                            NUMBER 13-17-00271-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


LUZ ALBERT HERNANDEZ,                                                        Appellant,

                                            v.

THE STATE OF TEXAS,                                                           Appellee.


                    On appeal from the 377th District Court
                          of Victoria County, Texas.


                          MEMORANDUM OPINION

            Before Justices Contreras, Longoria, and Hinojosa
               Memorandum Opinion by Justice Contreras

      Appellant Luz Albert Hernandez was convicted of aggravated assault, a second-

degree felony, and engaging in organized criminal activity, a first-degree felony. See TEX.

PENAL CODE ANN. §§ 22.02(a)(2), 71.02 (West, Westlaw through 2017 1st C.S.). The

aggravated assault count was sentenced as a first-degree felony due to a finding that
appellant had previously been convicted of robbery. See id. § 12.42(b) (West, Westlaw

through 2017 1st C.S.). Appellant was sentenced to twenty-five years’ imprisonment for

each count, with the sentences to run concurrently. By seven issues on appeal, appellant

argues: (1) the trial court erred by denying his motion for continuance; (2–3) certain

evidence should have been excluded as inadmissible hearsay; (4) his right to confront

witnesses was violated; (5–6) the evidence was legally insufficient to support certain

elements of the offenses; and (7) the trial court improperly commented on the weight of

the evidence. We affirm.

                                           I. BACKGROUND

        Appellant and four other individuals—Jesse Ray Garcia, Thomas Sedillo Cano III,

Johnathan Paul Escalona, and Florentino Tovar Jr.—were indicted for the assault of

Anibal Resendez. The indictment alleged that the five defendants, acting with the intent

to establish, maintain, or participate in a combination or in the profits of a combination or

as a member of a criminal street gang, namely the “Sureños 13,” caused bodily injury to

Resendez by “repeatedly striking Resendez in his torso, appendages, neck and head with

their hands, fists, feet and a golf club.” See id. §§ 22.02(a)(2), 71.02.1 The indictment

further alleged that the defendants used or exhibited a deadly weapon during the

commission of the assault.

        Immediately prior to the beginning of appellant’s trial in April 2017, defense counsel

announced not ready and moved for a continuance in order to have DNA testing done on

the golf club that was recovered from the crime scene and was allegedly used to assault


        1 The indictment contained three counts: the two counts on which appellant was convicted, along
with directing activities of a street gang, a first-degree felony. See TEX. PENAL CODE ANN. § 71.023 (West,
Westlaw through 2017 1st C.S.). All three counts were based on the alleged aggravated assault of
Resendez. The directing activities of a street gang count was dismissed prior to appellant’s trial.

                                                    2
Resendez. The prosecutor informed the trial court that no DNA testing had been done in

this case and that it could be six months before any analysis of the golf club could be

completed. The trial court denied the motion for continuance.

       Tovar testified that he was affiliated with Sureños 13; that appellant, Garcia, Cano,

Escalona, and Adam Arredondo were also affiliated with the gang; and that Sureños 13

had a hand sign that its members would use. He stated that the Sureños 13 had robbed

a game room and had robbed people. When the prosecutor asked what game room had

been robbed, defense counsel objected. During a hearing outside the presence of the

jury, Tovar stated that Arredondo had told him about Sureños 13 burglarizing houses and

robbing a game room “on Rio Grande by HEB.” Defense counsel objected to this

testimony on hearsay grounds.        In response, the prosecutor argued that, because

Arredondo was appellant’s co-conspirator, the testimony was admissible as an admission

by a party-opponent. The prosecutor further argued that “[i]t is against his penal interest

as well.” The trial court overruled the objection.

       When the jury returned, Tovar testified that Arredondo was a member of Sureños

13 and, when the prosecutor asked Tovar what Arredondo told him about the game room

robbery, defense counsel again objected on hearsay grounds, and the trial court again

overruled the objection. Tovar then testified that Arredondo told him that Arredondo

robbed the game room along with Emilio Zuniga and appellant, using two guns. Tovar

also stated that Arredondo told him that Arredondo and Darren Trevino had burglarized

a residence to steal firearms.     Tovar confirmed that Zuniga and Trevino were also

Sureños 13 members.

       Tovar testified that, in the early evening of April 5, 2016, he went to a boot shop



                                             3
next to his residence on Louis Street in Victoria, intending to confront the shop’s owner

because the owner was pointing in Tovar’s direction and saying that Tovar was selling

drugs. As Tovar was leaving the shop, he saw Resendez emerge from a back room.

When Tovar left the shop, Escalona and Garcia were standing outside near some

dumpsters. According to Tovar, Escalona was talking on the phone, and soon afterward,

Cano and appellant arrived at the area. Tovar testified that, when appellant arrived,

appellant and Cano asked Escalona where Resendez was, and Escalona told the men

that Resendez was inside the shop. Appellant gave his car keys to Escalona, and he and

Cano then entered the shop. At some point, Tovar saw a police vehicle with lights flashing

and so he “[s]tarted knocking on the window telling [Cano and appellant] to get out of the

shop.” Through the shop window, Tovar observed appellant fighting with Resendez while

the shop owner held Cano. He could hear “stuff being thrown around” inside the shop.

The men then fought their way into the back room. Later, Cano and appellant came

running out of the shop. Tovar did not see any of the men with a golf club.

      Tovar stated that Resendez had “irritated” the gang by posting certain messages

on Facebook. On cross-examination, he noted that Resendez posted videos in which he

threatened to fight appellant. He acknowledged that he spoke to police officers at the

boot shop later that evening.

      Garcia testified that he, appellant, Cano, Escalona, and Arredondo are members

of Sureños 13. He stated that he is currently under indictment for engaging in organized

criminal activity and the assault of Resendez, and that he has entered a plea agreement

with the State. Under the plea agreement, Garcia agreed to cooperate with the State and

plead guilty to aggravated assault—with affirmative findings as to Garcia’s prior



                                            4
convictions, that a deadly weapon was used in the offense, and that Sureños 13 is a

criminal street gang—in exchange for the State’s recommendation that he be sentenced

to seven years’ imprisonment and a $5,000 fine. Garcia stated that Tovar, Cano, and

Escalona also entered into plea agreements for charges stemming from the assault of

Resendez.

        Garcia testified, over defense counsel’s objection, that Arredondo told him he had

robbed a game room. According to Garcia, some gang members believed that Resendez

was responsible for the arrests of Arredondo and Zuniga regarding the game room

robbery. On April 5, 2016, Garcia observed Resendez go into the boot shop. According

to Garcia, Escalona called appellant and Cano, and appellant and Cano arrived shortly

thereafter. Garcia then observed appellant and Cano go into the boot shop and “assault”

Resendez.

        Tovar and Garcia each testified that appellant’s Facebook page contains a photo

of appellant and Garcia with the caption “Steady stepping Surenos thugs,” as well as a

photo of appellant with Trevino in which they are both displaying the gang’s hand sign.

They both testified that this indicated appellant and the other men were members of the

gang.

        Teresa Martinez, a crime scene detective with the Victoria Police Department,

testified as to the chain of custody of the golf club recovered from the crime scene. She

stated that a crime scene technician brought the club to a Department of Public Safety

forensic laboratory in Corpus Christi on or about June 1, 2016, “but it wasn’t tested” for

DNA. When asked why it was not tested, Martinez replied: “They have a lot of—of other

evidence in their custody that they got to work on. It just hasn’t been worked on yet.” She



                                            5
stated: “I had a request from the DA’s office to go pick it up for court today so they

cancelled it so I could pick it up and bring it so it could be here today.” After Martinez

agreed with defense counsel that the “district attorney’s office cancelled” the testing, the

following exchange occurred:

       THE COURT:           That’s not—I don’t believe that the district attorney’s
                            office has cancelled that request.

       [Defense counsel]: Judge, I believe the testimony stated that they got a
                          request from the district attorney’s office to pick it up
                          yesterday and it was cancelled.

       THE COURT:           So the item is no longer going to be evaluated for the
                            presence of DNA?

       [Martinez:]          It would have to be re-submitted.

       THE COURT:           All right.

Martinez agreed with defense counsel that, if the District Attorney’s office had “really

needed these results,” it could have had the process expedited.

       Manuel Moreno testified that he owns the boot shop where Resendez was

attacked. He knew Resendez because Resendez, a boxer, had previously asked Moreno

to sponsor him. On April 5, 2016, Resendez came into the shop to use the restroom.

Later, appellant came in and accused Moreno of directing police officers to appellant’s

residence, which Moreno denied. Resendez then came out of the bathroom, at which

point, according to Moreno, appellant and another man began to attack Resendez with

their hands. Moreno testified that he attempted to hold one of the men back. The fight

eventually spilled into the back room.

       Moreno agreed that a golf club “was being swung” by appellant at Resendez but

he was unsure if Resendez was struck with the club. He agreed that the golf club was

capable of smashing someone’s skull. He further agreed that, in a 911 call he made after

                                             6
the fight, he said the fight was “mainly with hands, no weapons,” but he explained that he

meant there were no knives or guns used.

        The State sought to introduce, as its Exhibits 18 and 19, certified copies of

judgments in the cases in which Escalona had pleaded guilty.2 Appellant’s counsel

objected on relevance grounds, but the trial court overruled the objection. The prosecutor

later questioned a Victoria County deputy district clerk about the judgments. The deputy

clerk testified over defense counsel’s objection that, according to the judgments,

Escalona had stipulated that he was a member of Sureños 13 and that Sureños 13 is a

criminal street gang. The deputy clerk then testified, without objection, that Escalona had

stipulated that the golf club was a deadly weapon.

        Resendez testified that he went to Moreno’s boot shop on April 5, 2016, in order

to discuss Moreno’s sponsorship. He used the restroom, and when he came out, “[s]ome

guy named Tino” came in. Then, “two or three people,” including appellant and Cano,

started to hit, punch, and kick him. He stated appellant struck him with a golf club on his

head and stomach, causing injury. He acknowledged that he had been involved in

“disputes” with Sureños 13 and had been threatened by its members in the past. He

further acknowledged that he previously told an officer that he had been struck twice by

a golf club, once on his neck and once on his head. Resendez stated appellant later told

him to drop the charges and threatened to hurt him if he did not.

        Blair Cerny, a former officer with the Victoria Police Department, testified that

Resendez identified appellant and Cano in a photo lineup as his assailants. Cerny further




        2 The State called Escalona as a witness; however, he refused to testify and the trial court held him

in contempt. Escalona’s attorney stated that his client understood the plea agreement he entered into.

                                                     7
testified that Sureños 13 is a criminal street gang with three or more members, a chain of

command, and gang symbols.          He stated that Sureños 13 has been continuously

associated with criminal activity in the Victoria area, including the robbery of a game room.

       The jury found appellant guilty of engaging in organized criminal activity and

aggravated assault, and it found that appellant had used a deadly weapon in the

commission of the former offense.        See id. §§ 22.02(a)(2), 71.02.      Appellant was

convicted and sentenced to twenty-five years’ imprisonment for each count, with the

sentences to run concurrently. Appellant filed a motion for new trial, which was denied

by operation of law. See TEX. R. APP. P. 21.8(c). This appeal followed.

                                      II. DISCUSSION

A.     Sufficiency of the Evidence

       Appellant argues by his fifth and sixth issues that the evidence was insufficient to

support the jury’s deadly weapon finding, and its finding that he acted as a member of a

criminal street gang, respectively. We address these issues first. See Nat. Gas Pipeline

Co. of Am. v. Pool, 124 S.W.3d 188, 201 (Tex. 2003) (“[W]hen a party presents multiple

grounds for reversal of a judgment on appeal, appellate courts should first address issues

that would require rendition.”).

       In reviewing the sufficiency of the evidence to support a conviction, we consider

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 crime beyond a reasonable

doubt. Griffin v. State, 491 S.W.3d 771, 774 (Tex. Crim. App. 2016); see Brooks v. State,

323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443

U.S. 307, 319 (1979)). We resolve any evidentiary inconsistencies in favor of the verdict,



                                             8
keeping in mind that the jury is the exclusive judge of the facts, the credibility of the

witnesses, and the weight to give their testimony. Brooks, 323 S.W.3d at 899; see TEX.

CODE CRIM. PROC. ANN. art. 38.04 (West, Westlaw through 2017 1st C.S.) (“The jury, in

all cases, is the exclusive judge of the facts proved, and of the weight to be given to the

testimony.”). We determine, based upon the cumulative force of all of the evidence,

whether the necessary inferences made by the jury are reasonable. Griffin, 491 S.W.3d

at 774.

       Sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex.

Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). “Such a

charge is one that accurately sets out the law, is authorized by the indictment, does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability, and adequately describes the particular offense for which the

defendant was tried.” Villarreal, 286 S.W.3d at 327; Malik, 953 S.W.2d at 240.

       1.     Deadly Weapon

       A hypothetically correct jury charge in this case, consistent with the indictment,

would instruct the jury to find appellant guilty of engaging in organized criminal activity if

appellant, with the intent to establish, maintain, or participate in a combination or in the

profits of a combination or as a member of a criminal street gang, committed the

aggravated assault of Resendez. See TEX. PENAL CODE ANN. § 71.02(a)(1). Such a

charge would also instruct the jury to find appellant guilty of aggravated assault if he used

or exhibited a deadly weapon during the commission of the assault. See id. § 22.02(a)(2).




                                              9
       Appellant does not dispute that a golf club constitutes a deadly weapon under the

statutory definition. See id. § 1.07(a)(17) (West, Westlaw through 2017 1st C.S.) (defining

“deadly weapon” as “(A) a firearm or anything manifestly designed, made, or adapted for

the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner

of its use or intended use is capable of causing death or serious bodily injury”). Instead,

appellant contends that the evidence was insufficient to establish that he used or

exhibited it during the assault of Resendez. He notes that Tovar and Garcia each testified

that they did not see a golf club used in the assault, and Moreno testified that appellant

“swung” a club but was not sure if he actually hit Resendez with it. Appellant further notes

that, while Resendez told officers that he was struck in the neck by a golf club, he testified

at trial that he was struck on the head and stomach.

       We find the evidence adduced at trial sufficient to support the deadly weapon

finding. Resendez testified that appellant struck him with a golf club on his head and

stomach. He acknowledged having previously told officers that he was struck with a club

on his head and neck, but the jury is exclusive judge of the weight to be given to testimony.

See TEX. CODE CRIM. PROC. ANN. art. 38.04; Brooks, 323 S.W.3d at 899. Reconciliation

of conflicts in the evidence is within the jury’s exclusive province. Wyatt v. State, 23

S.W.3d 18, 30 (Tex. Crim. App. 2000). The jury was entitled to credit Resendez’s trial

testimony despite the minor discrepancy between that testimony and his prior statement

to police. Moreover, Moreno’s testimony that appellant “swung” the club at Resendez

supports the deadly weapon finding because it shows that appellant “exhibit[ed]” the club

during the assault. See TEX. PENAL CODE ANN. § 1.07(a)(17)(B).

       Appellant’s fifth issue is overruled.



                                               10
       2.     Member of a Criminal Street Gang

       As noted, a hypothetically correct jury charge consistent with the indictment would

instruct the jury to find appellant guilty of engaging in organized criminal activity if he

committed the aggravated assault of Resendez “with the intent to establish, maintain, or

participate in a combination or in the profits of a combination or as a member of a criminal

street gang.” Id. § 71.02(a).

       Appellant appears to concede that there was sufficient evidence to establish that

he was a member of Sureños 13 and that Sureños 13 is a criminal street gang under the

statutory definition. See id. § 71.01(d) (West, Westlaw through 2017 1st C.S.) (defining

“criminal street gang” as “three or more persons having a common identifying sign or

symbol or an identifiable leadership who continuously or regularly associate in the

commission of criminal activities”); see also id. § 71.01(a) (defining “combination” as

“three or more persons who collaborate in carrying on criminal activities, although: (1)

participants may not know each other’s identity; (2) membership in the combination may

change from time to time; and (3) participants may stand in a wholesaler-retailer or other

arm’s-length relationship in illicit distribution operations”). Appellant instead argues that

there was “no credible evidence put forth that the assault of . . . Resendez was gang-

related.” He argues that there was no evidence he was ordered by another gang member

to commit the assault; instead, he contends the evidence showed he and Resendez had

a “long-standing personal disagreement that had nothing to do with the status of either

individual in any alleged criminal street gang.”

       We again conclude that the evidence was sufficient in this regard. The evidence

established that Tovar, Garcia, Escalona, Cano, and appellant were members of Sureños



                                             11
13. Tovar, Garcia, and Resendez each testified that Resendez had been involved in

disputes with members of the gang in the past. In particular, Tovar stated that Resendez

had “irritated” the gang by posting messages on Facebook, and Garcia testified that gang

members suspected Resendez was responsible for the arrests of Arredondo and Zuniga

relating to the game room robbery. Finally, Tovar and Garcia each testified that Escalona

made a phone call to appellant and Cano shortly before the men arrived at the scene.

From this evidence, the jury could have reasonably inferred that appellant committed the

assault of Resendez “with the intent to establish, maintain, or participate in a combination

or in the profits of a combination or as a member of a criminal street gang.” Id. § 71.02(a);

Griffin, 491 S.W.3d at 774. Appellant’s sixth issue is overruled.

B.     Motion for Continuance

       By his first issue, appellant argues that the trial court erred when it denied his

counsel’s oral motion for continuance made immediately prior to the beginning of trial.

We review a trial court’s ruling on an oral motion for continuance for abuse of discretion.

Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007); Munoz v. State, 24 S.W.3d

427, 431 (Tex. App.—Corpus Christi 2000, no pet.). In order to show reversible error

predicated on the denial of a pretrial motion for continuance, an appellant must

demonstrate both that the trial court erred in denying the motion and that the lack of a

continuance harmed him. Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim. App.

2010); Gallo, 239 S.W.3d at 764 (“To establish an abuse of discretion, there must be a

showing that the defendant was actually prejudiced by the denial of his motion.”).

       Defense counsel moved for a continuance in order to allow for the DNA testing of

the golf club recovered from the crime scene. Appellant contends that the trial court



                                             12
should have granted the motion because, regardless of whether testing revealed the

presence of DNA, the results “would have dictated the direction Appellant’s defense took

with regard to the question of whether Appellant used a deadly weapon in the assault.”

       We conclude that the trial court did not abuse its discretion by denying the motion.

Appellant contends that this was his first motion for continuance and it was the first trial

setting; however, the docket sheet in the clerk’s record indicates that there were three

trial settings prior to April 2017, including one which was continued pursuant to a motion

filed by appellant’s counsel. Appellant did not seek DNA testing on the golf club at any

of the prior settings, nor did he file a written motion to request such testing. In fact, the

record reflects that the parties were unsure whether the club contained any testable

biological material. On this record, we cannot conclude that the trial court erred in denying

the motion for continuance. Therefore, we need not address whether the trial court’s

ruling resulted in prejudice to appellant. See Gonzales, 304 S.W.3d at 843; Gallo, 239

S.W.3d at 764; see also TEX. R. APP. P. 47.1. Appellant’s first issue is overruled.

C.     Admission of Evidence

       Appellant’s second and third issues contest the admission of evidence. We review

a trial court’s evidentiary rulings for abuse of discretion. Hernandez v. State, 390 S.W.3d

310, 324 (Tex. Crim. App. 2012). We will not disturb the trial court’s decision as long as

it was within the “zone of reasonable disagreement.” Id.

       By his second issue, appellant argues that the trial court erred by overruling his

objections to Tovar’s testimony that Arredondo told him which game room had been

robbed by Sureños 13 members. He contends that the statement was hearsay and does

not fall under the exclusion from hearsay for co-conspirators’ statements under Texas



                                             13
Rule of Evidence 801(e)(2)(E). See TEX. R. EVID. 801(e)(2)(E) (providing that a statement

offered against an opposing party and “made by the party’s coconspirator during and in

furtherance of the conspiracy” is not hearsay).

       Appellant does not address whether the statement falls under the exception to

hearsay for statements against interest under Texas Rule of Evidence 803(24).3 That

rule provides that a statement is not inadmissible because of the hearsay rule if it is a

statement that:

       (A)     a reasonable person in the declarant’s position would have made
               only if the person believed it to be true because, when made, it was
               so contrary to the declarant’s proprietary or pecuniary interest or had
               so great a tendency to invalidate the declarant’s claim against
               someone else or to expose the declarant to civil or criminal liability
               or to make the declarant an object of hatred, ridicule, or disgrace;
               and

       (B)     is supported by corroborating circumstances that clearly indicate its
               trustworthiness, if it is offered in a criminal case as one that tends to
               expose the declarant to criminal liability.

TEX. R. EVID. 803(24); Bingham v. State, 987 S.W.2d 54, 57 (Tex. Crim. App. 1999)

(noting that, for a hearsay statement to be admissible under Rule 803(24), it must “tend[]

to expose the declarant to criminal liability” and there must be “corroborating

circumstances that clearly indicate the trustworthiness of the statement”).

       The statement at issue here satisfies both criteria. Tovar testified that Arredondo

told him that Arredondo had robbed the game room along with Zuniga and appellant. This




       3  In responding to defense counsel’s trial objection, the prosecutor alluded to both Rules
801(e)(2)(E) and 803(24) in arguing that the testimony was admissible. See Taylor v. State, 268 S.W.3d
571, 578–79 (Tex. Crim. App. 2008) (“Once the opponent of hearsay evidence makes the proper objection,
it becomes the burden of the proponent of the evidence to establish that an exception applies that would
make the evidence admissible in spite of its hearsay character.”); see also Estrada v. State, 313 S.W.3d
274, 313 (Tex. Crim. App. 2010) (“[I]t is the responsibility of the proponent to inform the court of the
existence of an exception to the hearsay rule.”).

                                                  14
statement clearly subjected the declarant, Arredondo, to criminal liability. See TEX. R.

EVID. 803(24); Bingham, 987 S.W.2d at 57. And the fact that Arredondo made the

statement to a fellow gang member—as opposed to law enforcement—is indicative of the

statement’s trustworthiness. See Walter v. State, 267 S.W.3d 883, 898 (Tex. Crim. App.

2008) (observing that “[s]tatements to friends, loved ones, or family members normally

do not raise the same trustworthiness concerns as those made to investigating officers,”

because in the latter situation “the declarant has an obvious motive to minimize his own

role in a crime and shift the blame to others”). The statement was therefore admissible

as a statement against interest. See TEX. R. EVID. 803(24); Dewberry v. State, 4 S.W.3d

735, 751 (Tex. Crim. App. 1999) (noting that “[a] statement which is self-inculpatory can

be admissible against a defendant who was not the declarant of the statement”).

Appellant’s second issue is overruled.

      By his third issue, appellant contends that the trial court erred by overruling his

counsel’s objection to Garcia’s testimony that he overheard Escalona talking on the

phone outside the boot shop. The objection was made during the following exchange:

      Q. [Prosecutor]      Okay. Did someone get on the telephone and call
                           somebody?

      A. [Garcia]          Yes, sir.

      Q.                   Who got on a telephone?

      A.                   Mr. Johnathan Paul Escalona.

      Q.                   Johnathan Paul Escalona?

      A.                   Yes, sir.

      Q.                   Okay. Now did he get on your phone, his phone or do
                           you know whose phone?

      A.                   I’m not sure.

                                           15
Q.                  Okay. Do you know who he called?

A.                  I don’t know whose phone he called but I know he got
                    in contact with Mr. Thomas Cano, Luz Albert
                    Hernandez.

Q.                  Okay. So you don’t know what number he called but
                    you knew he—who he was talking to?

A.                  Yes, sir.

Q.                  How do you know he was talking to them?

A.                  The general conversations they were having.

Q.                  Okay. Because of the conversation?

A.                  Yes.

Q.                  Did he tell Trey Cano and Luz Albert Hernandez
                    anything about Anibal Abel Resendez being at the boot
                    shop?

[Defense counsel]: Judge, objection. I don’t think he can consider hearsay
                   as to what the other party said.

THE COURT:          Who was making the statement? Actually the objection
                    is overruled. The question wasn’t asking for the
                    statement. The objection is overruled.

Q. [Prosecutor]     Now let me caution you before you answer. That I
                    ask—did you know who he was talking to? Did you
                    hear the conversation? Okay.

A. [Garcia]         I didn’t hear the conversation but I knew who he was
                    talking to by the way of the conversation.

Q.                  Okay. How did you know by way of the conversation?

A.                  The friendliness.

Q.                  The what?

A.                  The friendliness.

Q.                  The friendliness. Okay. In that conversation was it
                    said that Anibal Abel Resendez was at the boot shop?

[Defense counsel]: Judge, objection. Leading.

                                    16
       THE COURT:           Objection is overruled.

       A.                   Yes, sir.

       Q. [Prosecutor]      Okay. At some point did someone arrive at that
                            location by the dumpsters?

       A.                   Yes, sir.

       Q.                   Who arrived?

       A.                   Luz Albert Hernandez and Thomas Cano.

Appellant argues that Garcia’s testimony regarding Escalona’s statement was

inadmissible hearsay and does not fall under the exclusion from hearsay for co-

conspirators’ statements. See TEX. R. EVID. 801(e)(2)(E).

       Again, we disagree.     Hearsay is defined as a statement which is offered in

evidence “to prove the truth of the matter asserted in the statement.” TEX. R. EVID.

801(d)(2). Here, Escalona’s statement—that Resendez was in the boot shop—was not

offered to prove that Resendez was actually in the boot shop. Rather, it was offered to

establish that appellant and Cano were informed of Resendez’s presence shortly before

they arrived at the scene and attacked Resendez. Because the statement was not offered

to prove the truth of the matter asserted, it was not hearsay and the trial court did not err

by overruling defense counsel’s objection. Appellant’s third issue is overruled.

D.     Right to Confront Witnesses

       By his fourth issue, appellant argues that the admission into evidence of State’s

Exhibits 18 and 19—certified copies of Escalona’s judgments of conviction—violated his

Sixth Amendment right to confront witnesses. See U.S. CONST. amend. VI; Crawford v.

Washington, 541 U.S. 36, 59 (2004); De La Paz v. State, 273 S.W.3d 671, 680 (Tex.

Crim. App. 2008). The judgments recite that Escalona pleaded guilty to the offenses of


                                             17
engaging in organized criminal activity and aggravated assault. Appellant appears to

argue that the judgments constitute testimonial hearsay because they necessarily imply

that Escalona had stipulated to the facts that Escalona was a member of a criminal street

gang and that a golf club had been used in the assault on Resendez. See Crawford, 541

U.S. at 68 (holding that admission of testimonial hearsay statements may violate the

Confrontation Clause of the Sixth Amendment).

        The State argues that the issue has not been preserved for review, and we agree.

To preserve error for appeal, there must be a timely objection made at trial, and the issue

raised on appeal must comport with the objection made at trial. TEX. R. APP. P. 33.1(a);

Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim. App. 2014). Here, when the State

sought to introduce Escalona’s judgments of conviction into evidence, defense counsel

objected only on the basis that they were irrelevant. See TEX. R. EVID. 401.4 Because

defense counsel did not object to the admission of Escalona’s judgments on Sixth

Amendment grounds, appellant’s issue on appeal does not comport with the objection

made at trial. See Bekendam, 441 S.W.3d at 300. We overrule his fourth issue for that

reason.

E.      Improper Comments

        Finally, by his seventh issue on appeal, appellant contends that the trial court

commented on the weight of the evidence in violation of article 38.05 of the Texas Code

of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.05 (West, Westlaw



        4 Later in the trial, when a deputy district clerk testified that Escalona had indeed stipulated to his
membership in a criminal street gang and that a golf club is a deadly weapon, defense counsel objected on
relevance and Confrontation Clause grounds. However, appellant does not argue on appeal that the trial
court erred in overruling his objections to the deputy clerk’s testimony; his arguments pertain only to the
judgments of conviction.

                                                     18
through 2017 1st C.S.) (“In ruling upon the admissibility of evidence, the judge shall not

discuss or comment upon the weight of the same or its bearing in the case, but shall

simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding

previous to the return of the verdict, make any remark calculated to convey to the jury his

opinion of the case.”). Appellant complains specifically of the trial court’s remark—made

immediately after Martinez agreed that the district attorney’s office had cancelled the

order for DNA testing on the golf club—that it did not believe that the district attorney’s

office cancelled the request for DNA testing. Defense counsel did not object to the trial

court’s remark or request a mistrial, but clarified that the Department of Public Safety

forensic laboratory “got a request from the district attorney’s office to pick it up yesterday

and it was cancelled.”

       Appellant acknowledges that his trial counsel did not object to the complained-of

remark, but contends that the remark constitutes “fundamental error” for which

preservation is not required. See Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App.

1993) (“Some rights are widely considered so fundamental to the proper functioning of

our adjudicatory process as to enjoy special protection in the system. . . . A principle

characteristic of these rights is that they cannot be forfeited. That is to say, they are not

extinguished by inaction alone.”). Appellant argues that, in making the complained-of

remark, the trial court “was, in essence, telling the jury that Appellant’s trial counsel was

lying or misrepresenting the truth.”

       In Marin, the Texas Court of Criminal Appeals delineated three types of rights—

“(1) absolute requirements and prohibitions; (2) rights of litigants which must be

implemented by the system unless expressly waived; and (3) rights of litigants which are



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to be implemented upon request”—and explained that procedural default “only applies to

the last category.” Id. at 279. After appellant filed his brief in this appeal, the court of

criminal appeals held in Proenza v. State that “[t]here is no common-law ‘fundamental

error’ exception to the rules of error preservation established by Marin.” 541 S.W.3d 786,

793 (Tex. Crim. App. 2017). The Proenza Court further concluded that “the right to be

tried in a proceeding devoid of improper judicial commentary is at least a category-two,

waiver-only right.” Id. at 801; see id. at 798–99 (noting that “compliance with Article 38.05

is fundamental to the proper functioning of our adjudicatory system, such that it should

enjoy special protection on par with other non-forfeitable rights” (quotations omitted)).

Accordingly, appellant did not waive the issue by failing to object at trial. See id. at 799

(“When a litigant perceives a violation of Article 38.05, it is not a foregone conclusion that

his silence indicates a relinquishment of his rights thereunder. Silence may just as fairly

indicate a litigant’s calculation that, if the trial judge is indeed partial to the opposing side

in her evidentiary commentary, she will likewise display partiality in ruling upon the Article

38.05 objection itself. An objection under these circumstances would be futile at best,

and at worst could reinforce to the jury that the trial judge stands solidly in the corner of

the opponent.”).

       We conclude that the trial court erred when it disputed Martinez’s testimony that

the district attorney’s office had cancelled the order for DNA testing on the golf club.5 The

State contends that the trial court was justified in making the remark under Texas Rule of

Evidence 611(a), which states the court “should exercise reasonable control over the




         5 The State concedes on appeal that the trial court was “mistaken,” and “defense counsel was

actually correct regarding how the DNA test was cancelled.”

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mode and order of examining witnesses and presenting evidence so as to,” among other

things, “make those procedures effective for determining the truth.”             TEX. R. EVID.

611(a)(1). The State contends that the trial court was merely attempting to “clarify

matters” because it believed defense counsel was “asking a question based on a

misunderstanding of the earlier testimony in the case.” We disagree. Defense counsel

asked Martinez directly if her testimony was that the district attorney’s office cancelled the

order, and Martinez replied, “Yes.” There was no evidence adduced to the contrary, so

there was nothing for the trial court to clarify.

       Having found error, we must conduct a harm analysis to determine whether the

error requires reversal. When an appellant complains that a trial court’s comments were

improper under article 38.05 and error is found, as here, the harm analysis is conducted

pursuant to the standards prescribed for non-constitutional error. See Proenza, 541

S.W.3d at 801; cf. Blue v. State, 64 S.W.3d 672, 673 (Tex. App.—Houston [1st Dist.]

2001, pet. ref’d) (op. on remand) (applying harm standard applicable to constitutional

error where appellant asserted that trial court made an improper comment during voir

dire). Under that standard, we will reverse only if the error affected the appellant’s

substantial rights. TEX. R. APP. P. 44.2(b). A substantial right is affected when the error

has a substantial and injurious effect or influence in determining the jury’s verdict.

Simpson v. State, 119 S.W.3d 262, 266 (Tex. Crim. App. 2003). We will not reverse a

conviction for non-constitutional error if, after examining the record as a whole, we have

“fair assurance that the error did not influence the jury, or influenced the jury only slightly.”

Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011).




                                               21
       We conclude that the trial court’s comment, though erroneous, did not affect

appellant’s substantial rights. Appellant argues that the comment was “designed to

poison Appellant’s defense at trial and to strike at Appellant through his attorney,” but we

disagree. Though appellant claims that the golf club may have contained exculpatory

evidence, the issue of whether the district attorney’s office ordered the cancellation of the

DNA testing on the club was not a significant issue at trial and did not bear upon any

element of any charged offense. The only issue raised on appeal involving the DNA

testing was whether the trial court erred by denying a continuance, and we have already

concluded that it did not err in doing so. In any event, defense counsel immediately

corrected the trial court after the comment was made and neither party mentioned it in

their arguments. For these reasons, we have “fair assurance” that the error influenced

the jury only slightly, at most, and was therefore harmless. See id. Appellant’s seventh

issue is overruled.

                                      III. CONCLUSION

       We affirm the trial court’s judgment.

                                                                DORI CONTRERAS
                                                                Justice

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

Delivered and filed the
26th day of July, 2018




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