                                                                          ACCEPTED
                                                                      14-15-00263-CR
                                                      FOURTEENTH COURT OF APPEALS
                                                                   HOUSTON, TEXAS

     No. 14-15-00263-CR
                                                                12/31/2015 2:33:48 PM
                                                                CHRISTOPHER PRINE
                                                                               CLERK

                 In the
       Court of Appeals
                For the                          FILED IN
                                          14th COURT OF APPEALS
Fourteenth District of Texas                 HOUSTON, TEXAS
               At Houston                 12/31/2015 2:33:48 PM
                                          CHRISTOPHER A. PRINE
       ♦                                 Clerk

            No. 1408375
          nd
 In the 232 Criminal District Court
       Of Harris County, Texas
       ♦

         JAVARA PRICE
                Appellant
                   V.
     THE STATE OF TEXAS
                 Appellee

       ♦

STATE’S APPELLATE BRIEF
       ♦

                       DEVON ANDERSON
                       District Attorney
                       Harris County, Texas
                       BRIDGET HOLLOWAY
                       Assistant District Attorney
                       Harris County, Texas
                       Texas Bar No. 24025227
                       holloway_bridget@dao.hctx.net
                       AIMEE BOLLETINO
                       WILLIAM COWARDIN
                       Assistant District Attorneys
                       Harris County, Texas
                       Harris County Criminal Justice Center
                       1201 Franklin, Suite 600
                       Houston, Texas 77002
                       Tel.: 713·274·5826

 ORAL ARGUMENT NOT REQUESTED
                 STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State does not

request oral argument.


                        IDENTIFICATION OF THE PARTIES

      Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all

interested parties is provided below.

      Complainant:
            Joel Fraustro

      Counsel for the State:
            Devon Anderson  District Attorney of Harris County
            Bridget Holloway  Assistant District Attorney on appeal
            Aimee Bollentino  Assistant District Attorney at trial
            William Cowardin —Assistant District Attorney at trial

      Appellant or criminal defendant:
             Javara Price

      Co-defendant:
             John Allen 1

      Counsel for Appellant:
            Paul St. John  Attorney at trial
            Patti Sedita —Attorney on appeal

      Trial Judge:
              Honorable Mary Lou Keel  Presiding Judge


1
 Case affirmed in Allen v. State, No. 14-14-00842-CR, 2015 WL 3878136 (Tex. App. —
Houston [14th Dist.] June 23, 2012) (not released for publication).


                                         i
                                                   TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT .......................................................... i
IDENTIFICATION OF THE PARTIES ................................................................................ i
TABLE OF CONTENTS........................................................................................................... ii
INDEX OF AUTHORITIES ...................................................................................................iii
STATEMENT OF THE CASE ................................................................................................. 1
STATEMENT OF FACTS ........................................................................................................ 1
SUMMARY OF THE ARGUMENT ..................................................................................... 3
REPLY TO APPELLANT’S FIRST ISSUE PRESENTED ................................................ 4
 Applicable Authority ............................................................................................................. 4
 Analysis ..................................................................................................................................... 5
   A. Fraustro’s Statements to the Detective Were Excited Utterances. .................. 5
   B. Regardless, Any Error In Admission of Testimony Was Harmless. ................. 8
REPLY TO APPELLANT’S SECOND ISSUE PRESENTED..........................................10
 Standard of Review .............................................................................................................. 10
 Analysis .................................................................................................................................... 11
CONCLUSION .........................................................................................................................13
CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE ....................... 14




                                                                       ii
                                            INDEX OF AUTHORITIES

CASES

Adames v. State,
  353 S.W.3d 854 (Tex. Crim. App. 2011)......................................................................... 10

Bernal v. State,
  13 S.W.3d 852
  (Tex. App. —Austin 2000, pet. ref’d) .............................................................................. 8

Brooks v. State,
  323 S.W.3d 893 (Tex. Crim. App. 2010) ........................................................................ 10

Carrizales v. State,
  414 S.W.3d 737 (Tex. Crim. App. 2013).......................................................................... 11

Evans v. State,
  480 S.W.2d 387 (Tex. Crim. App. 1972) .......................................................................... 5

Hooper v. State,
  214 S.W.3d 9 (Tex. Crim. App. 2007) ............................................................................. 11

In re G.A.T.,
   16 S.W.3d 818
   (Tex. App.–Houston [14th Dist.] 2000, pet. denied) .................................................. 11

Jackson v. Virginia,
   443 U.S. 307 (1979) ............................................................................................................. 10

Johnson v. State,
   967 S.W.2d 410 (Tex. Crim. App. 1998) .......................................................................... 8

Mayes v. State,
  816 S.W.2d 79 (Tex. Crim. App. 1991) ............................................................................. 9

McFarland v. State,
  845 S.W.2d 824 (Tex. Crim. App. 1992) ......................................................................... 6




                                                                  iii
Ricketts v. State,
   89 S.W.3d 312
   (Tex. App. —Fort Worth 2002, pet. ref’d)..................................................................... 8

Snellen v. State,
  923 S.W.2d 238
  (Tex. App. —Texarkana 1996, pet. ref’d) ........................................................................ 8

Willis v. State,
  785 S.W.2d 378 (Tex. Crim. App. 1989) .......................................................................... 9

Zuliani v. State,
  97 S.W.3d 589 (Tex. Crim. App. 2003) .............................................................. 4, 5, 6, 8
RULES
TEX. R. APP. P. 38.2(a)(1)(A) ..................................................................................................... i
TEX. R. APP. P. 39.1 ....................................................................................................................... i
TEX. R. APP. P. 9.4(g) .................................................................................................................. i
TEX. R. EVID. 801(d) ................................................................................................................... 4
TEX. R. EVID. 802......................................................................................................................... 5
TEX. R. EVID. 803(2) ................................................................................................................... 5




                                                                     iv
TO THE HONORABLE COURT OF APPEALS:


                           STATEMENT OF THE CASE

      Appellant, Javara Price, was charged by indictment with aggravated robbery

with a deadly weapon. (CR at 10). Appellant entered a plea of “not guilty.”

(RRIII at 6). A jury found appellant guilty and later assessed his punishment at

confinement for 19 years. (RRIV at 48; RRV at 3; CR at 100, 118). A written notice

of appeal was timely filed. (CR at 122).

                       ♦


                             STATEMENT OF FACTS

      One evening in November 2013, Joel Fraustro went outside his apartment to

see if he could find his daughter’s homework in his girlfriend’s GMC Envoy.

(RRIV at 6-9). As he was looking inside the Envoy, Fraustro noticed two guys

approaching right before he felt a shotgun to his head. (RRIV at 12). The men

demanded money and his cell phone. (RRIV at 12). Fraustro had neither on him

and told them so. (RRIV at 15). After Fraustro was patted down, he was told to

turn around, start walking, and he would be shot if he looked back. (RRIV at 16-

17). Left with the keys to the Envoy, the two men drove off in it “through the

[apartment] complex and exited out to Morley Street which is just east of

Broadway street.” (RRIII at 21).
      Officers Cabrera and Rodriquez arrived six minutes later. (RRIII at 14-17,

62-64). Fraustro, visibly upset and shaking, told the officers that two black males,

early 20s, pointed a shotgun to his head before taking his girlfriend’s maroon 2003

GMC Envoy. (RRIII at 18-22). Fraustro provided the license plate number to the

car and that it had a unique sticker on it in memory of the death of his girlfriend’s

brother-in-law. (RRIII at 65; RRIV at 25-26). The officers immediately started

patrolling the area and saw nothing until they pulled into a gas station parking lot

to complete their report. (RRIII at 23). At that point, Officer Cabrera noticed a

maroon Envoy traveling on Morley Street. (RRIII at 25). The officers got behind

the car, observed two young black men inside, confirmed the license plate and

sticker, and initiated a traffic stop. (RRIII at 26-27, 65-66). The men accelerated

and attempted to flee until they made a turn, lost control, and flipped the car

(landing on the driver’s side). (RRIII at 31, 68). A sawed off shotgun, with live

ammunition, was located beneath the driver’s side window. (RRIII at 42-43, 70).

      With no car and fearing the men might return, Fraustro’s girlfriend called a

friend to give them a ride to Fraustro’s father’s house. (RRIV at 24). On the way

to get them, the friend noticed an SUV flipped on its side nearby. (RRIV at 24).

They passed the scene on the way to Fraustro’s father’s house and confirmed it

was, in fact, their SUV. (RRIII at 33; RRIV at 24). At the scene, and 30-45

minutes after he was robbed, Fraustro identified appellant as the man who placed



                                         2
the shotgun to his head and John Allen, the one driving the SUV, as the other.

(RRIII at 35-41; RRIV at 26-28). He also identified the shotgun as the one placed

to his head. (RRIV at 31).

                       ♦


                       SUMMARY OF THE ARGUMENT

State’s Reply to Appellant’s First Issue Presented on Appeal:

      Because the record reflects Fraustro was “very upset,” “shaking,” and even
“enraged,” during the less than 45 minutes it took to identify appellant as the man
who held the shotgun to his head, the evidence was admissible as excited
utterances.

State’s Reply to Appellant’s Second Issue Presented on Appeal:

       Any complaint regarding the admissibility of Fraustro’s pretrial
identification of appellant, outside hearsay and confrontation, was waived.
Because the identification was properly admitted as an excited utterance, because
appellant never challenged the out-of-court identification, and because Fraustro
identified appellant in court as the man who held a gun to his head before stealing
his girlfriend’s car, the evidence is sufficient to support the jury’s verdict.


                       ♦




                                        3
              REPLY TO APPELLANT’S FIRST ISSUE PRESENTED

      In his first issue presented on appeal, appellant argues the trial court erred

in denying his hearsay objections to Officer Cabrera’s testimony as to what

Fraustro told him when he first arrived to take the robbery report and when

Fraustro identified him at the scene of the stolen wrecked car. Because the record

reflects Fraustro was “very upset,” “shaking,” and even “enraged,” during the less

than 45 minutes it took to identify appellant as the man who held the shotgun to

his head, the evidence was admissible as excited utterances.

                               APPLICABLE AUTHORITY

      The admissibility of an out-of-court statement under an exception to the

general hearsay exclusion rule is within the trial court’s discretion. Zuliani v. State,

97 S.W.3d 589, 595 (Tex. Crim. App. 2003). Therefore, a reviewing court should

not reverse unless a clear abuse of discretion is shown. Id. An abuse of discretion

occurs “only when the trial judge’s decision was so clearly wrong as to lie outside

that zone within which reasonable persons might disagree.”

      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). For hearsay to be admissible, it must fit into an




                                           4
exception provided by the rules of evidence. TEX. R. EVID. 802. One exception is

for excited utterances. TEX. R. EVID. 803(2).

      An excited utterance is “[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.” TEX. R. EVID. 803(2). The basis for the excited utterance

exception is “a psychological one, namely, the fact that when a man is in the

instant grip of violent emotion, excitement or pain, he ordinarily loses the capacity

for reflection necessary to the fabrication of a falsehood and the ‘truth will come

out.’ ” Zuliani, 97 S.W.3d at 595 (quoting Evans v. State, 480 S.W.2d 387, 389 (Tex.

Crim. App. 1972)). In other words, the statement is trustworthy because it

represents an event speaking through the person rather than the person speaking

about an event. Id.

                                     ANALYSIS

A. Fraustro’s Statements to the Detective Were Excited Utterances.

      Appellant begins his argument with Officer Cabrera being asked, “What did

[Fraustro] tell you when you asked him what had happened?,” to which appellant

lodged hearsay and denial of confrontation objections. See Appellant’s Brief at 13

(emphasis in original). Appellant’s objections were overruled and appellant was

granted a running objection to the officer’s testimony on what Fraustro told him.

(RRIII at 19). The record, however, shows that prior to Officer Cabrera testifying


                                         5
to what Fraustro told him, he testified that Fraustro, only six minutes after being

robbed at gunpoint, was “visibly upset” and “his hands were shaking.” (RRIII at

18). Appellant makes no argument as to why this testimony, indicating Fraustro’s

statements were admissible as excited utterances, are insufficient to support the

court’s ruling. Instead, appellant argues it was error because it ultimately lead to

his arrest and Fraustro’s on-scene pretrial identification of him.

      The evidence showed that appellant placed a shotgun to Fraustro’s head

before telling him he would shoot him if he looked back. Appellant and Allen then

took off in Fraustro’s girlfriend’s car. Six minutes later, Fraustro was described as

“visibly upset” and “shaking” when he told Officer Cabrera what had just

happened. To determine 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. See Zuliani, 97 S.W.3d at 595. It is not, however,

dispositive that the statement is an answer to a question or that it was separated

by a period of time from the startling event; these are simply factors to consider in

determining whether the statement is an excited utterance. See id. at 596. 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. (quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App.

1992)). In other words, a reviewing court must determine whether the statement


                                          6
was made “under such circumstances as would reasonably show that it resulted

from impulse rather than reason and reflection.” Id. (quoting Fowler v. State, 379

S.W.2d 345, 347 (Tex. Crim. App. 1964)).

         Without a doubt a startling event had occurred. The time frame between

appellant leaving and Fraustro’s statements to Officer Cabrera was less than 10

minutes. The record supports a finding that Fraustro was still dominated by the

startling event when he recounted it to the officers. The trial court did not abuse

its discretion in admitting the hearsay statements under the excited utterance

exception.

         Moreover, after the State established that Fraustro was still “very upset”

when he arrived on the scene only 30-45 minutes after the robbery to see his

girlfriend’s car wrecked, appellant objected the on-scene identification was

inadmissible hearsay. (RRIII at 37, 39). Appellant also took the position that

there was “no relation between emotional upset status and identification.”2

(RRIII at 39). Not only did Officer Cabrera testify Fraustro was “very upset” still,

but Fraustro testified he was “upset” and “enraged.” (RRIV at 26). Fraustro’s

identification of appellant 30-45 minutes after he was robbed was admissible as

excited utterance. See Bernal v. State, 13 S.W.3d 852, 853 (Tex. App. —Austin 2000,



2
    This argument appears inconsistent with his hearsay objection.


                                             7
pet. ref’d) (holding that victim’s identification of robber minutes after the crime

was admissible as excited utterance).

      Accordingly, the trial court did not abuse its discretion in overruling

appellant’s hearsay objections.     See Zuliani, 97 S.W.3d at 596 (concluding

statements admissible as excited utterance where declarant was scared and tired

and statements were made in response to questions twenty hours after

altercation); see also Ricketts v. State, 89 S.W.3d 312, 320 (Tex. App. —Fort Worth

2002, pet. ref’d) (concluding statements made between two and four hours after

startling event admissible); Snellen v. State, 923 S.W.2d 238, 243 (Tex. App. —

Texarkana 1996, pet. ref’d) (admitting statements made thirteen hours after

startling occurrence).

B. Regardless, Any Error In Admission of Testimony Was Harmless.

      Furthermore, even if the statements were not covered under the excited

utterance exception, the admission of the testimony was harmless. The admission

of inadmissible hearsay constitutes nonconstitutional error, and it will be

considered harmless if the appellate court, after examining the record as a whole,

is reasonably assured that the error did not influence the jury verdict or had but a

slight effect. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

Moreover, the improper admission of evidence is not reversible error if the same or




                                         8
similar evidence is admitted without objection at another point in the trial. Mayes

v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991).

      Without objection, Fraustro testified to the same matter, but with more

detail, as testified to by Officer Cabrera.       (RRIV at 9-31).      Admission of

inadmissible evidence is harmless error if other evidence, proving the same fact

that the inadmissible evidence sought to prove, is admitted without objection at

trial. Willis v. State, 785 S.W.2d 378, 383 (Tex. Crim. App. 1989). Because Fraustro’s

testimony, admitted without objection, was the same evidence that was testified

to by the officer, any error by the trial court in admitting the officer’s testimony

was harmless.

      Appellant’s first issue presented on appeal should be overruled.

                        ♦




                                          9
            REPLY TO APPELLANT’S SECOND ISSUE PRESENTED

      In his last issue presented on appeal, appellant argues the evidence is

insufficient to support the jury’s verdict because it is based upon an unreliable

identification. Appellant argues it is unreliable because of the “growing body of

research on the dangers of the historical reliance in criminal investigation on

eyewitness identification.” See Appellant’s Brief at 22. Because the identification

was properly admitted as an excited utterance, because appellant never challenged

the out-of-court identification, and because Fraustro identified appellant in court

as the man who held a gun to his head before stealing his girlfriend’s car, the

evidence is sufficient to support the jury’s verdict.

                                STANDARD OF REVIEW

      The sufficiency of the evidence to establish the elements of a criminal

offense is reviewed under the standard set forth in Jackson v. Virginia, 443 U.S. 307,

318–19 (1979). See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010).

Under that standard, the evidence is viewed 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. See Jackson, 443 U.S. at

318–19; see also Adames v. State, 353 S.W.3d 854, 859–60 (Tex. Crim. App. 2011).

Circumstantial evidence is as probative as direct evidence in establishing the guilt


                                          10
of the actor, and circumstantial evidence alone may be sufficient to establish guilt.

Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper v. State,

214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

                                      ANALYSIS

      First, appellant claims the evidence is insufficient to support the jury's

verdict because it was based solely on Fraustro’s pretrial identification of him on-

scene that appellant contends was unreliable.           The record reflects that no

objection, other than hearsay and confrontation, was made either when Fraustro’s

pretrial identification of appellant was admitted into evidence or when the

complainant identified appellant as the robber in court.             Accordingly, any

complaint regarding the admissibility of the identifications was waived. See In re

G.A.T., 16 S.W.3d 818, 827 (Tex. App.–Houston [14th Dist.] 2000, pet. denied)

(finding the failure of the defendant to object in the trial court about the out-of-

court identification procedure or the in-court identification waived any error).

      Second, the record reflects Fraustro was not in the best lit parking lot, but

there was some light and the interior light to the Envoy was on when appellant

put a shotgun to his head and took off in his girlfriend’s car. (RRIV at 14). Less

than 45 minutes later, appellant was in that same car fleeing from the police. A

shotgun was under the car after it flipped and landed on its side. Fraustro

identified appellant in court as the man who held a shotgun to his head, as well as


                                          11
the man he identified at the scene of the wrecked car.          Fraustro’s in-court

testimony identifying appellant as the man who put a shotgun to his head,

threatened to shoot him, and took his girlfriend’s car, is evidence from which a

rational trier of fact could find appellant committed aggravated robbery.

Considering all the evidence in the light most favorable to the verdict, the evidence

is sufficient to support the jury’s verdict.

      Appellant’s second issue should be overruled.


                         ♦




                                           12
                                 CONCLUSION

      It is respectfully submitted that all things are regular and that the

conviction should be affirmed.




                                              DEVON ANDERSON
                                              District Attorney
                                              Harris County, Texas


                                              /s/ Bridget Holloway

                                              BRIDGET HOLLOWAY
                                              Assistant District Attorney
                                              Harris County, Texas
                                              1201 Franklin, Suite 600
                                              Houston, Texas 77002
                                              713.755.5826
                                              Texas Bar No. 24025227
                                              holloway_bridget@dao.hctx.net




                                     13
        CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE

      This is to certify: (a) that the word count of the computer program used to

prepare this document reports that there are 3114 words in the document; and (b)

that the undersigned attorney requested that a copy of this document be served to

appellant’s attorney via TexFile at the following emails on December 31, 2015:



      Patti Sedita
      Attorney for Appellant
      Email: not provided in brief, will use one on file with
                efile.txcourts.gov




                                                 /s/ Bridget Holloway

                                                 BRIDGET HOLLOWAY
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 1201 Franklin, Suite 600
                                                 Houston, Texas 77002
                                                 713.274.5826
                                                 Texas Bar No. 24025227
                                                 holloway_bridget@dao.hctx.net




                                        14
