Affirmed and Opinion Filed October 28, 2024




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-00251-CR

                             VICTOR JOEL SUAREZ, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 4
                                   Dallas County, Texas
                           Trial Court Cause No. F12-71456-K

                             MEMORANDUM OPINION
                           Before Justices Bridges, Francis, and Myers
                                   Opinion by Justice Francis
       Victor Joel Suarez appeals his conviction for aggravated assault family violence. The

jury found that he used or exhibited a deadly weapon during commission of the offense and

assessed punishment at fifteen years in prison. In three issues, appellant contends the trial court

abused its discretion by admitting certain evidence. We affirm.

       Jeremy Wolf, a paramedic with the Dallas Fire Department, was called to an apartment

complex in Garland around 12:30 a.m. on June 6, 2012. Upon arrival, he found Irene Diaz and

Alicia Leos in the parking lot of the complex. Diaz and appellant, who had been dating, went

out the previous afternoon and were at his mother’s apartment when they began arguing. Diaz

tried to leave but appellant put her in a choke hold. When he released her, she again tried to

leave but he bit her nose and punched her in the eye. Appellant left the apartment, and Diaz
called Leos who then called the police. In addition to the bite, Diaz suffered a broken nose and

an orbital wall fracture. Appellant was arrested and charged with aggravated assault family

violence.

       In his first two issues, appellant claims the trial court abused its discretion by admitting

three photographs taken during a warrantless search of his mother’s apartment where he was

staying. Under these issues, appellant argues the admission of this evidence violated his rights

under the Fourth Amendment to the United States Constitution as well as Article I, section 9 of

the Texas Constitution.    Appellant does not argue that Article I, section 9 provides more

protection than the Fourth Amendment; thus, we address his complaint under the Fourth

Amendment only. See Flores v. State, 319 S.W.3d 697, 702 n.8 (Tex. Crim. App. 2010).

       During trial, Officer Ronald Trigo said he responded to the 911 call and arrived at the

parking lot while Diaz was being treated by the paramedics. According to Diaz, she and

appellant got into an argument, and it “became physical.” Appellant choked her, then punched

her in the eye and bit her nose. Trigo described how Diaz looked that night and identified

several photographs depicting her injuries. When he asked where the argument happened, Diaz

gave him the apartment number. Trigo testified he went to the apartment and took photographs

of the scene. He described the content of the three photographs: a slightly bloody rag on the

kitchen countertop, blood dripping on a wall, and the interior of the apartment. When the State

offered the photographs, appellant objected because the officers “had no authority to go in [to the

apartment] and take photographs.”

       An objection to photographic evidence is waived if the same evidence contained in the

photographs is conveyed to the jury in some other form. Ford v. State, 919 S.W.2d 107, 117

(Tex. Crim. App. 1996). Here, Trigo testified, without objection, to what he saw when he




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entered the apartment as well as what he photographed. Because appellant did not object to

Trigo’s testimony, he waived any objection to the photographs. See id.

       Even assuming the photographs were not proper evidence, we would conduct a harm

analysis to determine whether the alleged error calls for reversal of the judgment. TEX. R. APP.

P. 44.2.(a); see Hernandez v. State, 60 S.W.3d 106, 108 (Tex. Crim. App. 2001) (error resulting

from admission of evidence in violation of Fourth Amendment to be reviewed under rule

44.2(a)). We reverse the judgment unless we determine “beyond a reasonable doubt that the error

did not contribute to the conviction or punishment.” TEX. R. APP. P. 44.2.(a). Error does not

contribute to the conviction or punishment if the jury’s verdict would have been the same even if

the erroneous evidence had not been admitted. Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim.

App. 2007).

       Setting aside the complained-of photographs, the State’s evidence in this case included

Diaz’s testimony she and appellant argued, after which he choked her, then bit her nose and

punched her in the eye. The paramedics and police testified Diaz’s eye was swollen shut when

they arrived and she had a bite mark on her nose. The photographs of Diaz’s face show the

extent of her injuries, and her medical records indicate their severity. Diaz underwent surgery to

repair the damage to her eye. Dr. Paul Tiwana, a maxillofacial surgeon at Parkland Hospital,

diagnosed Diaz “with a fracture of her orbital walls as well as a laceration from a bite as well as

a nasal fracture.” According to Tiwana, it took “a substantial amount of force” to cause the

injuries and that “her walls, simply, blew out from the buckling force from the injury.”

According to the records, her ex-boyfriend punched Diaz in the face.

       On this record, we are persuaded beyond a reasonable doubt that the jury’s verdict would

have been the same even if the trial court had not admitted the three photographs of the

apartment’s interior. The State’s case was straightforward and leaves us firmly convinced that in

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the absence of the complained-of evidence, a reasonable jury would not have found the case

significantly less persuasive. We also conclude beyond a reasonable doubt that the jury’s verdict

on appellant’s punishment would have been the same even if the trial court had not admitted the

photographs. See Clay, 240 S.W.3d at 905-06. We overrule appellant’s first and second issues.

       In his third issue, appellant contends the trial court abused its discretion by allowing Wolf

to testify that Diaz told him appellant bit her and punched her in the eye.

       Initially, we question whether this objection was preserved. When the State began asking

Wolf how Diaz sustained her injuries, appellant objected “to any hearsay statements.” The State

responded that it was not hearsay under evidentiary rule 803(3). The trial court said the State

could “narrow it down to the medical treatment and what she needed to tell [Wolf] in order to

help her.” The State then asked what Diaz said regarding “how those injuries were sustained.”

Wolf responded, “I asked her how she came to get those injuries and she said that her ex-

boyfriend had hit her and bit her in the nose.” Appellant did not object to this statement.

Because he failed to timely object, appellant did not preserve error. See Saldano v. State, 70

S.W.3d 873, 889−90 (Tex. Crim. App. 2002) (failure to object in timely and specific manner

during trial forfeits complaints about admissibility of evidence). Furthermore, the record reflects

that on separate occasions during guilt/innocence, including the admission of Diaz’s medical

records and testimony from the maxillofacial surgeon who performed surgery on her eye, Diaz’s

statement that appellant hit her in the face and bit her nose came into evidence. Under these

circumstances, we conclude appellant has not presented reversible error. See Lane v. State, 151

S.W.3d 188, 192−93 (Tex. Crim. App. 2004) (party must object each time evidence is offered or

obtain running objection; error if any in admission of evidence is cured where same evidence

comes in elsewhere without objection).




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       We affirm the trial court’s judgment.




                                                     /Molly Francis/
                                                     MOLLY FRANCIS
                                                     JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2
130251F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

VICTOR JOEL SUAREZ, Appellant                      On Appeal from the Criminal District Court
                                                   No. 4, Dallas County, Texas
No. 05-13-00251-CR        V.                       Trial Court Cause No. F12-71456-K.
                                                   Opinion delivered by Justice Francis,
THE STATE OF TEXAS, Appellee                       Justices Bridges and Myers participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered October 28, 2014.




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