Affirmed and Memorandum Opinion filed September 24, 2020.
In The
Fourteenth Court of Appeals
NO. 14-19-00566-CR
NO. 14-19-00567-CR
JARVIS SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause Nos. 1588936, 1588937
MEMORANDUM OPINION
In two issues, Appellant Jarvis Smith asserts (1) the evidence is legally
insufficient to support his conviction for injury to an elderly individual; and (2) the
trial court erred by admitting evidence of statements made by (and information
learned from) the non-testifying complainant. For the reasons below, we affirm.
BACKGROUND
Appellant was arrested in April 2018 and charged with two offenses: injury
to an elderly individual and harassment of a public servant. See Tex. Penal Code
Ann. §§ 22.04, 22.11.1 Appellant pleaded not guilty to both offenses and
proceeded to a jury trial. The jury found Appellant guilty of both offenses and
assessed punishment at 25 years’ confinement for each offense, with the sentences
to run concurrently. Appellant timely appealed.
ANALYSIS
Appellant raises two issues on appeal: (1) the trial court erred by admitting
certain evidence; and (2) the evidence is legally insufficient to support his
conviction for injury to an elderly individual. Because a successful legal
sufficiency challenge will result in the rendition of an acquittal, we address
Appellant’s legal sufficiency issue before turning to his evidentiary challenge. See
Lara v. State, 487 S.W.3d 244, 248 (Tex. App.—El Paso 2015, pet. ref’d); Aldrich
v. State, 296 S.W.3d 225, 230 (Tex. App.—Fort Worth 2009, pet. ref’d).
I. Sufficiency of the Evidence
Appellant was charged with intentionally or knowingly causing bodily injury
to an elderly individual. See Tex. Penal Code Ann. § 22.04 (a)(3), (e). In his
second issue, Appellant argues that the evidence is legally insufficient to show that
he committed this offense with the requisite mens rea.
A. Standard of Review
In reviewing the sufficiency of the evidence to support a conviction, we
consider the evidence in the light most favorable to the verdict and determine
whether any rational trier of fact could have found the essential elements of the
1
These offenses were tried under separate trial court numbers and Appellant filed a
notice of appeal in both cases. On appeal, case number 14-19-00566-CR is the appeal from
Appellant’s conviction for harassment of a public servant and case number 14-19-00567-CR is
the appeal from the conviction for injury to an elderly individual.
2
offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);
Johnson v. State, 364 S.W.3d 292, 293-94 (Tex. Crim. App. 2012). We consider
all of the evidence in the record, whether admissible or inadmissible. Winfrey v.
State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Jackson v. State, 530 S.W.3d
738, 741 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
We consider both direct and circumstantial evidence, as well as any
reasonable inferences that may be drawn from the evidence. See Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007). But we do not re-evaluate the
weight and credibility of the evidence or substitute our judgment for that of the fact
finder; the jury alone decides whether to believe eyewitness testimony. Jackson,
530 S.W.3d at 741. Likewise, we defer to the jury’s responsibility to resolve any
conflicts in the evidence. Id. at 741-42. The jury’s verdict will be upheld unless “a
rational fact finder must have had a reasonable doubt as to any essential element.”
Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009).
B. Evidence
Craig Irving was the first witness to testify at Appellant’s trial. According to
Irving, he was driving down a street in southeast Houston on April 26, 2018, when
he saw Appellant on the ground, “[r]olling on the corner of the edge of the street.”
Irving testified that he saw an “elderly guy” (“Complainant”) trying to help
Appellant get his legs out of the street. Irving was pulling his vehicle into a nearby
parking lot when he saw Appellant stand up and hit Complainant. According to
Irving, Complainant fell to the ground and Appellant continued to punch him —
Irving testified that the punches “appear[ed] to be hard.” Irving said he walked
over to the men and “knocked” Appellant off of Complainant. Irving testified that
Appellant “[l]ooked like a zombie.”
Irving recalled that Houston police officers arrived at the scene shortly after
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he approached Complainant and Appellant. Irving said Appellant knocked the
hood ornament off of Complainant’s truck and “just took on off”. Irving testified
that Complainant had a bloody face and appeared to be in pain. Irving did not
know Complainant but described him as “an older man” who “looked like he was
in his 70’s.”
Houston police officer Jeffrey Nemeth was the second witness to testify at
Appellant’s trial. Officer Nemeth said he and another officer were driving in
southeast Houston when they saw Appellant “assaulting another male.” According
to Officer Nemeth, he got out of his vehicle and saw Appellant walk away into
oncoming traffic. Officer Nemeth testified Appellant was “very sweaty and —
breathing very heavily, deep respirations.” Officer Nemeth recalled smelling an
“acetone smell”, which he described as “very common with a specific narcotic”.
Officer Nemeth testified that Appellant’s behavior seemed consistent with
someone under the influence of narcotics.
Officer Nemeth’s body camera footage from his encounter with Appellant
was admitted into evidence. The footage showed Officer Nemeth exiting his
vehicle and approaching Appellant, Complainant, and Irving; Appellant then walks
off into the street. Appellant begins to run away despite Officer Nemeth’s
instructions to stop. Officer Nemeth catches up to Appellant and handcuffs him.
The officers remain with Appellant until medical personnel arrive at the
scene. On the footage, the officers can be heard making references to Appellant’s
suspected drug use. At one point, Officer Nemeth states that Appellant is “coming
down”.
Two paramedics arrive at the scene and one of the paramedics, William
Easy, sits on the ground near Appellant and begins to perform an
electrocardiogram. Easy states that Appellant appears to have had a prior heart
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surgery. Because of this surgery and the suspected drug use, Easy recommends to
the officers that Appellant be taken to the hospital. The footage then shows
Appellant spitting on Easy’s face,2 after which Easy packs up his
electrocardiogram machine and walks out of the camera’s frame. Appellant
remains sitting on the ground until an ambulance arrives to take him to the
hospital.
Officer Nemeth remained with Appellant during the ambulance ride and at
the hospital. Testifying at trial, Officer Nemeth said that no narcotics were found
on Appellant and that Appellant was not tested to determine whether he was under
the influence of drugs.
The jury heard testimony from a second Houston police officer, Joshua
Hunt, who also responded to the incident. Like Officer Nemeth, Officer Hunt was
wearing a body camera at the scene and testified regarding its footage as it was
played for the jury. The footage showed Officer Hunt arrive at the scene while
Appellant is being detained and handcuffed. Officer Hunt then walks across the
street to the parking lot where Appellant’s altercation with Complainant occurred.
Irving walks up to Officer Hunt and tells him that Appellant was laying on the
ground with his feet in the street before he stood up and began hitting
Complainant.
Officer Hunt turns to Complainant and asks him if he is “alright”;
Complainant responds in the affirmative and says he does not require medical
attention. Hunt, Irving, and Complainant begin discussing Complainant’s injuries,
including a busted lip and injuries to his eyes and nose. Officer Hunt asks
Complainant for his identification and Complainant hands Officer Hunt his
2
This incident formed the basis of Appellant’s conviction for harassment of a public
servant. See Tex. Penal Code Ann. § 22.11.
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driver’s license. Officer Hunt writes down information from the license; the
license cannot be seen in the footage.
Officer Hunt and Complainant walk to Complainant’s truck to assess the
damage. Continuing to recount the events that had occurred, Complainant says
that Appellant hit him and that Complainant could not get Appellant off of him.
Officer Hunt recommends to Complainant that he see a doctor.
Officer Hunt walks back across the street to where Appellant is detained.
Officer Hunt tells the other officers the information he received from Complainant
and Irving. Stating that Complainant was born in 1934, Officer Hunt says that
Appellant can be charged with assault to an elderly individual.
After Appellant leaves the scene in the ambulance, Officer Hunt returns to
the parking lot where Complainant and Irving are standing. Officer Hunt takes
pictures of Complainant’s face and of the damage to his truck.3 Officer Hunt
recommends that Complainant see his doctor because he is an “old guy” with
“fragile bones”. Officer Hunt tells Complainant that Appellant will be going to jail
for “assault on the elderly”.
Appellant is the last witness to testify at his trial. Appellant said that, the
morning of the incident, he had donated plasma at the hospital before taking a bus
to visit his family in southeast Houston. Appellant recalled getting off the bus,
walking, and stopping to smoke a cigarette; after that, the only thing he recalled
was being handcuffed by the officers. Appellant did not recall the incident with
Complainant.
When questioned about the incident with paramedic Easy, Appellant said he
recalled that Easy was placing electrodes on his chest while he was handcuffed and
3
Neither the photographs of Complainant nor those of his truck were admitted into
evidence.
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sitting on the ground. Appellant denied spitting in Easy’s face. According to
Appellant, he was shaking off sweat that had fallen on his face from an officer that
was standing above him.
C. Analysis
Focusing on the mens rea component of the charged offense, Appellant
argues there “is nothing in the record” to show he acted intentionally or knowingly
in causing bodily injury to Complainant.
Injury to an elderly individual is a “result of conduct” offense and the
culpable mental state relates to the result of the conduct, i.e., the causing of the
injury. Kelly v. State, 748 S.W.2d 236, 239 (Tex. Crim. App. 1988) (en banc);
Duntsch v. State, 568 S.W.3d 193, 216 (Tex. App.—Dallas 2018, pet. ref’d). A
person acts intentionally with respect to a result of his conduct when it is his
conscious objective or desire to cause the result. Tex. Penal Code Ann. § 6.03(a).
A person acts knowingly with respect to a result of his conduct when he is aware
that his conduct is reasonably certain to cause the result. Id. at (b).
Proof of a culpable mental state almost always depends on circumstantial
evidence and intent may be inferred from a defendant’s acts, words, and conduct.
Darkins v. State, 430 S.W.3d 559, 565 (Tex. App.—Houston [14th Dist.] 2014,
pet. ref’d); Martin v. State, 246 S.W.3d 246, 263 (Tex. App.—Houston [14th Dist.]
2007, no pet.). “A factfinder may infer that a defendant intends the natural
consequences of his or her acts.” Harmel v. State, 597 S.W.3d 943, 954 (Tex.
App.—Austin 2020, no pet.).
Citing his testimony from trial, Appellant asserts that he did not remember
meeting Complainant and that his “first recollection of the incident was being
placed in handcuffs.” Appellant also points out that Irving testified that Appellant
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looked like a “zombie” and Officer Nemeth opined that Appellant was on narcotics
at the time of the incident. Contending that his behavior was “erratic enough to
suggest he was a danger as much to himself as to others”, Appellant argues his
behavior was “as consistent with mental illness as intoxication.”
To the extent Appellant asserts that the evidence shows he was intoxicated,
evidence of a defendant’s voluntary intoxication does not negate the mens rea
elements of intent or knowledge. See Tex. Penal Code Ann. § 8.04(a); see also
Lopez v. State, 544 S.W.3d 499, 503 (Tex. App.—Houston [14th Dist.] 2018, no
pet.) (“Voluntary intoxication is not a defense to the commission of an offense.”).
Further, he does not argue (and the evidence does not suggest) that Appellant was
involuntarily intoxicated at the time of the incident. See Woodman v. State, 491
S.W.3d 424, 428-29 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d)
(involuntary intoxication is an affirmative defense and a defendant is entitled to an
instruction on that defense when it is supported by evidence).
Appellant also argues that his behavior could have been indicative of mental
illness. Evidence of a defendant’s history of mental illness may be presented to
negate the mens rea element of the charged offense. Ruffin v. State, 270 S.W.3d
586, 596 (Tex. Crim. App. 2008). Appellant points to his testimony in which he
recalled asking the officers to take him to the Harris County mental hospital and
asserts that his “familiarity with that institution suggests previous visits for
treatment.” The jury also heard testimony that Appellant was rolling in the street
before his encounter with Complainant and looked like a “zombie”.
But it was within the province of the jury to weigh this evidence against
other evidence suggesting Appellant committed the charged offense with the
requisite mens rea. See, e.g., Reyes v. State, 480 S.W.3d 70, 77 (Tex. App.—Fort
Worth 2015, pet. ref’d). Here, Irving testified that Appellant punched Complainant
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numerous times and continued the assault after Complainant fell to the ground.
Irving agreed that Appellant was punching Complainant “hard”. From the body
camera footage, the jury could discern that Appellant was larger than Complainant.
The footage also showed Officer Hunt, Irving, and Complainant discussing
Complainant’s injuries, including a busted lip and injuries to his eyes and nose.
This evidence supports the inference that Appellant intentionally or knowingly
caused injury to Complainant. See Martinez v. State, 468 S.W.3d 711, 715 (Tex.
App.—Houston [14th Dist.] 2015, no pet.) (intent “may be inferred from the extent
of injury and the relative size and strength of the parties”); Martin, 246 S.W.3d at
263 (“Intent can be inferred from the extent of the injuries to the victim, the
method used to produce the injuries, and the relative size and strength of the
parties.”).
Irving also testified that, after the officers arrived at the scene, Appellant
knocked the hood ornament off of Complainant’s truck before walking away. On
Officer Nemeth’s body camera footage, Appellant can be seen running from the
scene after the officers approach him. After Appellant was handcuffed and
detained, he spit on paramedic Easy as Easy was trying to perform an
electrocardiogram.
This sequence of events — Appellant repeatedly hitting Complainant,
damaging Complainant’s truck, running from the officers, and spitting on
paramedic Easy —supports the conclusion that Appellant was aware of his conduct
and the attendant circumstances. From this evidence, the jury reasonably could
infer that Appellant intentionally or knowingly caused bodily injury to
Complainant during their altercation. Weighing this evidence against any evidence
tending to suggest that Appellant had a mental illness was within the province of
the jury, and we decline to disturb that determination on appeal.
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We conclude that legally sufficient evidence supports Appellant’s conviction
for injury to an elderly individual. We overrule Appellant’s second issue.
II. Evidentiary Challenge
In his first issue, Appellant asserts that the trial court erred when it admitted
video footage from Officer Hunt’s body camera showing Complainant’s post-
incident statements describing his encounter with Appellant and his injuries.
Arguing that these statements are testimonial in nature, Appellant argues the
statements’ admission into evidence violated his Sixth Amendment right of
confrontation.
Appellant also argues that Officer Hunt’s statements about the contents of
Complainant’s driver’s license (i.e., Complainant’s age) violate his right of
confrontation and the best evidence rule.
Turning to harm, Appellant argues this evidence was “necessary to prove an
element of the offense of injury to an elderly person” and its improper admission
warrants this conviction’s reversal. Contending his conviction for harassment of a
public servant also should be reversed, Appellant argues that, “[s]ince the two
cases were tried together, it cannot be said beyond a reasonable doubt that the
[evidence] did not contribute to Appellant’s conviction or punishment” for
harassment of a public servant.
A. Right of Confrontation
The Sixth Amendment’s Confrontation Clause prohibits introduction by the
State of a testimonial hearsay statement unless (1) the declarant is unavailable to
testify, and (2) the defendant had a prior opportunity to cross-examine the
declarant. Bullcoming v. New Mexico, 564 U.S. 647, 658 (2011); Lee v. State, 418
S.W.3d 892, 895 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). Generally
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speaking, a statement is “testimonial” when “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.”
De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008). The Court of
Criminal Appeals has summarized three kinds of testimonial statements: (1) “ex
parte in-court testimony or its functional equivalent,” i.e., “pretrial statements that
declarants would expect to be used prosecutorially”; (2) “extrajudicial statements
contained in formalized testimonial materials”, such as affidavits, depositions, or
prior testimony; and (3) “statements that were made under circumstances which
would lead an objective witness reasonably to believe that the statement would be
available for use at a later trial.” Langham v. State, 305 S.W.3d 568, 576 (Tex.
Crim. App. 2010).
1. Statements Describing the Incident
We first apply these precepts to Complainant’s statements describing his
encounter with Appellant. Preserving this issue for our review, Appellant properly
objected to Complainant’s statements in the trial court on the grounds of hearsay
and denial of the right of confrontation. See Tex. R. App. P. 33.1(a).
As discussed above, after the incident Complainant told Officer Hunt that
Appellant hit him and Complainant could not get Appellant off of him. Officer
Hunt, Complainant, and Irving also discussed Complainant’s injuries, including a
busted lip and injuries to his eyes and nose. The jury saw this exchange on Officer
Hunt’s body camera footage; the footage also showed Officer Hunt repeating
Complainant’s statements to the other officers. In addition, Officer Hunt testified
about Complainant’s statements at trial. We presume without deciding that the
admission of this evidence constitutes a violation of Appellant’s Sixth Amendment
right of confrontation.
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A violation of a defendant’s right of confrontation is subject to a harmless
error analysis. Rubio v. State, 241 S.W.3d 1, 3 (Tex. Crim. App. 2007); Mason v.
State, 416 S.W.3d 720, 731 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).
Therefore, even if the admission of this evidence was erroneous, we nonetheless
will affirm the conviction if we determine beyond a reasonable doubt that the
alleged error did not contribute to Appellant’s conviction. Mason, 416 S.W.3d at
731; see also Tex. R. App. P. 44.2(a). “[T]he question is whether the alleged
constitutional error was actually a contributing factor in the jury’s deliberations in
arriving at a verdict.” Mason, 416 S.W.3d at 731.
For this analysis we consider: (1) the importance of the statements to the
State’s case; (2) whether the statements were cumulative of other evidence; (3) the
presence or absence of evidence corroborating or contradicting the statements on
material points; and (4) the overall strength of the State’s case. Id. We may also
consider the source and nature of the error, the extent of the State’s emphasis on
the evidence, and the relative weight the jury may have assigned to the evidence as
compared with the balance of the remaining evidence relevant to the issue. Scott v.
State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007). We may also consider any
other factor contained in the record that might shed light on the probable impact of
the evidence on the mind of the average juror. Clay v. State, 240 S.W.3d 895, 904
(Tex. Crim. App. 2007).
After reviewing these considerations, we are persuaded beyond a reasonable
doubt that the jury would have found Appellant guilty of injury to an elderly
individual even if the trial court had not admitted evidence of Complainant’s
statements describing his encounter with Appellant and his injuries. This evidence
was not imperative to the State’s case; rather, it was cumulative of other evidence
presented at trial. Irving, an eyewitness to the incident in question, testified that
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Appellant punched Complainant numerous times, including after Complainant fell
to the ground. Noting that Complainant’s face was bloody after the assault, Irving
said Complainant appeared to be in pain. On Officer Hunt’s body camera footage,
Irving can be heard relaying a similar account of the incident between Appellant
and Complainant.
Further, Officer Nemeth said he saw Appellant “assaulting” Complainant as
he and another officer were driving down the street. Officer Hunt also testified
regarding the injures he saw on Complainant’s eyes, nose, and mouth.
No evidence was admitted that contradicted the evidence showing that
Appellant injured Complainant. Even Appellant did not deny the incident’s
occurrence — he only said that he did not remember it. Given the overall strength
of the State’s case — including testimony from two eyewitnesses that observed the
incident in question — evidence regarding Complainant’s statements to Officer
Hunt was cumulative and not a contributing factor in the jury’s deliberations in
arriving at a guilty verdict.
We overrule Appellant’s Confrontation Clause challenge with respect to
Complainant’s statements describing the incident.
2. Statements Regarding Complainant’s Age
Arguing that Officer Hunt’s statements about Complainant’s age also violate
his right of confrontation, Appellant contends that, “[b]y documenting
[Complainant’s] age, Hunt was obviously preparing for future litigation, a perfect
example of a testimonial statement”. Appellant raised this objection in the trial
court and preserved the issue for appellate review. See Tex. R. App. P. 33.1(a).
Officer Hunt’s body camera footage shows that, while Complainant was
discussing the incident, he gave Officer Hunt his driver’s license. Officer Hunt can
13
be seen writing down information from Complainant’s license, but the license is
not visible on the footage. After writing down the information, Officer Hunt
returns to the other officers and tells them that Complainant was born in 1934;
Officer Hunt also states that Appellant will be going to jail for “assault on the
elderly”. In his testimony at trial, Officer Hunt again stated that Complainant was
born in 1934.
The Confrontation Clause prohibits the admission of testimonial hearsay
statements unless certain conditions apply. See Woodall v. State, 336 S.W.3d 634,
639 n.6 (Tex. Crim. App. 2011); De La Paz, 273 S.W.3d at 680. However, a
witness’s testimony as to his personal observations of what happened and his
reasonable inferences from those observations is not hearsay. Trejo v. State, 594
S.W.3d 790, 801 (Tex. App.—Houston [14th Dist.] 2019, no pet.). This principle
has been applied to admit officers’ testimony about information learned from
looking at a person’s driver’s license. See, e.g., Wilson v. State, 605 S.W.2d 284,
286 (Tex. Crim. App. [Panel Op.] 1980) (concluding that an officer’s testimony
regarding the appellant’s name and picture on the driver’s license the officer found
in the appellant’s car was not hearsay, the court held “[a] witness may assert the
existence of a fact if his knowledge of that fact was gained through personal
observation and reasonable inferences from that observation”); see also Hunt v.
State, Nos. 05-91-00666-CR, 05-91-00667-CR, 1992 WL 210708, at *3 (Tex.
App.—Dallas Aug. 24, 1992, pet. ref’d) (not designated for publication) (“A police
officer, therefore, can testify about facts inferred from his personal observation of
the printed name and picture on a driver’s license combined with his observation of
that person’s face and person’s admission of his name.”); Skruck v. State, 740
S.W.2d 819, 821 (Tex. App.—Houston [1st Dist.] 1987, pet. ref’d) (same).
Pursuant to this line of authority, Officer Hunt properly could testify about
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information he learned from looking at Complainant’s driver’s license, i.e.,
Complainant’s age. See Wilson, 605 S.W.2d at 286; Skruck, 740 S.W.2d at 821;
see also Hunt, 1992 WL 210708, at *3. Therefore, because this testimony is not
hearsay, it does not constitute a violation of the Confrontation Clause. See
Woodall, 336 S.W.3d at 639 n.6; De La Paz, 273 S.W.3d at 680.
We overrule Appellant’s Confrontation Clause challenge with respect to
Officer Hunt’s statements about Complainant’s age.
B. Best Evidence Rule
Finally, Appellant argues that Officer Hunt’s statements on the body camera
footage and his testimony regarding information he learned from Complainant’s
driver’s license violate the best evidence rule. The State argues that this complaint
has not been preserved for appellate review because Appellant did not raise the
issue at trial.
To preserve a complaint for appellate review, the complaining party must
state the grounds for the desired ruling 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); Reyna v. State, 168
S.W.3d 173, 177 (Tex. Crim. App. 2005). An objection must be specific enough
for the trial court to understand the complaint at the time when the court is in the
proper position to do something about it. Resendez v. State, 306 S.W.3d 308, 312-
13 (Tex. Crim. App. 2009).
After Officer Hunt was questioned regarding the year of Complainant’s birth
as shown on his driver’s license, Appellant objected on the grounds of “hearsay of
a document not in evidence and our inability to confront that information with
cross-examination”. This objection does not raise with “sufficient specificity”
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Appellant’s best-evidence argument and does not preserve the issue for appellate
review. See Tex. R. App. P. 33.1(a); see also, e.g., C.D.R. v. State, 827 S.W.2d
589, 591-92 (Tex. App.—Houston [1st Dist.] 1992, no pet.) (the appellant’s
hearsay objection in the trial court did not preserve his best-evidence challenge for
appeal).
We overrule Appellant’s best-evidence challenge with respect to Officer
Hunt’s statements about Complainant’s age. Because we do not sustain any of
Appellant’s evidentiary challenges, we do not reach his arguments regarding harm
with respect to either conviction.
CONCLUSION
We affirm the trial court’s judgment.
/s/ Meagan Hassan
Justice
Panel consists of Justices Christopher, Jewell, and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).
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