       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                     NO. 03-18-00506-CR



                                   Freddy Uceta, Appellant

                                               v.

                                  The State of Texas, Appellee




                FROM THE 426TH DISTRICT COURT OF BELL COUNTY
           NO. 76560, THE HONORABLE FANCY H. JEZEK, JUDGE PRESIDING



                           MEMORANDUM OPINION


              A jury convicted Freddy Uceta of aggravated robbery, and the district court

assessed punishment at forty-five years’ imprisonment. See Tex. Penal Code § 29.03(a)(2). On

appeal, Uceta contends that the district court abused its discretion by admitting “backdoor”

hearsay testimony from a police officer who investigated the offense. We will affirm the district

court’s judgment of conviction.


                                       BACKGROUND

              Evidence at trial showed that the robbery victim was an eighty-year-old man who

owned businesses with multiple stores in three central Texas cities. On the day of the offense in

February 2016, he collected cash and checks from his stores and drove to another one of his

businesses in Temple. As he was getting out of his truck, a man approached him from behind.
The man pointed a gun at him, demanded the “bags of money,” grabbed them, and fled in a black

car. The victim returned to his truck and embarked on a high-speed chase of the car but

eventually lost sight of it. The victim testified that the robber was a slender black man, that he

did not “get a good look at” the robber’s face, and that the robber had been in a black car. The

victim did not know what type of car it was, but an eyewitness to the robbery saw the car and

later shared that information with the victim. The victim met with police and gave a “Voluntary

Statement” to them describing the robber’s vehicle as “a black in color Nissan M[u]rano style

vehicle.” The victim also described the route that he drove while chasing the car and recounted

that he lost sight of it in the area of 5th Street “by the railroad tracks.”


Reports of offense to police

                The jury heard descriptions of the robber’s car and of the area where the chase

occurred in recordings of two 911 calls admitted into evidence without objection. The first call

was from the eyewitness, a man who lived near the robbery site and was mowing his lawn when

he saw the offense. Within the first three minutes of the call, the eyewitness identified the

robber’s vehicle multiple times: “[Victim] took off with his truck chasing him, he’s in a black

Nissan SUV”; “The guy that robbed him is in a Nissan SUV, black”; and “The perp is in a

Nissan. . . . black, yeah SUV.”

                The second call was from the victim’s wife. She told the 911 operator that her

husband called her stating that “he was chasing a guy that just stole from him.” She identified

her husband’s vehicle as a “white Ford F-150 pickup truck.” She also reported that “when he

called, he said he was on South 5th Street road in Temple.” Toward the end of the call, the wife

saw her husband approaching in his truck. She put him on the phone, but he spoke only briefly


                                                    2
with the 911 operator because police arrived soon afterward. The victim told the 911 operator

that a man robbed him at gunpoint and that “[he] chased him all the way down to the railroad

tracks and [he] lost him.”


Police investigation

               After the 911 calls, the jury heard from Officer Keith Smith, who testified that he

was alerted to respond from a 911 call and that he met with the victim and his wife at the scene.

Officer Smith further testified that the victim told him what type of vehicle the robber fled in,

and as a result of what the victim told him, police looked for “a dark-colored Nissan Murano

type vehicle.” Other officers with the Temple Police Department responded while Officer Smith

was meeting with the victim, including Temple Police Detective Brandon Mathiews.

               Detective Mathiews testified that when he arrived at the scene, he overheard the

victim talking to other officers about what had happened to him, including a description of the

vehicle as a dark-colored Nissan Murano and the route that the victim drove while pursuing the

robber. Detective Mathiews testified that he went to the area of south 5th Street and west

Avenue F where the victim last saw the vehicle. That area of south 5th Street—including the

roads, businesses, and people in that general location—was “very familiar” to Detective

Mathiews because of his six years as a patrol officer specifically assigned to that part of Temple.

               Based on his years of experience on patrol, the area that specifically came to

Detective Mathiew’s mind was “the bridge on South First and Third [Streets], at the interchange

as it goes over the railroad tracks.” He recalled that there was access to a dirt road beneath the

bridge, and he said it was “a common route that people would take when I was on patrol and they

would get in pursuits,” where people would run to when he was after them. Using a map and a


                                                 3
laser pointer, Detective Mathiews demonstrated his route to the jury and testified that when he

got to south 5th Street, he turned north and saw “a dark colored SUV stopped in the roadway on

the right side of the road,” which drew his attention because “it’s not a highly traveled road.

It was parked not near the entrance to a business or the entrance to a residence. It wasn’t an area

common for an employee parking for any of the businesses that were there. It was an area where

a vehicle, at least immediately apparent to me, didn’t have a reason to be.”


Evidence from vehicle

                Detective Mathiews approached the vehicle, which he determined was

unoccupied. Once he determined that the vehicle was unoccupied, Detective Mathiews “asked

for the return on the registration and looked inside to see if . . . there was anything consistent

with what the victim had said was taken from him.” On the floorboard of the vehicle, Detective

Mathiews found two checks payable to the victim and cash reports labeled with the name of one

of the victim’s businesses, but the money was missing. He ran the vehicle identification number

(VIN) and learned that the vehicle, a black Nissan Murano, had been reported stolen. Detective

Mathiews, who is also a crime-scene officer and fingerprint expert for the Temple Police

Department, impounded the vehicle and arranged for its transport to the police department for

forensic examination. He obtained multiple fingerprints from various areas in the vehicle and

one fingerprint from a cash receipt. He ran the fingerprints through a Texas database and

matched a print on a passenger door to the known print of Marquisha Roberts.

                Marquisha Roberts testified that she worked the midnight shift at a fast-food

restaurant where Freddy Uceta, known to her as “Free” or “Flee,” 1 was a regular customer.


       1
           The reporter’s record has three spellings for this nickname, “Free,” “Flee,” and “Flea.”
                                                  4
She stated that they flirted with one another and that he gave her his name and number on a piece

of paper. She also recalled that he once drove her home from work in a black “SUV type little

car.” She got into the front passenger seat, in the area where her fingerprints were later found.

Roberts testified that during her ride in the car, Free had a black gun in his lap. At trial, Roberts

saw a photograph that had been admitted into evidence depicting the car recovered in connection

with the robbery. She recognized the car as the one she had been in when Free drove her home.

               After Roberts’s interview, Detective Mathiews obtained Uceta’s fingerprint card

from the Bell County Sheriff’s Department. Detective Mathiews found Uceta’s fingerprints on

the inside and outside of the driver’s door and on the driver’s side window of the Nissan Murano

recovered in connection with the robbery. Detective Mathiews also found Uceta’s fingerprints

on a cash report discovered inside the car.


Testimony from vehicle’s owner

               Retired attorney Angus Barrett told the jury that he has a one-man business in

which he cleans and details cars for resale to dealerships or wholesalers. After buying a car,

Barrett updates his “title book” by noting the vehicle’s year, make, model, VIN number, seller,

purchase price, and date of sale. He testified that in September 2015, he obtained a 2007 black

Nissan Murano, thoroughly cleaned the car’s exterior and interior, and then placed it on his car

lot in Temple. He estimated that the vehicle was test driven anywhere from three to twenty

times. After one of those test drives, someone returned the car with the key stuck in the ignition.

Barrett did not have a spare key, so he decided to leave the car unlocked until he could get a

locksmith. In January 2016, Barrett noticed that the car was missing from his lot and reported it

stolen to police. He identified the vehicle that Detective Mathiews found as the one that had


                                                 5
been stolen from his lot. Barrett was able to confirm that it was his car by checking the VIN

number.

               At the conclusion of the trial, the jury convicted Uceta of aggravated robbery, and

the district court assessed punishment and rendered judgment in accordance with the jury’s

verdict. Uceta filed a motion for new trial that was denied by operation of law. This appeal

followed.


                                         DISCUSSION

“Backdoor” hearsay complaint

               Uceta contends that the district court erred by admitting “backdoor” hearsay

testimony from Officer Smith connecting the Nissan to the robbery. He complains specifically

about Officer Smith’s testifying that the victim told him what type of vehicle the robber fled in,

and as a result of what the victim told him, police looked for “a dark-colored Nissan Murano

type vehicle.” Uceta points out that the victim was unable to identify him as the robber, and

Uceta asserts that the State needed Officer Smith’s testimony to link the victim’s information to

the vehicle from which police recovered his fingerprints. As we have noted, the victim testified

that he knew the color, but not the type, of car that was involved in the robbery. The victim

testified that he relied on information from the eyewitness—who called 911 but did not speak to

police or testify at trial—to identify the type of vehicle used. The victim then relayed that

information to police.

               We review a trial court’s ruling on the admission of evidence under an abuse-of-

discretion standard. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). We

uphold the trial court’s ruling unless it is outside the zone of reasonable disagreement. Id. An



                                                6
evidentiary ruling will be upheld if it is correct on any theory of law applicable to the case.

Henley v. State, 493 S.W.3d 77, 93 (Tex. Crim. App. 2016).

               Hearsay is a statement, other than one made by the declarant while testifying at

trial, that is offered to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay is

inadmissible except as provided by statute, the rules of evidence, or other rules prescribed under

statutory authority. Id. R. 802. Under Rule 801(a), a “statement” necessarily includes proof of

the statement, whether the proof is direct or indirect.      Head v. State, 4 S.W.3d 258, 261

(Tex. Crim. App. 1999); see Tex. R. Evid. 801(a). Thus, an out-of-court “statement” need not be

directly quoted to run afoul of the hearsay rules. Head, 4 S.W.3d at 261 (citing Schaffer v. State,

777 S.W.2d 111, 114 (Tex. Crim. App. 1989)). When there is an inescapable conclusion that

evidence is being offered to prove statements made outside the courtroom, a party may not

circumvent the hearsay prohibition through artful questioning designed to elicit hearsay

indirectly. Id. Whether the disputed testimony violates the hearsay prohibition necessarily turns

on how strongly the content of the out-of-court statement can be inferred from the context. Id.

               “[T]estimony by an officer that he went to a certain place or performed a certain

act in response to generalized ‘information received’ is normally not considered hearsay because

the witness should be allowed to give some explanation of his behavior.” Poindexter v. State,

153 S.W.3d 402, 408 n.21 (Tex. Crim. App. 2005), overruled in part on other grounds by

Robinson v. State, 466 S.W.3d 166, 173 n. 32 (Tex. Crim. App. 2015); Sandoval v. State,

409 S.W.3d 259, 282 (Tex. App.—Austin 2013, no pet.). Further, extrajudicial statements or

writings offered to show what was said, rather than for the truth of the matter stated, does not

constitute hearsay. Dinkins v. State, 894 S.W.3d 330, 347 (Tex. Crim. App. 1995). “But details

of the information received are considered hearsay.” Poindexter, 153 S.W.3d at 408 n.21;

                                                7
Sandoval, 409 S.W.3d at 282. The officer “should not be permitted to relate historical aspects of

the case, replete with hearsay statements in the form of complaints and reports, on the ground

that [he] was entitled to tell the jury the information upon which [he] acted.”          Schaffer,

777 S.W.2d at 114-15; Sandoval, 409 S.W.3d at 282. “The appropriate inquiry focuses on

whether the ‘information received’ testimony is a general description of possible criminality or a

specific description of the defendant’s purported involvement or link to that activity.” Head,

4 S.W.3d at 261; Sandoval, 409 S.W.3d at 282.


Evidence connecting Uceta to vehicle used in robbery

               Uceta complains of the following testimony from Officer Smith about information

the victim provided to him identifying the robber’s vehicle:


       [Prosecutor]:          All right. And did either [the victim] or someone else
                              describe the vehicle that the armed robber - -

       [Defense counsel]:     Objection. Calls for hearsay.

       The Court:             Overruled.

       [Prosecutor]:          Judge, may I reask the question.

       The Court:             Yes.

       [Prosecutor]:          Did either [the victim] or anyone there tell you what type of
                              vehicle the armed robber had fled in?

       [Officer Smith]:       [The victim] did.

       [Prosecutor]:          All right. And as a result of what [the victim] told you,
                              were you and other officers involved looking for a vehicle?

       [Officer Smith]:       We were.

       [Prosecutor]:          What vehicle did you go looking for?


                                                  8
       [Officer Smith]:       It was -- at the time it was a dark colored Nissan Murano.


               Even if there were some error in the admission of the above testimony, it would

have been harmless. See Tex. R. App. P. 44.2(b) (instructing that any nonconstitutional error

that does not affect substantial rights must be disregarded); Cooks v. State, 844 S.W.2d 697, 738

(Tex. Crim. App. 1992) (holding that admission of fingerprint evidence during robbery trial was

harmless given other evidence admitted at trial), superseded on other grounds by Bell v. State,

415 S.W.3d 278, 281 (Tex. Crim. App. 2013). We will not overturn a criminal conviction for

nonconstitutional error if, after examining the record as a whole, we have fair assurance that the

error did not influence the jury, or had only a slight effect. Barshaw v. State, 342 S.W.3d 91, 93

(Tex. Crim. App. 2011).

               Here, when Officer Smith testified and the complained-of “backdoor” hearsay

evidence was admitted, the jury had already heard without objection the recording of the 911 call

from the eyewitness, identifying the robber’s vehicle multiple times as a black Nissan SUV.

The eyewitness specifically stated, “[Victim] took off with his truck chasing him, he’s in a black

Nissan SUV”; “The guy that robbed him is in a Nissan SUV, black”; and “The perp is in a

Nissan. . . . black, yeah SUV.” Thus, Officer Smith’s testimony was not the first or only

evidence that the jury received about the vehicle seen at the scene of the robbery. See Leday v.

State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (stating that overruled objection to evidence

will not result in reversal when other such evidence was received without objection either before

or after complained-of ruling); Washington v. State, 485 S.W.3d 633, 638-39 (Tex. App.—

Houston [1st Dist.] 2016, no pet.) (concluding that error in admission of evidence may be

rendered harmless when substantially same evidence is admitted elsewhere without objection);


                                                9
see also Alexander v. State, No. 09-05-00044-CR, 2005 Tex. App. LEXIS 10298, at *13-14

(Tex. App.—Beaumont Dec. 7, 2005, no pet.) (mem. op., not designated for publication) (noting

that same testimony police sergeant offered about description of Suburban was also offered by

other witnesses at trial).

                Further, the evidence identifying the area in Temple where the victim lost sight of

the robber’s vehicle was itself sufficient for Detective Mathiews to know where to conduct a

targeted search. In a 911 call admitted without objection, the victim’s wife reported the location

where the victim was chasing the robber: “[W]hen he called, he said he was on South 5th Street

road in Temple.” The victim also told the 911 operator that he chased the man who robbed him

at gunpoint “all the way down to the railroad tracks and I lost him.” That information from the

day of the robbery is consistent with the victim’s testimony at trial about the area where he lost

sight of the robber’s vehicle, specifically, in the area of 5th Street “by the railroad tracks.”

                Detective Mathiews overheard the victim talking to other officers at the scene

about the route that the victim drove while pursuing the robber. That area of south 5th Street

was “very familiar” to Detective Mathiews because of his many years as a patrol officer assigned

to that part of Temple. He specifically thought about a bridge on south 1st and 3rd Streets, an

overpass above railroad tracks, with access to a dirt road beneath the bridge. It was “a common

route that people would take when [he] was on patrol and they would get in pursuits.”

                When Detective Mathiews arrived at south 5th Street, he turned north and saw “a

dark colored SUV stopped in the roadway on the right side of the road,” which drew his attention

because “it’s not a highly traveled road. It was parked not near the entrance to a business or the

entrance to a residence. It wasn’t an area common for an employee parking for any of the

businesses that were there. It was an area where a vehicle, at least immediately apparent to me,

                                                  10
didn’t have a reason to be.” Some of the victim’s stolen property was discovered in that

abandoned car, a black Nissan Murano, which had Uceta’s fingerprints on the driver’s side door

and window and on a cash report found on the floorboard. Thus, information about the area

where the victim lost sight of the robber’s vehicle led Detective Mathiews to search an area in

Temple commonly used to evade police during pursuits. On arrival at that area, he saw only one

vehicle, which had no apparent reason to be there.

               We conclude that any alleged error in the admission of Officer Smith’s testimony

about the specific type of car involved in the robbery was harmless, given the evidence that the

jury heard before and after his testimony identifying the type of car used in the offense and

where it was last seen and linking it to the robbery. See Cooks, 844 S.W.2d at 738 (concluding

that any error in admission of fingerprint evidence from car believed to have been used in

robbery was harmless given subsequent testimony linking car to robbery). After examining the

record as a whole, we have fair assurance that the complained-of error in the admission of

Officer Smith’s testimony did not influence the jury, or did so only slightly. See Tex. R. App. P.

44.2(b); Barshaw, 342 S.W.3d at 93. Accordingly, we overrule Uceta’s appellate issue.

                                        CONCLUSION

               We affirm the district court’s judgment of conviction.



                                             __________________________________________
                                             Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Kelly and Smith
Affirmed
Filed: November 5, 2019
Do Not Publish

                                               11
