NUMBER 13-21-00351-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JAVIER BARRERA GARCIA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 445th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Silva
Memorandum Opinion by Chief Justice Contreras
The State of Texas charged appellant Javier Barrera Garcia with driving while
intoxicated (third or more offense), a third-degree felony. See TEX. PENAL CODE ANN.
§ 49.09(b)(2). A jury found Garcia guilty, and the trial court sentenced him to five years’
confinement in the Texas Department of Criminal Justice Correctional Institutions
Division, suspended his sentence, and placed him on five years’ community supervision.
By his sole issue, Garcia argues that the trial court erred by allowing police officer
witnesses “to testify exclusively from their respective reports after attempts to refresh
each officer’s memory failed to provide a present recollection of the event.” We affirm.
I. BACKGROUND
On January 26, 2007, Garcia was arrested after another driver called 9-1-1 to
report his erratic maneuvering. Based upon the January incident, Garcia was indicted for
driving while intoxicated in November 2007. 1 On September 27, 2021, Garcia pleaded
not guilty, and trial commenced.
Three Brownsville Police Department officers testified for the State at trial:
(1) Cristobal Abrego Jr., (2) Mario Garza, and (3) Jose Mendoza. Given the fourteen-year
gap between Garcia’s 2007 arrest and his 2021 trial, the officers found it necessary to
reference their arrest reports during their testimony. Garcia was convicted as set forth
above, and this appeal followed.
On appeal, Garcia alleges that the officers testified exclusively from their reports
in violation of the rule against hearsay. See TEX. R. EVID. 802, 803(5). The State disagrees
and argues that the officers’ testimony was proper under Rules 612 and 803(5). See id.
R. 612, 803(5).
1 Following his indictment in November 2007, Garcia entered a plea agreement with the State,
which the trial court accepted. In October 2020, Garcia filed a petition for writ of habeas corpus arguing in
part that “his plea [in 2007] was not made knowingly or voluntarily” because of his limited understanding of
the English language. See TEX. CODE CRIM. PROC. ANN. art. 11.072. In November 2020, the trial court
granted the writ on that ground, vacated Garcia’s plea, conviction, and sentence, and set the case for trial.
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II. STANDARD OF REVIEW & APPLICABLE LAW
A. Standard of Review
We review a trial court’s decision to admit or exclude evidence for an abuse of
discretion. Valadez v. State, No. PD-0574-19, 2022 WL 946268, at *4 (Tex. Crim. App.
Mar. 30, 2022) (citing Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010)).
“There is no abuse of discretion if the trial court’s ruling is within the zone of reasonable
disagreement.” Id. The admission of inadmissible hearsay constitutes non-constitutional
error. Macedo v. State, 629 S.W.3d 237, 240 (Tex. Crim. App. 2021). If a trial court errs
by admitting evidence “and the error is not constitutional, we apply the harmless error
standard of [Texas] Rule [of Appellate Procedure] 44.2(b) where we disregard all errors
that did not affect appellant’s substantial rights.” Gonzalez v. State, 510 S.W.3d 10, 28
(Tex. App.—Corpus Christi–Edinburg 2014, pet. ref’d.); see TEX. R. APP. P. 44.2(b). “A
defendant’s substantial rights are affected when the error has a substantial and injurious
effect or influence on the jury’s verdict.” Amberson v. State, 552 S.W.3d 321, 334 (Tex.
App.—Corpus Christi–Edinburg 2018, pet. ref’d).
B. Reading from a Report
In general, a witness is required to testify from his “present recollection”; i.e., “what
he remembers presently about the facts in the case.” Welch v. State, 576 S.W.2d 638,
641 (Tex. Crim. App. [Panel Op.] 1979); Guerra v. State, 676 S.W.2d 181, 183 (Tex.
App.—Corpus Christi–Edinburg 1984, pet. ref’d). When a witness does not immediately
recollect certain facts in a case, the witness “may refresh his memory by reviewing [a]
memorandum made when his memory was fresh.” Welch, 576 S.W.2d at 641; Guerra,
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676 S.W.2d 183; see TEX. R. EVID. 612 (“Writing Used to Refresh a Witness’s Memory”).
“After reviewing the memorandum, the witness must testify either his memory is refreshed
or his memory is not refreshed. If his memory is refreshed, the witness continues to
testify[,] and the memorandum is not received as evidence.” Welch, 576 S.W.2d at 641;
Guerra, 676 S.W.2d 183; see S & S Wholesale Supply, Inc. v. Los Cedros, Inc., 628
S.W.2d 493, 495 (Tex. App.—Corpus Christi–Edinburg 1982, no writ) (“In present
recollection refreshed, the witness has some recollection of the event or matter in
question and, after being permitted to look at the memorandum, is able to speak from
memory.”). If the witness’s memory is not refreshed, but the witness has identified the
memorandum and guarantees its correctness, then the evidence may be admitted as a
“past-recollection recorded” under Rule 803(5) of the Texas Rules of Evidence. Welch,
576 S.W.2d at 641; see TEX. R. EVID. 803(5); Johnson v. State, 967 S.W.2d 410, 416
(Tex. Crim. App. 1998).
Hearsay is “a statement, including a written statement, other than one made by the
declarant while testifying at the trial, which is offered to prove the truth of the matter
asserted.” Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995) (citing TEX. R.
EVID. 801(d)). Rule 803(5) excepts from hearsay a “recorded recollection,” defined as a
record that:
(A) is on a matter the witness once knew about but now cannot recall
well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in
the witness’s memory; and
(C) accurately reflects the witness’s knowledge, unless the
circumstances of the record’s preparation cast doubt on its
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trustworthiness.
TEX. R. EVID. 803(5). The proponent seeking admission of a recorded recollection under
Rule 803(5) must lay a proper predicate by meeting four elements:
(1) the witness must have had firsthand knowledge of the event, (2) the
written statement must be an original memorandum made at or near the
time of the event while the witness had a clear and accurate memory of it,
(3) the witness must lack a present recollection of the event, and (4) the
witness must vouch for the accuracy of the written memorandum.
Johnson, 967 S.W.2d at 416; see Gomez v. State, 552 S.W.3d 422, 430 (Tex. App.—Fort
Worth 2018, no pet.). If the proponent satisfies those elements, then the record may be
“read into evidence.” TEX. R. EVID. 803(5); Brown v. State, 333 S.W.3d 606, 613 (Tex.
App.—Dallas 2009, no pet.); Godsey v. State, 989 S.W.2d 482, 496 (Tex. App.—Waco
1999, pet. ref’d). But the record can only be “received as an exhibit” if offered by an
adverse party. TEX. R. EVID. 803(5); Godsey, 989 S.W.2d at 496; see Texaco, Inc. v.
Pennzoil, Co., 729 S.W.2d 768, 842 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.)
(suggesting that the rule exists as such because “there [i]s a danger that the jury would
give undue weight or credence to [a] written document if it were admitted as an exhibit”).
III. DISCUSSION
There is no dispute that the officers’ reports were neither read into the record nor
offered by Garcia and admitted as an exhibit as past recollections recorded. See TEX. R.
EVID. 803(5). Consequently, given the use of their reports, the officers’ testimony would
have only been proper as present recollections. See id. R. 612; Guerra, 676 S.W.2d at
183. We must, therefore, review the officers’ respective testimony to discern if it was
based entirely upon their reports. See Guerra, 676 S.W.2d at 183. If so, then the
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testimony was based entirely on inadmissible hearsay and should have been excluded.
See id.
A. Officer Abrego’s Testimony
Officer Abrego opened his testimony by stating that: (1) he does not recall the date
on which Garcia was arrested; (2) he wrote a report regarding Garcia’s arrest that he had
a chance to review; (3) he was unable to refresh his memory from his report; and (4) he
would be testifying from his report. When the State began questioning Abrego about the
details of his report, Garcia objected on the grounds that “[Officer Abrego] does not recall
the facts” and “failed to refresh his memory.” The trial court denied Garcia’s objection,
and Garcia requested to take Officer Abrego on voir dire, which the trial court granted. In
response to Garcia’s questions, Officer Abrego testified that he had no personal
recollection of what happened on the night Garcia was arrested and could not identify the
defendant in the courtroom. Garcia once again objected to Officer Abrego’s testimony,
and the trial court overruled the objection.
Officer Abrego testified that he received a report from dispatch at around 2:30 a.m.
that a citizen dialed 9-1-1 to report a pickup truck that was driving erratically. He stated
that other officers pulled Garcia over and that his only involvement that night was his
discussion with the 9-1-1 caller at the scene of the traffic stop. Officer Abrego testified
that the caller “identified the truck that was pulled over by the other officers on the scene
as the one [the caller] called about.” And he noted that he wrote his arrest report on the
night of the arrest when the facts were still fresh in his mind.
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B. Officer Garza’s Testimony
The State asked Officer Garza if he recalled the events on the date of Garcia’s
arrest, to which he responded, “A little bit. It’s long ago.” Officer Garza testified that he
wrote a report concerning the arrest of Garcia and reviewed the report. When asked by
the State whether he was able to refresh his memory, Officer Garza responded, “Yes.”
Nevertheless, when responding to the State’s subsequent questions concerning the facts
of Garcia’s arrest, Officer Garza began almost every answer by stating it was “according
to” or “based on” his report. On cross-examination, Garcia asked Officer Garza whether
he was testifying based on his report, and Officer Garza answered affirmatively. Garcia
asked Officer Garza whether he had any personal knowledge or memory of the events,
and he answered, “I don’t recall. It’s too long.” Officer Garza gave a similar answer to
Garcia’s subsequent questions concerning Officer Garza’s actions on the night of the
arrest. Garcia never objected to Officer Garza’s testimony.
Officer Garza testified that he received a report from dispatch about “a possible
intoxicated driver in a white Ford truck.” He stated that he spotted the vehicle, “turned
around, followed the vehicle into the downtown area[,]” “saw him run a red light[,]” and
“stopped the vehicle.” When the State asked what happened next, Officer Garza testified
that “Officer Mendoza . . . showed up immediately right behind [him].” Officer Garza did
not recall whether he got out of his vehicle or “made contact with the driver,” and he did
not know who the driver of the white truck was. Based on his report, Officer Garza testified
that “Officer Mendoza took over and [Officer Garza] resumed [sic] back to . . . [his patrol]
area.”
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C. Officer Mendoza’s Testimony
Officer Mendoza testified that he wrote a report concerning Garcia’s arrest on the
night of the arrest, when the facts were still fresh in his mind. He testified that he was
“notified that there was a caller, a citizen reporting that there was a possible drunk driver
driving” and that the alleged intoxicated driver was “driving a white pickup truck.” Officer
Mendoza located the white pickup truck, which was being followed by Officer Garza. After
Officer Garza pulled the white pickup truck over, Officer Mendoza “exited the cruiser to
make contact with the driver.”
The State asked Officer Mendoza what happened next, and he answered:
I—apparently—and I’m going to say going back to my report, . . . asked the
driver to identify himself. The individual . . . pulled out a wallet; and he
started fumbling through his wallet looking for his . . . driver’s license. And
while I was waiting there, I noticed that I could smell a strong odor of
alcoholic beverage emitting from his breath.
Officer Mendoza also noticed that the driver had bloodshot eyes and his speech was
slurred. Eventually, the driver provided his driver’s license to Officer Mendoza, which
identified the driver as Garcia. The State asked Officer Mendoza if he saw Garcia in the
courtroom, and Mendoza testified, based on Garcia’s driver’s license picture in his files,
that he “believe[d] it might be the gentleman sitting in that blue shirt next to the lawyer.”
Garcia objected at this point and asked to take Officer Mendoza on voir dire. Garcia asked
Officer Mendoza whether he could, “out of [his] own personal knowledge, identify Mr.
Garcia as the same person that [he] arrested” in 2007. Officer Mendoza ultimately
responded, “probably not.” Based on Officer Mendoza’s testimony, Garcia “ask[ed] that
[Officer Mendoza’s] testimony be stricken as to the identification.” The trial court overruled
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Garcia’s objection.
Officer Mendoza testified that he asked Garcia to step out of his truck and then
conducted three field sobriety tests. He recalled having to conduct the tests in Spanish.
Officer Mendoza first conducted a horizontal gaze nystagmus (HGN) test, whereby he
asked Garcia to follow the tip of a pen from left to right, moving only his eyes. He testified,
according to his report, that Garcia failed the HGN test. Officer Mendoza then conducted
the walk-and-turn test. Officer Mendoza testified that he demonstrated and explained the
test to Garcia in Spanish, and that Garcia failed the test. He noted that Garcia could not
maintain his balance, so he “stopped the test for [Garcia’s] safety.” Finally, Officer
Mendoza conducted the one-leg stand test, whereby he asked Garcia to stand on one
foot for thirty seconds while pointing at his toes. Officer Mendoza testified that Garcia
stated he could not perform the test, so “[t]here was no point of continuing.”
Officer Mendoza testified that he placed Garcia “under arrest for suspicion of
driving under the influence.” He gave Garcia Miranda warnings when Garcia was
processed at the city jail, and interviewed Garcia at about 3:00 a.m. Officer Mendoza
noted that Garcia told him that he was on his way home when he was stopped, he last
ate about 5:00 p.m., and he had two drinks of Bacardi that evening around 6:00 p.m.
Officer Mendoza informed Garcia “that if he refused to take [a] breathalyzer test, . . . his
driver’s license would . . . be lost for 180 days, whether or not he was convicted.” Garcia
refused to take the breathalyzer test and signed a form indicating his refusal, which was
admitted in evidence at trial as State’s Exhibit 2.
On cross-examination, Garcia asked Officer Mendoza whether “without [his]
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reports and without [the State’s] assistance, [he] could not have possibly been able to
recall this case.” Officer Mendoza replied, “That’s correct, without the narrative, no.”
Garcia asked Officer Mendoza whether he observed Garcia make any unusual
movements while in his truck, and he responded that he did not recall. Garcia asked
Officer Mendoza where specifically he conducted the field sobriety tests and whether
Garcia stumbled while walking, and Officer Mendoza responded that he did not recall and
would have to reference his report.
At the start of his case-in-chief, Garcia made an oral motion for directed verdict on
the following grounds: (1) insufficient evidence on the basis that “none of the officers
c[ould] personally identify [him] as the person driving [the] vehicle”; and (2) a violation of
his Miranda rights. The trial court denied Garcia’s motion.
D. Analysis
The record reflects that Officer Abrego was unable to refresh his memory and
instead testified at trial—over Garcia’s objection—based entirely on his report. Further,
even if Officer Abrego sufficiently testified as to the veracity of his report, the State did not
have him read his report into the record, so his testimony was improper under Rule
803(5). See TEX. R. EVID. 803(5); Brown, 333 S.W.3d at 613; Godsey, 989 S.W.2d at 497
(concluding that the trial court’s error was harmless where it allowed a proponent to admit
a written statement as an exhibit under Rule 803(5) and that the “statement could have
[properly] been read into evidence, but was not”). The record also reflects that Officer
Garza testified from his report at trial, but Garcia never objected to Officer’s Garza’s
testimony as improper under Rules 612 or 803(5), so he waived those arguments on
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appeal. See TEX. R. APP. P. 33.1 (noting that to preserve a complaint for appeal, the
record must show that the complaint was made to the trial court by a timely request,
objection, or motion, and that the trial court ruled on the request, objection, or motion).
As for Officer Mendoza’s testimony, in the first place, Garcia never objected on the
basis that Officer Mendoza could not recall the facts in this case without referencing his
report. Instead, Garcia objected to Officer Mendoza’s purported inability to properly
identify Garcia in the courtroom and asked the trial court to strike his testimony “as to the
identification”—an argument Garcia does not likewise raise on appeal. Garcia thus
waived the argument on appeal that Officer Mendoza improperly testified directly from his
report. See TEX. R. APP. P. 33.1. In any event, the record does not support a conclusion
that Officer Mendoza’s testimony was based solely on his report. Garcia highlights Officer
Mendoza’s statement that he would not have been able to recall the facts in this case
without referencing his report. But that statement does not rule out the possibility that
Officer Mendoza’s memory was in fact refreshed by the report, nor does it prove that
Officer Mendoza testified exclusively from his report. Moreover, unlike Officers Abrego
and Garza, Officer Mendoza did not answer nearly each question at trial by referencing
his report or admit that he was testifying from his report. Thus, we cannot conclude that
Officer Mendoza testified exclusively from his report, or that the trial court erred by
allowing his testimony.
E. Harm Analysis
Having found non-constitutional error in the trial court’s rulings as to the testimony
of Officer Abrego, we must assess whether that error affected Garcia’s substantial rights.
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See TEX. R. APP. P. 44.2(b); Macedo, 629 S.W.3d at 240; Gonzalez, 510 S.W.3d at 28.
Asserting that each officer’s testimony was erroneous, Garcia argues that his substantial
rights were affected because the State relied entirely on hearsay and could not prove its
case without it. Contending that only Officer Abrego’s testimony was potentially
erroneous, the State argues that Officer Garza’s and Officer Mendoza’s testimony
provided sufficient evidence to convict Garcia, so his substantial rights were not affected.
We conclude that Garcia’s substantial rights were not violated for the following reasons.
“Substantial rights are not affected by the erroneous admission or exclusion of
evidence if the appellate court, after examining the record as a whole, has fair assurance
that the error did not influence the jury, or had but a slight effect.” Celis v. State, 354
S.W.3d 7, 38 (Tex. App.—Corpus Christi–Edinburg 2011), aff’d, 416 S.W.3d 419 (Tex.
Crim. App. 2013) (cleaned up); see Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim.
App. 2003). In making that determination, we consider factors such as testimony,
overwhelming evidence of guilt, the theories of the State and defense, closing arguments,
whether the erroneously admitted evidence was cumulative, whether the evidence was
elicited from an expert, and whether the State emphasized the evidence. Gonzalez v.
State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018); Bagheri, 119 S.W.3d at 763; Motilla
v. State, 78 S.W.3d 352, 356–57 (Tex. Crim. App. 2002).
Even if Garcia properly objected to the testimony of both Officer Abrego and Officer
Garza, who testified from their reports, Officer Mendoza’s testimony sufficed to prove the
State’s case. The bulk of the State’s evidence was gleaned through Officer Mendoza’s
testimony, which spans seventy-six pages of the reporter’s record, while Officer Abrego’s
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and Officer Garza’s testimony spans seventeen pages and sixteen pages, respectively.
See Gonzalez, 544 S.W.3d at 373. Further, the State spent most of its opening and
closing statements informing the jury of evidence that would be or was gleaned through
Officer Mendoza and did not highlight the testimony of Officers Abrego or Garza. See id.
The record indicates why: Officer Mendoza was the only officer that interacted with Garcia
on the night of his arrest. Officers Abrego and Garza merely testified that they received
notice from dispatch of a 9-1-1 call, saw a white truck run a red light, initiated a traffic
stop, and saw Officer Mendoza walk up to Garcia’s truck. That evidence was cumulative
to Officer Mendoza’s, who testified that he was notified of a potential intoxicated driver
and saw Officer Garza initiate a traffic stop of Garcia’s vehicle. See Bagheri, 119 S.W.3d
at 763. But Officer Mendoza also testified that he: (1) witnessed Garcia fumbling for his
wallet; (2) smelled alcohol from Garcia’s breath; (3) demonstrated and conducted in
Spanish three field sobriety tests, which Garcia failed; (4) transported Garcia to the city
jail; (5) took Garcia’s statement when Garcia noted that he had two drinks of Bacardi that
night; and (6) received Garcia’s written refusal to take a breathalyzer test. Given Officer
Mendoza’s testimony, which we have concluded was proper in this case, we are confident
that Officer Abrego’s and Officer Garza’s testimony “did not influence the jury, or had but
a slight effect.” Celis, 354 S.W.3d at 38; see Gonzalez, 544 S.W.3d at 373; Bagheri, 119
S.W.3d at 763; Motilla, 78 S.W.3d at 356–57. Accordingly, we conclude that the trial
court’s error in this case did not affect Garcia’s substantial rights. See TEX. R. APP. P.
44.2(b); Macedo, 629 S.W.3d at 240; Gonzalez, 510 S.W.3d at 28.
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IV. 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 on the
1st day of December, 2022.
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