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                                                         OPINION

                                                    No. 04-09-00210-CR

                                                        Steve REYES,
                                                           Appellant

                                                                v.

                                                   The STATE of Texas,
                                                         Appellee

                           From the 175th Judicial District Court, Bexar County, Texas
                                        Trial Court No. 2007-CR-3792
                               Honorable Catherine Torres-Stahl, Judge Presiding

Opinion by:            Steven C. Hilbig, Justice

Sitting:               Karen Angelini, Justice
                       Steven C. Hilbig, Justice
                       Marialyn Barnard, Justice

Delivered and Filed: March 17, 2010

AFFIRMED

           Steve Reyes was indicted for assault (causing bodily injury) to a member of his family or

household.1 Included in the indictment was an allegation that Reyes was previously convicted of a

similar assault, which raised the underlying offense to a third-degree felony.2 The indictment also

included two enhancement paragraphs, each alleging Reyes had a prior felony conviction, which

           1
               … See T EX . P EN AL C O D E A N N . § 22.01(a) (Vernon Supp. 2009).
           2
               … See id. at § 22.01(b)(2).
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made Reyes eligible for punishment as a habitual offender.3 The jury found Reyes guilty of the

offense as charged in the indictment and found the enhancement allegations to be true. The trial

court sentenced Reyes to life in prison. Reyes appeals the judgment, arguing the trial court erred in

admitting a 911 recording over his hearsay and confrontation objections. Reyes also claims the

evidence is legally insufficient to support the jury’s determination he had a prior conviction for

assault against a family member. We affirm the judgment of the trial court.

                                           BACKGROUND

       On February 23, 2007, Reyes’s son called 911 at his mother’s request to seek medical help.

According to the 911 recording, the child requested assistance because his father “beat my mom.”

The caller expressed concern that his mother’s leg may be broken because she was limping and his

mother was “all beat up and she can’t move.” The child answered the 911 operator’s questions as

to whether Reyes had been drinking and possessed weapons.

       The police were dispatched to the residence where they encountered the complainant Mary

Mora. City of San Antonio police detective Juan Campacos testified he took pictures of Mora at the

scene, and the pictures were placed into evidence. Detective Campacos testified the pictures

reflected Mora had two black eyes and cuts over her eyebrows. Raul Rendon, a San Antonio patrol

officer, testified that when he arrived at the residence he saw Reyes coming from a rear bedroom.

He later saw Mora come from one of the back rooms and observed that her face and body were

injured. Officer Rendon testified Mora told him Reyes had beaten her. Mary Dye, another San

Antonio Police officer, testified that when she arrived at the scene she encountered a “fearful” child

who said that a disturbance was “going on in the back.” Officer Dye also testified Mora told her that



       3
           … See id. at § 12.42(d).

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Reyes had beaten her. At trial, Mora was a recalcitrant witness for the State. She read excerpts from

her handwritten statement made on February 23, 2007, in which she stated Reyes had beaten her.

                                  ADMISSION OF 911 RECORDING

         The audio recording of the 911 call was admitted into evidence over Reyes’s objection that

the recording was hearsay and violated his right to confront witnesses. The State argued to the trial

court that the recording fell within two exceptions to the hearsay rule – present sense impression and

excited utterance. We review the trial court’s decision to admit evidence under an abuse of

discretion standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). We will uphold

the trial judge’s decision unless it is outside the zone of reasonable disagreement. Id. We will also

uphold a trial court’s ruling admitting evidence “if the ruling is reasonably supported by the record

on any theory of law applicable to the case.” Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App.

2003).

                                              Hearsay

         Our rules of evidence contain many exceptions to the general prohibition against the use of

hearsay at trial. The present sense impression exception is defined as a “statement describing or

explaining an event or condition made while the declarant was perceiving the event or condition, or

immediately thereafter.” TEX . R. EVID . 803(1). The excited utterance exception is defined as a

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

or excitement caused by the event or condition.” TEX . R. EVID . 803(2). The Court of Criminal

Appeals recently described both exceptions as fitting the category of “unreflective statements.”

         The first set of hearsay exceptions, unreflective statements, are “street corner”
         utterances made by ordinary people before any thoughts of litigation have
         crystallized. These unreflective statements used to be called “res gestae,” an
         imprecise Latin legalese term, because the speaker was not thinking about the legal


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       consequences of his statements. In most instances, the speaker was not thinking at
       all; the statement was made without any reflection, thought process, or motive to
       fabricate or exaggerate.

Fischer v. State, 252 S.W.3d 375, 379 (Tex. Crim. App. 2008)(footnotes and citations omitted). The

court went on to explain:

       The rationale for the [present sense impression] exception is that the contemporaneity
       of the statement with the event that it describes eliminates all danger of faulty
       memory and virtually all danger of insincerity.

       ***

       The rule is predicated on the notion that “the utterance is a reflex product of
       immediate sensual impressions, unaided by retrospective mental processes.” It is
       “instinctive, rather than deliberate.” If the declarant has had time to reflect upon the
       event and the conditions he observed, this lack of contemporaneity diminishes the
       reliability of the statements and renders them inadmissible under the rule.

Id. at 380-81 (footnotes and citations omitted).

       Reyes argues the recording was not admissible under the present sense impression exception

because the recorded statements recounted past events and fail to meet the contemporaneous or

immediacy requirement of the hearsay exception. The 911 recording includes statements by the

caller that his mother was “limping” and that she “needs” an ambulance. These statements indicate

the caller was describing events as they were happening and falls within the hearsay exception of

present sense impression. The caller’s statement that his father had beaten his mother also appears

to be a description of a past event, although it is not clear from the recording when the event took

place. When an exhibit contains both admissible and inadmissible evidence, the burden is on the

objecting party to specifically point out which portion of the recording is inadmissible. Whitaker v.

State, 286 S.W.3d 355, 369 (Tex. Crim. App. 2009). A trial court does not abuse its discretion when

it admits the exhibit in its entirety if the objecting party fails to segregate the admissible from the



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inadmissible. See id. Reyes objected to the entire recording and he did not request specific portions

to be excluded. Because at least some statements in the recording appear to be a contemporaneous

statement about an event the caller was witnessing, the trial court did not abuse its discretion by

admitting the recording.4 See id.

                                               Confrontation

        Reyes also argues his right of confrontation under the Sixth Amendment was violated by the

admission of the 911 recording because he did not have a prior opportunity to cross-examine the

caller, the State did not demonstrate the caller was unavailable to testify, and the recording was

testimonial. See Crawford v. Washington, 541 U.S. 36, 68 (2004). Both parties agree the key to the

resolution of this issue is whether the recording is testimonial.

        Statements are nontestimonial when made in the course of police interrogation under
        circumstances objectively indicating that the primary purpose of the interrogation is
        to enable police assistance to meet an ongoing emergency. They are testimonial
        when the circumstances objectively indicate that there is no such ongoing emergency,
        and that the primary purpose of the interrogation is to establish or prove past events
        potentially relevant to later criminal prosecution.

Davis v. Washington, 547 U.S. 813, 822 (2006). In Vinson v. State, the court of criminal appeals

suggested a non-exhaustive list of factors to consider in determining whether the statements were

testimonial:

        1) whether the situation was still in progress; 2) whether the questions sought to
        determine what is presently happening as opposed to what has happened in the past;
        3) whether the primary purpose of the interrogation was to render aid rather than to
        memorialize a possible crime; 4) whether the questioning was conducted in a
        separate room, away from the alleged attacker; and 5) whether the events were
        deliberately recounted in a step-by-step fashion.




        4
          … Because we conclude the evidence was admissible under the present sense exception, we need not
address the State’s alternate theory that it was also admissible under the excited utterance exception.

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252 S.W.3d 336, 339 (Tex. Crim. App. 2008)(citing Davis, 547 U.S. at 829-30). We review de novo

the question of whether a statement is testimonial or nontestimonial. Wall v. State, 184 S.W.3d 730,

742 (Tex. Crim. App. 2006).

         We agree with the trial court that the statements contained in the 911 recording are not

testimonial. The 911 operator’s questions were designed to evaluate the situation at the time the call

was received in order to determine if an emergency existed that required a response. The questions

by the 911 operator clearly indicate their primary purpose was to determine the extent of the

emergency rather than memorializing information for later use in a criminal prosecution. The trial

court did not abuse its discretion in admitting the 911 recording.

                          LEGAL SUFFICIENCY – PRIOR ASSAULT CONVICTION

         In two separate issues, Reyes challenges the legal sufficiency of the evidence.5 Reyes argues

the evidence is legally insufficient to prove his prior assault conviction, and there was a material

variance between the allegation in the indictment and the proof at trial as to the date of the previous

assault conviction.6 Reyes raises legal sufficiency challenges under both federal and state due

process grounds.

         We review a federal due process challenge to the legal sufficiency of the evidence by

determining whether a rational trier of fact could have found the “substantive elements of the offense

as defined by state law” beyond a reasonable doubt. Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim.

App. 2002) (quoting Jackson v. Virginia, 443 U.S. 307, 324 n. 16 (1979)); see also Prible v. State,

         5
          … In one point of error, Reyes contends the trial court erred in failing to grant an instructed verdict due to
a variance. In his second point of error, Reyes challenges the legal sufficiency of the evidence for the same reason.
However, a complaint the trial court failed to grant an instructed verdict is a challenge to the sufficiency of the
evidence. Canales v. State, 98 S.W .3d 690, 692-93 (Tex. Crim. App.), cert. denied, 540 U.S. 1051 (2003).

         6
           … The indictment alleged the date of conviction to be July 17, 2000 in cause number 751591. The
certified copy of the judgment placed into evidence was dated June 9, 2000 in the same cause number.

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175 S.W.3d 724, 729-30 (Tex. Crim. App.), cert. denied, 546 U.S. 962 (2005) (stating sufficiency

of evidence review requires viewing the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt).

       However, when the legal sufficiency of the evidence is challenged under state law, we

measure the evidentiary sufficiency against “the elements of the offense as defined by the

hypothetically correct jury charge for the case.” Fuller, 73 S.W.3d at 252 (quoting Malik v. State,

953 S.W.2d 234, 240 (Tex. Crim. App. 1997)); see Gollihar v. State, 46 S.W.3d 243 (Tex. Crim.

App. 2001). Only allegations giving rise to material variance must be included in the hypothetically

correct jury charge. Gollihar, 46 S.W.3d at 257; see Fuller, 73 S.W.3d at 253. We decide if the

variance is material by determining “whether the indictment, as written, informed the defendant of

the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether

prosecution under the deficiently drafted indictment would subject the defendant to the risk of being

prosecuted later for the same crime.” Gollihar, 46 S.W.3d at 257 (quoting U.S. v. Sprick, 233 F.3d

845, 853 (5th Cir. 2000)).

       Prior Assault Conviction – Element of Offense or Mere Enhancement Allegation

       Central to our review is whether the allegation of the prior assault conviction is an element

of the offense or merely an allegation for the purpose of enhancement of punishment. A prior

conviction alleged for enhancement is “is not really a component element of the primary offense.”

Brooks v. State, 957 S.W.2d 30, 32 (Tex. Crim. App. 1997). Although a defendant is entitled to

notice that the State intends to enhance his punishment through the use of prior convictions,

enhancement allegations are not required to be pled in an indictment. Id. at 34. Thus, if the prior



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assault conviction is an enhancement allegation, it is not an element of the offense, and need not be

included in a hypothetically correct jury charge for a conviction of the primary offense.

       Relying on Carlton v. State, Reyes argues the allegation of the prior assault conviction is an

element of the offense for which he was charged. 176 S.W.3d 231, 236 (Tex. Crim. App. 2005).

In Carlton, the court addressed whether the allegation of a prior conviction under the evading arrest

statute was an element of the offense. The court explained that when determining “whether any

given fact constitutes an element of the offense,” the court must look to the plain language of the

statute involved and apply that plain language if it is not ambiguous. Id. at 233. If the language is

ambiguous or would lead to an absurd result, we resort to extra-textual sources to determine the

element of the offense. Id. The court began its analysis with a review of the text of section 38.04

of the Penal Code which provides in relevant part:

               § 38.04 Evading Arrest or Detention

               a) A person commits an offense if he intentionally flees from a person
               he knows is a peace officer attempting to lawfully arrest or detain
               him.

               (b) An offense under this section is a Class B misdemeanor, except
               that the offense is:

                       (1) a state jail felony if the actor uses a vehicle while the actor
                       is in flight and the actor has not been previously convicted
                       under this section;

                       (2) a felony of the third degree if:
                               (A) the actor uses a vehicle while the actor is in flight
                               and the actor has been previously convicted under this
                               section; ...

TEX . PENAL CODE ANN . § 38.04 (Vernon Supp. 2009). The court determined the statute was not

ambiguous. The court held that a conviction for the offense evading arrest as an element of a third-



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degree felony could not occur without proving the actor has previously been convicted of evading

arrest. Id. at 234. The court concluded from the plain language of the statute that a prior conviction

for evading arrest is an element for the offense of third-degree felony evading arrest. Id.

        Applying the court’s analysis in Carlton, we conclude the allegation of the prior assault

conviction is also an element of the offense of assault causing bodily injury when pled as a third-

degree felony. The structure of section 22.01, which defines the offense of assault causing bodily

injury, is similar to that of evading arrest.

        § 22.01 Assault

        (a) A person commits an offense if the person:

                (1) intentionally, knowingly, or recklessly causes bodily injury to another,
                including the person's spouse;

        ***

        (b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the
        offense is a felony of the third degree if the offense is committed against:

        ***

                (2) a person whose relationship to or association with the defendant is described by
                Section 71.0021(b), 71.003, or 71.005, Family Code, if:

                        (A) it is shown on the trial of the offense that the defendant has been
                        previously convicted of an offense under this chapter, . . . against a
                        person whose relationship to or association with the defendant is
                        described by Section 71.0021(b), 71.003, or 71.005, Family Code; . . .

TEX . PENAL CODE ANN . § 22.01 (Vernon Supp. 2009). Section 22.01(b)(2) is not ambiguous, and

the plain language of the statute requires proof of a prior conviction. Accordingly, proof of a prior

assault conviction is an element of the offense and must be included in a hypothetically correct




                                                  -9-
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charge and proven beyond a reasonable doubt. We will review the sufficiency of the evidence to

determine if the State adduced sufficient proof of this element.

         Reyes argues the State failed to prove he had been previously convicted of the requisite

assault. We disagree. The State introduced into evidence a certified copy of a judgment dated June

9, 2000 in cause number 751591. The judgment stated Reyes had pled guilty to assault and included

an affirmative finding of family violence.7 A fingerprint expert testified the judgment contained a

fingerprint impression made by Reyes. The State’s expert testified he compared the fingerprint

contained on the judgment with Reyes’s fingerprints and concluded Reyes’s fingerprint was on the

judgment. The judgment also contains the name of Mary Mora, the same complainant in the instant

case. Based on this evidence, a reasonable jury could have concluded Reyes had previously been

convicted of assault as alleged.

         Reyes also contends the date of the prior conviction is an element of the offense. We again

disagree. A hypothetically correct jury charge includes the statutory elements of the offense. Fuller,

73 S.W.3d at 253; Gollihar, 46 S.W.3d at 254. Although proof of a prior assault conviction is an

element of the offense, the date on which the conviction occurred is not an element of the offense.

TEX . PENAL CODE ANN . § 22.01 (Vernon Supp. 2009); see Fuller, 73 S.W.3d at 254 (holding name

of victim in injury to elderly case was not element of offense because statute required only proof that

an elderly individual was harmed as opposed to the name of the person). Nothing in the language

of the statute suggests the date of the prior assault conviction must be proven; it must only be shown

to have occurred prior to the present assault. TEX . PENAL CODE ANN . § 22.01 (Vernon Supp. 2009).


         7
          … Article 42.013, Texas Code of Criminal Procedure, requires the trial court to make a finding of family
violence if the offense is contained in Title 5 of the Penal Code and the court determines the offense involved family
violence as defined in section 71.005 of the Texas Family Code. T EX . C O D E C RIM . P RO C . A N N . art. 42.013 (Vernon
2006).

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The state proved the prior conviction’s date was before the current proceeding’s commencement, and

although the date was incorrect the cause number, victim, and county were correct. The State’s

failure to prove the date in the indictment does not make the evidence insufficient. See Fuller, 73

S.W.3d at 253; Gollihar, 46 S.W.3d at 254.

       Reyes also states in a conclusory manner that the variance prevented him from preparing his

defense and prejudiced his substantial rights. However, Reyes fails to demonstrate how he was

prejudiced nor does he argue he is subject to double jeopardy if the conviction is affirmed. Based

on the record, we cannot conclude the variance was material under the standard set forth in Gollihar,

46 S.W.3d at 254.

                                           CONCLUSION

       The trial did not err in admitting the 911 recording. The evidence was legally sufficient to

support the jury’s verdict. The judgment of the trial court is affirmed.



                                                       Steven C. Hilbig, Justice



PUBLISH




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