that night. B.D.
testified that the next memory she has from that night was waking up in Gomez’s
bedroom. She was completely nude, and Gomez was penetrating her vaginally and
anally with his penis. B.D. said that she asked Gomez to stop, but he would not. B.D.
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testified that, during the sexual assault, Gomez had his hands around her throat, and
she could barely breath. B.D. tried to leave the bedroom, but Gomez blocked the
door, and pushed B.D. back.
B.D. testified that she waited until Gomez fell asleep and then ran from the
house. She stated that she was barefoot and wearing only a shirt belonging to Gomez
as she ran down the street to get away. An off-duty police officer saw B.D. and
stopped to help her. She was taken to the hospital where she underwent a sexual-
assault examination. As part of the examination, vaginal and anal swabs were taken
and placed in a sexual assault kit.
Sergeant D. Wareham with the Harris County Sheriff’s Office spoke with
B.D. at the hospital about the sexual assault. Sergeant Wareham testified that the
evidence in B.D.’s sexual-assault kit was submitted for DNA analysis. The analysis
showed that the DNA profile from evidence in the sexual assault kit matched
Gomez’s DNA profile, which was in CODIS, a law-enforcement DNA database.
Gomez testified in his own defense. He acknowledged that he had intercourse
with B.D. but claimed it had been consensual.
When asked, Gomez denied several times that he had anal sex with B.D. He
claimed that they only had vaginal intercourse. To rebut Gomez’s claim, the State
offered the testimony of DNA analyst, T. Taylors. She testified that sperm fractions
were found on the anal and vaginal swabs from B.D.’s sexual-assault kit. She
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compared Gomez’s DNA profile with the DNA profiles obtained from sperm
fractions on the swabs. Taylor testified that Gomez could not be excluded as the
source of the DNA found on the anal and vaginal swabs. She said that, statistically,
she would expect to test “another 59 septillion individuals” before she would see the
same DNA profile again.
At the end of the adjudication phase, the trial court stated on the record that
“all of the paragraphs in the motion to adjudicate are true by a preponderance of the
evidence,” which necessarily included the allegations that Gomez had committed
the offenses of burglary and sexual assault.
The trial court then conducted the punishment phase. The State presented
evidence showing that other women had been assaulted by Gomez. At the end of the
punishment phase, the trial court adjudicated Gomez’s guilt and sentenced him to 25
years in prison.
Gomez now appeals. In two issues, Gomez contends that (1) the evidence
admitted at the adjudication hearing was insufficient to support the trial court’s
finding that he had committed the offense of burglary, and (2) the trial court abused
its discretion when it admitted hearsay testimony related to the sexual-assault
offense and the burglary offense.
Adjudication of Guilt
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We review the decision to adjudicate guilt in the same manner as a community
supervision revocation in which an adjudication of guilt was not deferred. See TEX.
CODE CRIM. PROC. art. 42A.108(b); Leonard v. State, 385 S.W.3d 570, 572 n.1 (Tex.
Crim. App. 2012). Proof by a preponderance of the evidence of a single violation of
a condition of community supervision is sufficient to support revocation. See Smith
v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009) (“We have long held that ‘one
sufficient ground for revocation would support the trial court’s order revoking’
community supervision.”) (quoting Jones v. State, 571 S.W.2d 191, 193 (Tex. Crim.
App. 1978)). Thus, any one of Gomez’s community-supervision violations found by
the trial court will support the adjudication of Gomez’s guilt.
By finding all the State’s allegations in the adjudication motion as true, the
trial court implicitly found that Gomez had committed the offense of sexual assault
against B.D. On appeal, Gomez makes only one complaint regarding that finding.
In his second issue, Gomez contends that the trial court abused its discretion
by overruling his hearsay objection to a portion of Sergeant Wareham’s testimony
relating to the sexual-assault offense. See Infante v. State, 404 S.W.3d 656, 662 (Tex.
App.—Houston [1st Dist.] 2012, no pet.) (stating that hearsay challenge to trial
court’s admission of evidence is reviewed for abuse of discretion). Gomez complains
that the trial court permitted Sergeant Wareham to testify, over Gomez’s hearsay
objection, about the description B.D. provided of the man who sexually assaulted
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her. See TEX. R. EVID. 801(d) (defining hearsay as statement, other than one made
by declarant while testifying in court, offered to prove truth of matter asserted); TEX.
R. EVID. 802 (providing that hearsay is generally not admissible unless exception
applies). After overruling Gomez’s hearsay objection, Sergeant Wareham testified
that “B.D. described the suspect as a middle eastern male around 5’5” average build,
with a well-trimmed beard.”
Even if we assume that the trial court erred in overruling Gomez’s objection,
the admission of the complained-of hearsay testimony was harmless error. The
admission of a hearsay statement is non-constitutional error; it entitles the defendant
to reversal only if it affects the defendant’s substantial rights. TEX. R. APP. P. 44.2(b);
Coleman v. State, 428 S.W.3d 151, 162 (Tex. App.—Houston [1st Dist.] 2014, pet.
ref’d). A defendant’s substantial rights are affected if the hearsay’s admission has “a
substantial or injurious effect in determining the verdict.” Coleman, 428 S.W.3d at
162. “We do not overturn a conviction if, after examining the record as a whole, we
have fair assurance that the error did not influence the verdict or had but a slight
effect.” Id.
Improper admission of evidence is not reversible error if the same or similar
evidence is admitted without objection at another point in the trial. Leday v. State,
983 S.W.2d 713, 718 (Tex. Crim. App. 1998); Mayes v. State, 816 S.W.2d 79, 88
(Tex. Crim. App. 1991); see Lamerand v. State, 540 S.W.3d 252, 256–57 (Tex.
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App.—Houston [1st Dist.] 2018, pet. ref’d) (“The erroneous admission of hearsay
does not constitute reversible error if other evidence proving the same fact is
properly admitted elsewhere.”). In other words, when the erroneous admission of
evidence is cumulative of other properly admitted evidence proving the same fact,
the erroneous admission is considered harmless. See Brooks v. State, 990 S.W.2d
278, 287 (Tex. Crim. App. 1999); see also Burks v. State, 876 S.W.2d 877, 898 (Tex.
Crim. App. 1994) (holding that police officer’s erroneously admitted hearsay
testimony did not harm defendant when testimony of other trial witnesses proved
same facts).
Here, any error in admitting Sergeant Wareham’s testimony was harmless
because the same or similar evidence was admitted without objection through B.D.’s
testimony.
On re-direct examination, B.D. testified as follows:
Q. When you talked to the police at the hospital and they were asking
you the medical questions, et cetera, do you remember how you
described your perpetrator, the Defendant in this case?
A. That he had a beard.
Q. Is it similar to the one he has today in court?
A Yes.
Q. Do you remember what ethnicity that you thought he was or
described him as?
A. I thought he was middle eastern.
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Like Sergeant Wareham’s testimony, B.D.’s testimony showed that she had
provided a description to police of the man who sexually assaulted her. And her
testimony of the description was similar to the description that Sergeant Wareham
testified B.D. had provided to him. Because B.D.’s testimony proved the same or
similar facts, we conclude that, to the extent the complained-of testimony was
erroneously admitted, it did not harm Gomez. See TEX. R. APP. P. 44.2(b); Burks,
876 S.W.2d at 898.
Moreover, considering the whole record, the admission of the complained-of
testimony was harmless. Evidence of a defendant’s guilt is a factor to consider in a
harm analysis. Motilla v. State, 78 S.W.3d 352, 360 (Tex. Crim. App. 2002). Here,
B.D. testified in detail about the events that occurred before, during, and after the
sexual assault. In the courtroom, B.D. identified Gomez as the person who had
sexually assaulted her.
Sergeant Wareham testified that he interviewed B.D. at the hospital where she
had been taken after being found on the street by an off-duty police officer. He
testified that B.D. was upset and seemed to be “in shock.” The evidence showed that
B.D. underwent a sexual assault examination at the hospital. Gomez’s DNA profile
matched the DNA profile detected in the biological samples collected from B.D.
In his testimony, Gomez admitted that he had intercourse with B.D. but
claimed it had been consensual. He also claimed that he did not have anal intercourse
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with her. The State then offered its rebuttal witness, T. Taylor, a DNA analyst, who
testified that sperm fractions were detected on the anal swabs collected from B.D.
Gomez could not be excluded as a contributor to the DNA from the sperm fractions
found on the vaginal and anal swabs.
During the sentencing phase, the State offered evidence indicating that other
women had been victimized by Gomez in separate incidences. Each had experienced
unusual cognitive impairment after drinking in a bar where Gomez was present.
One woman testified that she awoke in Gomez’s car while he was driving.
She asked him to stop, but he refused. She then jumped out while the car was still
moving. Gomez stopped and tried to force her back to the car. During the incident,
Gomez struck her in the face. A bystander called police. Photographs taken by police
were admitted into evidence, showing the woman’s bloody mouth. Additional
evidence indicated that Gomez had sexually assaulted at least one other woman
before he had assaulted B.D.
Finally, we note that the State did not emphasize the complained-of portion
of Sergeant Wareham’s testimony during the adjudication or punishment phases.
On this record, we have fair assurance that any error in admitting Sergeant
Wareham’s testimony about the description B.D. gave to him at the hospital of the
man who had sexually assaulted her did not influence the trial court’s decision in
adjudicating Gomez’s guilty or in assessing his sentence or had but a slight effect.
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Therefore, we hold that the purported error did not affect Gomez’s substantial rights
and, consequently, was harmless error. See TEX. R. APP. P. 44.2(b).
We overrule Gomez’s hearsay complaint in his second issue regarding the
admission of Sergeant Wareham’s testimony. This is the only complaint Gomez
raises on appeal related to the trial court’s implied finding that he violated the
conditions of his community supervision by committing the offense of sexual
assault. Because a finding of one violation is sufficient to support adjudication of
Gomez’s guilt, we need not reach the remaining complaints raised in the first and
second issues, which relate to the trial court’s implied finding that Gomez also
violated the conditions of his community supervision by committing the offense of
burglary. See TEX. R. APP. P. 47.1.
Conclusion
We affirm the judgment of the trial court.
Richard Hightower
Justice
Panel consists of Justices Keyes, Lloyd, and Hightower.
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Do not publish. TEX. R. APP. P. 47.2(b).
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