Affirmed and Opinion filed May 7, 2020.




                                        In The

                      Fourteenth Court of Appeals

                                NO. 14-18-00891-CR

                      BLAINE T. BOUDREAUX, Appellant

                                           V.

                        THE STATE OF TEXAS, Appellee

                     On Appeal from the 177th District Court
                             Harris County, Texas
                         Trial Court Cause No. 1590590

                                      OPINION

      A jury convicted appellant of felony murder and assessed punishment at 80
years in prison. In four issues appellant challenges his conviction on the grounds that
the (1) evidence is legally insufficient to support the verdict; (2) trial court abused
its discretion in admitting irrelevant extraneous offense evidence; (3) trial court erred
in admitting evidence of a scene diagram in violation of appellant’s right to
confrontation; and (4) trial court erred in admitting evidence of a scene diagram
because it was hearsay. We affirm.
                              FACTUAL BACKGROUND

      On April 26, 2015, at 3:03 p.m., appellant drove away from his apartment
building in a black pickup truck. The leasing agent, who saw appellant leave the
apartment complex, testified that appellant was alone in the truck when he left.

      Less than 20 minutes later, at 3:20 p.m., video showed appellant’s black
pickup truck hitting a car in front of it at a red traffic light (the “First Accident”).
The truck hit the car hard enough to push that car into the car in front of it. At the
time of the First Accident appellant’s pickup truck still had a front bumper and a
license plate. There also appeared to be no damage to the truck’s front windshield.

      Officer Zacchaeus Scott of the Houston Police Department was dispatched to
the scene of the First Accident. Scott testified that the accident involved three
vehicles and was to the right of the train tracks on Fannin Street. Scott issued a
citation to appellant for failure to control speed. The middle vehicle was driven by a
mother with a small child in the car. The child was transported to Texas Children’s
Hospital as a precaution. Scott testified that appellant admitted fault at the accident
scene claiming he was distracted by his mobile phone.

      Houston Police Officer Chad Long testified that in reviewing the video of the
First Accident he observed that appellant was driving erratically. Long testified that
right before the First Accident, appellant’s truck was straddling the lane marker, and
stayed stopped at a green light for approximately 20 seconds after all other cars had
driven through the intersection.

      Between 5:00 and 5:30 p.m. on the same day, appellant was driving
northbound on Weslayan Street when he failed to control speed and failed to stop at
a red traffic light hitting the back of a small Smart Car parked at the red light (the
“Second Accident”). Joe Sexton was the driver of the Smart Car, which was the third


                                           2
car stopped at the traffic light. Sexton “heard a screeching sound and looked in the
mirror, and there was a truck bearing down on” him. The large black pickup truck
crashed into the rear of Sexton’s car. Sexton identified appellant as the driver of the
truck and testified that immediately after the accident appellant jumped out of the
truck to check on Sexton’s well-being. Video and still photographs of the Second
Accident showed that appellant’s front bumper, license plate, and windshield were
intact after the accident.

       Samantha Mitchell was in the car in front of Sexton’s car when the Second
Accident happened. Mitchell testified that appellant’s truck bumper was intact, and
the windshield was not broken. Mitchell testified that all the cars involved in the
accident stopped in a service station parking lot so the drivers could conclude the
investigation without impeding traffic. After the Second Accident investigation
concluded appellant “peeled out” of the service station parking lot at approximately
5:45 p.m. Steve McGinnis, a bystander witness to the Second Accident, testified that
no one was in the black truck except the driver.

       Approximately 15 to 20 minutes later, Alma Balderas1 and her husband Jesus
were driving near Lockwood Drive and Interstate 10. Alma saw a black pickup truck
with a “completely damaged” front end speeding down Lockwood toward I-10.
Alma testified that the truck did not have a front bumper and the windshield was
damaged. Alma testified that the driver, whom she later identified as appellant, was
driving recklessly and appeared to be fleeing. To keep from being hit by the truck
Jesus had to drive their car onto the grassy median that separated the lanes on
Lockwood. While the truck was stopped at the traffic light Alma and Jesus observed
appellant with his head resting on the steering wheel of the truck.

       1
          Alma and Jesus Balderas testified about the Fourth Accident. For ease of reference they
will be referred to by their first names.

                                               3
      When the light turned green another driver honked because the truck was not
moving. Appellant sped away from the intersection, driving approximately 60 or 70
miles per hour. When the truck came to the next intersection, it ran the red light and
crashed into a car that was proceeding through the intersection (the “Fourth
Accident”). Jesus stopped the Balderas’s car; Alma called 911 and went to the scene
of the accident. Another bystander pulled a small boy out of the wrecked car, and
Alma realized the boy was gravely injured. The boy was later identified as six-year-
old Joshua Medrano, who later died from injuries received in the crash.

      Jesus also testified about the Fourth Accident and appellant’s driving leading
up to the accident. Immediately after the accident happened, Jesus went to the scene
to try to render aid. Jesus realized first aid would not be helpful and observed
appellant walking in circles around his truck. Jesus walked to appellant’s truck
because it appeared to Jesus that appellant might attempt to flee. Jesus saw appellant
opening the truck door appearing to look for something. Jesus testified over
objection that he saw appellant take white medicine bottles out of the truck and push
them through holes in the fence over I-10.

      Officer David Jones of the Houston Police Department Vehicle Crimes
Division responded to the scene of the Fourth Accident at 6:11 p.m. on April 26,
2015. By the time Jones arrived patrol units and Fire Department units were on the
scene. Jones spoke with appellant at the scene and placed appellant in the back of
his patrol car. Appellant was not under arrest at that time but Jones wanted to get a
statement from appellant and wanted to make sure appellant did not leave the scene.

      Appellant’s videotaped statement from the scene of the accident was admitted
into evidence without objection. Appellant stated he was the only person in his truck
but was unable to explain what happened leading up to the accident. Officer Alfonso
Garcia, who interviewed appellant, testified that appellant appeared incoherent

                                          4
during the interview. At one point during the interview, appellant told Garcia that he
had been driving his work van when the accident happened, but later corrected
himself stating that he was driving his personal truck.

      The next day, Officer Nathan Schroeder, a detective in the Houston Police
Department Hit-and-Run Division, was dispatched to an area near Texas Spur 5 in
Harris County to investigate the offense of failure to stop and render aid (“the Third
Accident”). The dispatch was a result of a citizen’s report of a body discovered in
the area. Schroeder learned during the investigation that the accident occurred the
day before on April 26, 2015. The body was later identified as Leonard Batiste, who
died as a result of multiple blunt force injuries. Parts of appellant’s truck, including
the bumper and license plate, were found near Batiste’s body. The Dodge emblem
from the front of the truck and pieces of the headlamps were also found. Schroeder
testified that the license plate found at the scene of Batiste’s body was the same
license plate number contained in the citation for failure to control speed from the
First Accident. The vehicle with that license plate was registered to appellant.

      Elizabeth Richey, a forensic examiner in the DNA unit at the FBI laboratory
in Quantico, Virginia, worked in the Houston Forensic Science Center at the time of
the accident. Richey examined known DNA samples from Batiste and compared
them with samples of blood and tissue obtained from appellant’s truck. Specifically,
Richey tested blood from the exterior front passenger side hood and the back side of
passenger side mirror, tissue from the front passenger side door, exterior front
passenger’s side hood, and passenger’s side windshield. In each of the samples
Batiste could not be excluded as being the person whose tissue and blood were on
the truck. The chances of the blood and tissue not being that of Batiste ranged from
1 in 180 billion to 1 in 10 quintillion.

      Charles Cornelius, an investigator with the Harris County District Attorney’s

                                           5
Office, drove the suspected route driven by appellant between the Second and Fourth
Accidents. Cornelius began driving on Sunday evening at 5:45 p.m., leaving the
parking lot of the service station where appellant drove away after the Second
Accident. Cornelius drove the same day of the week at the same time of day during
the same time of year as the day of the offense. Cornelius drove toward the site of
the Fourth Accident passing the site of the Third Accident where Batiste’s body was
found. The elapsed time was 17 minutes and 55 seconds putting Cornelius at the site
of the Fourth Accident at approximately 6:07 p.m. The first 911 calls from the Fourth
Accident were made shortly after that time on the date of the accident.

                          SUFFICIENCY OF THE EVIDENCE

      In appellant’s first issue he argues the evidence was legally insufficient to
support the jury’s verdict of felony murder.

      In reviewing the legal sufficiency of the evidence to support a conviction, we
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 our
review, we consider all of the evidence in the record, whether admissible or
inadmissible. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013). 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 choose to believe or disbelieve all or a portion of a witness’s testimony,
and we presume that the jury resolved any conflicts in the evidence in favor of the
prevailing party. See Marshall v. State, 479 S.W.3d 840, 845 (Tex. Crim. App.
2016).

      The jury may not draw conclusions based on speculation but may draw
                                          6
multiple reasonable inferences from facts as long as each is supported by the
evidence presented at trial. Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App.
2007). An inference is a conclusion reached by considering other facts and deducing
a logical consequence from them, while speculation is mere theorizing or guessing
about the possible meaning of facts and evidence presented. Winfrey, 393 S.W.3d at
771.

       Appellant contends in this case that the evidence was insufficient to show that
he committed an underlying felony (failure to stop and render aid to Batiste) and that
he was either in flight from that felony when he hit and killed Medrano or that he
was in furtherance of that felony at the time of the Fourth Accident.

       Felony murder essentially is “unintentional” murder committed in the course
of a felony. Rodriguez v. State, 454 S.W.3d 503, 507 (Tex. Crim. App. 2014). The
Penal Code provides that felony murder occurs when a person:

       commits or attempts to commit a felony, other than manslaughter, and
       in the course of and in furtherance of the commission or attempt, or in
       immediate flight from the commission or attempt, he commits or
       attempts to commit an act clearly dangerous to human life that causes
       the death of an individual.

Tex. Penal Code Ann. § 19.02(b)(3). There is no requirement of a culpable mental
state for “the act of murder.” Lomax v. State, 233 S.W.3d 302, 305, 306 (Tex. Crim.
App. 2007). Thus, the culpable mental state for the act of murder is supplied by the
mental state accompanying the underlying committed or attempted felony giving
rise to the act. Id. at 306.

       Under the felony murder statute, the State must prove five things: “(1) an
underlying felony, (2) an act clearly dangerous to human life, (3) the death of an
individual, (4) causation (the dangerous act causes the death), and (5) a connection
between the underlying felony and the dangerous act (‘in the course of and in

                                          7
furtherance of . . . or in immediate flight from’).” Contreras v. State, 312 S.W.3d
566, 583–84 (Tex. Crim. App. 2010). The “act clearly dangerous to human life”
must be the cause of the victim’s death. Rodriguez, 454 S.W.3d at 507. Whether the
act is clearly dangerous to human life is measured under an objective standard, not
the subjective belief of the actor. Lugo–Lugo v. State, 650 S.W.2d 72, 81 (Tex. Crim.
App. 1983). McGuire v. State, 493 S.W.3d 177, 188 (Tex. App.—Houston [1st Dist.]
2016, pet. ref’d).

I.     The evidence was sufficient to establish that appellant committed the
       offense of failure to stop and render aid.

       In his first sub-issue appellant argues he did not have the requisite knowledge
to commit the offense of failure to stop and render aid (FRSA).

       Appellant’s indictment for felony murder alleged that the underlying felony
offense was FRSA by driving and operating a vehicle that was involved in an
accident that resulted in or was reasonably likely to result in death to Batiste. A
person commits the felony offense of FRSA if he operates a vehicle involved in an
accident that results or is reasonably likely to result in injury to or death of a person
and fails to:

       (1) immediately stop the vehicle at the scene of the accident or as close
       to the scene as possible;
       (2) immediately return to the scene of the accident if the vehicle is not
       stopped at the scene of the accident;
       (3) immediately determine whether a person is involved in the accident,
       and if a person is involved in the accident, whether that person requires
       aid; and
       (4) remain at the scene of the accident until the operator complies with
       the requirements of [Transportation Code] Section 550.023.

Tex. Transp. Code Ann. § 550.021.

       Appellant argues the evidence was legally insufficient to show that he knew
                                           8
he had been in an accident that was reasonably likely to have caused a person’s
death. Appellant acknowledges there was evidence that his truck hit Batiste but
argues there was no evidence that appellant was the operator of the truck at the time
it hit Batiste or that appellant had knowledge that the accident occurred and that the
accident was reasonably likely to result in injury or death of a person.

      There is no requirement under the statute that the driver cause the accident or
that an eyewitness must see the accident and testify that the driver knew that he was
involved in an accident. Curry v. State, — S.W.3d — No. PD-0577-18, 2019 WL
5587330, at *7 (Tex. Crim. App. Oct. 30, 2019); Tex. Transp. Code Ann. §
550.021(a) (stating that a driver has certain responsibilities if he is involved in an
accident, but not specifying how the accident must have been caused or how the
driver was involved in the accident, only that he was involved). The culpable mental
state for FSRA is established by showing that the accused had knowledge of the
circumstances surrounding his conduct, meaning the defendant had knowledge that
an accident occurred, and the accident was reasonably likely to result in injury or
death of a person. Curry, 2019 WL 5587330 at *5.

      In this case the jury heard evidence that at 5:45 p.m. appellant sped away from
the site of the Second Accident in his black pickup truck with intact bumper, license
plate, and windshield. Approximately 25 minutes later, witnesses saw appellant
speeding and driving erratically in the black pickup truck, which at that time did not
have a bumper, license plate, or intact windshield. The jury also heard evidence that
appellant’s bumper and license plate were found lying near Batiste’s body. Blood
and tissue from Batiste were recovered from several locations on appellant’s pickup
truck. Witnesses to the Second Accident and the Fourth Accident testified that
appellant was the sole occupant of the pickup truck. In a videotaped statement
appellant also admitted he was the only person in the truck that day.

                                          9
      The jury also heard the testimony of Dr. Merrill Hines, the medical examiner
who conducted the autopsy of Batiste. Hines testified that Batiste died from multiple
blunt force injuries, which included extensive skull fractures, hemorrhages around
the brain, and tears and lacerations of the brain and brain stem. One skull fracture
went from ear to ear and was described by Hines as “a specific type of fracture that
is generally only seen in very high velocity impacts.” Batiste experienced multiple
leg fractures in both legs, which are frequently seen when pedestrians are struck by
motor vehicles. According to Hines, the fractures reflected that Batiste had been hit
from behind on the left side. Batiste’s left arm was “essentially amputated by blunt
force trauma.”

      Intent is a question of fact and therefore within the sole purview of the jury
for which the jury may rely on its collective common sense and apply common
knowledge and experience. Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App.
2014). A rational jury could conclude that appellant was the individual driving the
black pickup truck during the applicable 25-minute window of time. A rational jury
could also conclude, relying on its collective common sense and applying its
collective common knowledge, that a person driving a vehicle would be aware of an
impact so great that it broke the windshield, tore the front bumper off the vehicle,
and left tissue and blood from the victim on the vehicle. A rational jury could also
conclude that a person engaged in an impact great enough to cause multiple blunt
force injuries including multiple fractures all over the victim’s body would have
knowledge that the accident was reasonably likely to result in injury or death of a
person.

      Viewing the evidence in the light most favorable to the verdict, we conclude
the evidence was sufficient to establish that appellant was the operator of the truck
when it hit and killed Batiste, was aware that an accident had occurred, and was

                                         10
aware of the reasonable likelihood that someone may have been injured or killed in
the accident. See Curry, 2019 WL 5587330, at *6 (“Juries can draw any reasonable
inference from the facts so long as each inference is supported by the evidence.”).

II.   The evidence was sufficient to establish that appellant first committed the
      offense of FSRA and was in immediate flight from that offense when he
      struck and killed Medrano.

      In appellant’s second sub-issue he argues the evidence was insufficient to
show that he was in immediate flight from the offense of FRSA when he caused
Medrano’s death. To convict appellant of felony murder, the State was required to
prove a connection between appellant’s commission of FSRA and the dangerous act,
i.e., appellant hitting and killing Medrano either in the course of and in furtherance
of FSRA or in immediate flight therefrom. See Tex. Penal Code Ann. § 19.02(b).
Appellant contends he was not in flight from the FSRA when he hit and killed
Medrano. Specifically, appellant argues the distance between the location of
Batiste’s body and the Fourth Accident was several miles, and appellant fell asleep
at a traffic light right before the Fourth Accident “break[ing] the nexus” between
appellant’s alleged flight and the dangerous act.

      Appellant cites Sweed v. State in support of his position. 351 S.W.3d 63 (Tex.
Crim. App. 2011). In Sweed, in which the sole issue was whether the trial court erred
when it refused the appellant’s request to give an instruction in the jury charge on
theft as a lesser-included offense, the Texas Court of Criminal Appeals defined the
term “‘immediate’ as ‘[o]ccurring without delay; instant,’ ‘[n]ot separated by other
persons or things,’ or ‘[h]aving a direct impact; without an intervening agency’” and
applied the definition to the facts of that case. Id. at 69 n.5 (quoting Black’s Law
Dictionary 751 (7th ed. 1999)).

      The complainant in Sweed observed the defendant among his work crew at a


                                         11
construction site. 351 S.W.3d at 64. Later that day, the complainant heard one of his
employees scream that someone had pulled a knife on him. Id. The employee told
the complainant that the defendant had stolen a nail gun. Id. The complainant saw
the defendant running away with something in his hands. Id. The defendant was seen
entering an apartment, and the complainant and his father positioned themselves to
watch the apartment until the police arrived. Id.

      Between five and twenty minutes after the defendant had entered the
apartment, the complainant saw the defendant leave the apartment empty-handed
and wearing different clothing. Id. at 65. The defendant walked across the apartment
complex parking lot and spoke to a group of men for about five minutes and then
walked back in the direction of the apartment. Id. The defendant, seeing and
recognizing the complainant, approached him and waived a knife at chest level. Id.
When the defendant was about three feet away, the complainant put his hands in his
pockets and acted like he had a gun. Id. Without saying anything, the defendant
walked away and returned to the apartment. Id. These events all occurred over a
period of fifteen to thirty minutes. Id. The police arrived five to ten minutes later,
entered the apartment, located the defendant, and recovered the missing nail gun. Id.

      The defendant in Sweed was indicted and convicted of aggravated robbery.
Id. The trial court refused the defendant’s request for a lesser-included offense
instruction on theft. Id. The defendant argued that the trial court erred in denying his
request. Id. The court of appeals affirmed. Id.

      The Court of Criminal Appeals observed that if the State could not prove that
the defendant was “in the course of committing theft,” then the theft and the assault
were separate events, and the defendant could not be found guilty of robbery or
aggravated robbery. Id. at 69. Because the defendant did not dispute that he
committed the theft, the primary issue was whether he had pulled a knife on the

                                          12
complainant during or in immediate flight from the commission of the theft. Id.

      The court concluded that the 15- to 30-minute delay and the intervening
activities, including the defendant’s act of leaving the apartment, rationally could be
interpreted as evidence that he was no longer fleeing from the theft. Id. A jury
rationally could conclude that the assault was a separate event from the theft, and
the defendant could have been guilty only of the lesser offense of theft, not
aggravated robbery. Id. Therefore, based on the evidence presented at trial, the court
held that a jury instruction on the lesser-included offense of theft should have been
given. Id. at 69–70.

      Appellant argues that under the definition of “immediate” announced in
Sweed, there was no evidence to establish that he was in immediate flight after the
commission of the FSRA.

      In this case, the jury heard evidence that appellant left the scene of the Second
Accident at 5:45 p.m. and caused the Fourth Accident approximately 20 minutes
later. When appellant left the Second Accident at 5:45 p.m. witnesses testified that
his truck bumper was intact, and they did not see damage to appellant’s truck
windshield. Witnesses to the Fourth Accident testified that they saw appellant
speeding and driving erratically with no bumper on the truck and a damaged
windshield. There was no evidence that appellant encountered an “intervening
agency” as described by the court in Sweeney, or that his progress was “separated by
other persons or things” during this journey. The jury could have rationally inferred
that appellant, in hitting and killing Batiste then hitting and killing Medrano,
engaged in one continuous, criminal episode, not in a series of independent
incidents. See Zagone v. State, 565 S.W.3d 366, 371 (Tex. App.—Houston [14th
Dist.] 2018, no pet.) (noting that an appellant who was engaged in one criminal
episode without any intervening events was in immediate flight from attempted

                                          13
theft).

          Appellant argues that his alleged act of falling asleep behind the wheel of the
truck while stopped at a red light “[broke] the nexus” of the continuous criminal
episode in which he was engaged. Unlike the defendant in Sweed, appellant did not
engage in an intervening act while in flight from the FSRA that would constitute
separation by other persons or things, or an intervening agency. Appellant was seen
with his head resting on the steering wheel and another motorist had to honk at
appellant to alert him to the changing traffic signal. Appellant’s seconds-long
interlude at the traffic light did not constitute an intervening circumstance that
disrupted his continued flight from the FSRA.

          The jury also heard evidence that appellant was driving above the posted
speed limit and erratically. Jesus Balderas drove his car onto a grassy median to
avoid a collision with appellant. Jesus also testified that after appellant hit the
Medrano’s car appellant appeared as if he was going to flee the scene of the Fourth
Accident, presumably on foot because appellant’s truck was disabled. Appellant’s
attempt to leave the scene of the accident was consistent with one continuous
criminal episode and immediate flight from the FSRA. Appellant also gave
inconsistent accounts of the Fourth Accident, including appearing not to know which
vehicle he was driving.

          Viewing the evidence in the light most favorable to the verdict, the evidence
was sufficient to establish that appellant was in flight from the FSRA when he
committed an act clearly dangerous to human life.

          Appellant also asserts the evidence is insufficient to establish that he was in
the course of committing the act of FSRA when he committed an act clearly
dangerous to human life. Because we have determined the evidence is sufficient to
establish immediate flight, we need not address this sub-issue. The elements of
                                             14
felony murder in this case require proof of either immediate flight from the felony
or “in furtherance of” commission of the felony. See Tex. Penal Code Ann. §
19.02(b)(3). We conclude the evidence was sufficient to support a conviction for
felony murder and overrule appellant’s first issue.

                              ADMISSION OF EVIDENCE

      In appellant’s second issue he contends the trial court erred in admitting
evidence of the first two accidents and the destruction of the pill bottles.

I.    Appellant did not preserve error on the admission of evidence about the
      first two accidents.
      Before testimony began appellant argued a motion in limine seeking to
exclude evidence of the first two accidents that occurred on the day of the offense
and evidence of appellant discarding pill bottles after the Fourth Accident. Appellant
objected to admission of evidence of the first two accidents under Rules of Evidence
401, 402, 403, and “potentially 404(b).” Appellant argued that evidence of the first
two accidents could potentially mislead the jury and was not relevant to the charged
offense. The trial court determined that evidence of the first two accidents was
relevant under Texas Rule of Evidence 402.

      At trial, Officer Jorge Roman of the Metropolitan Transit Authority Police,
testified that a Houston Police Officer asked for video footage that would reflect the
First Accident. Appellant objected to admission of the video footage arguing the
video was inadmissible under Texas Rules of Evidence 401, 402, and 403. The State
argued that the video was admissible to show the timeframe in which appellant
committed the offense of FSRA. Appellant further argued the video was
inadmissible under Texas Rule of Evidence 404(b). The video of the First Accident
was admitted over appellant’s objection. Appellant did not request a running
objection, and Officer Roman testified about the First Accident without objection.

                                          15
Appellant’s relevance objection to photographs of the First Accident was overruled.

      When Sergeant Chad Long of the Houston Police Department Hit-and-Run
Division, testified, the State introduced still photographs of the First Accident.
Appellant’s only objection was that the still photographs were cumulative of the
video evidence. The trial court overruled appellant’s objection to the cumulative
nature of the photos.

      Appellant did not object to other evidence that the State introduced regarding
the First Accident, including introduction of appellant’s traffic citation from the First
Accident, the tow documentation from that incident, Officer Roman’s testimony
about his observations of the surveillance video, Officer Scott’s testimony about his
interaction with appellant after the accident, the remainder of Officer Long’s
testimony, and the testimony of the tow truck driver.

      With regard to the Second Accident, appellant objected to the introduction of
still photographs, which reflected the damage to the Smart Car, asserting the
photographs were irrelevant. When the State offered still photographs of the
surveillance video, appellant objected under the “best evidence” rule and requested
a running objection under Rules 402, 403, and 901. Three witnesses testified about
the events before, during, and after the Second Accident. Appellant did not object to
their testimony on relevance grounds.

      To preserve error based on the erroneous admission of evidence, an appellant
must make a timely and specific objection in the trial court. Tex. R. Evid. 103(a);
Tex. R. App. P. 33.1(a); Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012).
Additionally, an objection must be made each time inadmissible evidence is offered
unless the complaining party obtains a running objection or obtains a ruling on his
complaint in a hearing outside the presence of the jury. Lopez v. State, 253 S.W.3d
680, 684 (Tex. Crim. App. 2008); Merrit v. State, 529 S.W.3d 549, 556 (Tex. App.—
                                           16
Houston [14th Dist.] 2017, pet. ref’d). Because appellant did not object to the
witness testimony about the first two accidents under Rules 401, 403 or 404(b),
appellant failed to preserve this issue for appellate review.

      We overrule appellant’s sub-issue challenging admission of evidence about
the first two accidents.

II.   The trial court’s error in admitting evidence that appellant discarded the
      pill bottles did not affect appellant’s substantial rights.

      Before Jesus Balderas testified appellant objected to any testimony about
appellant discarding pill bottles through the fencing over I-10 following the Fourth
Accident. Appellant argued that the evidence was inadmissible under Texas Rules
of Evidence 402, 403, and 702. The State argued the evidence was relevant to show
appellant’s motive for flight. The State explained that Rule 702 did not apply
because it did not intend to offer Jesus Balderas as an expert witness. On appeal
appellant argues the trial court abused its discretion in admitting evidence of the
destruction of the pill bottles because the evidence “constituted irrelevant,
extraneous offense or bad act evidence, in violation of Texas Rules of Evidence 401,
403, 404(b).”

      We review the trial court’s decision to admit or exclude evidence, as well as
its decision as to whether the probative value of evidence was substantially
outweighed by the danger of unfair prejudice, under an abuse of discretion standard.
Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018).

      Evidence is relevant if it has any tendency to make the existence of any
consequential fact more or less probable than it would be without the evidence. See
Tex. R. Evid. 401; Mayes v. State, 816 S.W.2d 79, 84 (Tex. Crim. App. 1991); Lopez
v. State, 200 S.W.3d 246, 251 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).
To be relevant, evidence must be both material–that is, it must be offered for a

                                          17
proposition that is of consequence to the determination of the case–and probative,
such that it makes the existence of the fact more or less probable than it would
otherwise be without the evidence. Henley v. State, 493 S.W.3d 77, 83 (Tex. Crim.
App. 2016).

      In other words, proffered evidence, to be relevant, must “have influence over
a consequential fact.” Foster v. State, 909 S.W.2d 86, 88 (Tex. App.—Houston [14th
Dist.] 1995, pet. ref’d). Relevant evidence need not, by itself, prove or disprove a
particular fact as long as it provides at least a “small nudge” toward proving or
disproving a material fact. Gonzalez, 544 S.W.3d at 370. see also Stewart v. State,
129 S.W.3d 93, 96 (Tex. Crim. App. 2004). In determining relevance, courts must
examine the purpose for which particular evidence is being introduced. Layton v.
State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009). “It is critical that there is a
direct or logical connection between the actual evidence and the proposition sought
to be proved.” Id.

      Appellant was charged with felony murder. The State argues that appellant’s
act of discarding the pill bottles was connected to the offense of felony murder
because, “Evidence that the appellant had apparently incriminating evidence in his
vehicle at the time of the fourth accident shows that the appellant did not dispose of
this evidence after he struck Mr. Batiste. Thus, it tended to show that he was still in
flight from the FSRA when he struck the Medranos’ car.” To the contrary, there is
no evidence that the pill bottles contained incriminating evidence, that they even
contained pills, or that the discarding of the bottles showed evidence of flight. The
trial court erred under Texas Rule of Evidence 402 in admitting evidence tending to
prove both the existence of the pill bottles and a motive based thereon; because this
evidence was irrelevant, the court also erred under Texas Rule of Evidence 403
because there was no probative value concerning any relevant fact and the absence

                                          18
of such facts was outweighed by the danger of unfair prejudice. See Peters v. State,
93 S.W.3d 347, 353 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (trial court
erred in admitting evidence that did not directly relate to a fact of consequence in
the case).

      Having determined the trial court erred in admitting evidence that appellant
discarded the pill bottles, we must address whether the erroneous admission was
harmful. The erroneous admission of evidence is non-constitutional error that
requires reversal, i.e., is harmful, only if the error affects appellant’s substantial
rights. Gonzalez, 544 S.W.3d at 373. Non-constitutional errors that do not affect
appellant’s substantial rights must be disregarded. See Tex. R. Evid. 103(a); Tex. R.
App. P. 44.2(b); Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). Error
affects substantial rights only if the error had a substantial and injurious effect or
influence in determining the jury’s verdict. Gonzalez, 544 S.W.3d at 373. If we have
a fair assurance from examination of the record as a whole that the error did not
influence the jury, or had but a slight effect, we will not overturn the conviction. Id.
In making this determination, we consider (1) the character of the alleged error and
how it might be considered in connection with other evidence; (2) the nature of the
evidence supporting the verdict; (3) the existence and degree of additional evidence
indicating guilt; and (4) whether the State emphasized the error. Id. We consider
everything in the record and may consider the jury instructions, the parties’ theories
of the case, and closing arguments. Motilla v. State, 78 S.W.3d 352, 355–56 (Tex.
Crim. App. 2002).

      Appellant argues that he was harmed by the admission of the evidence about
the pill bottles because “it suggested that [appellant] was intoxicated by whatever
medication was in the bottles.” The record reflects, however, no discussion about
the content of the pill bottles and no allegation that appellant was intoxicated by

                                          19
ingesting what was in the bottles. Jesus’ testimony about the pill bottles was brief,
covering two pages in a multi-volume trial record from a trial that took place over
several days. The jury heard plenty of other evidence of appellant’s actions on the
day of the offense and his motive for flight from the Third Accident, including his
apparent desire to flee the scene and his apparent disregard for the accident’s victims.
Reviewing the record as a whole we do not harbor grave doubts that the error
affected the outcome of the trial. See Webb v. State, 36 S.W.3d 164, 182–83 (Tex.
App.—Houston [14th Dist.] 2000, pet. ref’d). We overrule appellant’s second issue.

III.    The trial court did not abuse its discretion in admitting the accident site
        diagram through Officer Jones’s testimony.
        In appellant’s third and fourth issues he contends the trial court erred in
admitting State’s Exhibit 150, a computer-generated diagram of the Fourth Accident
site.

        As part of Officer David Jones’s investigation, he took measurements of the
Fourth Accident scene. Jones mapped the scene by measuring the final resting
position of each vehicle and any debris found at the accident. Jones also measured
“Skid marks, tire marks, rubs, gouges, scratches, [and] things like that.” The
measurements taken by Jones were entered into a computer program that created a
diagram of the accident scene. In this case the measurements were entered into the
computer by another officer, Officer Nguyen, who did not testify at trial. Both Jones
and Nguyen were present at the accident scene. The State introduced Jones’s scene
diagram into evidence as State’s Exhibit 150.

        Appellant objected on Confrontation Clause and hearsay grounds alleging the
diagram was a scientific document and appellant was entitled to confront the officer
who created the document. U.S. Const. Amend. VI; Crawford v. Washington, 541
U.S. 36, 50–52, 59 (2004). Jones testified that no scientific calculations went into

                                          20
making the scene diagram. Jones took measurements and Nguyen entered those
measurements into a computer program. The trial court overruled appellant’s
objection and admitted the scene diagram into evidence. After the scene diagram
was admitted into evidence Jones did not testify about the diagram. After conducting
the investigation Jones determined that appellant, by running the red light, was the
driver at fault in the accident.

      Officer Craig Sartor, an accident reconstructionist with the Houston Police
Department, later testified using State’s Exhibit 150, the accident site diagram, to
reconstruct the accident. Appellant did not object to Sartor’s use of the diagram in
his testimony.

      Appellant asserts that admission of the accident site diagram violated his right
to confrontation. 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. “[T]o
implicate the Confrontation Clause, an out-of-court statement must (1) have been
made by a witness absent from trial and (2) be testimonial in nature.” Woodall v.
State, 336 S.W.3d 634, 642 (Tex. Crim. App. 2011) (citing Crawford, 541 U.S. at
50–52, 59). Once both those conditions have been met and the Confrontation Clause
has been implicated, testimonial hearsay is admissible only where “(1) the declarant
is unavailable and (2) the defendant had a prior opportunity to cross-examine the
declarant.” Woodall, 336 S.W.3d at 642. Where the State seeks to introduce
testimonial statements into evidence through a surrogate, the State must establish
that the surrogate has at least some personal knowledge that the declarant’s
statements are true or else the statements are constitutionally inadmissible. See
Burch v. State, 401 S.W.3d 634, 635–38 (Tex. Crim. App. 2013) (reviewer who
“basically double-checked everything” the analyst did without actually conducting

                                         21
or observing tests could not testify as to test results).

      Invoking the United States Supreme Court’s decision in Bullcoming v. New
Mexico, 131 S. Ct. 2705, 2710 (2011), appellant argues he was entitled to confront
Nguyen as the individual who prepared the scene diagram. The Court in Bullcoming
was presented with the issue of

      whether the Confrontation Clause permits the prosecution to introduce
      a forensic laboratory report containing a testimonial certification—
      made for the purpose of proving a particular fact—through the in court
      testimony of a scientist who did not sign the certification or perform or
      observe the test reported in the certification. We hold that surrogate
      testimony of that order does not meet the constitutional requirement.
Bullcoming, 131 S. Ct. at 2710. The concern in Bullcoming was the admission of
testimonial scientific evidence in documentary form sponsored by another scientist
“who had neither observed nor reviewed” the analysis. Id. at 2712.

      Here, rather than a laboratory report, as in Bullcoming, appellant objects to
the introduction of an accident site diagram. Neither side argues, nor do we dispute,
that the accident scene diagram was testimonial in nature as that term is defined in
Crawford. See 541 U.S. at 59.

      Appellant urges that Jones’s opinion about the scene was “based on Officer
Nguyen’s observations about the scene.” Appellant’s argument assumes that the
accident site diagram was not based on Jones’s observations at the scene. Appellant
specifically complains that “Officer Jones could not have provided testimony about
the scene as conveyed in State’s Exhibit 150 without relying upon and conveying
the truth of Officer Nguyen’s out-of-court assertions that resulted in the diagram.

      Appellant’s assumptions misrepresent the record. The record reflects that
Jones had personal knowledge of the scene and was the person who took the
measurements used to create the scene diagram. Nguyen merely entered Jones’s

                                            22
measurements into a computer program that generated the diagram. Jones was not a
surrogate witness serving as a mere conduit for another analyst’s opinions.
Moreover, Jones did not base his testimony about the cause of the accident on the
scene diagram. When asked what specific pieces of evidence Jones relied on in
determining who was at fault, Jones responded, “We relied heavily on the witness
statements.” Jones explained that in the Fourth Accident they were fortunate to have
unbiased witnesses at the scene to corroborate which vehicle was at fault.

       Jones’s personal knowledge of the accident site and lack of reliance on the
diagram distinguish this case from Bullcoming and Texas cases following
Bullcoming’s holding. See e.g., Burch v. State, 401 S.W.3d 634 (Tex. Crim. App.
2013). In Bullcoming and Burch, the courts held that admission of a lab report
created solely by a non-testifying analyst, without calling that analyst to sponsor it,
violates the Confrontation Clause. See Paredes v. State, 462 S.W.3d 510, 517 (Tex.
Crim. App. 2015). Doing so deprives a defendant of his opportunity to cross-
examine the non-testifying expert about the conclusions contained in the report and
how the non-testifying expert arrived at those conclusions. Id.

       This case is distinguishable because the testifying witness was more than a
surrogate for the non-testifying witness’s report. Jones had personal knowledge of
the accident site and actually took the measurements used to create the diagram.
Because Jones had personal knowledge of all the matters included within the
diagram, appellant could adequately challenge its accuracy, including any
statements contained within it and the measurements from which it was created,
through his cross-examination of Jones. Moreover, Jones did not rely on the scene
diagram in his testimony at trial. The trial court, therefore, did not abuse its discretion
in admitting evidence of the scene diagram. See Paredes, 462 S.W.3d at 518–19. We
overrule appellant’s third issue.

                                            23
      In appellant’s fourth issue he contends the accident site diagram was
inadmissible as hearsay. Hearsay is a statement made other than by the declarant
offered into evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d).
A “statement” is an oral or written verbal expression or nonverbal conduct of a
person, if it is intended by the person as a substitute for verbal expression. Tex. R.
Evid. 801(a). The basis for the rule against hearsay is that such testimony is not
subject to testing through cross-examination. Matz v. State, 14 S.W.3d 746, 747
(Tex. Crim. App. 2000).

      Appellant argues that State’s Exhibit 150 was inadmissible hearsay, which
implicates the Court of Criminal Appeals opinion in Cole v. State, 839 S.W.2d 798
(Tex. Crim. App. 1990). In Cole, the court held that a Department of Public Safety
chemist’s report was a “matter observed by law enforcement personnel” and
therefore, inadmissible under the public records exception to the hearsay rule. Id. at
806; Tex. R. Evid. 803(8)(B). To resolve the issue, the court employed a two-prong
test: (1) whether the reports were objective, routine, scientific determinations of an
unambiguous factual nature prepared by officials with no inherent motivation to
distort the results and (2) the adversarial context in which the relevant tests were
conducted. Id. at 808–09. The court noted the reports at issue were “remarkably
subjective in nature as well as remarkably imprecise and subject to individual
interpretation.” Id. at 808.

      In this case, the scene diagram required measurements and mathematical
computations, which were conducted by Jones, the officer who testified at trial.
There is nothing in the record to suggest that the diagram was subjective in nature,
imprecise, or subject to interpretation. Texas courts have not generally treated
demonstrative evidence, such as a diagram, as inadmissible hearsay. See Pierce v.
State, 777 S.W.2d 399, 413 (Tex. Crim. App. 1989); Clay v. State, 592 S.W.2d 609,

                                         24
613 (Tex. Crim. App. 1980); Vollbaum v. State, 833 S.W.2d 652, 657 (Tex. App.—
Waco 1992, pet. ref’d).

      Here, Jones was at the scene and took all the measurements required to create
the diagram. Jones adopted the diagram as his own based on his direct knowledge of
the accident scene. The fact that Jones did not input the data into the computer
program that created the diagram does not automatically render the diagram hearsay.
See Mayfield v. State, 848 S.W.2d 816, 819 (Tex. App.—Corpus Christi 1993, pet.
ref’d) (diagram drawn by prosecutor was admissible through testimony of police
officer who assisted in drawing the diagram and testified it was a fair representation
of what it represented). The trial court did not abuse its discretion in admitting the
diagram over appellant’s hearsay objection.

      We overrule appellant’s fourth issue.

                                   CONCLUSION

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




                                       /s/    Jerry Zimmerer
                                              Justice



Panel consists of Justices Zimmerer, Spain, and Hassan.
Publish — Tex. R. App. P. 47.2(b).




                                         25
