Affirmed and Opinion filed August 23, 2016.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-15-00263-CR

                           JAVARA PRICE, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 232nd District Court
                            Harris County, Texas
                        Trial Court Cause No. 1408375

                                  OPINION


      Appellant Javara Price appeals his conviction of aggravated robbery, raising
two issues. Appellant contends: (1) the trial court erred in admitting hearsay
testimony of statements made by the complainant to the responding police officer;
and (2) the evidence is insufficient to support his conviction because it is based
solely on the complainant’s unreliable out-of-court identification of appellant.

      We hold that the evidence is legally sufficient to support appellant’s
conviction for aggravated robbery. We also hold that the trial court did not abuse
its discretion in admitting the complainant’s out-of-court statements to the police
officer because the record supports admission of the first set of statements under
the excited utterance exception to the hearsay rule, and the second set of statements
was non-hearsay under Texas Rule of Evidence 801(e)(1)(C).

                                        BACKGROUND

       According to testimony of the complainant, Joel Fraustro, he walked outside
his apartment one evening to retrieve his daughter’s homework from his
girlfriend’s vehicle. While he searched the vehicle, two men approached him.
One of the men held a shotgun to his head and demanded Fraustro give them his
cell phone and money. After Fraustro told the two men that he had neither, they
patted him down, told him to turn around and start walking, and threatened to
shoot him if he looked back. Fraustro complied and began walking away from the
vehicle. Left with the keys to the vehicle, the two men drove away.

       Fraustro returned to his apartment and knocked on the front door. Fraustro
testified that his girlfriend initially did not let him in because he was “hysterical”
and she did not recognize his voice. Fraustro proceeded to tell his girlfriend what
occurred, and she immediately called the police. Approximately six to ten minutes
later, HPD officers Cabrera and Rodriguez arrived and spoke with Fraustro.
Officer Cabrera testified that Fraustro was “visibly upset” and “[h]is hands were
shaking.” Over defense counsel’s objection, Officer Cabrera related to the jury
what Fraustro told him about the robbery and the identity of the two men he
alleged robbed him.1

1
  Defense counsel’s objections were based on hearsay and denial of confrontation. The trial
court overruled the objections, but granted defense counsel a running objection to the State’s line
of questioning. On appeal, appellant challenges admission of the statements on hearsay grounds
only.
                                                2
      According to Officer Cabrera’s testimony, he and Officer Rodriguez left the
apartment and began searching the area for the stolen vehicle. They subsequently
parked their patrol car at a gas station located at the corner of Broadway Street and
Morley Street, near Fraustro’s apartment. While Officer Cabrera was completing
the offense report, he saw the stolen vehicle traveling east on Morley Street. The
officers followed the vehicle and observed two men inside the vehicle who
matched Fraustro’s description of the robbers. The officers confirmed the license
plate number and made a traffic stop.

      The driver accelerated the stolen vehicle and attempted to flee but soon lost
control and flipped the vehicle, which landed on the driver’s side. After detaining
the two occupants, the officers searched the vehicle. Officer Cabrera testified that
when he approached the vehicle, he observed a shotgun laying beneath the driver’s
side window. He described the shotgun as dark in color and missing the butt.
After securing the weapon, officers removed three unfired slug shells from the
shotgun.

      As the officers secured the scene, Fraustro and his family passed by on their
way to a friend’s house and recognized their vehicle. Officer Cabrera testified that
Fraustro was “very upset” when he arrived on the scene and saw the damaged car.
He also estimated that about thirty-five to forty-five minutes had passed since the
robbery.

      Because Fraustro was present and a relatively short amount of time had
passed since the robbery, Officer Cabrera decided to conduct a “show up”
identification at the scene of the accident. Officer Cabrera read Fraustro the
witness admonishment form and proceeded to present the suspects to Fraustro for
identification.   Over defense objection, Officer Cabrera testified as to what
Fraustro told him during the show up, including his positive identification of

                                         3
appellant.2

       Fraustro also testified during the trial. Fraustro testified that he identified
appellant at the accident scene as the person who robbed him while pointing a
shotgun at his head. According to Fraustro, he was “enraged” when he arrived at
the scene and saw the damaged car. The officers told him to wait by the gas
station until they were ready to have him identify the suspects at the scene. The
officers later showed him each suspect individually. Fraustro testified that he was
able to identify the two men as the robbers. Fraustro then identified appellant in
the courtroom as the man who held the shotgun to his head.                   Fraustro also
identified the shotgun police recovered from the vehicle as the same shotgun
appellant used in the robbery.

       The jury found appellant guilty of aggravated robbery and assessed
punishment at confinement for 19 years. This appeal followed.

                                        ANALYSIS

       Appellant presents two issues on appeal. We address appellant’s second
issue first because it challenges the sufficiency of the evidence and seeks rendition
of a judgment of acquittal.

I.     Sufficient evidence supports appellant’s conviction of aggravated
       robbery.
       Appellant’s second issue on appeal challenges the sufficiency of the
evidence to support his conviction. We hold that a rational trier of fact could have
concluded beyond a reasonable doubt that appellant committed aggravated
robbery.

       In reviewing the sufficiency of the evidence to support a conviction, we
2
 Defense counsel repeated his objection on hearsay and confrontation grounds. The trial court
overruled his objection and granted a running objection to the line of questioning.

                                             4
determine “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Johnson v. State, 364 S.W.3d 292, 293–94
(Tex. Crim. App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
In making this review, an appellate court considers all evidence in the record,
whether it was admissible or inadmissible. Winfrey v. State, 393 S.W.3d 763, 767
(Tex. Crim. App. 2013) (citing Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim.
App. 1999)). The jury is the sole judge of the credibility of witnesses and the
weight afforded their testimony. Montgomery v. State, 369 S.W.3d 188, 192 (Tex.
Crim. App. 2012). The jury may reasonably infer facts from the evidence as it sees
fit. See Canfield v. State, 429 S.W.3d 54, 65 (Tex. App.—Houston [14th Dist.]
2014, pet. ref’d). The jury alone decides whether to believe eyewitness testimony,
and it resolves any conflicts in the evidence. Bradley v. State, 359 S.W.3d 912,
917 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). Therefore, the testimony
of a single eyewitness can be enough to support a conviction. Id. (citing Aguilar v.
State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971)).

      A person commits aggravated robbery if, (1) in the course of committing
theft, and (2) with intent to obtain or maintain control of property, (3) he
knowingly or intentionally (4) threatens or places another in fear of imminent
bodily injury or death, and (5) uses or exhibits a deadly weapon. Tex. Penal Code
Ann. §§ 29.02(a), 29.03(a)(2) (West 2011). A firearm is a deadly weapon. Id.
§ 1.07(a)(17) (West Supp. 2015).

      Appellant challenges the sufficiency of the evidence to support the finding
that he was one of the two men who committed the aggravated robbery. Because
appellant was not identified by any other witnesses and did not make any
incriminating statements to the police, appellant argues that the conviction rests

                                          5
solely on Fraustro’s unreliable identification of him at the scene of the accident.
Appellant contends on-the-scene identifications are generally unreliable due to
their suggestive nature. Appellant also attacks the quality of the evidence, pointing
to inconsistencies in the description of the suspects Fraustro gave police and the
physical characteristics of appellant upon arrest.

       Although this Court acknowledged in Fite v. State that on-the-scene
identifications have “some degree of suggestiveness,” we concluded that “their use
is necessary in cases, such as this one, where time is of the essence in catching a
suspect and an early identification is aided by the fresh memory of the victim.” 60
S.W.3d 314, 318 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d); see Garza v.
State, 633 S.W.2d 508, 512 (Tex. Crim. App. 1982) (citing Stovall v. Denno, 388
U.S. 293, 302 (1967)). Fraustro’s identification of appellant at the scene of the
accident was, therefore, not categorically unreliable. See Neil v. Biggers, 409 U.S.
188, 198 (1972) (stating that admission of evidence from show-up identification
should    not     be   excluded      without     additional     evidence      of   unnecessary
suggestiveness).3

       Whether Fraustro’s on-the-scene identification of appellant meets the
reliability standard of Neil is not an issue we must resolve in addressing appellant’s


3
 In Neil, the US Supreme Court listed these five non-exclusive factors that should be “weighed
against the corrupting effect of any suggestive identification procedure in assessing reliability
under the totality of the circumstances”:
       (1) The opportunity of the witness to view the criminal at the time of the crime;
       (2) The witness’ degree of attention;
       (3) The accuracy of the witness’ prior description of the criminal;
       (4) The level of certainty demonstrated by the witness at the confrontation; and
       (5) The length of time between the crime and the confrontation.
Id. at 199–200.

                                                6
sufficiency challenge.4 In reviewing the sufficiency of the evidence, we consider
all evidence in the record, whether it was admissible or inadmissible. Winfrey, 393
S.W.3d at 767.        Applying this standard, we consider Fraustro’s on-the-scene
identification of appellant as well as the other evidence that linked appellant to the
robbery.

       Appellant was apprehended only a few blocks from the crime scene thirty
minutes after the robbery occurred. Appellant was riding in the stolen vehicle and
matched Fraustro’s description of the suspect. A shotgun was found lying beneath
the vehicle’s window. Fraustro testified that appellant held the shotgun to his head
and at one point threatened to shoot Fraustro if he did not cooperate. Fraustro also
positively identified appellant in the courtroom and identified the shotgun
recovered from the accident scene as the same shotgun appellant used to commit
the robbery.

       Appellant’s other challenge to the sufficiency of the evidence is based on
inconsistencies in Fraustro’s description of appellant.               For example, Officer
Cabrera testified that Fraustro described the robbers as wearing “dark clothing.”
When Fraustro testified, he told the jury that one man wore a gray shirt and the
other wore a white shirt. This discrepancy, however, does not require reversal of
appellant’s conviction. See Bradley, 359 S.W.3d at 917 (“It was the jury’s role to
decide whether that testimony was credible, and we will not disturb the jury’s
decision.”). The jury may resolve any conflicts or inconsistencies in the evidence.
Id.; Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001), cert. denied, 537
U.S. 1195 (2003). The jury was therefore not required to disregard Fraustro’s
testimony simply because parts of it were inconsistent with other testimony. See
4
  The record also shows appellant did not file a motion to suppress the on-the-scene
identification or object to its admission on reliability grounds, thereby failing to preserve any
complaint for appellate review. See Tex. R. App. P. 33.1(a).

                                               7
Lee v. State, 176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.] 2004), aff’d,
206 S.W.3d 620 (Tex. Crim. App. 2006).

      On this record, we conclude a rational trier of fact could have concluded
beyond a reasonable doubt that appellant committed aggravated robbery. We
therefore hold the evidence is sufficient to support appellant’s conviction, and we
overrule his second issue.

II.   The trial court did not abuse its discretion in allowing Officer Cabrera
      to testify to Fraustro’s out-of-court statements.
      Appellant contends in his first issue that the trial court committed reversible
error by improperly admitting hearsay evidence under the excited utterance
exception. Specifically, appellant challenges two lines of testimony that he argues
contain inadmissible hearsay: (1) Officer Cabrera’s testimony regarding Fraustro’s
account of the robbery and description of the suspects, which Fraustro gave Officer
Cabrera shortly after his arrival at Fraustro’s apartment; and (2) Officer Cabrera’s
testimony regarding Fraustro’s identification of appellant at a “show-up”
identification conducted at the scene of the vehicle accident.

      We conclude the trial court did not abuse its discretion in admitting the first
line of testimony because the record supports the trial court’s finding that the
statements were admissible as an excited utterance under Rule of Evidence 803(2).
We also conclude that the trial court did not err in allowing the second line of
testimony because Fraustro’s statements were non-hearsay under Texas Rule of
Evidence 801(e)(1)(C).

      A.     Standard of review and applicable law

      We review a trial court’s decision to admit evidence for an abuse of
discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). A trial
court abuses its discretion only if “the trial judge’s decision was so clearly wrong

                                          8
as to lie outside that zone within which reasonable persons might disagree.” Cantu
v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992).               If the trial court’s
evidentiary ruling was correct on any theory of law applicable to that ruling, we
must affirm the ruling. Gomez v. State, 380 S.W.3d 830, 836 n.9 (Tex. App.—
Houston [14th Dist.] 2012, pet. ref’d) (citing De La Paz v. State, 279 S.W.3d 336,
344 (Tex. Crim. App. 2009)).

      The Texas Rules of Evidence define hearsay as a statement, other than one
made by the declarant while testifying at the trial or hearing, offered into evidence
to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Although hearsay
is generally inadmissible, Rule 803 provides an exception for admitting excited
utterances: statements “relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition.”
Tex. R. Evid. 803(2); see Zuliani, 97 S.W.3d at 595–96. The basis for the excited
utterance exception is “a psychological one, namely, the fact that when a man is in
the instant grip of violent emotion, excitement or pain, he ordinarily loses the
capacity for reflection necessary to the fabrication of a falsehood and the ‘truth will
come out.’” Evans v. State, 480 S.W.2d 387, 389 (Tex. Crim. App. 1972).

      In determining whether a hearsay statement is admissible as an excited
utterance, the court should consider whether “(1) the ‘exciting event’ [is] startling
enough to evoke a truly spontaneous reaction from the declarant; (2) the reaction to
the startling event [is] quick enough to avoid the possibility of fabrication; and (3)
the resulting statement [is] sufficiently ‘related to’ the startling event, to ensure the
reliability and trustworthiness of the statement.” McCarty v. State, 257 S.W.3d
238, 241 (Tex. Crim. App. 2008). The court may also consider the time elapsed
and whether the statement was in response to a question. Salazar v. State, 38
S.W.3d 141, 154 (Tex. Crim. App. 2001). These factors are not dispositive,

                                           9
however. Zuliani, 97 S.W.3d at 596. The critical determination is “whether the
declarant was still dominated by the emotions, excitement, fear, or pain of the
event” or condition at the time of the statement. McFarland v. State, 845 S.W.2d
824, 846 (Tex. Crim. App. 1992).

      The Texas Rules of Evidence also define as non-hearsay certain types of
statements that would otherwise constitute hearsay.           One of these hearsay
exclusions provides that a statement is not hearsay if the declarant testifies at trial
and is subject to cross-examination concerning the statement and the statement is
one of identification of a person made after perceiving the person. Tex. R. Evid.
801(e)(1)(C); see Thomas v. State, 811 S.W.2d 201, 208 (Tex. App.—Houston [1st
Dist.] 1991, pet. ref’d); Smith v. State, 830 S.W.2d 328, 330 (Tex. App.—Houston
[14th Dist.] 1992, no pet.) (holding detective’s testimony regarding declarant’s
pretrial identification of defendant in photo array and lineup was not hearsay
because declarant testified at trial, was subject to cross examination, and her
statement pertained to identification of person made after perceiving him).
Applying these standards, we examine the two lines of testimony appellant
challenges on appeal.

      B.     The trial court did not err in admitting Officer Cabrera’s
             testimony of the statements the complainant made at the
             apartment.
      Appellant’s first complaint relates to Officer Cabrera’s testimony regarding
what Fraustro told him shortly after Officer Cabrera arrived at Fraustro’s
apartment. Fraustro told Officer Cabrera the details of the robbery and gave the
following description of the suspects:

      Q.    And did [Fraustro] provide you with a description of the
      suspects?
      A.     He did.
                                          10
      Q.     What was that description?

      A.     Two young black males 19 to 23, dark clothing, short haircuts.

                                        ....
      Q.     Did you ask him how good a look he got at the two suspects?

      A.     They were very close to him when the robbery occurred so he
      got a good look at the suspects and he said that he would be able to
      identify if he saw them again.

Appellant argues that this testimony was inadmissible hearsay. We disagree.

      The trial court’s ruling is supported by the record, which contains evidence
that Fraustro was still dominated by the emotions, excitement, fear, or pain of the
robbery when he made the statements to Officer Cabrera. Officer Cabrera testified
that he arrived at Fraustro’s apartment about six minutes after receiving the call for
service and proceeded to meet with Fraustro. He described Fraustro as “visibly
upset.” Officer Cabrera noticed Fraustro’s “hands were shaking” and he appeared
“just generally upset that he had just been robbed.”

      The fact that Fraustro’s statements were made in response to Officer
Cabrera’s questions does not make the statements inadmissible under the excited
utterance exception; it is only a factor to consider. See Zuliani, 97 S.W.3d at 596;
Amador v. State, 376 S.W.3d 339, 344 (Tex. App.—Houston [14th Dist.] 2012,
pet. ref’d). The key question is whether the declarant was still dominated by the
emotions, excitement, fear, or pain of the event. Id. Given the traumatic nature of
the robbery, his girlfriend’s testimony that Fraustro was “hysterical” afterwards,
Officer Cabrera’s description of Fraustro as “visibly upset” and “shaking” at the
time of the statements, and the relatively short time between the robbery and his
statements, it was not outside the zone of reasonable disagreement for the trial
court to conclude that Fraustro was still under the stress of the robbery when he

                                          11
made the statements. Under these circumstances, we conclude the trial court did
not abuse its discretion in admitting this hearsay testimony under the excited
utterance exception.

      C.     The trial court did not err in admitting the complainant’s out-of-
             court statements made at the scene of the vehicle accident.
      Appellant also challenges the trial court’s admission of a second line of
Officer Cabrera’s testimony, in which he was permitted to testify about what
Fraustro told him during the on-the-scene identification of appellant.

      Q.     Was [Fraustro] able to identify [appellant’s co-defendant]?
      A. Yes he was.
      Q.     Was it a positive identification?
      A.     It was a positive identification.
                                      ....

      Q.     . . . was he confident that it was the correct person?

      A.     He was confident.
                                      ....
      Q.     Now, after the witness identified [appellant’s co-defendant] did
you attempt to see if he could identify [appellant]?

      A.     Yes.

      Q.     And was he able to?

      A.     Yes.

                                      ....
       Q.   And did he explain to you what the - - what [appellant’s] role in
the robbery was?
      A.     Yes he did.
                                          12
       Q.     And what did he tell you?

                                        ....
       A.     He stated he was the suspect with the gun, with the shotgun.
       Q.     Okay. And was that also a positive identification?

       A.     Yes it was.

       Appellant relies on Williams v. State, 531 S.W.2d 606, 611 (Tex. Crim. App.
1975), which held that a police officer’s testimony recounting the complainant’s
statements was inadmissible hearsay designed to bolster the complainant’s
unimpeached identification testimony. Inferring that the same rule should apply
here, appellant argues that Officer Cabrera should not have been permitted to
testify that Fraustro positively identified appellant.

       Appellant’s argument is unpersuasive, however, because bolstering is no
longer a valid objection to a witness’s identification of a defendant given the Rule
801(e)(1)(C) hearsay exclusion.5 Tex. R. Evid. 801(e)(1)(C); Jackson v. State, 846
S.W.2d 411, 414 (Tex. App.—Houston [14th Dist.] 1993, no pet.) (“[Rule
801(e)(1)(C)] has eliminated bolstering as a valid objection in that such testimony
is no longer hearsay.”); Thomas, 811 S.W.2d at 208 (holding that, under Rule
801(e)(1)(C), bolstering declarant’s identification with police testimony is
permissible if declarant testifies and is subject to cross-examination concerning
statement).

       Here, Officer Cabrera’s testimony of Fraustro’s out-of-court statements

5
  Williams was decided prior to the adoption of the Texas Rules of Criminal Evidence in 1985
and the unified Texas Rules of Evidence in 1998. See Rivas v. State, 275 S.W.3d 880, 885–86
(Tex. Crim. App. 2009). Rule 801(e)(1)(C) provides that a statement is not hearsay if the
declarant testifies and is subject to cross-examination about the prior statement, and the
statement identifies a person as someone the declarant perceived earlier. Tex. R. Evid.
801(e)(1)(C).

                                            13
identifying appellant as the man who robbed him was non-hearsay under Rule
801(e)(1)(C) because Fraustro later testified, was subject to cross-examination, and
the statement identified appellant as someone Fraustro perceived earlier. See Hill
v. State, 392 S.W.3d 850, 858 (Tex. App.—Amarillo 2013, pet. ref’d); Cuevas v.
State, No. 14-12-00480-CR, 2013 WL 4007814, at *2 (Tex. App.—Houston [14th
Dist.] Aug. 6, 2013, no pet.) (mem. op., not designated for publication). This
exclusion from the hearsay rule also extends to other statements Fraustro made to
Officer Cabrera during the identification, such as his description of appellant’s role
in the robbery. See Delacerda v. State, 425 S.W.3d 367, 393 (Tex. App.—Houston
[1st Dist.] 2011, pet. ref’d.) (“[L]imiting admissible testimony under the
identification exclusion to the hearsay rule solely to the declarant’s naming of the
identified individual and not allowing testimony regarding what the declarant
identified the individual as doing is unduly restrictive.”). In Delacerda, the First
Court of Appeals concluded that Rule 801(e)(1)(C) permitted the law enforcement
officer to testify not only to the complainant’s identification of the individual in the
lineup, but to his actions during the crime as well. Id. at 391–393.6 The Rule
applies equally here.        Officer Cabrera was permitted to testify to Fraustro’s
positive identification of appellant as well as his description of appellant’s role in
the robbery—holding the shotgun. Admitting Fraustro’s statements surrounding
the identification provided context to the fact-finder and avoided confusion over
which of the two suspects threatened Fraustro with the shotgun.

        Accordingly, we hold the trial court did not abuse its discretion in admitting

6
  Delacerda approved of other jurisdictions’ rationale for allowing testimony regarding what the
declarant identified the individual as doing. The Illinois Supreme Court, for example, construed
“statement of identification” under the Rule to include “the entire identification process,” People
v. Tisdel, 775 N.E.2d 921, 926–27 (Ill. 2002); the D.C. Circuit of Appeals held that identification
“must have context” to be understandable and probative. Johnson v. United States, 820 A.2d
551, 559 n.4 (D.C. 2003).

                                                14
either the first or second line of Officer Cabrera’s testimony. Appellant’s first
issue is overruled.

                                  CONCLUSION

      Having overruled each of appellant’s issues, we affirm the trial court’s
judgment.




                                     /s/    J. Brett Busby
                                            Justice


Panel consists of Justices Christopher, McCally, and Busby.
Publish — TEX. R. APP. P. 47.2(b).




                                       15
