                             NUMBER t3-12-00605-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI               - EDINBURG
MARIA ALMAGUER,                                                             Appellant,




THE STATE OF TEXAS,                                                         Appellee.


                    On appeal from the 93rd District Court
                         of Hidalgo County, Texas.


                         OPINION ON REHEARING

               Before Justices Garza, Benavides, and Perkes
                Opinion On Rehearing by Justice Benavides
      We issued our original opinion in this cause on April 10,2014. Both appellant,

Maria Almaguer, and the State of Texas filed their respective motions for rehearing. After

due consideration, we søa sponfe withdraw our previous opinion and judgment and

substitute the following opinion and accompanying judgment in their place. See TEX. R.
APP. P. 19.1. Almaguer's motion for rehearing is denied, and the state of rexas's motion

for rehearing is dismissed as moot.

       By five issues, Almaguer appeals her convictions for one count of manslaughter,

seeTex. PENALCoDEANN. S 19.04 (West, Wesflawthrough 2013 3d C.S.), a second-

degree felony enhanced          to a first-degree felony; one count of murder, see rd. $
19.02(bX3) (West, Westlaw through 2013 3d C.S.), a first-degree felony; and two counts

of intentionally or knowingly causing serious injury to a child, each first-degree felonies,

see rd $ 22.04(e) (west, westlaw through 2013 3d               c.s.).   For the reasons stated below,

we vacate in part, and we affirm in part.

                                         l.      BACKGRoUND

       ln the early morning hours of June 14, 2008, McAllen police and first responders

answered    a   medical emergency call involving 23-month-old                   lsmael.i One of      the

responding police officers, Rogelio castillo, recalled that lsmael was unresponsive and

not breathing. cris cisneros, a paramedic who transported lsmael to McAllen Medical

center, described lsmael as "flaccid" and "limp" at the scene. Doctors pronounced lsmael

dead a short time later.

       Later that same day, lsmael's mother, Almaguer, provided a statement to McAllen

police about the facts surrounding lsmael's death. ln her statement, Almaguer told police

that in the evening leading up to his death, lsmael complained to her about stomach pain.

Almaguer stated that she attempted to monitor lsmael's health from home, but as the

night progressed, Almaguer decided to call g-1-1 for help because lsmael,s health

worsened. Almaguer further disclosed to police that child protective Services (cps) and




      I We will use first names throughout this opinion in
                                                           order to protect the minors' ident¡ties
McAllen Police lnvestigator Pablo Lopez were already investigating her related to an arm

injury that lsmael had suffered three days prior to his death. At the time of her original

statement to the police, CPS workers had removed lsmael's siblings from the home.

       Norma Jean Farley, M.D., performed an autopsy on lsmael for the State. Dr.

Farley opined that lsmael died as a result of blunt force abdominal trauma. Specifically,

Dr. Farley noted that lsmael had a "gaping laceration" of his duodenum, which is a part

of the small intestine, which led to blood and fecal material spilling into the abdominal

cavity. Dr. Farley also observed a "right abdominal wall hematoma with intramuscular

hemorrhage," and "right back intramuscular hemorrhage most consistent with a blow(s)

to the abdomen" such as by a "punch or kick, etc." ln sum, Dr. Farley testified that the

manner of lsmael's death was homicide.

      After the autopsy findings were disclosed on June 16, 2008, lnvestigator Lopez

obtained an arrest warrant for Almaguer's arrest. Almaguer, however, could not be

located. McAllen police later received information from Mexican authorities that Almaguer

was located in Mexico and that the Mexican authorlt¡es were "ready to return her to the

United States." Almaguer was returned to the United States at the Roma, Texas port of

entry, where she was arrested and booked at the Starr County Jail.

      On June 18, 2008, McAllen police transported Almaguer back to McAllen, where

she provided police with another written statement. ln this second statement, Almaguer

reaffirmed the information given in her first statement, "except the part [about] how my

son lsmaell got hurt." Almaguer stated in her second statement:

      I don't remember but I remember hitting |smaell w¡th my right foot on his
      stomach. fismael] fell down but he got up and later stopped crying. I don't
      know why I did and didn't think I had hurt him that bad. I just kept saying
      for God to forgive me and I carried him for a bit. I then left him sitting on the
      floor.
         The State indicted Almaguer for one count of capital murder, one count of felony

murder, and two counts of injury to a child. Almaguer was tried by a Hidalgo County jury

and was convicted of one count of manslaughter, a lesser-included offense; one count of

murder; and two counts of injury to a child. The jury assessed Almaguer's punishment at

life imprisonment for each count, and the trial court ordered the sentences to            run

concurrently. This appeal followed.

                             ll.    RrcHT To REoPEN EVDENCE

         By her first issue, Almaguer asserts that the trial court reversibly erred by not

allowing her to reopen her defense for further testimony.

A.     Standard of Review and Applicable Law

         We review a trial court's decision on a motion to reopen evidence for an abuse of

discretion. See Smlfh v. Sfafe, 290 S.W.3d 368, 373 (Tex. App.-Houston           [4th   Dist.]

2009, pet. refd). The test for whether the trial court abused its discretion is whether the

actionwasarbitraryorunreasonable. Statev.Mechler,153S.W.3d435,439(Tex.Crim.

App. 2005). A court "shall allow testimony to be introduced at any time before the

argument of a cause is concluded, if it appears that it is necessary to a due administration

of   justice." TEX. CoDE CRIM. PRoc. ANN. art. 36.02 (West, Westlaw through 2013 3d C.S.).

"Due administration of justice" requires a showing that the evidence is more than just

relevant-it must actually make a difference in the case. Peek v. Sfafe, 106 S.W.3d 72,

79 (Tex. Crim. App. 2003). ln other words, a judge is required to reopen the case if the

evidence would materially change the case in the proponent's     favor. /d
 B,   Discussion

        lmmediately after both sides closed and rested, Almaguer requested to reopen the

evidence in order for Almaguer to provide additional testimony for the      jury. Almaguer
argues that the trial court reversibly erred by not allowing her to reopen the evidence in

order to "refute the main theories the state was advancing against he/' and "refute the

claim that ilsmaell was only ill in her care, provide another suspect, and to clarify/explain

the questions raised in cross examination regarding the child's injuries and her care of

the child." We disagree.

       The following relevant exchange took place in the trial court, outside of the

presence of the jury, following Almaguer's motion to reopen the evidence:

       DEFENSE COUNSEL:            My client has instructed me-she's not using
                                   these terms, but I guess I would be obligated,
                                   based on what my client is telling me, to move
                                   to reopen. She has indicated to me and has
                                   instructed me that she has additional testimony
                                   that perhaps ldid not ask that she wants to
                                   provide to the jury.

                                   And again, it's contrary to my advice but I'd like
                                   to put her on the stand to at least use that as a
                                   basis to allow me an opportunity to move to
                                   reopen based on her desire to provide additional
                                   testimony to the ladies and gentlemen of the
                                   jury.

                                   And we have advised her that this perhaps
                                   could open other doors, other areas that were
                                   not gotten into, and perhaps we did not ask
                                   certain questions because we wanted to avoid
                                   certain areas, and based on our trial strategy,
                                   we have opted for the strategy that we have
                                   exercised in this case. And our trial strategy is
                                   contrary to what she wants us to do. But I feel
                                   compelled to put her on the stand and advise
                                   her of that and proceed accordingly.

Almaguer then testified to the following during a voir dire examination by defense counsel:
O.   Ma'am, did you hand a paper to [defense co-counsel] about what you
     wanted to tell the jury?

A.   Yes, that is so.

O.   ls this the paper?

A.   Yes.

O.   Why don't you just cover real briefly each point that you want to talk
     about. Will you discuss very briefly each point that you want us to
     elicit in front of the jury. Go down to number one. What is it about?

A.   I want to explain the reason why the child went to the hospital in
     January.

O.   That's one issue. The second issue?

A.   And I also need to explain-well, that was number two what I said
     first because I was not reading.

O.   What is number one?

A.   ln reality to explain why the child went to the hospital in January. And
     also to explain why, in December, why I took then the child to my
     house. I mean Decemb er 2007 .

O.   The third one?

A.   And I also want the jury to know that while the child was in the
     custody of Sara Espinoza, I took the child three or four times to the
     pediatrician.

O.   Next one?

A.   And I also want that to be clear and to explain when I took the child
     to the hospital when he has this little ball over here in his head.

O.   Next one?

A.   I want the full report that Jessica made from the very beginning when
     they took away my children, all my children.

O.   Next one?
       A.     I also want to be shown the report that fformer CPS caseworkerl
               llliana Moreno did, that the jury be shown that. And one of the most
              important reasons is that I want to explain, and I also want to say
              who are all the members of my family that were living in my house,
              and who are the members of my family that I have seen here, and
              who are the members of my family that I haven't seen in four years,
              here at court in the county, and that I haven't seen and neither my
              family knows anything about that person.

              And this is to me is very important because that person back then
              was for me very important and instead of asking me for help to
              investigate this case, then instead I am the one being sitting here.

       o.     What other item?

       A.     This is for me very important, extremely important.

       o.     Ma'am, stop. What other item, ma'am?

       A.     And also lwould like to explain why I didn't like the manner Sarita
              was taking care of my child, how she took care of it, why I didn't like
             that.

       o.    What other item?

       A.    And what was the reason why I went to the hospital [sic] Edinburg.

       o.    What other items are on the paper?

      A.     Where and how I met flsmael's father] and his family.

       o.    ls that all the concerns on that paper?

      A.     Yes.

The trial court denied Almaguer's motion and explained its ruling as follows:

      Okay. Ms. Almaguer, your request to reopen is denied. you have had due
      process in this case. I'm not go¡ng to allow you to bring the wheels of justice
      to a screeching halt. lf any one defendant were to try to do what it is you
      are trying to do, this court and any other court anywhere would only be able
      to try one case a year. I've heard your request. lt's denied.

      For the record, your lawyers have done an excellent job. you should have
      Iistened to their advice. The evidence is closed and we're in recess.
       We construe the trial court's ruling as an implicit finding that Almaguer's proposed

testimony was unnecessary to the due administration of justice-that is, it would not have

made a difference in her case. See      rd.   Almaguer's proposed testimony appears to

involve topics other than the ultimate question at issue: whether her acts or omissions

caused lsmael's death. Having reviewed the voir dire testimony, we conclude that the trial

court did not abuse its discretion by denying Almaguer's request to reopen the evidence.

See Mechler, 153 S.W.3d at 439. Almaguefs first issue is overruled.

                              lll.   MULTIPLEPUNISHMENTS

       By her second issue, Almaguer argues that her multiple convict¡ons and
punishments violate the constitutional protections against double jeopardy. See U.S.

Co¡rsr. amend. V, XIV; TEX. CoNSr. art. I g    14. This issue was raised by Almaguer's
counsel during the trial court's pronouncement of sentence and was overruled by the trial

court; it was raised again in a motion for new trial, which was denied by operation of law

on January 3, 2013. See Tex. R. App. P. 2l .8(c). The State concedes Almaguer's point

on appeal and agrees that only one judgment in this case can stand, and the others must

be vacated. Therefore, our sole inquiry in this issue is to determine which of the four

judgments of conviction remains. See Tex. R. App. P. 47.1.

A.     Applicable Law

       It is undisputed in this case that all of Almaguer's convictions are the "same" for

purposes of double jeopardy. when a defendant is convicted of multiple offenses that

are the "same" for double-jeopardy purposes, case law tells us that the conviction for the

"most serious" offense is retained and the other conviction is set aside. Ex pañe Cavazos,

203 S.W.3d 333, 337 (Tex. Crim. App. 2006).
        Cavazos ovenuled prior case law which allowed courts to examine other      factors-
i.e. degree of the felony, range of punishment, and rules governing parole eligibility and

awarding of good-conduct    timÈas     "tie breakers" in retaining the most-serious-offense.

See ld. at 338 (overruling Landers v. State,957 S.W.2d S5B, 559-60 (Tex. Crim. App.

1997) (en banc)); see a/so 41 GeoRcE E. Drx & JoHN M. scHMoLEsKv, cRrn¡rrlnL pRecrrce

& PRocEDURE g l9:16 (3d     ed.20l3) ("The court. . . had second thoughts lafter Landersl

about entering the thicket of parole eligibility and awards of good      time.").     Under

cavazos, we look to one factor rather than several in determining the most-serious

offense-that is, the most serious offense is the offense with the greatest sentence

assessed.    /d.   lf the sentences are equal in terms of years, we may look to see if

restitution was added as additional punishment, and if so, that is the most serious offense.

See ld. at 338-39.

       The court of criminal appeals re-visited this issue two years later, however, in

Bigon v. State,252 S.W.3d 360,372-73 (Tex. Crim. App. 2008). ln Bigon, the defendant

was convicted of multiple offenses for the same conduct, which the Court held violated

the double-jeopardy provision. ld. at 372. The court sought to set aside five of the

defendant's six convictions under the cavazos test, but the punishment assessed for

each conviction was equal. See ld. at 373. As a result, the court of criminal appeals

looked to the degree of the felony for each offense to determine which was most serious.

See Bigon,252 S.W.3d at      373. Thus, the court affirmed the defendant's      first-degree

felony murder conviction and vacated the remaining second-degree felonies. see      ld rhe
Bþon court further reaffirmed the policy reasons behind applying the "most serious test"

to double-jeopardy violations-that is, (l ) it eliminates arbitrary decisions based upon the
order of the offenses in the charging instrument; and (2) public safety is insured through

the deterrent influence of penalties. Id. at 373 (citing Landers, 957 S.W.2d at 559).

        When convictions are of the same punishment and same degree, courts may use

other factors in determining the most serious offense. For example, in viilanueva v. stafe,

227 s.w.3d 744,749 (Tex. crim. App. 2007), the court of criminal appeals utilized an

affìrmative finding of use of a deadly weapon in one firsldegree felony to vacate another

equal first-degree felony where an affirmative finding of use of a deadly weapon was not

made.

        ln Ruth v. Sfafe, No. 13-10-00250-CR, 201 I WL 3840503, at --6-9 (Tex.       App.-
Corpus Christi Aug. 29, 2011, no pet.) (mem. op., not designated for publication), this

court faced a situation in which a defendant was subject to multiple punishments for the

same offense in violation of the double jeopardy provision. ln determining which of three

convictions should be retained, we noted that each of the convictions were identical under

the Cavazos, Bigon, and Villanueva holdings. ld. at       *8.   As a result, we faced    ,,an


unsettled question" of law, and chose to return to pre-cavazos case law which retained

the "first-indicted offense" to "break the tie" when all else was equal, since the court of

criminal appeals expressly declined to address the issue in cavazos. see rd. (citing Ex

pafte Cravens,805 S.W.2d 790,791 (Tex. Crim. App. 1991) (en banc); Ex pañe Sitter,

686 S.W.2d 617,620 (Tex. Crim. App. 1985) (en banc)).

B.      Discussion

        Almaguer was convicted of: (1) one count of manslaughter,        a   lesser-included

offense to capital murder and a second-degree felony enhanced to a first-degree felony

based upon a finding of "true" that Almaguer had been once before convicted of a felony

offense, see Tex. PENAL CoDE ANru. g 1 9.04; (2) one count of felony murder, a first-degree


                                            l0
felony regardless of enhancements, see ld. S 19.02(bX3); (3) intentionally or knowingly

caus¡ng serious bodily injury      to a child by act, a first-degree felony       regardless of

enhancements, see       id   S 22.04(e); and (4) intentionally or knowingly causing serious

bodily injury to a child by omission, a firsldegree felony regardless of enhancements, see

rd   The jury assessed punishment for each count at life imprisonment with a g10,000 fine

and no restitution.

        First, we are unable to utilize Cavazos's greatest-sentence-only test in this case

because the punishment for each conviction is equal. See Cavazos,203 S.W.3d at33B.

However, by applying Bigon and Víllanueva, we conclude that Almaguer's manslaughter

conviction, as a second-degree felony before enhancements, should be set aside. See

Bigon,252 S.W.3d at 372-73. We note that the State takes an identical position in its

briefing. Therefore, we hereby vacate Almaguer's conviction of manslaughter under

count one of trial court cause number CR-2 17-09-8. See ¡d

        By vacating Almaguer's manslaughter charge, we are now left to determine which

one of the three remaining first-degree felonies should be upheld. Here, all three

convictlons are equal   in:   (1) the assessment of punishment, see Cavazos,203 S.W.3d

at 338; (2) the degree of offense, see B¡7on,252 S.W.3d at 372-7j; and (3) deadly

weapon findings, see Villanueva, 227 S.W.3d at        749. Furthermore, we distinguish our
holding in Ruth and find it inapplicable to this particular case. Generally, when applying

the principle in Ruth, the conviction that should be affirmed "is the offense named in the

first verdict form," and typically will be the offense described in count one of the indictment.

See Rufh, at"8; Cavazos, 203 S.W.3d at 339 n.        8.   Here, the offense named in the first

verdict form, and likewise described in count one of the indictment was the offense of

capital murder, under which the jury found Almaguer guilty of the lesser included offense


                                              11
 of manslaughter. However, because we have vacated Almaguer's                               manslaughter

 conviction, we are unable to utilize the "firslindicted offense" test in this case.

         As a result, we further explore this issue herein because of the continuing lack of

clarity in the controlling authorities and recurrent problems in applying these authorities

in different scenarios where the offenses are equal no matter which factors are applied to

determine the most serious offense. Both Almaguer and the state agree that only one

conviction should remain; but neither party directs us to any authority                     to make that
determination on direct appeal. More specifically, the state "defers to this court" in its

briefing.

        we have applied all of the existing controlling authority from the majority opinions

of the court of criminal appeals, as well as precedent from this court, and we must

therefore seek guidance from Presiding Judge Keller's dissent in Bigon.2 ln it, she states

the following:

        Although I authored Landers, the practical impossibillty of determining in
        some cases which offense is really the most serious has convinced me that
        it would be preferable to simply give the local prosecutor the option to
        choose which conviction to retain. Making the matter a function of
        prosecutorial discretion seems to be most consistent with our prior
        recognition that a prosecutor in this type of situation is entifled to ,,submit
        both offenses to the jury for consideration" and receive "the benefit of the
        most serious punishment obtained." lf a subjective decision is to be made,
        let the local prosecutor who exercised the decision to bring the case make


          2 We note that the
                              Aust¡n Court issued a post-Cavazos opin¡on that utilized parole and good time
considerations as a tie-breaker when all other tie-breakers yield an equal result. See Witt¡ams v. State,24O
S.W.3d 293, 300 (Tex. App.-Austin 2007, pet. rcfd); but see Ex pafte Wittiams, No. WR-69021-04, 2013
WL 5872880, at "1 (Tex. Crim. App. Oct. 30, 2013) (grant¡ng Williams the opportunity to file an out-of-time
pet¡tion for discretionary review of the judgment of the Third Court of Appeals' decisÌon).

         We do not rcad Cavazos as expans¡vely as the Wi ¡ams Court and decline to extend its holding
today. However, even if we were to utilize parole and good time considerations as a tie-breaker in thia
case, the three remaining convictions would nevertheless remain equal. Pursuant to government code
section 508.145(dX1), see TEX. cov'r CoDE ANN. S 508.14S(dX1) (West, Wesflaw througtr2o13 C.S.), read
in conjunction with article 4212 or the code of criminal procedure, see TEX. coDE cRtM. pRoc. ANN.
art.42.12S 3g(axlXA), (l) (West, Westlaw through 2013 C.S.), Almaguer is not eligible for release on parole
for any of the remaining three convict¡ons for 30 calendar years.


                                                    12
       it. lndeed, doing so would be consistent with at least one of our decisions-
       Ex pafte Ervin, [991 S.W.2d 804,817 (Tex. Crim. App. 1999)] the very case
       relied upon to find a double-jeopardy violation here.

Bigon,252 S.W.3d at 374 (Keller, P.J., dissenting). Absent any authority to the contrary,

we adopted Presiding Judge Keller's suggestion and ordered this cause abated and the

issue remanded to the trial court for the local prosecutor's office       to decide   which

conviction should be retained as the "most serious." See ld.

       On May 27,2014, pursuant to this Court's abatement order, the trial court held a

hearing to give the Hidalgo County District Attorney's office an opportunity to decide which

of the following remaining convictions (counts two, three, and four of kial court cause

number CR-2 17-09-8) was the most serious offense. Almaguer was not present at the

hearing, but was represented by counsel. The tr¡al court found that Almaguer's presence

was not required and proceeded with the hearing. At the hearing, the state elected that

the charge of murder as alleged in count two of Almaguer's indictment to be the most

serious offense. The trial court accepted the State's election and recommended that this

court retain Almaguer's conviction for murder and vacate the remaining two convictions

as a violation of the prohibition against double jeopardy.

      We reinstated this appeal on June 13,2014. After due consideration, we accept

the State's election that Almaguer's conviction for murder, as alleged in count two of her

indictment, is the most serious offense. See rd. Accordingly, we vacate and set aside

Almagueis convictions for intentionally or knowingly causing serious bodily injury to a

child by act (count three); and intentionally or knowingly causing serious bodily injury to

a child by omission (count four) because to retain them would violate          Almaguer's

protection against double jeopardy. See Ex pafte Cavazos,2O3 S.W.3d at337; Landers,
957 s.w.2d at 559-60. This therefore leaves Almaguer's conviction for murder, as

alleged in count two, as the only judgment of conviction remaining.

       Almaguer's second issue is overruled.

              lV,     SuppREsstoN oF ALMAGUER'S JuNe 18, 20Og STATEMENT

       By her third issue, Almaguer asserts that the trial court erred in denying her pre-

trial motion to suppress her June 18, 2008 statement because it was obtained following

an allegedly unlawful seizure of her in Mexico in violation of "treaties" between the United

States and Mexico and the Fourth Amendment. See U.S. Cor.¡sr. amend lV.

A.     Standard of Review

       We review a trial court's denial of a motion to suppress undera bifurcated standard

of review. Tunubiate v. State,399 S.W.3d 147,150 (Tex. Crim. App. 2013). We give

almost total deference to a trial court's determination of historic facts and mixed questions

of law and fact that rely upon the credibility of a witness, but apply a de novo standard of

review to pure questions of law and mixed questions that do not depend on credibility

determinations. Mañinez v. State,348 S.W.3d 919,922-23 (Tex. Crim. App. 2011)

(internal citations omitted).

       When the trial court does not issue findings of fact, as here, f¡ndings that support

the trial court's ruling are implied if the evidence, viewed in a light most favorable to the

ruling, supports those findings. Tunubiate,399 S.W.3d at 150 (citing State v. Keily,204

s.w.3d 808, 818-19 (Tex. crim. App. 2006)). Almost total deference is given to the trial

court's implied findings, especially those based on an evaluation of witness credibility and

demeanor.    /d   we will sustain the trial court's ruling if it is reasonably supported by the

record and is correct on any theory of law applicable to the case. /d.
       B. Discussion
       1. Waiver
       As a preliminary matter, the State argues that Almaguer waived this issue on

appeal because she offered her June 18, 2008 statement as Defense Exhibit 3 after it

had already been offered by the State and admitted into evidence by the trial court. We

are unpersuaded by the State's argument.

       'As with error preservation in general, the rule that a later statement of          ,no

objection' will forfeit earlier-preserved error is context-dependent." Thomas v. sfafe, 409

S.W.3d 877, 885 (Tex. Crim. App. 2013). ln our review of error preservation, we do not

focus exclusively on the statement itself, in isolation, but should consider it in the context

of the entirety of the record.    ld.   ln other words, if the record as a whole plainly
demonstrates that the defendant did not intend, nor did the kial court construe, his',no

objection" statement to constitute an abandonment of a claim of enor that he had earlier

preserved for appeal, then the appellate court should not regard the claim as "waived,"

but should resolve it on the merits.   /d   However, if from the record as a whole we simply

cannot tell whether an abandonment was intended or understood, then, consistent with

prior case law, it should regard the "no objection" statement to be a waiver of the earlier-

preserved eftot. Id.

       ln this case, Almaguer filed a pre-trial motion to suppress the June 18,2008

statement, which the trial court denied. The suppression hearing took place over several

months, with several witnesses testifying, including officers from the McAllen police

Department, a lay witness from Mexico, and an expert law professor from the University

of Houston Law Center. Additionally, when the State offered Almaguer's June 18, 2008

statement at trial, Almaguer's counsel reiterated her pre-trial objections, which were


                                               l5
 overruled. Based upon this record, we cannot conclude that Almaguer's offer of Defense

 Exhibit 3, after a lengthy suppression hearing and re-urging of her objections at trial,

constituted an abandonment of her claim of error. see             rd   Accordingly, we will address

the merits of Almaguer's third issue.

        2. Analysis
        Almaguer, a Mexican citizen who was unlawfully living in McAllen, alleged that she

was involuntarily taken by Mexican authorities from the city of Miguel Aleman,
Tamaulipas, Mexico, in the days following lsmael's death.3 Almaguer was in Mexico

visiting her friend Luis Cuatemoc Ramos. Almaguer asserts that her June 18,                      2OOg

statement was taken as a result of an unlawful seizure in violation of international law and

treaties, which would render her statement inadmissible.

        Ramos, a Mexican national and Almaguer's friend from Miguel Aleman, testified

that Almaguer arrived at his residence in June 2008 and that they both left in her vehicle

to buy food. Ramos recalled that a policeman then stopped their vehicle, followed by

about "four or five" other police vehicles. Ramos recalled that Mexican authorit¡es

transferred Almaguer to another vehicle and that they were looking for Almaguer because

they had received information about her. Finally, Ramos testified that he observed

another unidentified man take Almaguer away from local police.

        McAllen Police Chief Victor Rodriguez testified that in June 2008, he received a

call from former Starr County Sheriff Rey Guerra, who had information about Almaguer's

whereabouts in Mexico. According to Chief Rodriguez, Sheriff Guena put him in touch



        3 The record
                     shows that the Mexican government hired outside legal counsel to be present at the
inception of Almague/s case. However, when the State elected not to seek the death penalty against
Almaguer, the Mexican government's counsel no longer attended the proceedings.
 wilh a "comandante Lerma" in Mexico.a chief Rodriguez testified lhat comandante

 Lerma told him that the Mexican authorities had Almaguer in custody and were "ready to

 return her to the   u.s." chief    Rodriguez testified that he advised comandante Lerma to

 speak and coordinate Almaguer's return to the United States with the Federal Bureau of

 lnvestigation's (FBl) Liaison special Agent Jorge cisneros.s chief Rodriguez stated that

it is the McAllen Police Department's "pract¡ce and custom" to utilize the FBI's liaison

officer in Mexico when a suspect is arrested in Mexico and the McAllen police Department

seeks that individual's return to the United States. Finally, Chief Rodriguez testified that

once Almaguer's custody transfer was coordinated between the Mexican authorities and

special Agent cisneros, special Agent cisneros traveled to Mexico and coordinated her

release with McAllen police officers on the united states side of the Roma, Texas

international port of entry.

        ln support of her motion to suppress, Almaguer elicited the testimony of university

of Houston Law center professor Jordan Paust at the pre-trial hearing as an expert on

her rights under international law.6 Based upon his review of this case, professor paust

opined as follows through his affidavit that was admitted into evidence:

        Customary and treaty-based international law was violated in this case
        (assuming facts alleged and testified to) when a U.S. F.B.l. agent (1) took
        [Almaguer] into custody in Mexico, (2) handcuffed [Almaguer] in Mexico, (3)
        transferred [Almaguer], (4) with a gun, to and into the U.S. at an
        international bridge at the Roma port of entry without a request for or
        consent of the Government of Mexico to engage in any such law
        enforcement and sovereign conduct in Mexico.

        4Chief Rodr¡guez could neither recall Comandante Lerma's f¡rst name nor the agency for which he
worked in Mex¡co.

        5The record indicates that attempts were made to subpoena Special Agent Cisneros to testify;
however, Special Agent Cisneros did not testify at any time in the proceedings belòw.

        6 According to Professor Paust's curriculum v¡tae, he is the Mike and Teresa Baker Law Center
Professor at the Un¡versity of Houston Law Center who teaches internat¡onal law and ¡nternational criminal
Iaw at the University of Houston, as well as a published author on the subject of international law.



                                                   17
         Furthermore, Professor Paust explained that Chief Rodriguez's actions of calling

 comandante Lerma to "initiate the law enforcement process in Mexico" were as if he was

"acting in Mexico . . . as if [he was] physically present there." According to professor

Paust, these actions violated the 1979 united states-Mexico Extradition Treaty (the

"Extradition Treaty"). see Extradit¡on Treaty Between the united states of America and

the United Mexican States, U.S.-Mex., May 4,1978,31 U.S.T. 5059.

         Therefore, in light of Almaguer's argument, our inquiry turns upon whether the

united states violated the Extradition Treaty by seizing Almaguer in Mexico through

Mexican law enforcement, who then effectively deported her to the united States. we

conclude that it did not.

         As Professor Paust noted, the united states supreme court held in unlfed sfafes

v.   Alvarez-Machain,5o4 u.s. 655, 668-69 (1992), that to infer from the Extradition Treaty

and its terms that it "prohibits all means of gaining the presence of an individual outside

of its terms goes beyond established precedent and practice."      !d.   ln Alvarez-Machain,

respondent Humberto Alvarez-Machain, who was a citizen and resident of Mexico, was

forcibly kidnapped from his office and flown by private plane to El paso, Texas, where he

was arrested by united states Drug Enforcement Agency (DEA) officials for his role in

the murder of former DEA special agent Enrique camarena. see rd. at 657. Alvarez-

Machain successfully convinced the district court to dismiss the charges brought against

him for lack of jurisdiction because his abduction violated the Extradition Treaty. See rd-

at 658. The court of Appeals for the Ninth circuit upheld the dismissal and held that

Alvarez-Machain's abduction violated the "purpose" of the Extradition Treaty. The united

states supreme court reversed and remanded, after concluding that the particular



                                             18
 defendant's abduction was not in violation of the Extradition Treaty. see ld. at 669 (citing

 Ker v. lllinois,    ll9   u.s. 436,44344 (1886) ("There are authorities of the highest
 respectability which hold that such forcible abduction is no sufficient reason why the party

 should not answer when brought within the jurisdiction of the court which has the right to

try him for such an offense, and presents no valid objection to his trial in such court.")).

         Although Alvarez-Machain sought different relief than Almaguer-i.e., dismissal of

charges for want of jurisdiction versus suppression of alleged illegally obtained evidence

       find Almaguer's arguments similar to those advanced by Alvarez-Machain. we are
-we
unpersuaded by any arguments made by Almaguer to depart from the U.S. Supreme

court's precedenf in Alvarez-Machain and conclude that Almaguer's purported abduction

was not in violation of the Extradition Treaty.T see rd. at 66g. we overrule Almaguer's

third issue.s

                            V.      ADMtsstBtltw oF pRoR CoNVtcfloNS

        By her fourth issue, Almaguer complains of the trial court's admission of evidence

of her prior convictions. Almaguer argues that the trial court erred by admitting irrelevant



        7   Professor Paust's affidavit and testimony discuss two relevant pos&A/varez-Machain documents
that support h¡s argument. The first ¡s entitled the "Memorandum of Understanding Between the
Government of the United States of Mexico and the Government of the United States of America on
Procedures for Cooperat¡on Regarding Law Enforcement Activities" entered into in 1999, which professor
Paust argues "can operate like an Execut¡ve Agreement." However, neither Professor paust's affidavit or
testimony nor Almaguer's briefing cite any authority to support that the 1999 Memorandum of
understanding may be ¡nterpreted as an authoritative source as it relates to this issue on appeal.

        The second document is entitled "The 2001 Agreement" between former U.S. President George
W. Bush and former Mexican President Vicente Fox. Professor Paust and Almaguer argue that it "has tñe
force and effect of an Executive Agreement under internationel law in view of thé fact tñat it ís constituted
by formalexchange of letters by the Presidents of each country and creates a 'comm¡tment. . . ."'Again,
however, the briefs do not cite, nor do we find any authority supporting such an argument, and the record
does not contain these purported letters exchanged between the two þresidents. -

        Accordingly, we find both arguments inadequately briefed for our rev¡ew. see TEX. R. App. 38.1(i).

        I We express no opinion about whether
                                              Almaguer is without remedy against those individuals whom
she alleges se¡zed her without authority in Mexico. See generally Kerv. t¡t¡nois,119 U.S.436, 444 (1886).


                                                     19
character conformity evidence, see TEX. R. EvtD.            401 404(b), or, if relevant, the
testimony's probative value was substantially outweighed by the danger                of   unfair

prejudice. See Tex. R. EvtD. 403.

       A. Standard of Review and Applicable Law
        1.   Rule 404(b)

       we review a trial court's decision to admit or exclude evidence over a rule 404(b)

objectionforanabuseof discretion. SeeMontgomeryv.State, g1OS.W.2d 372,3g1

(Tex. crim. App. 1990) (en banc). stated another way, we will not disturb a trial court's

ruling if it was "at least within the zone of reasonable disagreement." /d.

       When a party attempts to adduce evidence of "other crimes, wrongs or acts,,' in

order to preserve error on appeal, the opponent ofthat evidence must object under rule

404(b) in a timely fashion. Montgomery, 810 s.w.2d at 387. once a complaint is lodged,

it is incumbent upon the proponent of the evidence to satisfy the trial court that the "other

crime, wrong, or act" has relevance apart from its tendency "to prove character of a person

in order to show that he acted in conformity therewith." /d. (citing Tex. R. Evro. 404(b)).

lf the trial court determines the     evidence has no relevance apart from character

conformity, then the evidence is absolutely inadmissible, and the trial court has no

discretion to admit   it. /d. However, the proponent   of the evidence may persuade the trial

court that the "other crime, wrong, or act" has relevance apart from character conformity-

i.e., that it tends to establish some elemental fact, such as identity or intent; that it tends

to establish some evidentiary fact, such as motive, opportunity or preparation, leading

inferentially to an elemental fact; or that it rebuts a defensive theory by showing, e.g.,

absence of mistake or accident. TEX. R. EvD. 404(b); Montgomery, BlO S.W.2d at 3g7-

88. only     if we can say with confidence that "by no reasonable perception of common


                                             20
exper¡ence can it be concluded that proffered evidence has a tendency to make the

existence of a fact of consequence more or less probable than it would othen¡vise be, then

it can be said the trial court abused its discretion to admit that evidence. /d. at 391

Moreover, when it is clear to the appellate court that what was perceived by the trial court

as common experience ís really no more than the operation of a common prejudice, not

borne out in reason, the trial court has abused its discretion.    Id.   lf we find error, in our

review, we evaluate the error for harm-that is, whether the error affected the defendant's

substantial rights. See TEX. R. App. P.44.2(b).

       2.   Rule 403

       we likewise measure the trial court's      ruling to admit or exclude evidence under

rule 403 for an abuse of discretion. see Montgomery, Bl0 s.w.2d at 391. similar to

rulings under rule 404(b), we will not reverse a trial court's ruling if it was within the zone

ofreasonabledisagreement. SeeWeelerv.State,67S.W.3dS79,88B(Tex.Crim.App.

2002) (en banc).

       Once an objection is made under rule 403, the trial court is called upon to weigh

probativeness of the evidence against its potential for "unfair" prejudice-that is, "its

tendency to suggest decision on an improper basis, commonly, though not necessarily,

an emotional one." see Montgomery, 810 s.w.2d at 389 (internal quotations and

citations omitted). Rule 403 imposes a duty upon the trial court to inquire from the

opponent about the purported prejudice from the admission of the evidence.        /d   Likewise,

the trial court should ask the proponent to articulate his need. /d. once rule 403            is

invoked, however, the trial court must engage in        a   balancing   test. Id. Finally, the
language of rule 403 that evidence "maybe excluded if its probative value is substantially

outweighed by the danger of unfair prejudice," TEX. R. EvD. 403 (emphasis added),


                                             21
simply means that trial courts should favor admission in close cases, in keeping with the

presumption of admissibility of relevant evidence. Montgomery, B10 S.W.2d at 389.

B.     Discussion

       Almaguer complains about the admissibility of certain testimony from McAllen

Police lnvestigator Lopez. Specifically, Almaguer objected under rule 404(b) and rule

403 to testimony regarding lnvestigator Lopez's attempts to locate Almaguer at her

residence following lsmael's death and his subsequent discovery of a business card left

by Almaguer's parole officer regarding an upcoming appointment. The trial court held a

hearing outside the jury's presence and overruled Almaguer's objections. The following

testimony at trial is at issue:

       [STATE]:                   We took a break, I think you said that you had
                                  gone back to the defendant's residence, 1812
                                  North 4th Street, at a time after having met with
                                  her family at the funeral home?

       INVESTIGATOR LOPEZ]: Yes, sir.

       lsTATEl:                   To locate her again, and that while there, you
                                  came across a business card that had been Ieft
                                  for Ms. Almaguer?

       IINVESTIGATOR LOPEZI: Yes.

       [DEFENSE     COUNSEL]: We reiterate all of our objections and may we
                                  incorporate all arguments previously made and
                                  ask for a ruling on all objections.

       THE   COURT:               Objections have been noted by the court and
                                  heard by the court and overruled.

       IDEFENSE GOUNSEL]: Thankyou, Your Honor.

       [STATE]:                   Can you tell the jury what kind of card had been
                                  left for Ms. Almaguer?




                                          22
       INVESTIGATOR LOPEZ]: lt was a card from her parole officer advising
                            them of a scheduled appointment for the next
                            day, to be on Tuesday.

       [STATE]:                     Did you attempt to contact the parole officer?

       IINVESTIGATOR LOPEZI: Yes, I did.

       [STATE]:                     And did you gather further information from the
                                    parole officer in an attempt to locate the
                                    defendant?

       IINVESTIGATOR LOPEZI:Yes, I did.

       lnvestigator Lopez later testified that after meeting with Almaguer's parole officer,

he did not locate Almaguer, obtained a warrant for her arrest, and broadcast to police a

"be on the lookout" (BoLo) notice for Almaguer. Almaguer argues that the trial court

abused its discretion by allowing into evidence this portion        of lnvestigator Lopez's
test¡mony over her objections. We disagree.

      As the proponent of lnvestigator Lopez's testimony, it was incumbent upon the

state to satisfy to the trial court that the "other crime, wrong, or act" had relevance apart

from its tendency "to prove character of a person in order to show that she acted in

conformity therewith." Tex. R. EvtD. 404(b); Montgomery, BlO S.W.2d at 387. During the

hearing outside the presence of the jury, the state argued that the evidence had relevance

to exhibit Almaguer's consciousness of guilt; that is, the reason for going to Mexico was

"so important that she was going to miss a parole [appointment]." "criminal acts that are

designed   to reduce the likelihood of prosecution, conviction, or incarceration for the
offense on trial are admissible under Rule 404(b) as showing 'consciousness of guilt."'

Ransom v. State,920 S.W.2d 288,299 (Tex. Crim. App. 1994); see Johnson v. Sfafe,

263 S.W.3d 405,426 (Tex. App.-Waco 2008, pet. refd). Therefore, we conclude that

evidence of Almaguer's parole appointment, and lnvestigator Lopez's follow up with her



                                            23
parole officer had relevance apart from its tendency to prove character conformity-that

is, the motive for her departure to Mexico shorfly after lsmael's death and funeral. see

Montgomery, S'10 S.W.2d at 391; see also Ransom,920 S.W.2d at 299.

       Finally, Almaguer argues that even if such testimony was relevant, its probative

value was substantially outweighed by its unfair prejudice. see Tex. R. EvrD. 403. we,

again, disagree. once a rule 403 objection is made, the trial court is called upon to

conduct a balancing test by considering several factors such                as: (l) the probative value
of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way;

(3) the time needed to develop the evidence; and (4) the proponent's need for the

evidence. See Erazo y. Sfafe, 144 S.W.3d 487,489 (Tex. Crim. App.2004) (citing

Montgomery, 810 s.w.2d at 389-90). courts have held that the probative value of a

crime showing consciousness of guilt may outweigh its prejudicial impact. see Ransom,

920 s.w.2d at 299. The record shows that the trial court heard both the state's and

Almaguer's arguments in favor and against its admission, recognized that it was a close

call,e and ultimately favored admission, keeping with the presumption of admissibility of

relevant evidence. see Montgomery, 810 s.w.2d at 389. Accordingly, we conclude that

the trial court's ruling under Almaguer's rule 403 objection was within the zone of




      s Prior   to overruling Almague/s rule 403 objection, the trial court made the following observation:

      Well, I agree there is sufficient evidence to find that she was not at the funeral and was
      evidently not where she could be interrogated with respect to the results of the autopsy or
      anything else.

      And the State insists on going forward with this. I don't know that it's necessary, but that's
      the State's prerogative to pursue this.

      l'm going to overrule the objections and allow   it.




                                                     24
 reasonable disagreement and not an abuse of discretion. see rd. at 3g1. Almaguer's

 fourth issue is overruled.

                       Vl.     Our-oF-CouRT DRAWNGS          AND STATEMENTS

        By her fifth and final issue, Almaguer contends that the trial court reversibly erred

 by admitting "out-of-court statements/writings and drawings" made by Almaguer,s son,

"Marco," in violation of confrontation clause of the sixth Amendment to the united states

Constitution. See U.S. CoNsr. amend.Yl; Pointerv. Iexas, 380 U.S.                 4OO,   406 (1965).10

A.      Standard of Review and Applicable Law

        The confrontation clause guarantees the right of an accused "to be confronted

with the witnesses against him." She/by y. Sfafe, 819 S.W.2d 544,546 (Tex. Crim. App.

199 1) (en banc). This right of confrontation is a fundamental right and is applicable to the

states by virtue of the Fourteenth Amendment. /d. (citing pointer,3Bo u.s. at 403). The

primary interest protected under the Gonfrontation clause is the right of cross-

examination. See She/b¡ 819 S.W.2d at 546 (citing Douglas v. AIabama,3BO U.S.415,

418 (1965). Therefore, a testimonial hearsay statement may be admitted by the trial

court in euidence against         a   defendant-consistent with the confrontation clause
guarantee-"'only where the declarant is unavailable, and only where the defendant has

had a prior opportunity to cross-examine."' De La paz v. State,273 S.W.3d 671, 6g0

(Tex. Crim. App. 2008) (quoting Crawford v. Washington, S4l U.S. 36, 59 (2004)).

        Under this framework, the primary focus in determining whether                     a   hearsay

statement is "testimonial" is based upon the objective purpose of the interview or

interrogation, not upon the declarant's expectations. see De La paz,273 s.w.3d at6g0.


       10  We note that Almague/s briefing solely argues the issue of whether the admission of the
statements and drew¡ngs constituted a Confrontat¡on-Clause violation. Accordingly, we will only address
the merits of the Confrontat¡on Clause argument in this opinion. SeeTEX.R.App.p.47.1.


                                                  25
"Ïestimony" has been defined typically as a "solemn declaration or affirmation made for

the purpose of establishing or proving some fact." Cravtford, S4l U.S. at 51 (noting the

distinction that an accuser who makes a formal statement to government officers bears

testimony in a sense that a person who makes a casual remark to an acquaintance does

not). A variety of testimonial statements have been recognized as testimonial bytheu.s.

supreme court including: ex pañe in-court testimony or functional equivalents such as

affidavits, custodial statements, prior examinations where the defendant was unable to

cross-examine, or similar pre-trial statements that declarants would reasonably expect to

be used prosecutorially. /d.

        Extrajudicial statements contained in formalized testimonial materials, such as

affidavits, depositions, prior testimony, or confessions and statements that were made

under circumstances which would lead an objective witness reasonably to believe that

the statement would be available for use at a later trial have also been recognized as

"testimonial" statements       for purposes of the Confrontation              Clause   .   td. at    52.

Furthermore, the U.S. Supreme Court noted in Davis v. Washington that most cases that

apply the Confrontation Clause involved formal statements, such as sworn testimony in

a prior judicial proceeding orformal depositions underoath. 547 U.S. B13, B2S (2006).

However, English cases "that were the progenitors of the Confrontation Clause" did not

limit exclusion to prior court testimony or formal depositions.rl /d. The determination of

whether a statement is testimonial is a question of law that we review de novo. Wall v.




        r1
         The U.S. Supreme Court noted that the Confrontation-Clause case law "invites the argument that
the scope of the Clause is limited to that very formal category." Davis v. Washingion, S47 U.S. 813, 826
(2006).




                                                  26
Sfafe, 184 S.W.3d 730, 74243 (Tex. Crim. App. 2006). lf the trial court constitut¡onally

erred, we must then evaluate for harm under Texas Rule of Appellate Procedure 44.2(a).

B.      Discussion

        1. Determination of Error
        Almaguer's argument centers              on a statement and three             drawings/writings,

admitted as State's Exhibits 146,147, and 148, made by Almaguer's son, Marco, during

a "grieve session" at the Child Advocacy Center in Edinburg, Texas on June 17, 2008,

shortly after lsmael's death.

        The State elicited testimony from former CPS investigator Jessica Fuentes that

she was the first person to tell Almaguer's other children that lsmael had died.12 Fuentes

testified that after she told the children about the death, Marco stated, "[m]y mom did it."

Fuentes further testified that Marco's sister, Julisa, told Marco "[s]hut up, it's not true."

Fuentes stated that she then separated the children into different rooms to "grieve or go

through the motion of what [she] just told them."

        Fuentes testified that she visited Marco's room and spoke                      to him, and she
described the initial conversation as follows:

        IFUENTES]:                       [Marco] stated that he-his mom did it. That he
                                         walked into the home, coming inside to use the
                                         rest room, saw his mother walking with flsmaell
                                         into the master bedroom and she closed the
                                         door, but the door did not close completely,
                                         and he saw his mom through the crack ofthe
                                         door where the hinges are and saw her stomp
                                         on flsmaell twice.

        ISTATE]:                         Now, were those the exact words that he used
                                         or is that what you understood him to mean?


          12 At the time of lsmael's death, Almaguer had four other children: (l) Julisa,
                                                                                          age 10; (2) Marco,
age 8; (3) Jacquel¡ne, age 7; and (4) lssac, age 4. Almaguer also gave birth to another child prior to her
tr¡el wh¡le incarcerated.



                                                    27
[FUENTES]:   I understood him to say that. He may not have
             used the word "hinges," but he pointed at a
             door that was there.

[sïArE]:     Do you recall the words that he used?

IFUENTES]:   Words that I recall from him is that he saw his
             mom stomp on him, on flsmaell, twice.

ISTATE]      Now, what name or what did Marco call his
             mother?

IFUENTES]:   He also called her Elsa.




ISTATE]:     What did you do when you heard this?

IFUENTES]:   I told him I would be right back. I walked out in
             the hallway to speak to my supervisor and to
             notify law enforcement.

ISTATE]:     Before you walked out, you said you told him
             you'd be right back?

IFUENTES]:   Itold him lwill be right back. There was a poster-
             size paper and markers in the room, as it is also
             used for other children to be interviewed or to
             play with while waiting in that facility. And I gave
             him permission to use the markers and the
             paper.




[STATE]:     Did he tell you anything else that he had seen
             his mother do after that?

[FUENTES]:   He stated that she walked, opened the door, the
             bedroom door, and looked around          to see if
             anybody had seen her.

[sTArE]:     Then you left him in the room and told him he
             could use the paper and the markers and
             walked out?

[FUENTES]:   Yes.




                      28
       Fuentes testified that she waited for a police investigator to arrive at the Child

Advocacy Center to interview the children before she re-entered Marco's room. Fuentes

stated that at that point, Marco provided her with "three different pictures that he had

drawn" for   her.   Fuentes testified that no one requested or directed Marco to draw.

Marco's drawings were admitted as State's Exhibits 146, 147, and 148 over Almaguer's

hearsay and Confrontation Clause objections.

       A lengthy hearing was held on these objections outside of the jury's presence. The

trial court concluded that Marco's statements and drawings were excited utterances, an

exception to the hearsay rule, see TEX. R. EvtD. 803(2), "[g]iven the nature of this case

and the fact that [Marco] had just lost his little brother." Our review of State's Exhibits

146, 147, and 148 show writings in Spanish that are translated as "My mom is mad with

flsmael] . . . because he doesn't walk or doesn't want to eat." The drawing also illustrates

Almaguer, lsmael, a door, and Marco standing behind the door, which is consistent with

the earlier story that Marco had recounted to Fuentes.

       Our first inquiry is whether the statements and drawings are testimonial hearsay

by looking upon the objective purpose of the interview or interrogation, not upon the

declarant's expectat¡ons. See De La Paz,273 S.W.3d at 680 (citing Davis,547 U.S. at

822-23). Hearsay is a statement, other than one made by the declarant while testifying

at the trial or hear¡ng, offered in evidence to prove the truth of the matter asserted. See

TEX. R. EvtD. 801(d). "Generally speaking, a hearsay statement is 'testimonial' when the

surrounding circumstances objectively indicate that the primary purpose of the interview

or intenogation is to establish or prove past events potentially relevant to later criminal

prosecution." /d. (citing Davis,547 U.S. alr822-23).




                                            29
       Here, the State used Fuentes to sponsor statements and drawings made by Marco

to prove that Almaguer stomped on lsmael. These statements and drawings are
unquestionably hearsay. see Tex. R. EvtD. 801(d). However, we conclude that these

hearsay statements were not inadmissible because they fell under the excited utterance

exception. See Tex. R. EvrD. 803(2). An "excited utterance," defined as ,,a statement

relating to a startling event or condition made while the declarant was under the stress of

excitement caused by the event or condition," is not excluded by the hearsay rule, even

if the declarant is available as   witness. see Tex. R. EvrD. 803(2). ln determining whether

a hearsay statement is admissible as an excited utterance, the court may consider the

time elapsed and whether the statement was in response to a question. zutiani v. state,

97 S.W.3d 589, 595 (Iex. Crim. App. 2003). Stated anotherway, "a reviewing court must

determine whether the statement was made 'under such circumstances as would

reasonably show that it resulted from impulse rather than reason and reflection."'    /d at
596 (quoting Fowlerv. Sfafe, 379 S.W.2d 345, 347 (Tex. Crim. App. 1964)). Here, Marco

made the disputed statements and drawings immediately or shortly after being told that

his baby brother was dead. ln other words, the record reasonably shows that these

statements and drawings were made by Marco out of impulse ratherthan through reason

or reflection. see   rd   Accordingly, we conclude that the guarantees of the confrontation

Clause were not violated by the admission statements and drawings at issue.

      a. Harmless Error Analysis
       However, assuming arguendo that the excited utterance exception did not apply

and that these statements and drawings were testimonial hearsay, we would conclude

that any Confrontation Clause error in this specific case was harmless.




                                               30
         lf the record in a criminal case reveals constitutional error, reversal of a judgment

of conviction or punishment is required unless we determine beyond a reasonable doubt

that the error did not contribute to the conviction or punishment. See Tex. R. App. p.

44.2(a). The court of criminal appeals identified several relevant factors for appellate

courts to examine when determining whether constitutional error under Crawford may be

declared harmless beyond a reasonable doubt, namely: (1) how important was the out-

of-court statement to the State's case; (2) whether the oufof-court statement was

cumulative of other evidence; (3) the presence or absence of evidence corroborating or

contradicting the out-of-court statement on material points; and (4) the overall strength of

the prosecution's case. Langham v. State,305 S.W.3d 568, 582 (Tex. Crim. App. 2010).

The court of criminal apþeals also provided the following additional guidance for appellate

courts to consider when undertaking this type of analysis:

         ln reaching [its] decision, the reviewing court may also consider, in addition
        to the factors listed above, inter alia, the source and nature of the error, to
        what extent, if any, it was emphasized by the State, and how weighty the
        jury may have found the erroneously admitted evidence to be compared to
        the balance of the evidence with respect to the element or defensive issue
        to which it is relevant. With these considerations in mind, the reviewing
        court must ask itself whether there is a reasonable possibility that the
        Crawford error moved the jury from a state of non-persuasion to one of
        persuasion on a particular issue. Ultimately, after considering these various
        factors, the reviewing court must be able to declare itself satisfied, to a level
        of confidence beyond a reasonable doubt, that the error did not contribute
        to the conviction before it can affirm it.

/d   (quoting Scoff v. Sfafe, 227 S.W.3d 670, 690-91 (Tex. Crim. App. 2007)).

        The outof-court statements and drawings at issue were arguably important to the

State's case because it provided the State with a direct eyewitness to Almaguer's role or

participation in lsmael's death. However, earlier in the trial, the jury received evidence of

Almaguer's own admission to police through her June 18, 2008 statement, where she



                                              31
stated that she "remember[ed] hitting flsmaell with [her] right foot on his stomach" before

his death.

        Furthermore, probably the most important consideration is that the record shows

that Almaguer called Marco as a witness during her case-in-chief. During his testimony,

Marco denied drawing any of State's Exhibit 146, 147, or 148 four years prior. More

specifically, he classified the assertion that he did as a "lie." lnstead, Marco recalled that

an unknown man at the Child Advocacy Center "told" him to make the drawings and then

took the drawings away from him when they were complete. Marco further testified that

Almaguer had spanked lsmael before his death, but that she never hit him in the stomach.

Finally, Marco testified that he did not know that lsmael had died until after he drew the

pictures. Marco's testimony contradicted almost entirely everything put forth by the state

on this issue. Put simply, Marco's testimony likely dissolved any reasonable possibility

that the purported Cravvford error, if any, moved the jury from a state of non-persuasion

to one of persuasion on a particular issue.

       The out-of-court statements and drawings arguably strengthened the State's case,

but even without these statements and drawings, the State's case was strong in light of

Almaguer's June 18, 2008 statement of "hitting" lsmael in the stomach, which was

inconsistent with Almaguer's prior statement              to   police about lsmael's    injuries.

Additionally, this June 18, 2008 statement corroborates Dr. Farley's testimony that lsmael

died as a result of blunt force abdominal trauma caused by a punch or a kick. Finally, the

State also presented evidence of Almaguer's flight             to Mexico immediately   following

lsmael's death, which can be taken as consciousness of guilt. Seg e.g., CIay v. State,

240 S.W.3d 895, 905,       n.ll   Cfex. Crim. App. 2007) ("Evidence of ftight evinces a
consciousness of guilt.") (internal citations omitted).


                                              32
        Accordingly, taking the record as a whole and assuming without deciding that

Crawford error exists, we are persuaded beyond        a   reasonable doubt that the jury's

verdicts in this case would have been the same even if the trial court had not admiüed

Marco's out-of-court statements and drawings. Almaguer's final issue is overruled.

                                    Vll.   CoNcLUstoN

        We vacate and set aside Almaguer's convictions for manslaughter under count

one, injury to a child by act under count three, and injury to a child by omission under

count   four. We affirm the remaining judgment of conviction for murder as alleged   in count

two of the indictment.




                                                               M.




Publish.
Tex. R. App. P.47.2(b).

Delivered and filed the
9th day of October, 2014.




                                            33
