Affirmed as Modified; Opinion Filed February 15, 2017.




                                             In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-15-01264-CR

                       MARCUS DEWAYNE WILLIAMS, Appellant
                                      V.
                          THE STATE OF TEXAS, Appellee

                      On Appeal from the 265th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1335320-R

                             MEMORANDUM OPINION
                            Before Justices Lang, Myers, and Evans
                                   Opinion by Justice Lang
       Marcus Dewayne Williams appeals his jury conviction for third degree felony assault

involving family violence. In a single issue, he complains the trial court erred in overruling his

objection to hearsay testimony by the responding officer. As modified, we affirm the trial

court’s judgment.

                                I. FACTUAL BACKGROUND

       The State charged Williams by indictment alleging he struck and choked his wife with his

hand. To elevate the offense from a Class A misdemeanor to a third degree felony, the State

further alleged two prior convictions for terroristic threat against a family member. See TEX.

PENAL CODE ANN. § 22.01(a)(1),(b)(2)(A) (West Supp. 2016). The State also alleged a prior

conviction for murder for punishment enhancement purposes. See id. § 12.42(a).
       At trial, Williams’s wife testified as to the events leading up to the assault and described

the assault in detail. Additionally, her sister and responding officer testified as to her emotional

state following the assault, and pictures they took of her neck and face were admitted into

evidence.

       Williams did not testify and did not call any witnesses, but pleaded true to having a prior

conviction for terroristic threat against a family member. The jury found him guilty and,

following punishment testimony and Williams’s plea of true to the enhancement paragraph,

assessed a nine year sentence.

                                  II. ADMISSION OF HEARSAY

       Williams’ sole issue stems from the following portion of the prosecutor’s examination of

the responding officer:

       Q.      And can you tell the jury, what do you recall [Williams’s wife] relaying to you
               about what happened?

       A.      She told me that she was assaulted by her husband, the defendant. She said that
               this [sic] was a few people that were over at the apartment that night. She was
               talking to, I believe it’s the defendant’s sister. Something about -- they told her
               that he was –

       [DEFENSE COUNSEL];               Objection to hearsay, Your Honor.

       [PROSECUTOR]:             Your honor, I believe that the predicate has been laid for excited
                                 utterance.

       [DEFENSE COUNSEL]:               No.

       [THE COURT]:              Yeah, you objection’s overruled.

       [PROSECUTOR]:             You can proceed.

       A.      She made a statement earlier about someone calling someone a snake in the grass.
               And I guess that got brought up and somehow -- [Williams’s wife] had mentioned
               before or made that statement and it got relayed that that individual was
               [Williams] and –



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Williams asserts the trial court erred in admitting the officer’s testimony “about a ‘snake in the

grass’” and “that the ‘snake’ was [Williams]” because the testimony was “double hearsay” and

not an excited utterance.    In response, the State argues, among other contentions, that the

complained-of testimony was not hearsay because it was not offered for the truth of the matter

asserted.

                                        A. Applicable Law

       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).

Generally, hearsay statements are inadmissible unless an exception applies.         See id. 802;

Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). An excited utterance, or

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

stress of excitement that it caused,” is an exception. TEX. R. EVID. 803(2).

                                      B. Standard of Review

       An appellate court reviews a trial court’s decision to admit evidence for abuse of

discretion. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016). The appellate court

will not disturb the trial court’s ruling if the ruling is within the “zone of reasonable

disagreement” and correct on any theory of law, even if the prevailing party did present that

theory to the trial court or the trial court did not rely on that theory. Id. at 83, 93; State v.

Esparza, 413 S.W.3d 81, 85 (Tex. Crim. App. 2013); Hailey v. State, 87 S.W.3d 118, 121 (Tex.

Crim. App. 2002).

                                 C. Application of Law to Facts

       Although the State did not urge at trial that the complained-of portion of the officer’s

testimony was not hearsay and the trial court did not rely on that theory in overruling the

objection, we conclude the State’s contention on appeal is correct. See Esparza, 413 S.W.3d at

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85; Hailey, 87 S.W.3d at 121. The record reflects the officer testified after Williams’s wife, and

Williams’s wife had testified the assault occurred after she relayed to Williams, in front of his

sister and his brother, a comment Williams’s sister had shared with her. Given Williams’s wife’s

testimony and the context in which the officer’s testimony arose, the complained-of testimony

was not offered to prove someone called Williams a “snake” and Williams is a “snake” but to

explain what happened immediately before the assault. See TEX. R. EVID. 801(d); Dinkins v.

State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995) (murder victim’s appointment book and

patient application not hearsay where offered to show how appellant became suspect); Bell v.

State, 877 S.W.2d 21, 25 (Tex. App.—Dallas 1994, pet. ref’d) (statement by witness that another

person had stated to witness and appellant that murder victim had $1100 in cash not hearsay

where offered to show appellant’s motive to kill). On the record before us, we decide Williams’s

sole issue against him.

                           III. MODIFICATION OF JUDGMENT

       We observe the judgment incorrectly recites Williams pleaded guilty, instead of not

guilty, to the charged offense. Further, although only one punishment enhancement paragraph

was alleged, the judgment recites Williams’s plea to, and the jury’s findings on, the first

enhancement paragraph were “N/A” and his plea to, and the findings on, the second

enhancement paragraph were “True.” Because an appellate court has the authority to modify an

incorrect judgment to make the record speak the truth, we modify the judgment to reflect

Williams pleaded not guilty to the charged offense, he pleaded true to the first enhancement

paragraph, and the second enhancement paragraph is not applicable, “N/A.” See TEX. R. APP. P.

43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813

S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref’d).




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                                     IV. CONCLUSION

       As modified, we affirm the trial court’s judgment.




                                                    /Douglas S. Lang/
                                                    DOUGLAS S. LANG
                                                    JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
151264F.U05




                                              –5–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

MARCUS DEWAYNE WILLIAMS,                            On Appeal from the 265th Judicial District
Appellant                                           Court, Dallas County, Texas
                                                    Trial Court Cause No. F-1335320-R.
No. 05-15-01264-CR         V.                       Opinion delivered by Justice Lang. Justices
                                                    Myers and Evans participating.
THE STATE OF TEXAS, Appellee

        Based on the Court’s opinion of this date, we MODIFY the judgment to reflect appellant
pleaded not guilty to the charged offense. We further MODIFY the judgment to reflect
appellant’s plea to, and the findings on, the first enhancement paragraph as “TRUE” and the plea
to, and the findings on, the second enhancement paragraph as “N/A.”

       As modified, we AFFIRM the trial court’s judgment.


Judgment entered this 15th day of February, 2017.




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