NUMBER 13-19-00390-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ROBERT JOHNNIE GARCIA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 105th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Hinojosa and Perkes
Memorandum Opinion by Chief Justice Contreras
Appellant Robert Johnnie Garcia was convicted of two counts of aggravated
robbery, a first-degree felony. See TEX. PENAL CODE ANN. § 29.03. The jury assessed
punishment at thirty-four years’ imprisonment for each count, and the trial court ordered
the sentences to run concurrently. On appeal, appellant contends that the trial court erred
by: (1) not allowing cross-examination about a witness’s cooperation with the State and
pending criminal charges; (2) admitting into evidence certain hearsay statements under
the excited utterance exception; and (3) admitting into evidence recordings of phone calls
purportedly made by appellant from jail. We affirm.
I. BACKGROUND
Trial evidence established that two armed individuals wearing hats and hosiery
over their faces robbed Pier 99, a restaurant in Corpus Christi, on the evening of July 30,
2017. David Perez, a bartender at Pier 99 that night, testified he was “100 percent” certain
that appellant—a former employee at the restaurant—was one of the robbers. Perez
stated that, during the robbery, appellant hit him in the back of the head and repeatedly
threatened to “shoot everyone in the room.” According to Perez, appellant said “he was
going to shoot each one of us individually, one by one, if we couldn’t open the safe” which
was located under the cashier’s counter. Perez testified that appellant “pistol-whipped”
another restaurant employee, Freddie Frances Anderson, several times because
Anderson was initially unable to open the safe. Surveillance video recordings of the
robbery were entered into evidence. 1
Perez acknowledged on cross-examination that he initially told police that the
robber “resembled” appellant, but he did not tell police he was “100 percent sure” it was
appellant. On re-direct examination, Perez clarified he told police that once he saw the
surveillance video, he “knew by [the suspect’s] walk that it was definitely [appellant].”
Mark Lennox, the restaurant’s general manager, testified that he hired appellant
1The surveillance videos have not been included in the reporter’s record. However, the parties do
not dispute the content of the videos, and they are not necessary to our disposition of the issues raised.
Therefore, we need not remand the case for supplementation of the record to include the videos.
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as a cook roughly three to four months before the robbery and that appellant’s
employment was terminated about a week or two before the robbery. 2 Lennox stated that
Anderson was working as the manager on duty on the night of the robbery. At around
11:00 p.m. that evening, Lennox received a call from Lydia Aispuro, a server at Pier 99,
reporting that there had been a robbery and that police had been called. Lennox then
called the restaurant’s owner and went directly to the restaurant. Lennox testified:
When I first arrived at the restaurant, all of the employees were in front of
the building. Most of them were visibly shaking, shaken. Some were still
crying. They had [Anderson] seated at the front door of the restaurant in a
chair, and she was being tended to by some of the other employees. She
also was still very, very shaken, very emotional. . . . She was still
bleeding,[ 3] she kept apologizing to me that she wasn’t able to do more, and
she was just almost inconsolable.
Lennox testified that Anderson told him, without him asking, that appellant was one of the
robbers. The trial court admitted the testimony over defense counsel’s objection.
Claudia Curtis testified that she was working as an expeditor4 at Pier 99 on the
night of the robbery. She knew appellant because she had worked with him at the
restaurant. Curtis testified that appellant was one of the robbers, and she saw him hit
Anderson twice with his gun. Investigator Charla Hemerly of the Corpus Christi Police
Department testified that “about five of the victims” told her at the scene that appellant
was one of the robbers.
The State introduced recordings of collect phone calls purportedly made by
2 On cross-examination, Lennox agreed with defense counsel that he fired appellant because
appellant “didn’t show up to work or something.”
3 Photographs entered into evidence show that Anderson had a cut on the back of her right hand.
A police officer testified she also had head injuries.
4 An expeditor is a worker that coordinates actions between cooks and wait staff in a restaurant.
Expeditor, WIKIPEDIA, https://en.wikipedia.org/wiki/Expeditor (last visited Dec. 28, 2020).
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appellant after he was jailed. Lieutenant Jay Worthington of the Nueces County Sheriff’s
Office stated that he is the custodian of records for the county jail and that he obtained
recordings of calls associated with appellant’s name and unique inmate identification
number. Worthington could not identify the voices on the recordings, and he
acknowledged that inmates will sometimes use another inmate’s identification number to
make a collect call. The trial court admitted the recordings into evidence over defense
counsel’s objection as to authenticity. In one recording, 5 appellant’s name is provided as
the inmate making the collect call. The inmate says that he is in “big trouble” for an
“aggravated robbery” and states, “I don’t know why I lost control of myself.” He later says,
“I’ve been on the run for ten days.”
The jury found appellant guilty of two counts of aggravated robbery and acquitted
him on a third aggravated robbery count. 6 The jury further found two enhancement
paragraphs true, thereby elevating the minimum punishment for each count to twenty-five
years’ imprisonment. See id. § 12.42(d). Punishment was ordered as set forth above, and
this appeal followed.
II. DISCUSSION
Appellant’s three issues all concern the trial court’s rulings on the admission of
evidence. We review such rulings for abuse of discretion. Johnson v. State, 490 S.W.3d
895, 908 (Tex. Crim. App. 2016). A trial court abuses its discretion when its decision falls
outside the zone of reasonable disagreement. Id. If the evidentiary ruling is correct under
any applicable theory of law, it will not be disturbed, even if the trial court gave a wrong
5 Only one recording has been made a part of the appellate record.
6 The three counts were identical except they alleged different victims. Appellant was convicted of
the aggravated robbery of Anderson and of Perez. He was acquitted of the aggravated robbery of Aispuro.
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or insufficient reason for the ruling. Id.
A. Cross-Examination
By his first issue, appellant argues the trial court erred by not allowing his trial
counsel to cross-examine Perez about a pending misdemeanor criminal charge and his
cooperation with the State in exchange for his testimony.
The record reflects that, when the State called Perez as a witness at the end of the
first day of trial, the following colloquy occurred outside the presence of the jury:
[Defense counsel]: And we get to cross-examine him that he has got
a warrant out?
[Prosecutor]: No, you don’t. That’s improper impeachment.
[Defense counsel]: No, it’s not.
[Prosecutor]: Yes, it is.
[Defense counsel]: How so?
[Prosecutor]: It’s not an adjudicated offense. He can’t go into
that.
THE COURT: What warrant are you talking about? The fact that
he was—
[Prosecutor]: He’s got a misdemeanor warrant.
THE COURT: Oh.
[Prosecutor]: And I would ask to have them not go into that,
Judge.
THE COURT: Are you doing a motion in limine at this time?
[Prosecutor]: I am doing one in this—
[Defense co-counsel]: I think he should be arrested. As officers of the
court, we have to advise the Court that—
[Defense counsel]: I think that’s relevant. If he’s got a warrant out,
Judge, that’s relevant to impeachment. That’s not
improper impeachment.
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[Prosecutor]: That is improper impeachment. Like, in the book it
says that.
[Defense counsel]: The offense is improper impeachment because he
hasn’t been adjudicated. But if he’s got an active
warrant out, that’s relevant.
[Prosecutor]: That's a part of not guilty until proven—
[Defense counsel]: No, that’s part of you’ve got a warrant out.
THE COURT: I’m going to have to agree with the State on that
one, sir.
After a discussion with the attorneys regarding the precise time Perez would be available
to testify, the trial court adjourned for the day.
The following day, Perez confirmed outside the presence of the jury that he had
criminal charges pending against him, but he denied that the District Attorney “offered
[him] any kind of leniency” in exchange for his testimony, and he denied that he gave his
trial testimony with the hope of receiving leniency. The prosecutor stated on the record
that “there’s no deal.” The trial court then remarked: “I think I’ve already made a ruling on
the warrant and the misdemeanor. But as far—if there was a deal with the State, I would
have allowed that in, but it doesn’t sound like there is a deal for his testimony at this point.”
Appellant notes that “the exposure of a witness’s motivation in testifying is a proper
and important function of the constitutionally protected right of cross-examination.” Davis
v. Alaska, 415 U.S. 308 (1974). He cites and summarizes several cases in which cross-
examination was found to have been improperly limited. For example, in Maxwell v. State,
the Texas Court of Criminal Appeals held that it was error for the trial court to refuse to
allow cross-examination regarding the fact that a witness was on deferred adjudication
community supervision because “the jury was entitled to hear evidence of [the witness’s]
deferred adjudication to decide the amount of weight and credibility to give to his
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testimony.” 48 S.W.3d 196, 200 (Tex. Crim. App. 2001). But the Court has since clarified
that Maxwell should not be read so broadly as to mean that “the mere fact of probation
status is always and inevitably sufficient to establish a witness’s potential bias and motive
to ‘curry favor’ with the authorities.” Irby v. State, 327 S.W.3d 138, 151 (Tex. Crim. App.
2010). “The constitutional right to cross-examine concerning the witness’s potential bias
or prejudice does not include ‘cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.’” Id. at 145 (quoting Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986)). Instead, there must be “some logical relevance of the pending
charge, probation or immigration status, or other alleged source of bias to the witness’s
testimony.” Id. at 151.
The State contends that appellant’s issue on appeal does not comport with his
complaint at trial because, while the cases he cites concern an accused’s constitutional
right to confront witnesses, he did not explicitly reference the Confrontation Clause as a
basis for admissibility at the trial court. See Golliday v. State, 560 S.W.3d 664, 670–71
(Tex. Crim. App. 2018) (“[I]n order to preserve an argument that the exclusion of defensive
evidence violates constitutional principles, a defendant must state the grounds for the
ruling that he seeks with sufficient specificity to make the court aware of . . . these
grounds.”); Hailey v. State, 87 S.W.3d 118, 122 (Tex. Crim. App. 2002) (noting that it
violates “ordinary notions of procedural default” for a court of appeals to reverse a trial
court’s decision on a legal theory not presented to the trial court by the complaining party).
Beyond arguing lack of preservation, the State does not address the merits of appellant’s
first issue in its brief.
Assuming but not deciding that appellant’s issue was preserved and was not
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forfeited by procedural default, we conclude that appellant has not shown any abuse of
discretion. Defense counsel sought to impeach Perez with evidence that Perez had a
misdemeanor criminal charge pending and had an agreement with the State to provide
his testimony. But when seeking to impeach a witness with evidence of pending criminal
charges, “the proponent must establish some causal connection or logical relationship
between the pending charges and the witness’s ‘vulnerable relationship’ or potential bias
or prejudice for the State, or testimony at trial.” Carpenter v. State, 979 S.W.2d 633, 634
(Tex. Crim. App. 1998). There was no such causal connection or logical relationship
shown in this case—in fact, the record does not contain any details whatsoever regarding
the pending charge. Moreover, both Perez and the prosecutor explicitly stated that Perez
was not offered or given any leniency in exchange for his testimony.
Though the constitutional right to confront witnesses encompasses “the
opportunity to show that a witness is biased or that his testimony is exaggerated or
unbelievable,” a trial court “retains wide latitude to impose reasonable limits on such
cross-examination ‘based on concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness’[s] safety, or interrogation that is repetitive
or only marginally relevant.’” Irby, 327 S.W.3d at 151 (quoting Van Arsdall, 475 U.S. at
679). We cannot say the trial court acted beyond that latitude by sustaining the State’s
objection in this instance. Appellant’s first issue is overruled.
B. Confrontation Clause
By his second issue, appellant contends that the trial court erred by overruling his
objection to Lennox’s hearsay testimony that Anderson told him appellant was one of the
robbers. See TEX. R. EVID. 801(d) (providing that hearsay is an out-of-court statement
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offered to prove the truth of the matter asserted and is generally inadmissible). The trial
court admitted the testimony under the exception to the hearsay rule for excited
utterances. See TEX. R. EVID. 803(2) (providing that “[a] statement relating to a startling
event or condition, made while the declarant was under the stress of excitement that it
caused,” is not excluded by the rule against hearsay, regardless of whether the declarant
is available as a witness).
On appeal, appellant appears to concede that Anderson’s statement, as relayed
to the jury at trial by Lennox, was an excited utterance under the rules of evidence. Rather,
he argues the statement was “testimonial” and that its admission without the opportunity
for cross-examination of Anderson therefore violated his Sixth Amendment right to
confront witnesses. See U.S. CONST. amend VI (“In all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses against him.”); Crawford v.
Washington, 541 U.S. 36, 59 (2004) (holding that the Confrontation Clause bars
admission of any “testimonial” out-of-court statement unless the declarant is unavailable
and the defendant had an opportunity to cross-examine the declarant); see also Davis v.
Washington, 547 U.S. 813, 822 (2006) (holding that a statement is testimonial if “the
primary purpose of the interrogation is to establish or prove past events potentially
relevant to later criminal prosecution”).
The State again contends in part that appellant’s issue does not comport with the
objection made at trial and therefore has not been preserved. When the prosecutor first
asked Lennox about what Anderson told him, defense counsel objected on hearsay
grounds, and the trial court overruled the hearsay objection. Lennox then testified that
Anderson told him appellant was one of the robbers, and defense counsel renewed his
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objection, this time arguing: “I don’t have the opportunity to confront and cross-examine
[appellant’s] accusers. That’s a fundamental constitutional right that we enjoy as
Americans.” The trial court again overruled the objection.
The only objection made before Lennox gave the challenged testimony was on
hearsay grounds. A hearsay objection does not preserve a Confrontation Clause
complaint for purposes of appeal. See Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim.
App. 2000); Eustis v. State, 191 S.W.3d 879, 886 (Tex. App.—Houston [14th Dist.] 2006,
pet. ref’d). Moreover, “[i]f a defendant 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 any claim of error is forfeited.” Luna v. State, 268 S.W.3d
594, 604 (Tex. Crim. App. 2008). Thus, even though defense counsel alluded to
appellant’s right to confront witnesses in his second objection, that objection arguably
came too late to preserve his issue because Lennox had already answered the question.
See id.
Assuming but not deciding that the issue was preserved and that the trial court
erred by admitting the testimony, we conclude that any error was harmless. The improper
admission of evidence will be rendered harmless if the same or similar evidence is
admitted without objection at another point in the trial. Coble v. State, 330 S.W.3d 253,
282 n.82 (Tex. Crim. App. 2010); Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App.
2003); see TEX. R. APP. P. 44.2(a) (“If the appellate record in a criminal case reveals
constitutional error that is subject to harmless error review, the court of appeals must
reverse a judgment of conviction or punishment unless the court determines beyond a
reasonable doubt that the error did not contribute to the conviction or punishment.”). Here,
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eyewitness Curtis testified that appellant was one of the robbers, and Hemerly testified
without objection that “about five” people who were at the scene identified appellant as
one of the robbers. The admission of Lennox’s testimony regarding Anderson’s statement
was harmless because the same evidence was admitted without objection at another
point in the trial. See Coble, 330 S.W.3d at 282 n.82; Valle, 109 S.W.3d at 509. The trial
court’s ruling did not contribute to appellant’s conviction or punishment. See TEX. R. APP.
P. 44.2(a). Appellant’s second issue is overruled.
C. Jail Phone Calls
By his third issue, appellant contends the trial court erred by admitting the jail
phone recordings because (1) they were not authenticated, and (2) there was no
predicate laid for their admission as business records.
At trial, defense counsel objected to admission of the recordings under Texas Rule
of Evidence 901, which generally provides that “[t]o satisfy the requirement of
authenticating or identifying an item of evidence, the proponent must produce evidence
sufficient to support a finding that the item is what the proponent claims it is.” TEX. R. EVID.
901. Rule 901 sets forth a “liberal standard for admissibility.” Fowler v. State, 544 S.W.3d
844, 849 (Tex. Crim. App. 2018). “In a jury trial, it is the jury’s role ultimately to determine
whether an item of evidence is indeed what its proponent claims.” Butler v. State, 459
S.W.3d 595, 600 (Tex. Crim. App. 2015). “[T]he trial court need only make the preliminary
determination that the proponent of the item has supplied facts sufficient to support a
reasonable jury determination that the proffered evidence is authentic.” Id. Those facts
may be established by circumstantial evidence. Campbell v. State, 382 S.W.3d 545, 549
(Tex. App.—Austin 2012, no pet.).
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The State argues that defense counsel admitted that appellant made the phone
calls, and therefore, appellant is estopped from now asserting a claim that his identity as
the caller had not been proven at trial. See Arroyo v. State, 117 S.W.3d 795, 798 (Tex.
Crim. App. 2003) (noting that “a party may be estopped from asserting a claim that is
inconsistent with that party’s prior conduct”). In particular, the State points to the following
remark by defense counsel in his closing argument at the punishment phase: “You
listened to the jail calls, and even on the jail calls [appellant] sounds worthy of redemption.
He’s apologizing to everybody.”
Assuming but not deciding that appellant is not estopped from raising this issue,
we nevertheless conclude that the evidence was sufficient to support a reasonable jury
finding that the calls were in fact made by appellant. Appellant emphasizes that, though
Worthington testified he is the custodian of records for the county jail, he could not identify
the voices heard on the recording. When the disputed issue is the identity of a speaker
on a recording, the Rule 901 requirement for authentication may be satisfied by a
witness’s “opinion identifying a person’s voice . . . based on hearing the voice at any time
under circumstances that connect it with the alleged speaker.” TEX. R. EVID. 901(b)(5). 7
But that is not the only means by which a speaker’s identity may be proved. See id.;
Campbell, 382 S.W.3d at 549 (noting that the methods of authentication listed in Rule
901(b) are “non-exclusive”); see also United States v. Ingraham, 832 F.2d 229, 236 (1st
Cir. 1987) (“[I]t is a well-settled proposition that someone familiar with the speaker’s voice
need not identify it before evidence of a call can be admitted.”). Here, Worthington testified
7 A business record accompanied by a compliant affidavit is self-authenticating. TEX. R. EVID.
902(10). This rule does not apply here because the recordings were not accompanied by an affidavit.
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that he obtained recordings of collect calls that were made from the jail, at the time
appellant was housed at the jail, using appellant’s name and unique inmate identification
number. On the recording that is contained in the appellate record, appellant’s name is
used to identify the caller. Though Worthington could not exclude the possibility that
another inmate might have used appellant’s identification number to make a call, such a
categorical exclusion was not necessary to establish authenticity. See Butler, 459 S.W.3d
at 600. We conclude that the trial court did not err in admitting the recordings. Appellant’s
third issue is overruled.
III. CONCLUSION
We affirm the trial court’s judgment.
DORI CONTRERAS
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
30th day of December, 2020.
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