                         NUMBER 13-18-00327-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG


JORGE ALBERTO ALCALA,                                                      Appellant,

                                          v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 138th District Court
                        of Cameron County, Texas.


                        MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
         Memorandum Opinion by Chief Justice Contreras

      By two issues, appellant Jorge Alberto Alcala challenges his conviction for evading

arrest or detention with a vehicle. See TEX. PENAL CODE ANN. § 38.04(b)(2)(A). First,

appellant contends that the trial court improperly admitted hearsay evidence, causing

reversible error. Second, appellant asks that the admission of certain hearsay testimony
be considered constitutional error as a violation of the Confrontation Clause under the

Sixth Amendment, thereby giving cause for reversal. We affirm as modified.

                                            I. BACKGROUND

        Appellant was charged by indictment with the third-degree felony of evading arrest

or detention with a vehicle. See id. He was found guilty after a jury trial and, after pleading

true to two enhancement allegations, his punishment was enhanced to second-degree

felony range. See id. § 12.42(a). The jury assessed punishment at thirteen years in the

Texas Department of Criminal Justice–Institutional Division and a $10,000 fine.

        At trial, the State presented video footage from the dashcam of Officer Juan

Iracheta of the San Benito Police Department. The footage showed that, on October 6,

2017, the officer attempted to initiate a traffic stop of a white Jeep after it ran a red light.

About fifteen to twenty seconds after running the red light, the Jeep pulled into a gas

station parking lot and stopped briefly before circling to exit the parking lot onto a frontage

road. Just before pulling onto the frontage road, the Jeep stopped and a passenger, Joe

Anthony Gonzalez (also known as Kirby), exited the vehicle. According to Iracheta, Kirby

exclaimed “I don’t want to get involved in the incident” as he exited the Jeep. The Jeep

then sat still for two and a half minutes before proceeding onto the frontage road. Iracheta

proceeded to arrest Kirby for public intoxication and later took him to the police station for

booking. Meanwhile, Officer Ariel Villafranca and another officer pursued the Jeep for

two and a half minutes, exceeding 100 miles per hour, before they gave up the pursuit.1

The officers did not see the driver’s face at any point during the pursuit.




        1 Villafranca explained that “[t]he sergeant at the time advised us to just disengage the pursuit due

to unsafe speeds because of the other driver, the driver of the jeep.”

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       While Iracheta was booking Kirby, Kirby’s cell phone was sitting on a table, with

the screen facing up, when it received a call. According to the record, the name that

appeared on the screen was that of appellant. Iracheta testified that he asked Kirby about

the call, and Kirby responded: “This is the driver.”

       Lorrisa Longoria, appellant’s girlfriend at the time of the incident, testified that

appellant had possession of her vehicle on the day of the incident. Longoria’s family

members informed her that her Jeep was involved in a pursuit, at which time she checked

her text messages. Longoria had many missed calls and messages from appellant. One

message said, “Don’t ask questions just report the jeepstolen [sic] and you don’t know

Kirby and my name is Juan Gonzales but don’t ever say my name please!!” Longoria

testified that appellant came to her house after the incident and told her that he was the

one driving the Jeep. When asked if appellant told her why he fled the police, she

testified: “Yes. He said that he was getting pulled over because he had ran a red light,

and I asked why didn’t you stop. He said because I’m on parole and if I get pulled over

and they catch me[,] I’m going to go away for a long time.” After the incident, appellant

led Longoria to the place where her Jeep was hidden; he left and she drove the Jeep to

the police station where a search was conducted on the vehicle. A third person’s ID was

found under the front passenger seat of the car and Longoria testified that it belonged to

a person whom she saw in her vehicle when it was originally taken by appellant.

Longoria’s testimony also reflects a plan between appellant and herself to pin the incident

on Longoria’s brother, but the plan was not followed through.

       Appellant was convicted of evading arrest in a motor vehicle. This appeal followed.




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                                        II. DISCUSSION

A.     Hearsay and Exceptions

       By his first issue, appellant contends that the trial court abused its discretion in

admitting hearsay testimony at trial.

       1.       Applicable Law and Standard of Review

       We review a trial court’s admission or exclusion of evidence under an abuse of

discretion standard. Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990).

Therefore, a reviewing court should not reverse unless a clear abuse of discretion is

shown. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). An abuse of

discretion occurs when the trial court acts arbitrarily, unreasonably, or without reference

to guiding rules or principles. Montgomery, 810 S.W.2d at 380. We will sustain a trial

judge’s admission of evidence if the decision is correct under any theory of applicable

law. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

       Hearsay is an out-of-court statement offered to prove the truth of the matter

asserted.   TEX. R. EVID. 801(d).       Hearsay is generally inadmissible, but there are

exceptions, including present sense impressions and excited utterances. See TEX. R.

EVID. 803(1), (2). A “present sense impression” is a statement describing or explaining

an event or condition, made while or immediately after the declarant perceived it. TEX. R.

EVID. 803(1).    An “excited utterance” is a statement relating to a startling event or

condition, made while the declarant was under the stress of excitement that it caused.

TEX. R. EVID. 803(2). 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



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falsehood and the ‘truth will out.’” Evans v. State, 480 S.W.2d 387, 389 (Tex. Crim. App.

1972).    In determining whether hearsay is admissible as an excited utterance, we

consider three factors: (1) the “exciting event” should be startling enough to evoke a truly

spontaneous reaction from the declarant; (2) the reaction to the startling event should be

quick enough to avoid the possibility of fabrication; and (3) the resulting statement should

be sufficiently “related to” the startling event as to ensure the reliability and

trustworthiness of that statement. McCarty v. State, 257 S.W.3d 238, 241 (Tex. Crim.

App. 2008). The critical determination is “whether the declarant was still dominated by

the emotions, excitement, fear, or pain of the event” at the time of the statement.

McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992), overruled on other

grounds by Bingham v. State, 915 S.W.2d 9, 14 (Tex. Crim. App. 1994).

         The erroneous admission of hearsay evidence is non-constitutional error and as

such must be disregarded unless it affects the substantial rights of the defendant. See

TEX. R. APP. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)

(evaluating error in admission of hearsay testimony under the standard for non-

constitutional error); Linney v. State, 401 S.W.3d 764, 780 (Tex. App.—Houston [14th

Dist.] 2013, pet. ref’d) (same). A substantial right is affected when the error had a

substantial and injurious effect or influence in determining the jury’s verdict. King v. State,

953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S.

750, 776 (1946)). In our harm analysis, we evaluate the entire record on appeal to

determine whether the error affected the jury’s verdict. Schutz v. State, 63 S.W.3d 442,

444 (Tex. Crim. App. 2001). If, after evaluating the record as a whole, we have fair

assurance “that the error did not influence the jury or had but a slight effect,” then a



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criminal conviction will not be overturned. Morales v. State, 32 S.W.3d 862, 867 (Tex.

Crim. App. 2000). Moreover, as held by the Texas Court of Criminal Appeals, “any error

in admitting the evidence [is] harmless in light of other properly admitted evidence proving

the same fact.” Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999).

       2.     Analysis

       At trial, the State called Iracheta to the stand and explored the events that

transpired while Iracheta was booking Kirby. The State asked the officer for Kirby’s

response to the cell phone ringing; this drew a timely hearsay objection which was initially

sustained by the court. The State then made arguments for two exceptions to the rule

against hearsay: (1) present sense impression and (2) excited utterance. The record

reflects that the court admitted the evidence under the excited utterance exception but

did not rule on the present sense impression argument. On appeal, the State argues both

exceptions.

       As to the excited utterance exception, the State argues that the “startling event”

was the “receiving of a phone call from the Appellant while being booked for a public

intoxication arrest following the evading arrest in a motor vehicle incident.” In reference

to the amount of time between a startling event and the utterance, the State points to

Zuliani, where as many as twenty hours had passed and the declarant was still held to be

under stress and emotion of the event. See 97 S.W.3d at 596. However, in Zuliani the

intense nature of the startling event caused severe injury to the declarant, including an

scalp wound in need of stiches, which was still untreated at the time of the declaration.

See id.

       Appellant argues that it may be inferred from the trial record that Kirby was no



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longer emotionally dominated by the events surrounding the evading arrest incident, and

that the event of the phone call alone did not startle Kirby into producing a truly

spontaneous reaction.       Appellant also notes that Kirby’s statement “was not

spontaneously made; rather, Officer Iracheta’s [sic] elicited the statement while [Kirby]

was under custodial interrogation.” But the fact that a declarant’s statement is a response

to a question does not render the statement non-spontaneous. Id. (citing Lawton v. State,

913 S.W.2d 542, 553 (Tex. Crim. App. 1995)).

      The State offers no argument to support its claim that a ringing cell phone qualifies

as a “startling event” and the record is void of any reference to the declarant’s emotional

state at the time of the declaration. There is no evidence showing that Kirby was startled

by the event or that the event itself was startling enough to evoke a truly spontaneous

reaction. See McCarty, 257 S.W.3d at 241.

      The State contends that Kirby’s statements, if not excited utterances, are present

sense impressions, but it offers no support for that argument. Appellant argues that

Kirby’s hearsay statement was not a present sense impression because it “lacked the

spontaneity and contemporaneity required under Rule 803(1).” See TEX. R. EVID. 803(1).

Citing a case out of the El Paso Court of Appeals, appellant asserts that “[w]here there is

an opportunity for the declarant to have reflected on the event or condition such that the

statement is no longer contemporaneous, then the statement does not properly fall within

this exception.” See Beauchamp v. State, 870 S.W.2d 649, 653 (Tex. App.—El Paso

1994 pet. ref’d). Appellant also asserts “the statement will not properly fall within this

exception where it expresses an opinion (rather than an explanation) about the event or

condition.” Id. The statement in Beauchamp was an officer’s opinion on whether the



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defendant was intoxicated. See id. The court noted that the declarant’s reflection took

place not only on previous events and conditions but also on the subsequent facts and

information learned. Id. In other words, the officer stated an opinion on the defendant’s

intoxication, learned new information over nineteen minutes later, and then changed his

opinion. Furthermore, the court noted that “a statement of opinion about a condition or

event, as opposed to a statement of description or explanation about something observed

or otherwise sensed,” is not a present sense impression. Id. at 652.

       Here, there was a ringing cellphone, appellant’s name on the screen, a quick

question, and a response: “That’s the driver.” The record does not indicate reflection on

the ringing cell phone but simply a quick question and answer. Moreover, the answer is

not an opinion about the phone ringing; rather, it is a report of the caller’s previous actions.

If Kirby had said, “I think he’s calling to talk about running from the police,” then it would

clearly be an opinion about why the phone was ringing. If he had said, “The phone is

ringing,” then it would be a simple description of the event. “That’s the driver,” however,

does not describe the event of a phone ringing; it offers information from outside the event

by describing what the caller was doing earlier. Cf. Brooks, 990 S.W.2d at 286–87 (finding

no abuse of discretion in admitting, as present sense impression, witness’s testimony that

declarant “said [appellant and others] were jacking [the victim],” where declarant was

describing the event that he had just witnessed).

       Assuming, without deciding, that the trial court abused its discretion in admitting

the hearsay testimony, we conclude that its admission was harmless. A review of the

entire record gives us fair assurance that the hearsay evidence’s effect on the jury was

slight to none. Other properly admitted evidence shows appellant was driving the vehicle



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at the time of the attempted traffic stop. Specifically, appellant told the vehicle owner

(Longoria) that he was driving the Jeep, ran a red light, and would not pull over because

he did not want to be caught while on parole.          Additionally, text messages and

conversations between the appellant and Longoria indicate a plan to blame the situation

on Longoria’s brother. Longoria knew appellant had her vehicle at the time the pursuit

took place. This evidence was admitted at trial without objection.

      Appellant argues, in support of his argument that he suffered harm, that “[Kirby]’s

hearsay statement was the only direct identification evidence that placed [appellant]

behind the wheel of the vehicle” and that Longoria’s testimony was circumstantial. But

“[c]ircumstantial evidence is as probative as direct evidence in establishing guilt, and

circumstantial evidence alone can be sufficient to establish guilt.” Winfrey v. State, 393

S.W.3d 763, 771 (Tex. Crim. App. 2013) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007)). The properly admitted evidence proves the same fact proved by the

hearsay evidence, making its admission harmless. See Brooks, 990 S.W.2d at 287

(“[A]ny error in admitting the evidence was harmless in light of other properly admitted

evidence proving the same fact.”). We overrule appellant’s first issue.

B.    Confrontation Clause

      By his second issue, appellant argues that the court erred by admitting the hearsay

evidence because it violated his Sixth Amendment right to confront witnesses.

      1.     Applicable Law and Standard of Review

      The Confrontation Clause of the Sixth Amendment to the United States

Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy the

right . . . to be confronted with the witnesses against him.” U.S. CONST. amend VI. “This



                                            9
bedrock procedural guarantee applies to both federal and state prosecutions.” De La Paz

v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008) (quoting Pointer v. Texas, 380 U.S.

400, 403 (1965)). A witnesses’ out-of-court statement, that is also testimonial, is barred

by the Confrontation Clause, unless the witness is unavailable and the defendant had an

opportunity to cross-examine the witness. See Crawford v. Washington, 541 U.S. 36, 59

(2004). “[E]ven if the Sixth Amendment is not solely concerned with testimonial hearsay,

that is its primary object, and interrogations by law enforcement officers fall squarely

within that class.” Id. at 53. However, interrogations by law enforcement do not always

produce hearsay that is testimonial. See, e.g., Davis v. Washington, 547 U.S. 813 (2006).

       Generally, preserving error for appellate review requires a timely objection, stating

specific grounds to make the trial court aware of the complaint, unless the grounds were

apparent from the context. TEX. R. APP. P. 33.1(a)(1); TEX. R. EVID. 103(a).

       The basic principle of both rules is that of party responsibility. Thus, the
       party complaining on appeal (whether it be the State or the defendant) about
       a trial court’s admission, exclusion, or suppression of evidence must, at the
       earliest opportunity, have done everything necessary to bring to the judge’s
       attention the evidence rule [or statute] in question and its precise and proper
       application to the evidence in question.

Martinez v. State, 91 S.W.3d 331, 335–36 (Tex. Crim. App. 2002). In preserving error,

the issue is whether the complaint on appeal was raised at the trial level. Id. at 337.

Failure to properly object constitutes a forfeiture and an appellant may not argue that

complaint for the first time on appeal. Id.

       2.     Analysis

       At trial, defense counsel objected to the admission of the testimony as inadmissible

hearsay. The objection was specifically and solely on the grounds of hearsay with no

indication of any other objection. On appeal, appellant claims that his trial counsel


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preserved error “in objecting to [Kirby’s] statement as a violation of his right to cross-

examine a proponent of testimonial evidence when the proponent is under custodial

interrogation,” but appellant cites to nowhere in the record where this objection may be

found.

         The State argues that the issue has not been preserved for review. We agree.

There must be a timely objection made at trial, and the issue on appeal must comport

with the objection. TEX. R. APP. P. 33.1; Martinez, 91 S.W.3d at 335. Here, when the

State elicited hearsay evidence, defense counsel objected only on the basis of

inadmissible hearsay. See TEX. R. EVID. 802. Because defense counsel did not object

on Sixth Amendment grounds, appellant’s issue does not comport with the objection

made at trial. See Martinez, 91 S.W.3d at 335; Eustis v. State, 191 S.W.3d 879, 886

(Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (holding hearsay objection did not

preserve Confrontation Clause claim); see also Briggs v. State, 789 S.W.2d 918, 924

(Tex. Crim. App. 1990) (“Even constitutional errors may be waived by failure to object at

trial.”). We overrule appellant’s second issue for that reason.

                             III. MODIFICATION OF JUDGMENT

         The judgment of conviction in this case states in part “Plea to Enhancement

Paragraphs: n/a” and “Findings on Enhancement: n/a.” The record clearly reflects,

however, that appellant pleaded true to two enhancement allegations, and the jury found

them true, thereby enhancing appellant’s punishment to second-degree felony range.

See TEX. PENAL CODE ANN. § 12.42(a). We have the power to modify a judgment to speak

the truth when we have the necessary information to do so. See TEX. R. APP. P. 43.2(b);

Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). Accordingly, we modify



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the judgment of conviction to reflect that appellant pleaded true to, and the jury found as

true, the two enhancement allegations.

                                     IV. CONCLUSION

       We affirm the judgment of the trial court as modified herein.


                                                               DORI CONTRERAS
                                                               Chief Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
20th day of June, 2019.




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