                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-07-00247-CR

JERRY RANGEL,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                          From the 361st District Court
                              Brazos County, Texas
                        Trial Court No. 06-03010-CRF-361


                          MEMORANDUM OPINION


      A jury found Jerry Rangel guilty of aggravated sexual assault and assessed

punishment at life in prison. Asserting four issues, Rangel appeals. We will affirm.

      Rangel‖s first issue contends that the trial court abused its discretion by

admitting evidence recovered during an unlawful warrantless arrest.         Initially, we

address the State‖s contention that Rangel failed to preserve part of this complaint for

appellate review. As the State began to offer evidence about the apartment in which

Rangel was arrested, Rangel‖s trial counsel objected based on the police officer‖s
warrantless entry into the apartment and the warrantless arrest of Rangel. The trial

court overruled that objection. Trial counsel then stated the grounds for his objection:

“It‖s based on the Fourth and Fourteenth Amendments to the United States

Constitution; Article I, Section 9 and 10 of the Texas Constitution; and Article 38.23 of

the Texas Code of Criminal Procedure.”

        The Court of Criminal Appeals recently wrote:

                In order to preserve an issue for appellate review, a timely and
        specific objection is required. TEX. R. APP. P. 33.1(a)(1)(A); TEX. R. EVID.
        103(a)(1); Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006).
        A specific objection is necessary to inform the trial judge of the issue and
        basis of the objection, and to allow the judge a chance to rule on the issue
        at hand. Neal v. State, 150 S.W.3d 169, 178 (Tex. Crim. App. 2004), citing
        Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977). As we stated
        in Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992), “all the
        party has to do to avoid the forfeiture of a complaint on appeal is to let the
        trial judge know what he wants, why he thinks he is entitled to it, and to
        do so clearly enough for the judge to understand him at a time when the
        trial court is in a proper position to do something about it.” Beyond this,
        there are no specific words or technical considerations required for an
        objection to ensure that the issue will be preserved for appeal. Id. If the
        correct ground of exclusion was apparent to the judge and opposing
        counsel, no waiver results from a “general or imprecise objection.” Id. at
        908, citing Zillender, 557 S.W.2d at 517.

Layton v. State, --- S.W.3d ---, ---, 2009 WL 250080, at *2-3 (Tex. Crim. App. Feb. 4, 2009).

        Chapter 14 of the Code of Criminal Procedure governs warrantless arrests in

Texas. See TEX. CODE CRIM. PROC. ANN. arts. 14.03, 14.05 (Vernon 2005 & Supp. 2008).

Rangel‖s trial counsel did not specifically mention Chapter 14 in his warrantless-arrest

objection; he mentioned only state and federal constitutional provisions and article

38.23, Texas‖ statutory exclusionary rule. Id. art. 38.23 (Vernon 2005). In a nearly

identical case involving a written motion to suppress, the Court of Criminal Appeals

Rangel v. State                                                                          Page 2
held that the defendant‖s suppression motion, which cited the same constitutional

provisions and article 38.23, failed to alert the trial court or opposing counsel that

defense counsel was invoking Chapter 14 and that the defendant thus failed to preserve

his Chapter 14 complaint for appeal. Buchanan v. State, 207 S.W.3d 772 (Tex. Crim. App.

2006). Applying Buchanan, we hold that it was not obvious to the trial court that Rangel

was also raising a Chapter 14 argument and that Rangel did not preserve it for appellate

review. See id. We therefore will only address his constitutional complaint on the

warrantless arrest.

        We review a trial court‖s admission or exclusion of evidence for abuse of

discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). We review a

suppression ruling under an abuse-of-discretion standard. See Montanez v. State, 195

S.W.3d 101, 108 (Tex. Crim. App. 2006). We afford almost total deference to the trial

court‖s determination of historical facts but review de novo its ruling on mixed

questions of law and fact that do not turn on the credibility and demeanor of witnesses.

Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App. 2008). If the trial court does not make

explicit findings of historical facts, we review the evidence in the light most favorable to

the trial court‖s ruling. Walter v. State, 28 S.W.3d 538, 540 (Tex. Crim. App. 2000).

Because in this case the trial court did not make explicit findings, we review the

evidence in the light most favorable to the trial court‖s ruling.

        “Neither the United States Constitution, nor Article I, Section 9 contains a

requirement that an arrest be authorized by an arrest warrant.           An arrest that is

otherwise reasonable will not be found to be in violation of either provision because it

Rangel v. State                                                                       Page 3
was not authorized by an arrest warrant.” Buchanan v. State, 175 S.W.3d 868, 874 (Tex.

App.—Texarkana 2005), rev’d on other grounds, 207 S.W.3d 772 (Tex. Crim. App. 2006)

(citing Hulit v. State, 982 S.W.2d 431, 436 (Tex. Crim. App. 1998)).

        Reviewing the evidence in the light most favorable to the trial court‖s ruling, we

hold that Rangel‖s warrantless arrest was reasonable. Inez, the grandmother of 13-

month-old E.A. and the person paying the apartment‖s rent, found her in the early

afternoon on a bed naked, unconscious, and bleeding vaginally. Rangel, who stayed

overnight in the apartment a couple of nights a week with E.A.‖s mother, was asleep on

the bedroom floor with his belt buckle undone after being out all night with E.A.‖s

mother, whom Inez had taken to work early that morning.                Inez relayed that

information to her employer, who relayed it to the police just before they entered the

apartment and found Rangel still asleep. We overrule Rangel‖s first issue.

        Rangel‖s second issue complains of the trial court‖s admission into evidence of

the search warrant affidavit and attached inventory, over his hearsay objection. The

State again contends that Rangel failed to preserve his complaint. The record reflects

the following:

        [DEFENSE COUNSEL]: Judge, I‖m going to object to the search warrant
        being offered in evidence. We are not challenging the search in front of
        the jury.

        [PROSECUTOR]:               You just did. You‖ve just got up in front of the
        jury three or four times and challenged the legality of the search. We are
        entitled to make sure the jury understands that this was a lawful search.

        [DEFENSE COUNSEL]:         I‖m just making objections. I have the right to
        do that. It‖s hearsay.


Rangel v. State                                                                        Page 4
        THE COURT:                  You‖re not making any objection?

        [DEFENSE COUNSEL]:          May I see it?

        [PROSECUTOR]:               It‖s our intention to offer it, Your Honor.

        [DEFENSE COUNSEL]: Judge, my objection is that it is not relevant
        under Rule 401, and the prejudicial value greatly outweighs the relevance
        in that we are not challenging – we‖re not asking for a 38.23 Charge where
        the jury determines probable cause of the search. It‖s just irrelevant.

        ...

        THE COURT:                  The objection will be overruled. . . .

        In Layton, quoted above, the court continued:

                For example, we said that the one-word objection, “hearsay,” was
        sufficient to put the trial judge and opposing counsel on notice of the
        reason for the objection. Lankston, 827 S.W.2d at 910, explaining Long v.
        State, 800 S.W.2d 545, 548 (Tex. Crim. App. 1990). In addition, we have
        previously stated that “we will not be hyper-technical in examination of
        whether error was preserved.” Archie v. State, 221 S.W.3d 695, 698 (Tex.
        Crim. App. 2007).

Layton, --- S.W.3d at ---, 2009 WL 250080, at *3.

        Rangel‖s hearsay objection was adequate under Layton. Accordingly, we will

address it.       A search warrant and supporting affidavit are hearsay and generally

inadmissible. See Foster v. State, 779 S.W.2d 845, 857 (Tex. Crim. App. 1989); Pratt v.

State, 748 S.W.2d 483, 484 (Tex. App.—Houston [1st Dist.] 1988, pet. ref‖d). We will

assume that Rangel did not “open the door” and that the trial court erred in admitting

the search warrant affidavit and inventory. We proceed to a harm analysis.

        We may not reverse for nonconstitutional error unless, after examining the

record as a whole, we have a “fair assurance that the error did not have a substantial


Rangel v. State                                                                      Page 5
and injurious effect or influence in determining the jury‖s verdict.” Garcia v. State, 126

S.W.3d 921, 927 (Tex. Crim. App. 2004). We disregard any error that does not affect the

defendant‖s substantial rights.          See TEX. R. APP. P. 44.2(b); TEX. R. EVID. 103(a).

Moreover, the erroneous admission of evidence is usually harmless where substantially

the same evidence is properly admitted elsewhere. See Hicks v. State, 860 S.W.2d 419,

430-31 (Tex. Crim. App. 1993), overruled on other grounds by Rosales v. State, 4 S.W.3d 228

(Tex. Crim. App. 1999); Doggett v. State, 530 S.W.2d 552, 557 (Tex. Crim. App. 1975).

        The affidavit at issue states:

        On 3/6/6 Officer Wescoat was dispatched to the St. Joseph Hospital at
        approximately 1442 hours in reference to a sexual assault of a child under
        2 years of age. Detectives Loup and James also responded to St. Joseph
        Hospital and arrived at approximately 1445 hours. Detective Loup spoke
        with the mother [D.A.] and the grandmother Inez [ ] about the incident.
        Apparently, [Inez] was returning home and dropping off Amanda [S.] at
        200 Rebecca, apartment #43 and checking on her grandchildren. When
        she walked up to the apartment she noticed that the front door was open,
        which she told Detective Loup was out of place. [Inez] walked into the
        apartment and was looking around for the children. She told Detective
        Loup that she walked into the back bedroom and she saw the victim lying
        naked on the bed and bleeding from her vagina. She stated that Jerry
        Rangel was lying on floor next to the bed, asleep, with his belt buckle
        undone. [Inez] was able [to] identify Rangel by personal knowledge.
        [Inez] stated that Rangel has been dating the victim‖s mother for
        approximately 5-6 months. [Inez] woke Rangel up and asked him what he
        had done. Rangel told [Inez] that he had not done anything and he
        “passed out” asleep.

        [Inez] stated that she picked the victim up and drove to St. Joseph
        Hospital for medical treatment. When she arrived at the scene she told
        the medical staff there what had happened and one of the nurses in the
        emergency room called 911. Detective Loup learned from medical
        personnel that the victim had trauma and bleeding to her vagina, her left
        leg was broken, she had a fractured skull, and bruising to her face, foot,
        and hand. The victim was treated and later taken to Scott & White
        Hospital in Temple Texas by Life-Flight.

Rangel v. State                                                                       Page 6
        Having reviewed the record, we are satisfied that the witnesses who provided

the information that is in this affidavit provided the same or substantially the same

testimony at trial. Therefore, Rangel was not harmed by the hearsay affidavit. We

overrule issue two.

        Rangel‖s third issue complains of the trial court‖s submission of a voluntary

intoxication jury charge pursuant to section 8.04 of the Penal Code. The trial court

overruled Rangel‖s objections that the voluntary intoxication charge was improper

because it was a comment on the weight of the evidence, was prejudicial, there was no

evidence of intoxication, and that Rangel was not asserting a voluntary intoxication

defense.

        Article 36.14 requires the trial court to deliver a charge setting forth the law

applicable to the case. TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2007). We review

the trial court‖s charge for abuse of discretion. See Woods v. State, 152 S.W.3d 105, 115

(Tex. Crim. App. 2004).

        We have reviewed the law in this area:

        The Court of Criminal Appeals more recently discussed section 8.04 in
        Taylor v. State, 885 S.W.2d 154 (Tex. Crim. App. 1994). The defendant
        claimed that due to psychosis, she did not know right from wrong when
        she murdered her child; the State countered that her use of marijuana
        triggered the psychotic reaction. Id. at 155. The defendant objected to the
        court‖s submission of an instruction under section 8.04. Id. The Court
        explained that subsection “a” refers to the guilt-innocence phase of trial,
        subsection “b” refers to the punishment phase, and subsection “c” is a
        non-exclusive provision concerning the jury charge. Id. at 156. Thus,
        subsection “c” does not control whether an instruction is required under
        subsection “a” at the guilt-innocence phase. Id. at 157. The defendant
        need not have advanced a defense based on intoxication. Id. at 158. “[I]f

Rangel v. State                                                                       Page 7
        there is any evidence from any source that might lead a jury to conclude
        that the defendant‖s intoxication somehow excused his actions, an
        instruction is appropriate. Id.

Haynes v. State, 85 S.W.3d 855, 858 (Tex. App.—Waco 2002, pet. ref‖d) (footnote

omitted). We also quoted from Judge Clinton‖s concurring opinion in Taylor, which

succinctly stated the holding: “That means, consistent with subsection ―a‖ of § 8.04, that

whenever the evidence raises an issue whether the accused was voluntarily intoxicated

at the time he committed the offense, an instruction to the jury that his voluntary

intoxication does not excuse his conduct would be appropriate, irrespective of whether

the evidence suggests his level of intoxication was such as to have produced a state of

temporary insanity.” Taylor, 885 S.W.2d at 159 (Clinton, J., concurring).

        Here, there was evidence from several witnesses that Rangel was intoxicated and

still drinking around 7:00 a.m. when he and E.A.‖s mother had returned from being out

all night and that he was intoxicated when he was arrested around 3:00 p.m. Based on

the applicable law and this evidence, which supports the reasonable inference that

Rangel was intoxicated when the offense occurred, the trial court did not abuse its

discretion. We overrule issue three.

        In his fourth and final issue, Rangel complains that, in the punishment phase, the

trial court abused its discretion by admitting improperly authenticated evidence of

Rangel‖s juvenile criminal history. The evidence at issue is a 56-page packet from the

Texas Youth Commission (TYC) accompanied by a “business records” affidavit (from a

TYC records custodian) comporting with Rule of Evidence 902(10). The documents are

approximately twenty juvenile court records from Burleson County and Washington

Rangel v. State                                                                     Page 8
County, only two of which are certified. After Rangel‖s objection was overruled, the

State was allowed to summarize the records for the jury. The prosecutor noted that the

records revealed Rangel‖s juvenile adjudications for vehicle burglary, two criminal

mischief offenses, two home burglaries, and penetration of the female sexual organ of a

child younger than 14.

        The affiant states that the “records are kept by TYC in the regular course of

business, and it was the regular course of business of TYC for an employee or

representative of TYC with knowledge of the act, event, condition, opinion, or

diagnosis, recorded to make the record or to transmit information thereof to be

included in such record; and the record was made at or near the time or reasonably

soon thereafter. The records attached hereto are the original or exact duplicates of the

original.” The TYC custodian, however, is not the custodian of the original court

documents; she cannot attest to the authenticity of the original court documents, but

only that the TYC packet contains correct copies of documents that TYC received from

other sources. See Flowers v. State, 220 S.W.3d 919, 922 n.14 (Tex. Crim. App. 2007) (“The

compiler and custodian of the ―pen packet‖ is not the custodian of the original judgment

or data compilation relating to a defendant‖s prior conviction.         The pen packet

custodian cannot attest to the correctness of the original documents, he can attest only

that the pen packet contains correct copies of documents that he received from some

other source.”).

        The TYC‖s self-authenticating business record affidavit does not authenticate the

court records, and we disagree with In re C.P., No. 14-98-01094-CV, 2000 Tex. App.

Rangel v. State                                                                     Page 9
LEXIS 3042, at *5 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (not designated for

publication), relied on by the State, to the extent that case is support for the contrary.

And we agree with the State‖s concession in its brief (State‖s Brief at 32, n.18) that the

uncertified court records are not self-authenticating under Rule of Evidence 902(4) and

that the trial court erroneously admitted the uncertified court records under that rule.

        We thus proceed to a harm analysis on the improperly admitted uncertified

records. Rangel says that he was harmed because he received the maximum sentence

available when he was a first-time felon eligible for community supervision and that the

erroneously admitted juvenile records influenced the jury‖s sentence.

        Error in admitting evidence is nonconstitutional error governed by Texas Rule of

Appellate Procedure 44.2(b). TEX. R. APP. P. 44.2(b); TEX. R. EVID. 103(a); Solomon v.

State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001).          Rule 44.2(b) provides that a

nonconstitutional error “that does not affect substantial rights must be disregarded.”

Substantial rights are not affected by the erroneous admission of evidence if, after

examining the record as a whole, we have fair assurance that the error did not influence

the jury, or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 356 (Tex. Crim. App.

2002). In conducting a harm analysis under Rule 44.2(b), we decide “whether the error

had a substantial or injurious effect on the jury verdict.” Morales v. State, 32 S.W.3d 866,

867 (Tex. Crim. App. 2000). We “consider everything in the record, including any

testimony or physical evidence admitted for the jury‖s consideration, the nature of the

evidence supporting the verdict, the character of the error and how it might be

considered in connection with other evidence in the case[,] . . .the jury instruction given

Rangel v. State                                                                      Page 10
by the trial judge, the State‖s theory and any defensive theories, closing arguments, and

voir dire if material to appellant‖s claim.” Id. We also consider overwhelming evidence

of guilt, but that is only one factor in our harm analysis. Motilla, 78 S.W.3d at 356-58.

        We first consider the offense. The jury heard that Inez found E.A. on the bed,

bleeding and unconscious, with Rangel asleep on the floor with his belt unbuckled,

zipper down, and the front of his pants wet. Blood on Rangel‖s pants belonged to E.A.,

and DNA on a diaper suspiciously discovered the next day in the same bedroom

belonged to both E.A. and Rangel. E.A. suffered severe injuries, including multiple

bruises and abrasions, multiple skull fractures, a fractured femur, and a vaginal

laceration. In his post-arrest statement to Detective Loup, Rangel admitted to drinking

beer and ingesting cocaine the night before. At the time of the offense, Rangel was out

on bond for the aggravated assault of another girlfriend, who testified that Rangel

grabbed her by the neck until she almost passed out, threatened to kill her, and then put

a knife to her neck.

        Another officer testified that Rangel was a sex offender, had failed to register

after moving, and charges for failure to register had been filed. Rangel‖s father testified

that Rangel had gotten in trouble at age 13 and was sent to TYC until he was 18. An

acquaintance of Rangel testified that Rangel had admitted to committing a house and a

vehicle burglary and to being a registered sex offender as a juvenile.

        The State‖s theory at punishment was that the facts of the offense alone justified a

life sentence, although it did mention Rangel‖s juvenile history in the punishment phase

during its opening and closing.

Rangel v. State                                                                       Page 11
        After examining the circumstances of the offense, the evidence relating to the

other pending charges against Rangel, and the similar properly admitted testimony

about Rangel‖s juvenile criminal history, we have a fair assurance that the erroneous

admission of the uncertified juvenile records did not influence the jury or had but a

slight effect and was therefore harmless. See, e.g., Petruccelli v. State, 174 S.W.3d 761, 769

(Tex. App.—Waco 2005, pet. ref‖d). Rangel‖s fourth issue is overruled.

        We affirm the trial court‖s judgment.



                                                  REX D. DAVIS
                                                  Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray concurs in the judgment. A separate opinion will not issue.
       He notes, however, that Rangel‖s objection at trial to the packet of information
       admitted during punishment was not that the documents were not properly
       authenticated, which is the only argument made on appeal. As such, I believe
       the issue on appeal must be overruled because it does not comport with the
       objection at trial and thus presents nothing for review.)
Affirmed
Opinion delivered and filed March 4, 2009
Do not publish
[CRPM]




Rangel v. State                                                                        Page 12
