Opinion issued December 18, 2018




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-17-00711-CR
                           ———————————
                        RAUDEL ALVAREZ, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 185th District Court
                           Harris County, Texas
                       Trial Court Case No. 1556876


                         MEMORANDUM OPINION

      The State charged Appellant, Raudel Alvarez, with attempted aggravated

kidnapping.1 Appellant pleaded not guilty. The jury found him guilty, and the trial

court assessed punishment at 55 years’ confinement. In two issues on appeal,


1
      See TEX. PENAL CODE §§ 15.01(a)–(b), 20.04(a)–(b).
Appellant argues the trial court abused its discretion by overruling two of his hearsay

objections.

      We affirm.

                                    Background

      Roxanne Hernandez was at work at a store on August 18, 2016. Appellant,

her then husband, came to the store, began cursing at her, and told her to come

outside. Appellant raised his shirt and pulled out a gun. Hernandez attempted to

close an interior door on Appellant. He then punched her in the face, and she fell to

the ground. Appellant dragged Hernandez by the hair to the front of store. Appellant

kicked her in the face, and she lost consciousness. Appellant then fled the store.

      Hernandez’s supervisor called 911. As the EMTs were arriving, Hernandez

told her supervisor, “I’m so sorry, Micah. He had a gun.”

      When the EMTs arrived, Hernandez had significant injuries to her face. Both

her eyes and mouth were swollen, and she was bleeding. The responding EMTs

made a note of Hernandez’s condition and her statement that Appellant “had a gun

with him but did not hit her with it.”

      At trial, the State presented the testimony of Hernandez’s supervisor. The

supervisor testified about Hernandez telling him that Appellant had a gun. He also

described the surveillance video that was shown to the jury. He testified that the

video showed Appellant pulling a gun out of his pants.


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      The State also moved to admit the EMT report into the record. Appellant

objected on the basis that it contained Hernandez’s statement about Appellant having

a gun. The trial court overruled the objection.

      Additionally, the State presented the testimony of the officer that investigated

the offense, Officer Polk. The State asked Polk if he learned during the investigation

that Appellant might be armed, and Polk said he did. Appellant objected, and the

trial court overruled the objection.

                                 Standard of Review

      We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); see

also Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (“The

admissibility of an out-of-court statement under the exceptions to the general

hearsay exclusion rule is within the trial court’s discretion.”). A trial court has broad

discretion in determining whether evidence is admissible as an exception to the

hearsay rule. See Zuliani, 97 S.W.3d at 595; Apolinar v. State, 106 S.W.3d 407, 416

(Tex. App.—Houston [1st Dist.] 2003) aff’d, 155 S.W.3d 184 (Tex. Crim. App.

2005). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or

without reference to any guiding rules or principles. Montgomery v. State, 810

S.W.2d 372, 380 (Tex. Crim. App. 1990). When considering a trial court’s decision

to exclude evidence, we will not reverse the ruling unless it falls outside the “zone


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of reasonable disagreement.” Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App.

1996) (internal quotations omitted). And we will uphold a trial court’s evidentiary

ruling if it is correct on any theory of law applicable to the ruling. De La Paz v.

State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

                                       Analysis

      Appellant’s issues on appeal concern the trial court’s overruling two of his

hearsay objections.     Both objections concerned testimony about Appellant

possessing a gun during the offense.

A.    Error

      Appellant’s first issue concerns the unredacted admission of the EMT report.

One passage in the report provided, “[Patient] stated [Appellant] had a gun with him

but did not hit her with it.” Appellant objected to this passage being included in the

exhibit provided to the jurors based on hearsay. The trial court overruled the

objection.

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

at a trial or hearing, offered in evidence to prove the truth of the matter asserted.

TEX. R. EVID. 801(d). Hearsay is generally not admissible unless it fits into one of

the exceptions provided by the Texas Rules of Evidence or other rule or statute. See

TEX. R. EVID. 802.




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      One exception to the hearsay rule is an “excited utterance,” which is defined

as a “statement relating to a startling event or condition, made while the declarant

was under the stress of excitement that it caused.” TEX. R. EVID. 803(2). “In

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.” Zuliani, 97 S.W.3d at 595. However, the “critical determination is

‘whether the declarant was still dominated by the emotions, excitement, fear, or pain

of the event’ or condition at the time of the statement.” Id. at 596 (quoting

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

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

      Appellant surprised Hernandez at work, kicked her, dragged her through the

office, assaulted her with his fists, and caused her to lose consciousness.

Hernandez’s supervisor immediately called 911. The record reflects that the EMT

arrived within 10 minutes of the dispatch. Hernandez testified that she was in shock,

scared, and worried when the EMT arrived. She testified that she could not

“remember speaking to the EM[T]” and that she only “remember[ed] being scared

because [she] couldn’t see.”

      We hold that Hernandez’s out-of-court statements were admissible under the

excited utterance exception to the hearsay rule. See Campos v. State, 186 S.W.3d

93, 99–100 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (holding complainant’s


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statements to police officers, made 43 minutes after robbery, were admissible under

excited utterance exception when statements were made in response to questioning

and officers testified that complainant was crying, upset, and frightened).

      We overrule Appellant’s first issue.

      Appellant’s second issue concerns testimony from the investigating officer.

Officer Polk testified that he met the complainant at the hospital. During this portion

of the testimony, the following exchange occurred:

      Q:     So in the course of your investigation, did you learn that the
             suspect may be armed?

      A:     Yes, sir.

      [Appellant’s Counsel]: Your Honor, I’m sorry. I have to re-urge the
           objection. That is back-door hearsay.

      THE COURT: Overruled.

      We do not need to reach whether the trial court abused its discretion by

overruling this objection because, even if it did, the error was harmless.

B.    Harm

      The erroneous admission of a hearsay statement is non-constitutional error; it

entitles the defendant to reversal only if it affects the defendant’s substantial rights.

TEX. R. APP. P. 44.2(b); Coleman v. State, 428 S.W.3d 151, 162 (Tex. App.—

Houston [1st Dist.] 2014, pet. ref’d). A defendant’s substantial rights are affected if

the hearsay’s admission has “a substantial or injurious effect in determining the


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verdict.” Coleman, 428 S.W.3d at 162. “We do not overturn a conviction if, after

examining the record as a whole, we have fair assurance that the error did not

influence the verdict or had but a slight effect.” Id. “The erroneous admission of

hearsay does not constitute reversible error ‘if other evidence proving the same fact

is properly admitted elsewhere.’” Lamerand v. State, 540 S.W.3d 252, 256–57 (Tex.

App.—Houston [1st Dist.] 2018, pet. ref’d) (quoting Infante v. State, 404 S.W.3d

656, 663 (Tex. App.—Houston [1st Dist.] 2012, no pet.)).

      We have already held that it was not error for the trial court to admit the

statement about Appellant having a gun in the EMT report. In addition, Hernandez’s

supervisor testified that Hernandez said to him after the attack, “I’m so sorry, Micah.

He had a gun.” No objection was raised for this testimony. Later, the supervisor

provided some details on the surveillance video presented to the jury without

objection.

      Q:     Did you see the defendant with the gun on the video?

      A:     Yes.

      Q:     When was that?

      A:     . . . Mr. Alvarez approached the door and opened it and . . . he
             stepped back and pulls up his tank top and pulls out the gun.

      Because testimony that Appellant had a gun during the offense was properly

admitted multiple times in the record, any error regarding the officer’s testimony is

harmless. See Lamerand, 540 S.W.3d at 256–57.

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      We overrule Appellant’s second issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                               Laura Carter Higley
                                               Justice

Panel consists of Justices Higley, Lloyd, and Caughey.

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




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