                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-14-00563-CR

                                        Richard H. VARELA,
                                              Appellant

                                                 v.
                                                The
                                        The STATE of Texas,
                                              Appellee

                      From the County Court at Law No. 7, Bexar County, Texas
                                      Trial Court No. 354648
                              Honorable Genie Wright, Judge Presiding

Opinion by: Karen Angelini, Justice
Dissenting Opinion by: Rebeca C. Martinez, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: April 22, 2015

AFFIRMED

           A jury found appellant, Richard H. Varela, guilty of “assault on a person,” and the trial

court assessed punishment at one year confinement, plus a fine of $1,000. In three issues on

appeal, Varela asserts: (1) the evidence is legally insufficient to support the jury’s finding that he

committed the offense; (2) the trial court erred when it admitted statements the complainant made

to police; and (3) the trial court’s written judgment is not congruent with the record and should be

reformed. We affirm.
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                                        BACKGROUND

       The complainant did not testify, and the only witnesses at trial were police officers. Officer

Rodney Olivarez, a detective assigned to the San Antonio Police Department Crime Scene Unit,

testified he handles major crimes and family violence cases. Olivarez testified he responded to a

family violence call at a house located at 3015 East Southcross. When Olivarez arrived, the

complainant and two other officers were present, but Varela was not.

       Olivarez described the complainant’s demeanor as “visibly upset that this type of violence

took place on her birthday.” He said the scene was still in disarray and a little confused when he

arrived. He said the scene was not “completely calm.” While taking photographs of the

complainant’s injuries, Olivarez explained he generally only photographs visible injuries, but

because he could feel a bump on the complainant’s head, he photographed the area of her head

where she claimed she had been injured. In addition to photographs of her head, Olivarez also

photographed the red mark and swelling on her right eye and the right cheek area of her face, a cut

upper lip, and scratch marks on her chest and right knee. Olivarez did not take any photographs

of Varela.

       Officer William Dains, a San Antonio patrol officer, testified he was dispatched to assist

another officer on a call for potential family violence. When he arrived at the East Southcross

house, only one other police officer, Officer Martin, was present. Dains said he went to the back

of the house, while Martin went to the front of the house. When Dains heard Martin make contact

with a man, Martin left the back of the house and walked around to the front porch. At Martin’s

request, Dains stayed on the porch with the man, who was identified as Varela. Dains could not

remember the complainant’s demeanor, but he described her as bruised from “some sort of recent

injury,” and it was “very apparent that she had just gone through some sort of traumatic



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experience.” Dains described Varela as initially angry, but then becoming fairly quiet. Dains said

Varela had no obvious bruising.

       Finally, Officer Matthew Martin, a San Antonio patrol officer, testified he was the first

officer to respond to the family violence call at the East Southcross house. Martin said he heard

two people yelling from inside the house as he approached the house. He said the woman sounded

distraught and very upset, “almost like a—somebody whose spirit had been crushed.” According

to Martin, as he approached the house, he heard the woman say “look at my face[,] I can’t believe

you did this to my face on my birthday.” Martin testified the man responded, “I can’t believe you

called the police. Just wait until they leave, and then see what I do to your face.” When Martin

knocked on the door, the woman answered. A protective sweep of the house revealed only two

occupants: the woman (who is the complainant) and Varela. Martin identified the female’s voice

he heard as the complainant’s and the male’s voice as Varela’s.

       Martin said the complainant, who was wearing a black party dress, had injuries on her face,

and was crying uncontrollably, her mascara was smeared down her face, she had a mark under her

right eye, and her lip was cut. Martin placed Varela in handcuffs, escorted him outside, and asked

him to wait with Officer Dains. Martin then went back inside the house, where he asked the

complainant to sit down and take several deep breaths because she was hysterical. When Olivarez

arrived to take photographs, Martin went outside, and placed Varela inside his patrol car. Martin

saw no injuries on Varela.

       Olivarez, Dains, and Martin all stated they had no personal knowledge of who hit the

complainant.

                OBJECTION TO THE COMPLAINANT’S STATEMENTS

       In his second issue, Varela asserts the trial court erred when it overruled his objections to

the police officers’ testimony about what the complainant said. Varela argues the statements were
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testimonial in nature, and admitting them violated his Sixth Amendment right to confront the

complainant.

       The Confrontation Clause of the Sixth Amendment to the United States Constitution

provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with

the witnesses against him.” U.S. CONST. amend. VI. Testimonial evidence is inadmissible unless

(1) the witness appears at trial and is cross-examined or (2) the witness is unavailable and the

defense had an opportunity to cross-examine. Burch v. State, 401 S.W.3d 634, 636 (Tex. Crim.

App. 2013). “[T]estimonial statements are those ‘that were made under circumstances which

would lead an objective witness reasonably to believe that the statement would be available for

use at a later trial.’” Id. (quoting Crawford v. Washington, 541 U.S. 36, 52 (2004)). Whether a

particular statement is testimonial is a question of law. De La Paz v. State, 273 S.W.3d 671, 680

(Tex. Crim. App. 2008).       Accordingly, we review whether the challenged statements are

testimonial de novo. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).

       In determining whether a statement is testimonial, we use the standard of the objectively

reasonable declarant standing in the shoes of the actual declarant. Id. at 742-43. The determination

does not depend on the declarant’s expectations. See Michigan v. Bryant, 131 S. Ct. 1143, 1156

(2011) (confirming that objective inquiry is required). A statement is more likely to be testimonial

if the person who heard, recorded, and produced the statement at trial is a government officer. See

Crawford, 541 U.S. at 51.

       A statement is testimonial when the surrounding circumstances objectively indicate that

the primary purpose of the interview or interrogation is to establish or prove past events potentially

relevant to later criminal prosecution. Bryant, 562 U.S. at 1157; Davis v. Washington, 547 U.S.

813, 822 (2006). In determining whether a statement is testimonial, we may examine whether (1)

the situation was still in progress, (2) the questions sought to determine what was transpiring, (3)
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the primary purpose of the interrogation was to render aid rather than memorialize a possible crime,

(4) the questioning was conducted in a separate room away from the alleged attacker, and (5) the

events were deliberately recounted in a step-by-step fashion. Davis, 547 U.S. at 829-30; Vinson

v. State, 252 S.W.3d 336, 339 (Tex. Crim. App. 2008).

A.       Olivarez’s Testimony

         First, Varela complains about Olivarez’s testimony that the complainant told him about her

injuries and she was upset she had been assaulted on her birthday. At trial, the State questioned

Olivarez as follows:

         Q. When you photograph complainants do you only photograph visible injuries?
         A. Predominantly. [The complainant] complained of injuries on her —

         At this point, defense counsel objected, and the trial court excused the jury to consider the

objection. Outside the jury’s presence, Olivarez explained:

         [The complainant] had identified the injuries that she had and pointed to an area on
         the top of her head where she also had injuries, but due to the amount of hair [sic]
         was unable to see. I did feel the bump on the top of her head. That’s the reason
         why I attempted to try and take a photograph of the area, which I usually don’t do
         if I don’t feel any type of injury there. So she separated her hair as best she could
         and we took a photograph of that general area.

         ...

         Q. [by defense counsel] And that was for the purposes of establishing that a crime
         had occurred, right?
         A. Helping me determine where the actual injuries were. Sometimes you can’t see
         them all.

         The trial court overruled Varela’s objection. 1 On appeal, Varela argues there was no

ongoing emergency by the time Olivarez arrived on the scene, Varela (the alleged attacker) was



1
  After the jury returned to the courtroom, Olivarez again stated the complainant said she was injured on her head.
Although defense counsel objected, the trial court did not rule on the objection, but instead, asked the State to rephrase
the question. Because counsel did not obtain a ruling on the objection, any complaint as to this statement is not
preserved for our review on appeal. See TEX. R. APP. P. 33.1(a)(1),(2) (providing that a party must object and obtain
the trial court’s adverse ruling).

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not present when Olivarez spoke to the complainant, and Olivarez’s questions were intended to

preserve past events for presentation in a future criminal case. We disagree.

        The Confrontation Clause applies only to testimonial hearsay. See Davis, 547 U.S. at 821;

Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010). Statements that are properly

offered and admitted not to prove the truth of the matter, but rather for a non-hearsay purpose do

not implicate confrontation clause rights and are admissible under Crawford. See Langham, 305

S.W.3d at 576 (“[A]n out-of-court statement, even one that falls within [the] definition of

‘testimonial’ statements, is not objectionable under the Confrontation Clause to the extent that it

is offered for some evidentiary purpose other than the truth of the matter asserted.”); Del Carmen

Hernandez v. State, 273 S.W.3d 685, 688-89 (Tex. Crim. App. 2008) (concluding such where co-

defendant’s statement to police was offered and admitted as non-hearsay to impeach co-

defendant’s credibility). For example, when a statement is “offered to show the reason for the

[police officer’s] actions,” and not for the truth of the matter asserted, it is not hearsay. Kimball v.

State, 24 S.W.3d 555, 564-65 (Tex. App.—Waco 2000, no pet.) (concluding that officer’s

testimony as to out-of-court conversations between officer and police dispatcher regarding

conversation between unknown motorist and 911 operator regarding possible DWI was non-

hearsay and its admission did not violate confrontation clause).

        Because Olivarez’s testimony was properly offered and admitted, not to prove the truth of

the matter—that Varela committed assault—but rather for the non-hearsay purpose of explaining

how and why Olivarez took a photograph of the complainant’s head—she said she had a head

injury he could not readily see—the statement was not hearsay, and did not implicate Varela’s

confrontation clause rights.     See Del Carmen Hernandez, 273 S.W.3d at 689 (concluding

statement, as non-hearsay, did not implicate right of confrontation); see also Kimball, 24 S.W.3d

at 564-65 (concluding trial court committed no hearsay and no confrontation clause violations).
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Under these circumstances, we cannot conclude the trial court erred by admitting this statement

over Varela’s objection.

B.       Martin’s Testimony

         Next, Varela complains about Martin’s testimony that the complainant said “look at my

face[,] I can’t believe you did this to my face on my birthday.” 2 We do not believe this statement

was testimonial in nature.

         First, the situation was still in progress because Martin overheard the remark as he

approached the East Southcross house. Martin explained that, generally, when he arrives at a

scene, he approaches “at an offset angle,” and ensures no one is outside or running from the

location. He said when he arrived at the East Southcross house, and before Varela or the

complainant knew of his presence, he could hear yelling as he approached. Second, Martin had

not made any contact with the couple, much less asked any questions, when he overheard what the

complainant said. In other words, the complainant was speaking to Varela, and not a police officer,

about events as they were actually happening. Under these circumstances, we conclude Martin’s

testimony about what he overheard the complainant say as he approached the house did not

implicate Varela’s confrontation clause rights. See Davis, 547 U.S. at 827 (statement not designed

to prove some past fact but to describe current circumstances requiring police assistance are

nontestimonial). Accordingly, we cannot conclude the trial court erred by admitting this statement

over Varela’s objection.




2
  Varela also complains about Martin’s testimony that Varela replied to the complainant, “I can’t believe you called
the police. Just wait until they leave, and then see what I do to your face.” A police officer’s in-court testimony about
what the defendant said does not implicate the defendant’s confrontation clause rights.

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                             SUFFICIENCY OF THE EVIDENCE

       In his first issue, Varela asserts the evidence is legally insufficient to establish that he was

the assailant. Specifically, Varela argues there were no witnesses to the alleged assault and the

complainant did not testify; therefore, the jury was left with only speculation that he assaulted the

complainant.

       When reviewing the legal sufficiency of the evidence to support a criminal conviction, we

review the evidence in the light most favorable to the verdict to determine whether a rational juror

could have found the essential elements of the offense beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).

Under this standard, we are required to defer to the jury’s determination of the credibility of

witnesses “and the weight to be given their testimony.” Brooks, 323 S.W.3d at 899.

       “Under the Jackson test, we permit juries to draw multiple reasonable inferences as long

as each inference is supported by the evidence presented at trial.” Hooper v. State, 214 S.W.3d 9,

15 (Tex. Crim. App. 2007). “However, juries are not permitted to come to conclusions based on

mere speculation or factually unsupported inferences or presumptions.” Id. “A presumption is a

legal inference that a fact exists if the facts giving rise to the presumption are proven beyond a

reasonable doubt.” Id. at 16. A jury may find the element of the offense sought to be presumed

exists, but it is not bound to find so. Id. “In contrast, an inference is a conclusion reached by

considering other facts and deducing a logical consequence from them.” Id. “Speculation is mere

theorizing or guessing about the possible meaning of facts and evidence presented. A conclusion

reached by speculation may not be completely unreasonable, but it is not sufficiently based on

facts or evidence to support a finding beyond a reasonable doubt.” Id.

       Each fact need not point directly and independently to the defendant’s guilt, as long as the

cumulative force of all the incriminating circumstances is sufficient to support the conviction. Id.
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at 13. Circumstantial evidence is as probative as direct evidence, and alone, may be sufficient to

establish guilt. Id. We do not ask whether we believe the evidence at trial established guilt beyond

a reasonable doubt; instead, we consider only whether the jury reached a rational decision. Brooks,

323 S.W.3d at 899.

           Here, Officer Martin heard a man and a woman arguing as he approached the house; and

he heard the woman say “look what you did to my face” and the man say “wait until [the police

leave] and then see what I do to your face.” Martin identified the man’s voice as that of Varela.

All three officers witnessed recent injuries to the complainant, and described her as distraught,

upset, and crying.          Only two people were inside the house: Varela and the complainant.

Considering the totality of the circumstances and the reasonable inferences that can be drawn

therefrom, we hold the evidence was legally sufficient for a rational jury to find beyond a

reasonable doubt that Varela assaulted the complainant.

                                           WRITTEN JUDGMENT

           Finally, Varela asserts the judgment in not congruent with the record and should be

reformed to reflect the trial proceedings. Specifically, Varela contends (1) the judgment contains

boiler plate language that he pled nolo contendere when he actually pled not guilty, and (2) the

trial court stated at sentencing it would note in the judgment no affirmative finding of family

violence, but the written judgment contains no such language. Therefore, Varela asks this court

to remand the cause to the trial court with instructions to enter a correct judgment.

           A supplemental clerk’s record filed with this court contains a judgment that reflects Varela

entered a plea of not guilty. Therefore, no remand for this purpose is necessary. As to his second

complaint, the judgment states Varela is guilty of “assault bodily injury-married.” 3 Varela



3
    On appeal, Varela does not challenge this wording.

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contends remand is required for the trial court to include an affirmative finding of no family

violence. The State filed a cross-appeal asserting the evidence supports an affirmative finding of

family violence; therefore, the trial court was statutorily required to enter an affirmative finding

on family violence, and the judgment should be reformed to include this finding.

         “[I]f the court determines that the offense involved family violence, as defined by Section

71.004, Family Code, the court shall make an affirmative finding of that fact and enter the

affirmative finding in the judgment of the case.” TEX. CRIM. PROC. CODE ANN. § art. 42.013 (West

2006). Thus, a trial court is statutorily required to enter an affirmative finding of family violence

in its judgment, if during the guilt phase of trial, the court determines the offense involved family

violence as defined by section 71.004. Butler v. State, 189 S.W.3d 299, 302 (Tex. Crim. App.

2006).

         The Texas Family Code defines “family violence” to mean: “(1) an act by a member of a

family or household against another member of the family or household that is intended to result

in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places

the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does

not include defensive measures to protect oneself; [or] . . . (3) dating violence, as that term is

defined by Section 71.0021.” TEX. FAM. CODE ANN. § 71.004 (West 2014).

         “Dating violence” means an act, other than a defensive measure to protect oneself, by an

actor that: (1) is committed against a victim: (A) with whom the actor has or has had a dating

relationship; or (B) because of the victim’s marriage to or dating relationship with an individual

with whom the actor is or has been in a dating relationship or marriage; and (2) is intended to result

in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places

the victim in fear of imminent physical harm, bodily injury, assault, or sexual assault.” Id.

§ 71.0021(a). “Dating relationship” means “a relationship between individuals who have or have
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had a continuing relationship of a romantic or intimate nature. The existence of such a relationship

shall be determined based on consideration of: (1) the length of the relationship; (2) the nature of

the relationship; and (3) the frequency and type of interaction between the persons involved in the

relationship.” Id. § 71.0021(b). “A casual acquaintanceship or ordinary fraternization in a

business or social context does not constitute a ‘dating relationship’ under Subsection (b).” Id.

§ 71.0021(c).

       During the guilt/innocence phase in this case, the police officers testified they responded

to a “family violence” call. However, no evidence was presented about the relationship between

the complainant and Varela, or whether they lived together. The Information charged Varela with

the offense of “intentionally, knowingly, and recklessly caus[ing] bodily injury to another, namely:

[the complainant], . . . by striking the complainant with the hand of the defendant.” The Complaint

stated Varela committed the offense of “[Penal Code section 22.01] Assault B/I Married/Cohab.”

The jury charge stated Varela was charged with the offense of “assault on a person,” and the

judgment states Varela was adjudged guilty of the offense of “assault bodily injury-married/ a

misdemeanor.”

       At the end of the guilt/innocence phase, but before the sentencing phase began, the State

asked for an affirmative finding of family violence. Although the trial court acknowledged the

case was brought to the court as a family violence case “based on probable cause,” the court

repeatedly reminded the State that no evidence of the nature of the relationship was brought up at

trial. The State asserted Varela had a prior arrest for “assault bodily injury, married that was

dismissed in September of 2010 with the same complainant,” but the court noted there was no

proof the couple had been married in the past. The trial court asked for additional case law before

deciding whether to make the affirmative finding.



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         A few days later at the sentencing hearing, the trial court, without hearing additional

argument, stated that an assumption about the relationship between the parties was not sufficient

for sentencing purposes. Therefore, the court announced it would not make an affirmative finding

of family violence as requested by the State. The trial court apparently recognized that it was not

statutorily required to make an affirmative finding of no family violence, as requested by Varela,

and the court declined his request to make such a finding. 4

         On appeal, Varela cites no authority for his argument that a trial court must make an

affirmative finding of no family violence, and we conclude the trial court did not err by refusing

Varela’s request for such a finding. Because the record contains no evidence about the nature of

the relationship between the complainant and Varela, we conclude the trial court did not err by

refusing the State’s request to make an affirmative finding of family violence.

                                                 CONCLUSION

         We overrule all issues on appeal, and affirm the trial court’s judgment.


                                                           Karen Angelini, Justice

Do not publish




4
 The trial court, nevertheless, stated on the record that it would “put in parentheses no affirmative finding of family
violence.” And, in fact, the judgment contains the parenthetical “(NO AFFV),” which may very well stand for “no
affirmative finding family violence.” Neither party, however, references or explains the meaning of this notation.

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