      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-13-00050-CR



                               Reyes Anthony Sanchez, Appellant

                                                  v.

                                   The State of Texas, Appellee


   FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT
            NO. 8755, HONORABLE JOE CARROLL, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted appellant Reyes Anthony Sanchez of aggravated assault with serious

bodily injury. See Tex. Penal Code § 22.02(a)(1). The trial court assessed punishment, enhanced

by a prior felony conviction, at 11 years’ imprisonment and ordered restitution in the amount of

$24,741.90. See id. §§ 12.32 (punishment for first-degree felony includes life in prison or any term

of not more than 99 years or less than 5 years plus up to $10,000 fine), .42(b) (establishing enhanced

punishment range for second-degree felony offense if defendant previously convicted of felony).

On appeal, appellant asserts that (1) the jury charge impermissibly allowed him to be convicted

without a unanimous jury finding concerning his role in the crime, (2) the evidence was insufficient

to sustain his conviction, and (3) the trial court erroneously admitted a witness’s prior written

statement into evidence. We will affirm.
                     FACTUAL AND PROCEDURAL BACKGROUND

               Appellant was charged with aggravated assault arising from a fight that occurred

outside a Lampasas bar in the early morning hours of September 3, 2011. Witnesses at trial testified

that the victim, Ben Maldonado, had been drinking at the bar before appellant and his brothers,

Joseph Sanchez and Zackary Sanchez, entered the bar about 20 minutes before closing time. Shortly

thereafter, a verbal altercation ensued between Maldonado and Joseph1 because Maldonado (by his

own admission) had physically assaulted Joseph a few months earlier. Maldonado testified that

Joseph told him that “he was going to get back at me and he was going to take care of what we didn’t

finish.” A waitress at the bar, Betty Fields, testified that Joseph also said that Maldonado would be

“jumped” when he left the hall and that appellant cautioned his brother, “You don’t tell him what

we’re going to do.” Appellant, however, assured the bar manager, Mary Karcher, that “there’s not

going to be no problems.”

               When the bar was closing, the Sanchez brothers left the bar along with their cousin,

Philip Ramirez, and a friend, David Cantu, who were at the bar prior to the brothers’ arrival. Bar

staff advised Maldonado to wait inside for awhile before leaving so they could walk him to his car.

At that time, Maldonado obtained a knife from Fields’s husband in order to protect himself, and

about five to ten minutes after appellant’s group left, he exited the building alone. Fields said she

thought she had seen the group of five men drive away before she motioned for Maldonado to leave.

She did not tell Maldonado what she had heard Joseph say about jumping him, but she followed

Maldonado when he left the building. When she got to the door, she saw all five members of


       1
          Because the brothers share the same surname, we refer to Reyes Sanchez as “appellant”
and to his brothers by their first names to avoid confusion.

                                                 2
appellant’s group “just coming everywhere on [Maldonado].” Fields yelled to her co-workers,

“Them sons-of-a-bitches are waiting for him outside,” which prompted several bar employees to

come outside as the events unfolded.

                Although Fields did not know their names at the time, she testified that the five men

who had left together—later identified as appellant, Joseph, Zackary, Ramirez, and Cantu—began

running toward Maldonado. As the men approached Maldonado, Fields saw him back away from

them and saw Joseph grab him. Fields initially did not see a knife in Maldonado’s hands, but she

said he had it in his hand when Joseph made contact with him. After calling for her co-workers,

Fields injected herself into the altercation in an effort to break it up.

                In response to Fields’s plea for help, several employees arrived on the scene. Warren

Karcher, a bouncer at the bar, testified that he saw Maldonado running backwards while waving the

knife in a defensive manner as four or five of the men were charging towards him. James Rhymes,

who worked security at the bar, similarly testified that he saw Maldonado waving a knife while

walking backwards as all five men in appellant’s group chased him. Mary Karcher, the bar manager,

was among the last employees on the scene. She also testified to seeing Maldonado backing up

while waving a knife but could not provide any more details of the incident.

                Valeria Garza, a bartender who was among the first bar employees at the scene,

testified that she saw Joseph grab Maldonado by his shirt and a couple of other men—who she

thought were appellant and Ramirez—began pursuing him as well. She testified that she heard

appellant say that “it is a one-on-one thing. Let them fight one on one. [But it] [d]idn’t end up

happening that way because you can’t pull out a weapon at a fight.” She likewise saw four or five



                                                   3
people approach Maldonado as he waved a knife at them. As Maldonado was backing away, he

appeared to be angry, and she heard him say,“What mother-fucker?” and “Come on mother-fuckers.”

                As Maldonado was retreating, almost all the witnesses testified to seeing him trip over

debris in the parking lot and fall. He did not get back up, and Fields testified that the “worst” of the

assault occurred while he was on the ground. At that time, witnesses said that Garza threw her body

over Maldonado to shield him because “everyone was on top of him.” Fields testified to having seen

all five of the men kick Maldonado.2 Rhymes testified that he saw all five of the men kicking

Maldonado after he fell, but he could not say where each person was due to poor lighting. On

cross-examination, Rhymes clarified that he could not definitely say that he saw anybody in

particular hit or kick Maldonado “because so much was going on at that point in time.” Mary

Karcher also could not say which of the men hit or kicked Maldonado. Warren Karcher testified that



       2
           Appellant argues that Fields’s testimony was equivocal as to whether he actually
participated in the assault on Maldonado. However, when read in context, Fields’s testimony is only
equivocal as to the actors’ names. She did not equivocate on her prior assertion that all five men had
assaulted Maldonado.

        Counsel:        And did Zachary [sic] kick Ben? Is that what you’re saying?
        Witness:        Yes, all of them were.
        Counsel:        I know you keep saying “all of them,” but I'm trying not to lump
                        [appellant] in with everybody. I’m trying to get you to tell me what
                        you saw. Was Zachary [sic] for sure in there?
        Witness:        Yes.
        Counsel:        Kicking?
        Witness:        Yes.
        Counsel:        All right. And, so, there must have been five there if you say he was
                        kicking; is that accurate?
        Witness:        Yes, sir.
        Counsel:        All right. So you’re saying [appellant] was kicking and Zachary [sic]
                        Sanchez was kicking and Daniel Cantu?
        Witness:        I guess. I don’t know all of them’s names.

                                                   4
he did not see what happened to Maldonado because he was occupied calling 911 and thus could not

say which of the men in appellant’s group were involved in the fight.

               At trial, Garza specifically recalled Ramirez punching Maldonado and Joseph kicking

him and further testified that appellant “probably kicked [Maldonado] and hit him a few times.” She

also remembered someone picking up Maldonado’s leg at one point and someone else stomping it,

but at the time of trial, she could not recall who that was. Because she testified that she could not

recall some of the specifics and that her memory was fresher when she provided a written statement

to police, she repeatedly refreshed her memory by referencing her written statement. Even after

reading her written statement, she said she could not recall whether appellant had kicked Maldonado.

Garza’s written statement, which was admitted and read to the jury over appellant’s objection,

reflects the following concerning appellant’s participation in the altercation:


       We got outside and Joseph, [appellant], [Ramirez], and the guy in the flannel shirt
       were at the end of the parking lot and Joseph and his friends were like in a half circle
       around [Maldonado] and he was cornered because he really didn’t have anywhere to
       go. [Maldonado] had a knife out and was waving it around trying to keep everyone
       back away from him and [appellant] was yelling, “fight him one on one.”

       ....

                I had Joseph by his arm and he pulled away and then I grabbed him by his
       shirt. Joseph was slightly pulling away telling me to get off of him and let him go.
       I thought at that point that Joseph didn’t really want to fight and he was just showing
       off in front of his friends until [appellant] started yelling, “Oh you want to pull out
       a knife mother fucker” and [appellant] started chasing Maldonado around the car.

       ....

              Joseph picked up [Maldonado’s] leg and stomped [him] in the leg. I think it
       was the knee cap, but I was getting hit also and I couldn’t tell for sure that it was the
       knee cap. I know for certain that it was Joseph that had the leg and stomped on it


                                                  5
       though. [Ramirez] was by [Maldonado’s] head on the right side, Joseph was in the
       middle . . ., and [appellant] was to the left of [Maldonado].

               I was in the middle of them trying to get [Ramirez] off of [Maldonado’s] neck
       and then [Ramirez] let go of [his] head and was delivering punches to the right side
       of [his] body and head. Joseph and [appellant] were kicking the shit out of
       [Maldonado] and [Ramirez] began to kick [him] also.


               Maldonado testified that, at first, he only saw Joseph running toward him, and then

Ramirez started pursuing him. He said he opened the knife before he walked out of the bar, but he

put it in his back pocket and did not pull it out until he saw Ramirez swinging at him as if

brandishing a knife. He said he did not see appellant doing anything at that time, but as the pursuit

went on, he eventually saw appellant coming from the back, walking towards him. After he fell, he

was temporarily knocked unconscious either by the fall or by being hit, but he recalled that when he

regained consciousness, he saw appellant, Joseph, and Ramirez “beating [him] down.” He

specifically recalled seeing appellant’s foot kick him, although he could not describe the

shoe appellant was wearing at the time. Maldonado testified that his leg was broken during

the altercation, requiring the installation of a titanium plate across his ankle and an extensive

recovery period.

               Upon being informed that police were en route, Zackary fled the scene on foot while

appellant, Joseph, Ramirez, and Cantu fled the scene in a vehicle driven by Joseph. When police

stopped Joseph’s vehicle, they found a knife in his pocket, but no other weapons. Appellant had no

cuts or abrasions on his hands, and his clothing was not torn or disheveled. However, it was

discovered that both Joseph and Ramirez had been stabbed during the fight.




                                                 6
               The case was submitted to the jury on the sole charge of aggravated assault, and the

jury was instructed as follows:


       Each party to an offense may be charged with commission of the offense. A person
       is criminally responsible as a party to an offense if the offense is committed by their
       own conduct, by the conduct of another for which they are criminally responsible, or
       both. A person is criminally responsible for an offense committed by the conduct of
       another if acting with the intent to promote or assist the commission of the offense,
       they solicit, encourage, aid, or attempt to aid the other person to commit the offense.
       Mere presence alone will not constitute one a party to a crime. No person may be
       convicted of an offense unless each element is proved beyond a reasonable doubt.

       ....

       Now, bearing in mind the foregoing instructions, if you find from the evidence
       beyond a reasonable doubt that on or about the 3rd day of September, 2011 in
       Lampasas, Texas, the defendant, REYES ANTHONY SANCHEZ, did then and there
       intentionally, knowingly, or recklessly cause serious bodily injury to Benjamin
       Maldonado by punching or kicking Maldonado, which caused serious bodily injury;
       [o]r if you find from the evidence beyond a reasonable doubt that on or about
       September 3, 2011 in Lampasas, Texas, Joseph Sanchez or Phillip Ramirez
       intentionally, knowingly or recklessly caused serious bodily injury, and that the
       defendant, REYES ANTHONY SANCHEZ, did then and there, with intent to
       promote or assist the commission of said ASSAULT, solicited, encouraged, aided,
       or attempted to aid Joseph Sanchez or Phillip Ramirez to commit the offense, you
       will find the defendant guilty of aggravated assault as charged in [the] indictment.
               If you do not so find, or if you have a reasonable doubt thereof, you will find
       the defendant not guilty.


The charge also included a general unanimity instruction: “It is [the presiding juror’s] duty to

preside at your deliberations and to vote with you in arriving at a unanimous verdict.”

               After inquiring whether there was a lesser charge they could consider, the jury found

appellant guilty of aggravated assault. The judge sentenced appellant to 11 years in prison.

Appellant’s motion for new trial was overruled by operation of law, and this appeal followed.



                                                 7
                                            DISCUSSION

                In four issues on appeal, appellant argues that (1) the jury charge erroneously allowed

him to be convicted based on the law of parties if either of two persons was the principal actor

without requiring the jury to agree as to which of the two was the principal actor; (2) appellant’s

conviction therefore violated the unanimous jury guarantee of the Texas Constitution;3 (3) the

evidence was insufficient to sustain appellant’s conviction as either a principal actor or as a party to

the offense charged; and (4) the trial court erroneously admitted Garza’s written statement over

appellant’s hearsay objection. We will address these issues in turn.


Jury Instructions

                In issues one and two, appellant contends that the disjunctive recitation of alleged

principal actors in the application paragraph of the jury charge—himself, Joseph, and

Ramirez—allowed the jury to convict him without requiring unanimity as to the specific assailant

or assailants. This, he contends, deprived him of a unanimous determination that at least one of the

named parties committed all the essential elements of the aggravated assault offense. See Pizzo

v. State, 235 S.W.3d 711, 714 (Tex. Crim. App. 2007) (unanimous verdict helps ensure each juror


        3
          In issue two, appellant also asserts that the jury’s verdict violated the “substantial majority”
requirement of the Sixth Amendment to the United States Constitution. However, this issue is not
briefed and is therefore waived. See Tex. R. App. P. 38.1(i); Lucio v. State, 351 S.W.3d 878, 896-97
(Tex. Crim. App. 2011) (appellant’s brief contained no argument or citation to any authority that
might support argument, therefore court decided point of error was inadequately briefed and
presented nothing for review “as this Court is under no obligation to make appellant’s arguments for
her”), cert. denied, 132 S. Ct. 2712 (2012); Hankins v. State, 132 S.W.3d 380, 385 (Tex. Crim. App.
2004) (because appellant did not provide any argument or authority in support of contention, it was
inadequately briefed); Aldrich v. State, 928 S.W.2d 558, 559 n.1 (Tex. Crim. App. 1996) (appellant
proffered no argument or authority with respect to claims, so court considered them inadequately
briefed and as presenting nothing for review).

                                                    8
is convinced beyond reasonable doubt that prosecution proved each essential element of offense);

Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005) (“Under our state constitution, jury

unanimity is required in felony cases, and, under our state statutes, unanimity is required in all

criminal cases.”). In essence, appellant argues that the trial court should have issued a charge

requiring the jury to unanimously decide which individual was the principal for whose actions he

is criminally responsible under the law of parties. Appellant did not object to the charge on this

basis, however. Rather, appellant only objected to the sufficiency of the evidence to warrant the

submission of a law-of-parties instruction. To whatever extent that appellant has preserved, or is

required to preserve, his arguments for appeal,4 we hold that there was no error in the jury charge.

               The application paragraph required unanimity regarding appellant’s culpability for

the aggravated assault on Maldonado, but did not require unanimity as to the manner in which he

was culpable—as a principal or party to one or more persons. There is no general requirement that

the jury reach unanimous agreement on preliminary factual issues that underlie the verdict, such as

the manner and means by which one offense was committed. See Schad v. Arizona, 501 U.S. 624,

632 (1991) (plurality opinion); Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991).

Appellant was charged with one offense—the aggravated assault of Maldonado. The alleged

theories of culpability as principal or party are merely alternate methods or means by which the

appellant committed one charged offense, which does not require juror unanimity. See, e.g., Leza



       4
          “An appellant can raise a claim of error in the failure of the jury charge to require an [sic]
unanimous verdict on appeal regardless of whether he made that objection in the trial court; the only
limitation is that, if he made no trial objection, the record must demonstrate egregious harm before
he may obtain appellate relief on that basis.” Leza v. State, 351 S.W.3d 344, 356 n.45 (Tex. Crim.
App. 2011) (citing Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005)).

                                                   9
v. State, 351 S.W.3d 344, 357 (Tex. Crim. App. 2011); Miranda v. State, 391 S.W.3d 302, 311-12

(Tex. App.—Austin 2012, pet. ref’d); see also Jefferson v. State, 189 S.W.3d 305, 313 (Tex. Crim.

App. 2006) (distinguishing precedent requiring unanimity when statute defined three acts as separate

offenses from statute that defined three acts as different means of committing single criminal

offense); cf. Cosio v. State, 353 S.W.3d 766, 771-72 (Tex. Crim. App. 2011) (describing three

scenarios requiring specific unanimity instruction: (1) repetition of same criminal conduct with

different results; (2) one offense committed on multiple but separate occasions; and (3) separate

offenses that violate different provisions of same criminal statute); Francis v. State, 36 S.W.3d 121,

124-25 (Tex. Crim. App. 2000) (unanimity issues arise when jury charge disjunctively submits two

separate offenses rather than alternative means of committing single offense).

               As the court of criminal appeals recently observed, “it would be plainly absurd to

require the jury to acquit the accused unless it can unanimously determine his status as a principal

actor or a party, and if the latter, what his exact party accountability might be.” Leza, 351 S.W.3d

at 357 (emphasis added). As the court explained, the provisions of section 7.02 of the Texas Penal

Code, which defines party liability, do not contain elements of the underlying offense, but rather

“describe alternative manners by which an accused may be held accountable for the conduct of

another who has committed the constituent elements of a criminal offense.” Id. (citing Tex. Penal

Code § 7.02). Thus, if the jury determines that the accused is guilty of every constituent element of

the alleged penal offense—“either as a principal or under some theory of party liability”—the jury

is not required to unanimously determine what his “precise role” was in the offense. Id. at 357; see

also Miranda, 391 S.W.3d at 311-12.



                                                 10
               In Leza, the jury charge authorized the jury to convict the defendant if it determined

that he was (1) the principal actor, (2) a party under section 7.02(a)(2) of the Penal Code (imposing

criminal responsibility for soliciting, encouraging, directing, aiding, or attempting to aid commission

of offense), or (3) a party under section 7.02(b) of the Penal Code (imposing criminal responsibility

for felony co-conspirator). See Leza, 351 S.W.3d at 355. The court of criminal appeals held that the

jury charge did not violate the defendant’s right to a unanimous jury verdict even though the jury was

charged disjunctively with three alternate theories of criminal culpability. See id. at 357-58.

Appellant asserts his case is distinguishable from Leza because, with respect to the theories of party

liability, the jurors in this case were not required to determine unanimously the specific person or

persons who committed the constituent elements of the aggravated-assault offense against

Maldonado. See id. at 357 (party liability provisions of Penal Code “describe alternative manners

by which an accused may be held accountable for the conduct of another who has committed the

constituent elements of a criminal offense”). We do not agree that Leza is distinguishable on this

basis.

               Leza makes it clear that multiple theories of party liability under section 7.02 may be

listed disjunctively in the jury charge without running afoul of the constitutional unanimity

requirement. That is what occurred in this case—there were two theories of party liability submitted

to the jury—but the essential element that required the jury’s unanimity was appellant’s criminal

culpability for the crime. See Pizzo, 235 S.W.3d at 714 (minimal essential elements of offense

include defendant’s culpability); see also Ngo, 175 S.W.3d at 745-47 (unanimity requires every juror

to agree that defendant committed same, single, specific criminal act, but not how defendant

committed specific statutory criminal act). The jury was not required to be unanimous concerning

                                                  11
the manner in which he was culpable—as the principal actor or as a party to the offense committed

by either Joseph or Ramirez (or both). As explained in Leza, it is unnecessary that jurors

unanimously agree on the theory of criminal culpability supporting their unanimous conclusion of

appellant’s guilt as either a principal or party for a single offense. See Leza, 351 S.W.3d at 357. A

specific unanimity instruction is not required with respect to alternate theories of party liability

because the theories are not conceptually distinct; rather, they are slightly different characterizations

that can be given the appellant’s particular conduct, each of which would make him guilty of the sole

crime charged. Consequently, we hold that there was no error in the jury charge, and we overrule

appellate issues one and two.5


Evidence Sufficiency

                In issue three, appellant asserts that the evidence is insufficient to support his

conviction for aggravated assault either as a principal or a party. In reviewing the sufficiency of the

evidence, we consider all the evidence in the record, both direct and circumstantial, properly or

improperly admitted evidence, and evidence submitted by either the prosecution or the defense. See


        5
         Appellant misreads Leza to hold that unanimity is required unless there is “compelling”
evidence that the defendant is culpable under some theory of principal or party liability. In Leza, the
court of criminal appeals observed, “Where, as is the case here, the evidence is compelling that an
accused is guilty of every constituent element of the alleged penal offense—either as a principal
actor or under some theory of party liability . . . we think it would be plainly absurd to require [jury
unanimity as to his precise role].” See Leza, 351 S.W.3d at 357. The use of the term “compelling”
in this passage, however, is merely illustrative hyperbole employed by the court to emphasize the
absurdity of requiring unanimity when alternate theories of criminal responsibility are alleged for
a single offense; it is neither a standard of review nor a condition precedent to forgoing a specific
unanimity instruction when alternate methods or means of criminal responsibility for a single offense
are charged. Cf. Miranda v. State, 391 S.W.3d 302, 312 (Tex. App.—Austin 2012, pet. ref’d)
(considering unanimity discussion in Leza and concluding that compelling evidence existed
concerning defendant’s role as principal actor or party to offense).

                                                   12
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Moff v. State, 131 S.W.3d 485,

489-90 (Tex. Crim. App. 2004). We review all the evidence in the light most favorable to the verdict

and assume that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew

reasonable inferences in a manner that supports the verdict. Jackson v. Virginia, 443 U.S. 307, 313

(1979); see Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). “In reviewing the

sufficiency of the evidence to support appellant’s participation as a party, we may consider events

occurring before, during and after the commission of the offense, and may rely on actions of the

defendant which show an understanding and common design to do the prohibited act.” King v. State,

29 S.W.3d 556, 564 (Tex. Crim. App. 2000). Ultimately, our duty is to ensure that the evidence

presented actually supports a conclusion that the appellant committed the crime that was charged.

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); see Winfrey v. State, 323 S.W.3d

875, 882 (Tex. Crim. App. 2010).

               In the present case, there was testimony from three witnesses—Fields, Garza, and

Maldonado—that appellant directly participated in the assault on Maldonado. There was also

testimony indicating that appellant was aware of a pre-existing plan to “jump” Maldonado after he

left the bar, and the jury could reasonably have inferred that appellant and his brothers and friends

were waiting to confront Maldonado when they remained in the parking lot at least 5 to 10 minutes

after the bar closed. There is also eyewitness testimony that appellant chased Maldonado and

encouraged his brother to fight the victim. Because this evidence is sufficient to support the jury’s

verdict, we overrule appellant’s third issue.




                                                 13
Admission of Garza’s Prior Written Statement

                In issue four, appellant contends that the trial court erroneously overruled his hearsay

objection to Garza’s prior written statement and allowed the statement to be read into the record as

a recorded recollection. See Tex. R. Evid. 803(5) (excepting recorded recollection from hearsay

rule). A trial court’s decision to admit or exclude evidence is reviewed under an abuse-of-discretion

standard. Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). The trial court’s ruling

will be upheld “if it is reasonably supported by the record and is correct under any theory of law

applicable to the case.” Id.

                The trial court determined that Garza’s statement was excepted from the hearsay rule

under rule of evidence 803(5), which states:


        A memorandum or record concerning a matter about which a witness once had
        personal knowledge but now has insufficient recollection to enable the witness to
        testify fully and accurately, shown to have been made or adopted by the witness when
        the matter was fresh in the witness’[s] memory and to reflect that knowledge
        correctly, unless the circumstances of preparation cast doubt on the document’s
        trustworthiness. If admitted, the memorandum or record may be read into evidence
        but may not itself be received as an exhibit unless offered by an adverse party.


Tex. R. Evid. 803(5). Appellant contends Garza’s statement should not have been admitted under

rule of evidence 803(5) because (1) Garza was able to remember many details from that evening and

thus did not have insufficient recollection of events as required for admissibility under the rule, and

(2) she could not vouch for the accuracy of the written statement, stating in response to a question

about a specific entry that she could not “recall what [she] wrote because [she] had done it a year

ago.” Although appellant did not assert these precise arguments in the trial court or object to the

entirety of the written statement as hearsay, our review of the record indicates that the trial court was

                                                   14
made aware that admissibility under rule 803(5) was at issue and admitted Garza’s statement after

reviewing the rule.6 Therefore, this issue is sufficiently preserved for our review.

                The record reflects that although Garza retained substantial recollection of some of

the pertinent events, she repeatedly testified that she could not recall significant details of what

occurred due to the passage of time. Even after attempting to refresh her memory by reviewing her

prior statement, she testified that she could not recall significant aspects of appellant’s actions during

the incident or the perpetrator of specific actions that she had recalled occurring. It was not, as

appellant alleges, simply a matter of testifying differently from the way the prosecution wanted her

to testify; she specifically stated that she could not recall some of the events about which she was

questioned. Conversely, Garza testified that she made the written statement near the time of the

events and that her memory of the events was fresh at the time she made it. Although she could not

remember all of the events recorded in the written statement after refreshing her memory, as trial

counsel acknowledged at the time, she did acknowledge the accuracy of much of what was in the

statement when asked, and she affirmed that she signed the statement and initialed the beginning and

end of each paragraph in it at the time it was made and when the events were fresh in her mind. Cf.

Johnson v. State, 967 S.W.2d 410, 416 (Tex. Crim. App. 1998) (“At the extreme, it is even sufficient


        6
           Appellant objected to the admission of Garza’s prior written statement on the grounds that
it was cumulative of Garza’s trial testimony and that it contained hearsay statements, which were
stricken from the statement before it was admitted and read into the record. Appellant did not
explicitly object to the statement itself as being hearsay, although his general hearsay objection
prompted the prosecution to advocate the recorded-recollection exception to the hearsay rule.
Although appellant never asserted that the statement did not meet the requirements for admissibility
under rule 803(5), and counsel conceded that Garza had already “acknowledged everything that’s
in that statement,” the proponent of hearsay bears the burden of establishing the applicability of an
exception to the hearsay rule. See, e.g., Simien v. Unifund CCR Partners, 321 S.W.3d 235, 240
(Tex. App.—Houston [1st Dist.] 2010, no pet.).

                                                   15
if the individual testifies to recognizing her signature on the statement and believes the statement is

correct because she would not have signed it if she had not believed it true at the time.”); Spearman

v. State, 307 S.W.3d 463, 470-71 (Tex. App.—Beaumont 2010, pet. ref’d) (trial court reasonably

determined that witness vouched for statement’s accuracy where witness identified his signature and

initials on statement at trial and, although he testified he did not remember making statement, said

he “must have”); Wigiert v. State, 948 S.W.2d 54, 59 (Tex. App.—Fort Worth 1997, no pet.) (written

and signed statement admitted even though witness did not testify specifically that statement was

accurate; she did not recant statement at trial, and statement was originally made to police “under

circumstances that support its reliability”).

                Rule 803(5) allows the admission of a prior written statement if the witness has

insufficient recollection at the time of trial to allow the witness to testify fully and accurately; the

record in the present case supports the trial court’s conclusion that, due to insufficient recollection,

Garza could not testify fully and accurately. Moreover, no magic words are required to satisfy

the requirement that the statement correctly reflects her past recollection of events. See Wigiert,

948 S.W.2d at 59 (“Absent any showing that the statement is inaccurate, the general tenor of her

testimony shows sufficient truthfulness to support a finding that the statement correctly reflects the

knowledge [she] had when she made it.”). The circumstances of this case are not similar to Lund

v. State, on which appellant bases his claim that the written statement was not shown to reflect

Garza’s personal knowledge correctly. See 366 S.W.3d 848, 856 (Tex. App.—Texarkana 2012, pet.

ref’d) (witness conceded that “some” of writing was hers but she could not refresh her recollection

due to medication she was taking, did not remember much of what was included in statement, and

claimed that portions were not in her handwriting). Based on the record here, we conclude that the

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trial court did not abuse its discretion in admitting Garza’s written statement under rule 803(5).

Accordingly, we overrule appellant’s fourth issue.


                                        CONCLUSION

               For the reasons stated, we affirm the judgment of conviction.


                                     ____________________________________________

                                     J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Goodwin and Field

Affirmed

Filed: August 15, 2013

Do Not Publish




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