                                                                            PD-1557-14
                                                           COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                        Transmitted 12/19/2014 4:25:58 PM
                                                         Accepted 12/29/2014 10:30:09 AM
                                                                             ABEL ACOSTA
                                PD-1557-14                                           CLERK

               IN THE TEXAS COURT OF CRIMINAL APPEALS
           _________________________________________________

                         JUAN GARZA, JR.
                                APPELLANT
December 29, 2014

                                   vs.

                      THE STATE OF TEXAS
                               APPELLEE
           _________________________________________________

                     FROM THE SIXTH COURT OF APPEALS
                        CAUSE NO. 06-14-00054-CR

              APPEAL FROM CRIMINAL DISTRICT COURT NO. 2
                OF DALLAS COUNTY, CAUSE NO. F12-30953-1,
               THE HONORABLE DONALD C. ADAMS PRESIDING
           _________________________________________________

                    APPELLANT’S PETITION FOR
                     DISCRETIONARY REVIEW
           _________________________________________________

       BRUCE ANTON                       SORRELS, UDASHEN & ANTON
       State Bar No. 01274700            2311 Cedar Springs, Suite 250
       ba@sualaw.com                     Dallas, Texas 75201
                                         214-468-8100 (office)
       BRETT ORDIWAY                     214-468-8104 (fax)
       State Bar No. 24079086
       bordiway@sualaw.com               Counsel for Appellant
             Ground for Review

Whether, in light of this Court’s opinion in
Gutierrez v. State, 36 S.W.3d 509 (Tex. Crim.
App. 2001), the court of appeals erred in deter-
mining Garza’s complaint was not preserved for
review because he obtained no adverse ruling
without considering whether the trial court made
an implicit ruling on Garza’s objection.




                       2
                                        Table of Contents

Ground for Review ...................................................................................... 2

Index of Authorities .................................................................................... 4

Identity of Parties and Counsel ................................................................. 5

Statement Regarding Oral Argument ....................................................... 6

Statement of the Case and Procedural History ........................................ 7

Argument .................................................................................................... 9

   In light of this Court’s opinion in Gutierrez v. State, 36 S.W.3d 509
   (Tex. Crim. App. 2001), the court of appeals erred in determining
   Garza’s complaint was not preserved for review because he obtained
   no adverse ruling without considering whether the trial court made
   an implicit ruling on Garza’s objection. ................................................. 9

      I. The court of appeals’s incomplete analysis ................................... 9

      II. For over 17 years, explicit rulings have not been required to
      preserve a complaint for appeal ....................................................... 10

      III. There was, at the very least, a question of whether the trial
      court implicitly ruled on Garza’s objection ...................................... 12

Certificate of Service ................................................................................ 20

Certificate of Compliance ......................................................................... 20

Appendix ................................................................................................... 21




                                                      3
                                       Index of Authorities

Cases

Davis v. State, 104 S.W.3d 177, 180 (Tex. App.—Waco 2003, no pet.) .. 19
DeRusse v. State, 579 S.W.2d 224, 235 (Tex. Crim. App. [Panel Op.]
  1979) ................................................................................................ 10, 13
Frazier v. Yu, 987 S.W.2d 607, 609–10 (Tex. App.—Fort Worth 1999,
  pet. denied) ............................................................................................ 11
Garcia v. State, 887 S.W.2d 862, 871 (Tex. Crim. App. 1994)................ 13
Garza v. State, No. 06-14-00054-CR, 2014 WL 5490947 (Tex. App.—
  Texarkana Oct. 30, 2014) ............................................................. passim
Gutierrez v. State, 36 S.W.3d 509 (Tex. Crim. App. 2001) . 2, 9, 12, 13, 19
Jones v. State, 111 S.W.3d 600, 606 (Tex. App.—Dallas 2003, pet. ref’d)
  ............................................................................................................... 19
Pescaia v. State, No. 06-04-00042-CR, 2004 WL 2359305, at *2 (Tex.
  App.—Texarkana 2004) ........................................................................ 12
Rey v. State, 897 S.W.2d 333, 336 (Tex. Crim. App. 1995) ..................... 18
State v. Kelley, 20 S.W.3d 147, 153 n. 3 (Tex. App.—Texarkana 2000, no
  pet.) .................................................................................................. 11, 12


Statutes

TEX. GOV’T CODE § 73.001..................................................................... 8, 13
TEX. PEN. CODE § 22.02(a)(2) ...................................................................... 7


Rules

TEX. R. APP. P. 33.1(a)(2)(A) ..................................................................... 11
TEX. R. APP. P. 52(a) ................................................................................. 11




                                                         4
                  Identity of Parties and Counsel

For Appellant Juan Garza, Jr.:

     LAWRENCE PATRICK DAVIS
          Trial counsel of record
     LAW OFFICE OF L. PATRICK DAVIS, PLLC
     115 North Henderson Street
     Fort Worth, Texas 76102

     BRUCE ANTON
     BRETT E. ORDIWAY
          Appellate counsel of record
     SORRELS, UDASHEN & ANTON
     2311 Cedar Springs, Suite 250
     Dallas, Texas 75201

For Appellee the State of Texas:

     RONTEAR FARMER
          Trial counsel of record
     DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE
     133 North Riverfront Boulevard
     Dallas, Texas 75207

     KIMBERLY J. DUNCAN
         Appellate counsel of record
     DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE




                                   5
               Statement Regarding Oral Argument

     The Texarkana Court of Appeals’s error was both glaring and

simple. Accordingly, Garza does not believe oral argument will be help-

ful to this Court’s understanding—it’s all on the page.




                                    6
          Statement of the Case and Procedural History

     The complainant’s neighbor observed her walking down the side-

walk in her nightgown. (RR6: 18-19). She was bruised, swollen, had

dried blood underneath her nose, and was “visibly shaken up.” (RR6:

18-19, 22). The neighbor approached her, and she told him “that she

had been beaten up by [her boyfriend, Garza,] who “had a weapon.”

(RR6: 21). The neighbor called 9-1-1, and the responding police officer,

too, perceived the complainant to be “shaken,” “very upset.” (RR6: 22-

23, 118; SX1). The complainant told him that Garza had returned home

intoxicated and assaulted her. (RR6: 119-20). The complainant further

stated that Garza had pointed a gun at her and threatened to kill her.

(RR6: 122).

     Garza was indicted for aggravated assault with a deadly weapon.

(RR6: 107; CR: 19); see TEX. PEN. CODE § 22.02(a)(2). Specifically, the

indictment alleged that Garza intentionally, knowingly, and recklessly

caused bodily injury to the complainant by striking her “with a hand

and hands and by grabbing and squeezing [her] neck with a hand and

hands.” (CR: 19). The indictment further alleged that Garza “use[d] and

exhibit[ed] a deadly weapon; to wit, a firearm, during the commission of


                                   7
the assault.” (CR: 19). Garza pleaded not guilty, but at the conclusion of

his trial the jury found him guilty and sentenced him to 35 years’ im-

prisonment and a $10,000 fine. (RR5; RR6: 14, 138, 180; RR7: 25; CR:

163).

        Garza appealed his conviction on three grounds. Garza v. State,

No. 06-14-00054-CR, 2014 WL 5490947 (Tex. App.—Texarkana Oct. 30,

2014). The Texas Supreme Court ordered the appeal transferred to the

Texarkana Court of Appeals in order to balance the courts of appeals’s

dockets. See TEX. GOV’T CODE § 73.001. That court rejected each of Gar-

za’s other grounds, though, and affirmed his conviction, and no motion

for rehearing was filed. Garza, 2014 WL 5490947.




                                    8
                                    Argument

              In light of this Court’s opinion in Gutierrez v.
              State, 36 S.W.3d 509 (Tex. Crim. App. 2001), the
              court of appeals erred in determining Garza’s
              complaint was not preserved for review because
              he obtained no adverse ruling without consider-
              ing whether the trial court made an implicit rul-
              ing on Garza’s objection.

                                      !   !   !

    I.   The court of appeals’s incomplete analysis

         In Garza’s second ground of error on appeal, he urged the Texar-

kana Court of Appeals that the trial court erred in admitting a police

officer’s testimony referring to Garza’s “violent history.”1 Garza v. State,

No. 06-14-00054-CR, 2014 WL 5490947, at *4 (Tex. App.—Texarkana

Oct. 30, 2014). The court of appeals noted that Garza had, indeed, “ob-

jected under Rules 401, 402, 403, and 404(b) and also asked for a mis-

trial,” and that a “hearing was held outside the presence of the jury.” Id.

From the transcript of that hearing, though, the court determined that

the “trial court denied Garza’s objection under Rule 403 and denied his



1As the court of appeals rightly noted, though this point of error in Garza’s brief
was erroneously stylized as “the trial court erred in failing to give an instruction to
disregard evidence of an extraneous assault,” the substance of the argument raised
a claim for erroneous admission of extraneous-offense evidence in violation of Rule
404(b) of the Texas Rules of Evidence. See Garza, 2014 WL 5490947 at *4 n. 2.
                                          9
motion for mistrial, but never ruled on his objections under Rules 401,

402, or 404(b).” Pointing to this Court’s 1979 opinion in DeRusse v.

State, 579 S.W.2d 224, 235 (Tex. Crim. App. [Panel Op.] 1979), which

held that a “complaining party must obtain an adverse ruling from the

trial court” in order to preserve the issue for appeal, the court deter-

mined that Garza had thus failed to preserve the issue for review. Gar-

za, 2014 WL 5490947 at *4.

II.   For over 17 years, explicit rulings have not been required
      to preserve a complaint for appeal

      To be sure, prior to the enactment of the “new” appellate rules,

which became effective September 1, 1997, a party had to “obtain a rul-

ing” or object to the court’s refusal to rule in order to preserve error for

appellate review. See Frazier v. Yu, 987 S.W.2d 607, 609–10 (Tex.

App.—Fort Worth 1999, pet. denied) (comparing TEX. R. APP. P. 52(a)

with TEX. R. APP. P. 33.1(a)(2)(A)). But revised rule 33.1(a)(2)(A), for-

merly rule 52(a), relaxes that requirement, and now, to preserve any er-

ror, the trial court must rule either expressly or implicitly on the objec-

tion, or refuse to rule with the complaining party objecting to the re-

fusal. See TEX. R. APP. P. 33.1(a)(2)(A); Frazier, 987 S.W.2d at 609–10

(error preserved as long as record indicates in some way that trial court

                                    10
ruled on objection either expressly or implicitly). Thus, “[i]n some in-

stances, a party need not get an express ruling on an objection, motion,

or request to preserve error.” State v. Kelley, 20 S.W.3d 147, 153 n. 3

(Tex. App.—Texarkana 2000, no pet.). “Appellate courts will generally

find that a trial court made an implicit ruling on an objection when the

objection was brought to the trial court's attention and the trial court’s

subsequent action clearly addressed the complaint.” Id.

      Of course, an appellate court will not find that the trial court

made an implicit ruling on an objection where the record does not re-

flect that the objection was ever brought to the trial court’s attention.

Id. But where an objection is made, and “the trial court [does] not ex-

pressly rule on the objection, [an appellate court] must determine

whether the trial court implicitly ruled on the objection.” Pescaia v.

State, No. 06-04-00042-CR, 2004 WL 2359305, at *2 (Tex. App.—

Texarkana 2004) (emphasis added) (citing Kelley, 20 S.W.3d at 153 n.

3).

      This Court affirmed as much in Gutierrez v. State, 36 S.W.3d 509

(Tex. Crim. App. 2001). In that case, like this one, the court of appeals

stated that in order to preserve an alleged error for appellate review


                                   11
under Rule of Appellate Procedure 33.1, the record must reflect that the

complaint was made to the trial court and that an adverse ruling was

obtained. Id. at 510; Garza, 2014 WL 5490947 at *4. And in that case,

like this one, the court of appeals pointed to pre-1997 case law in sup-

port. Gutierrez, 36 S.W.3d at 510 (citing Garcia v. State, 887 S.W.2d

862, 871 (Tex. Crim. App. 1994)); Garza, 2014 WL 5490947 at *4 (citing

DeRusse, 579 S.W.2d at 235).

       This Court swiftly and unanimously vacated the court of appeals’s

judgment and remanded the case to that court to consider whether the

trial court had nonetheless implicitly ruled on the appellant’s com-

plaint. Gutierrez, 36 S.W.3d at 511. This Court noted “the obvious lin-

guistic differences between Rule 33.1(a) and Rule 52(a),” the former “al-

low[ing] for a ruling by the trial court ‘either expressly or impliedly’

while Rule 52(a) simply required that the party obtain ‘a ruling.’” Id. In

only addressing whether “the trial court made an express ruling on ap-

pellant’s motion,” then, the court of appeals erred. Id.

III.   There was, at the very least, a question of whether the trial
       court implicitly ruled on Garza’s objection

       Unless the trial court here indisputably failed to rule on Garza’s

objection, then, the court of appeals was bound to consider whether he

                                    12
did so implicitly before dismissing Garza’s complaint as unpreserved.

And here, the record is, at the very least, unclear.

      At Garza’s trial, the first-responding police officer testified that he

did not make contact with Garza because of “his violent history.” (RR6:

126). Trial counsel immediately objected under Texas Rule of Evidence

404(b) and “ask[ed] for a ruling.” (RR6: 126). Thus began an extensive

back-and-forth. First, the court suggested, “Well, why don’t you with-

draw your question or re-ask.” (RR6: 126). Garza’s counsel then re-

quested, and received permission, to approach the bench. (RR6: 126).

The jury was excused, and the following occurred:

      Court:             Do you have an objection?

      Counsel:           Yeah. I do have an objection. Object to
                         404(b), 403, 402, 401. I ask the Court for a
                         ruling on 404(b) first.

      Court:             Well–

      Counsel:           Violent history. This witness—and before
                         the Court rules, let’s make it very, very
                         clear for the Fifth Court of Appeals.2 This
                         witness is a police officer. He knows better.
                         He’s a sergeant on top of that. He’s testified
                         before. I’m not going to ask him how many


2The Texas Supreme Court ordered the appeal transferred from the Fifth Court of
Appeals in order to balance the courts of appeals’s dockets. See TEX. GOV’T CODE §
73.001.
                                       13
                      times he’s testified. But now—he’s talked
                      about a 2009, incident. Now, he’s talked
                      about the violent history, and he knows bet-
                      ter, Judge.

                      He knows a lot better, and I don’t think his
                      captain would be too happy with the way
                      he’s come down here and messed this trial
                      up.

                      Judge, now the jury has heard about a vio-
                      lent history, a 2009 incident, involving my
                      client and Ms. Moore. This same jury—
                      Judge, move for a mistrial. Grant me a mis-
                      trial.

     Court:           Denied.

     Counsel:         404(b). Okay. 404(b).

     Court:           We’re going to—

     Counsel:         I ask for a ruling.

     Court:           —finish this case.

(RR6: 127-28). The court then questioned whether the officer had said

anything even potentially objectionable:

     Court:           Nothing has come out that I can hear that
                      he stated–

     Counsel:         I heard it. I heard it. 402.

     Court:           What did he say? What did he say that’s—



                                   14
     Counsel:         Violent history. Based on his violent histo-
                      ry. Based on his violent history. Trust me,
                      [the court reporter] has got it. Go ahead,
                      Counsel.

     Prosecutor:      He did, Your Honor. He said based on his
                      violent history.

     Court:           Okay.

(RR6: 128-29). The court then asked the State if it had any response:

     Prosecutor:      The State’s response is: They have not been
                      given the opportunity to clear up what the
                      officer testified to.

                      Furthermore, the State’s response will be
                      that Defense counsel, himself, stated that
                      his client is going to testify. And that is in-
                      formation that would come out that.

     Counsel:         That is ridi—

     Prosecutor:      In the voluntary manslaughter, would abso-
                      lutely come out.

     Counsel:         Not at this juncture, though, Judge.

     Prosecutor:      And the State’s—

     Counsel:         Not at this juncture. That’s crazy.

     Prosecutor:      And the State’s position is that they can
                      remedy what the officer testified to and ask
                      the Judge to ask the jury to disregard—

     Court:           All right.


                                   15
     Prosecutor:      —what was said.

     Court:           All right. And if you were to ask that, I
                      might do that.

     Prosecutor:      —and not go into it further.

     Court:           All right.

     Counsel:         How are they going to disregard that,
                      Judge?

     Court:           All right.

     Counsel:         That’s like having a naked woman run
                      through your courtroom right now.

     Court:           Okay.

     Counsel:         Could you disregard that?

(RR6: 129-30). The court then instructed the bailiff to bring the jury in,

and that “[i]f you want to make that—we’ll sustain the objection.” (RR6:

130). There is no indication to which objection the court referred, and

counsel then asked:

     Counsel:         You’ve overruled both of my objections on
                      404(b), correct? You’ve overruled those?

     Court:           Well, I mean—

     Counsel:         Motion for a mistrial. You heard that. Did
                      you overrule it?

     Court:           I denied the motion for a mistrial.

                                   16
Counsel:      Okay. Object under 404(b) to the violent
              history by Sergeant Diaz.

Court:        I don't know that we got that much out of it,
              but—

Counsel:      We did. We did.

Court:        So—well, maybe you think so, but I—

Prosecutor:   If the State could be given an opportunity to
              remedy what was said by Sergeant Diaz—

Counsel:      Oh. No. No. No. If they get into that, we’re
              going to object under 404(b) again.

Court:        Well, let’s bring in the jury. And, you know,
              if you want to make all your objections in
              the record, that’s fine, but we’re going to
              move on with this case.

Counsel:      Sergeant, you need to stay away from that.
              Counsel, stay away from it. Don’t make it
              worse. Let’s move on. I'm with the Judge.
              I'm with Judge Adams.

Prosecutor:   I think I know how to do my job.

Counsel:      I know. I’m with Judge Adams, so let’s move
              on.

Court:        Let’s get this—let’s get this case over with.

Counsel:      Let’s get it going, get this train moving.




                           17
(RR6: 130-31). The jury then entered the courtroom, and the matter was

not further addressed. (RR6: 131-32). The jury was not told to disregard

the officer’s testimony. (RR6: 132).

     Even before the appellate rules’ amendment in 1997, this Court

recognized this scenario as one in which an implicit ruling was made.

See Rey v. State, 897 S.W.2d 333, 336 (Tex. Crim. App. 1995) (defend-

ant’s motion “implicitly overruled” when he twice requested the court to

make a ruling and then stated that the court had denied his motion and

neither the court nor the State corrected that statement). And certainly,

the courts of appeals have since recognized this scenario as one in which

an implicit ruling was made. See, e.g., Davis v. State, 104 S.W.3d 177,

180 (Tex. App.—Waco 2003, no pet.) (implicit ruling found where appel-

lant’s counsel made an offer of proof, excepted to the court’s “ruling,”

and neither the court nor the State contradicted or corrected counsel’s

statement); Jones v. State, 111 S.W.3d 600, 606 (Tex. App.—Dallas

2003, pet. ref’d) (admission of evidence objected to implicitly overrules

the objection).

     At the very least, there is a “question . . . whether the trial court’s

ruling was implicit.” Gutierrez, 36 S.W.3d at 511. Accordingly, just as


                                       18
this Court did in Gutierrez, Garza respectfully requests it to grant his

petition so that it may vacate the judgment of the Texarkana Court of

Appeals and then remand the case to that court to consider whether the

trial court’s ruling was implicitly made.

                                  Respectfully submitted,


                                       /s/ Bruce Anton
                                  BRUCE ANTON
                                  Bar Card No. 01274700
                                  ba@sualaw.com


                                       /s/ Brett Ordiway
                                  BRETT ORDIWAY
                                  Bar Card No. 24079086
                                  bordiway@sualaw.com

                                  SORRELS, UDASHEN & ANTON
                                  2311 Cedar Springs Road Suite 250
                                  Dallas, Texas 75201
                                  (214)-468-8100 (office)
                                  (214)-468-8104 (fax)

                                  Attorneys for Appellant




                                    19
                        Certificate of Service

      I, the undersigned, hereby certify that a true and correct copy of
the foregoing Appellant’s Petition for Discretionary Review was served
via U.S. Mail to the Dallas County District Attorney’s Office and the
State Prosecuting Attorney on December 19, 2014.


                                      /s/ Bruce Anton
                                  BRUCE ANTON




                      Certificate of Compliance

      Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies
that this brief complies with:

  1. the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(D) because
     this petition contains 1,971 words, excluding the parts of the brief
     exempted by TEX. R. APP. P. 9.4(i)(1).

  2. the typeface requirements of TEX. R. APP. P. 9.4(e) and the type
     style requirements of TEX. R. APP. P. 9.4(e) because this brief has
     been prepared in a proportionally spaced typeface using Microsoft
     Word 2011 in 14-point Century Schoolbook.

                                      /s/ Bruce Anton
                                  BRUCE ANTON




                                   20
Appendix




   21
                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00054-CR



              JUAN GARZA, JR., Appellant

                            V.

           THE STATE OF TEXAS, Appellee



     On Appeal from the Criminal District Court No. 2
                  Dallas County, Texas
              Trial Court No. F-1230953-1




       Before Morriss, C.J., Carter and Moseley, JJ.
        Memorandum Opinion by Justice Moseley
                                    MEMORANDUM OPINION
        Juan Garza, Jr., was indicted in Dallas County, Texas, 1 for aggravated assault with a

deadly weapon involving family or dating violence and was found guilty by a jury. He pled

“true” to the enhancement allegation of a prior felony conviction, and after a punishment hearing

to that same jury, the enhancement allegation was found true. Diaz was sentenced to thirty-five

years’ confinement and assessed a $10,000.00 fine.

        On appeal, Garza argues that the trial court erred (1) by permitting testimony which

Garza maintained was an assertion by another witness that the alleged victim’s statements were

truthful, (2) by failing to instruct the jury to disregard evidence of an extraneous offense, and

(3) by admitting victim-impact testimony during the guilt/innocence phase of the trial.

        By way of cross-appeal, the State asks this Court to modify the judgment so as to reflect

the existence of the enhancement and the finding of family violence.

I.      Factual Background

        On the morning of May 5, 2012, about 6:30 or 6:45 a.m., Richard Berna was in his yard

preparing to hold a garage sale when he encountered a woman, later identified as Kelly Moore,

walking down the sidewalk. The woman was dressed in a nightgown, was “visibly shaken up,”

and carried a small dog. Berna saw that Moore had bruising and swelling on her face and dried

blood underneath her nose. When Berna approached Moore and asked if he could help her, she

told him that she had been beaten up by her boyfriend (later identified as Garza) and that she had

1
 Originally appealed to the Fifth Court of Appeals in Dallas, this case was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We
are unaware of any conflict between precedent of the Fifth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.

                                                        2
to wait until he fell asleep before she could leave the house and get help. Moore went on to

relate to Berna that her assailant, Garza, “had a weapon.”

       Berna telephoned the emergency 9-1-1 number and twenty or thirty minutes later, Grand

Prairie Police Officer Michael Diaz arrived on the scene. Diaz saw that Moore had marks on her

face and chest, and he described her as “shaken,” “very upset,” and carrying a small dog. She

told Diaz that at about 2:30 that morning, Garza had come home very angry and possibly

intoxicated and that he had beaten her for hours. Moore related that during the course of the

beating, Garza had pointed a gun at her and threatened to kill her. Because he believed Garza

was then armed, Diaz did not immediately go to Garza’s residence.

       About a month later, on June 6, Garza was arrested and later indicted for aggravated

assault with a deadly weapon involving family violence. Specifically, the indictment alleged that

Garza had

       intentionally, knowingly and recklessly cause[d] bodily injury to KELLY
       MOORE, hereinafter called complainant, by STRIKING COMPLAINANT
       WITH A HAND AND HANDS AND BY GRABBING AND BY SQUEEZING
       COMPLAINANT’S NECK WITH A HAND AND HANDS, and said defendant
       did use and exhibit a deadly weapon, to-wit: a FIREARM, during the
       commission of the assault,

       and further, the said defendant has and has had a dating relationship with the said
       complainant and the said defendant was a member of the complainant’s family
       and household . . . .

Garza’s jury trial began December 3, 2013.

       During the trial, Moore testified that she and Garza had dated intermittently for nine

years. At the time of the incident, they were living together, and she even called him her spouse.

She testified that at about 2:30 a.m. May 5, 2012, Garza came home intoxicated and seemingly
                                                3
angry. He struck her in the temple with his hands and ordered her to give him the handgun she

kept for protection. Garza then used the gun to add “extra weight” to his punches, before

pointing it at her and threatening to kill her, then trying to suffocate her. The physically abusive

conduct continued for “hours” until Garza fell asleep at about sunrise. When Garza fell asleep,

Moore retrieved the small dog she was pet-sitting that night, left the residence, and began

walking down the street.

       Moore was taken to a hospital, where she was diagnosed with having suffered a

concussion, two breaks in her nose, and damaged teeth. Later, at the direction of the police,

Moore recorded a telephone conversation with Garza during which he asked her to drop the

criminal charges. The telephone conversation was played for the jury.

       Garza called no witnesses in his defense and rested, after which the jury found him guilty

as charged. Garza pled true to the enhancement paragraph that alleged a prior felony conviction,

and Garza and the State made their cases to the jury for punishment. The jury assessed Garza’s

punishment at thirty-five years’ confinement and a $10,000.00 fine, and the trial court sentenced

him accordingly. This appeal has ensued.

II.    Analysis

       A.      Testimony Regarding Truthfulness of Complainant

       In his first point of error, Garza contends that the trial court erred in admitting what

Garza maintains was a statement by Berna that Moore was truthful in her statements to him.

       We review the trial court’s admission of evidence for an abuse of discretion. State v.

Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006); Zuliani v. State, 97 S.W.3d 589, 595 (Tex.

                                                 4
Crim. App. 2003); Harris v. State, 133 S.W.3d 760, 770 (Tex. App.—Texarkana 2004, pet.

ref’d). An abuse of discretion occurs only when the trial court’s decision “‘was so clearly wrong

as to lie outside that zone within which reasonable persons might disagree.’” Harris, 133

S.W.3d at 770–71 (quoting Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992)). We

will uphold the trial court’s ruling if it is reasonably supported by the record and is correct under

any applicable legal theory. Dixon, 206 S.W.3d at 590.

       Berna testified that Moore had told him that her boyfriend had beaten her up and that he

had a gun. The State asked Berna, “What did you learn next, if anything?,” and Berna testified

that “[b]ased on what [he] could see, [he] believed that she was telling the truth.” Garza objected

under Rule 608 of the Texas Rules of Evidence, and the trial court overruled the objection.

Garza moved for a mistrial, and the trial court overruled that as well. Berna testified that he then

called 9-1-1, and his wife brought Moore into their home, offered her breakfast, coffee,

“whatever [they] could give her at that time.”

       Nonexpert testimony may be offered to support the credibility of a witness in the form of

opinion or reputation, but “the evidence may refer only to character for truthfulness or

untruthfulness.” TEX. R. EVID. 608(a)(1). A lay witness may not, under Rule 608, testify as to

the complainant’s truthfulness in the particular allegations. See Schutz v. State, 957 S.W.2d 52,

72 (Tex. Crim. App. 1997); Fuller v. State, 224 S.W.3d 823, 832–33 (Tex. App.—Texarkana

2007, no pet.). Further, evidence of truthful character may only be offered “after the character of

the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.”

TEX. R. EVID. 608(a)(2).

                                                 5
         Here, Berna testified to Moore’s truthfulness. The State contends that Berna’s statement

“was offered as an explanation as to why Berna helped Moore—a complete stranger—by calling

911 and inviting her into his home.” However, the trial court could not have rested its ruling on

Berna’s statement to be an explanation for why he helped Moore because the trial court

overruled Garza’s objection before Berna testified to calling 9-1-1, helping Moore, or bringing

her into his home. Therefore, we find the trial court erred in admitting the testimony.

        The erroneous admission of evidence for the purpose of demonstrating the nature of a

witness’ character for truthfulness is nonconstitutional error. Rhodes v. State, 308 S.W.3d 6, 10

(Tex. App.—Eastland 2009, pet. dism’d, untimely filed). Thus, we disregard the error unless it

affected appellant’s substantial rights. See TEX. R. APP. P. 44.2(b). Substantial rights are not

affected by the erroneous admission of evidence if, after reviewing the record as a whole, the

appellate court has fair assurance that the error either did not influence or had only a slight effect

on the finder of fact. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). In weighing

harm, we consider everything in the record, including the evidence, the character of the alleged

error and how it might be considered together with the other evidence in the case, the jury

instructions, the State’s theory, any defensive theories, closing arguments, voir dire, and whether

the evidence of guilt is overwhelming. Id. at 355–58. In making that determination, this Court is

not concerned with whether there was sufficient evidence on which Garza could have been

convicted, but rather, whether there is a reasonable possibility the impermissible testimony might

have contributed to the conviction. Lopez v. State, 288 S.W.3d 148, 178 (Tex. App.—Corpus

Christi 2009, pet. ref’d).

                                                  6
       Garza argues that Berna’s testimony “essentially bolstered [Moore’s] credibility,”

arguing further that to believe Berna’s testimony was not harmful “strains credulity.” Here,

Garza’s defensive theory was that although Moore did not lie about the fact that an assault

occurred, she did lie regarding the seriousness of or the extent of the assault, arguing that

“[s]omething happened, just not this, not to this magnitude . . . .” While Berna did testify to

Moore’s credibility, Moore had yet to testify, and Berna’s testimony did not reference the extent

of the assault. Later in the case, Moore herself testified regarding the assault’s extent, duration,

and results. Moore testified that Garza, with a gun in his hand, repeatedly struck her in the head

and choked her. The jury saw photographs of Moore’s injuries taken the morning after the

assault as well as photographs taken a few days later. The medical records show that Moore

suffered a concussion, and her nose was broken in two places. The jury also heard a recorded

telephone conversation between Garza and Moore in which Garza stated he wanted her to be

okay and he did not know what made him snap. During this conversation, when Moore told

Garza that she thought he would kill her during the assault, he replied, “I know . . . . It was a bad

deal.” In addition to the recorded telephone call, there were several text messages from Garza to

Moore introduced in which Garza was urging Moore to drop the charges and change her story.

One of the text messages included the statement, “Your thing is in the trunk of your car.” When

the car trunk was searched, the police found the gun used by Garza in the assault. The State did

not otherwise emphasize Berna’s statement of his belief in the story told him by Moore.

       We have a fair assurance that Berna’s statement that he believed Moore to have been

telling him the truth about the nature of the assault had either only a very slight influence or no

                                                 7
influence on the deliberations of the jury. Even ignoring Berna’s statement entirely, there was

ample evidence that confirmed for the jury the veracity of Moore’s version of the assault. The

error in allowing Berna’s statement about the truthfulness of Moore’s statement was harmless.

Accordingly, we overrule this point of error.

         B.       Evidence of Extraneous Offense

         In his second point of error, Garza contends that the trial court erred by admitting Diaz’

testimony regarding an extraneous offense committed by Garza. 2

         While Diaz was testifying regarding Moore’s oral offense report, he stated that Moore

had told him that Garza “[w]oke her up. And then started beating her as he was screaming at her

about a 2009 case.” Garza objected under Rules 401, 402, 403, and 404(b) of the Texas Rules of

Evidence 3 and requested a mistrial. The trial court overruled his objections and denied his

motion.

         On appeal, Garza argues that Diaz’ testimony regarding the 2009 case was inadmissible

evidence of an extraneous offense under Rule 404(b) of the Texas Rules of Evidence.

Extraneous offenses or bad acts are not admissible to prove the defendant acted in conformity

with his criminal nature. TEX. R. EVID. 404(b); Abdnor v. State, 871 S.W.2d 726, 738 (Tex.

Crim. App. 1994). The reference to a 2009 case is not testimony implicating Garza in an arrest,


2
 In Garza’s brief, this point of error contends that the trial court erred by “failing to give an instruction to disregard
evidence of an extraneous offense,” but the substance of his argument raises a claim for erroneous admission of
extraneous-offense evidence in violation of Rule 404(b) of the Texas Rules of Evidence.
3
 Rule 401 defines “relevant evidence,” Rule 402 says generally that relevant evidence is usually admissible whereas
irrelevant evidence usually is not, Rule 403 spells out some circumstances wherein some evidence (though relevant)
should be barred, and Rule 404(b) provides that a person’s prior bad conduct is not admissible for the purpose of
showing that a person’s later actions are made in conformity with that person’s prior bad conduct.
                                                            8
crime, or bad act. There is nothing the jury heard to illustrate precisely what was meant by the

reference to a “2009 case.” Although that reference might have been to another crime of which

Garza had been accused, it could just as easily have been a reference to a civil case or to a case

involving only Moore. Under these circumstances, Diaz’ reference to a 2009 case is a simple

mystery, too vague to rise to the level of an extraneous bad act under Rule 404(b). Therefore,

the testimony raises no issue for our review.

       Later in Diaz’ testimony, he was asked whether, after speaking to Moore at Berna’s

house, he went to Moore’s home to speak with Garza. Diaz replied that he did not do so because

of “his violent history, as she portrayed it to me -- .” As before, Garza objected under Rules 401,

402, 403, and 404(b) and also asked for a mistrial. A hearing was held outside the presence of

the jury, during which Garza not only objected to the statement, he asked for a mistrial—

skipping over a request for the intermediate relief of an instruction for the jury to disregard. The

trial court denied Garza’s objection under Rule 403 and denied his motion for mistrial, but never

ruled on his objections under Rules 401, 402, or 404(b).

       As a prerequisite to presenting a complaint for appellate review, an appellant must

present to the trial court a timely request, objection, or motion stating the specific grounds for the

desired ruling. TEX. R. APP. P. 33.1(a)(1)(A). The complaining party must obtain an adverse

ruling from the trial court. DeRusse v. State, 579 S.W.2d 224, 235 (Tex. Crim. App. [Panel Op.]

1979). Finally, the point of error on appeal must correspond to the objection made at trial.

Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998); Thomas v. State, 723 S.W.2d 696,

700 (Tex. Crim. App. 1986).

                                                  9
       On appeal, Garza’s argument is based upon Rule 404(b); however, regarding Diaz’

reference to Garza’s “violent history,” Garza failed to obtain a ruling (adverse or otherwise) on

his objection. Therefore, he failed to preserve this issue for our review. See TEX. R. APP. P.

33.1(a)(1)(A); DeRusse, 579 S.W.2d at 235.

       C.       Victim Impact Evidence During Guilt/Innocence Phase of Trial

       In his final point of error, Garza contends that the trial court erred by admitting victim-

impact testimony during the guilt/innocence phase of the trial.

       During the State’s examination of Moore, the following exchange took place:

                Q.      Okay. Tell me how this assault has affected your life.

                        [GARZA’S ATTORNEY]: Your Honor, this is improper at this
       point.

                        THE COURT: Well, why don’t you rephrase your question.

               Q.    (BY [THE STATE]) Have you had any physical consequences to
       the assault? Has there been -- the aftermath of your injuries?

                        [GARZA’S ATTORNEY]: Asked and answered, Judge.

                        THE COURT: Overruled.

                A.      Yes. I -- I just don’t have the memory and the -- some cognitive
       skills that I have lost.

                        [GARZA’S ATTORNEY]: Judge, this is all improper --

                        THE COURT: Overruled.

                        [GARZA’S ATTORNEY]: -- at this point. This is all improper.
       This is all --

                A.      I lost my job and wages.

                                                   10
                      [GARZA’S ATTORNEY]: -- victim impact?

                      THE COURT: Overruled.

               Q.     (BY [THE STATE]) When -- I’m sorry. We only need one person
       talking because the court reporter has to record things.

              A.      I’m sorry.

              Q.     Just let that person talk. And then the Judge will make a ruling,
       and then you can talk, okay?

              A.      Okay.

              Q.      So you said that you have -- you’ve lost some cognitive abilities
       and lost your memory. How about your teeth? Or did you have to have any
       surgery or repairing to your teeth or your nose?

              A.      Yeah. I lost two months of work and had to have my dental work
       replaced and just scars from the inside.

       Outside the context of homicide cases, victim-impact testimony is generally defined as

evidence regarding the physical or psychological effects of a crime on victims themselves. See

Lane v. State, 822 S.W.2d 35, 41 (Tex. Crim. App. 1991). Victim-impact evidence may include

physical, psychological, or economic effects of crime on a victim or a victim’s family. Espinosa

v. State, 194 S.W.3d 703, 711 (Tex. App.—Houston [14th Dist.] 2006, no pet.). Although

victim-impact testimony may be admissible during the punishment stage, such evidence is

generally inadmissible during the guilt/innocence phase because it does not have the tendency to

make more or less probable the existence of any fact of consequence with respect to

guilt/innocence. See Miller–El v. State, 782 S.W.2d 892, 895 (Tex. Crim. App. 1990) (victim’s

testimony about future hardship as paraplegic was irrelevant on guilt issue and thus inadmissible

over objection); see also TEX. R. EVID. 402 (evidence not relevant is inadmissible). Here, Moore
                                               11
testified regarding the physical, psychological, and economic effects of the crime on her.

Therefore, the testimony was very clearly victim-impact testimony in nature, and the trial court

undoubtedly abused its discretion in allowing its admission at this stage of the proceedings.

       Having found error, we must conduct a harm analysis to determine whether the error calls

for reversal of the judgment. TEX. R. APP. P. 44.2. If the error is constitutional, we apply Rule

44.2(a) and reverse unless we determine beyond a reasonable doubt that the error did not

contribute to appellant’s conviction or punishment. TEX. R. APP. P. 44.2(a). Otherwise, we

apply Rule 44.2(b) and disregard the error if it does not affect the appellant’s substantial rights.

TEX. R. APP. P. 44.2(b); see Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).

Constitutional error is only present when a ruling is constitutionally required; mere

misapplication of the rules of evidence is not constitutional error. Alford v. State, 22 S.W.3d

669, 673 (Tex. App.—Fort Worth 2000, pet. ref’d). Thus, erroneously admitted victim-impact

evidence does not amount to constitutional error. Karnes v. State, 127 S.W.3d 184, 196 (Tex.

App.—Fort Worth 2003, pet. ref’d); Lindsay v. State, 102 S.W.3d 223, 228 (Tex. App.—

Houston [14th Dist.] 2003, pet. ref’d).     We, therefore, consider whether the error affected

Garza’s substantial rights. TEX. R. APP. P. 44.2(b).

       “A substantial right is affected when the error had a substantial and injurious effect or

influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim.

App. 1997). To determine whether the substantial rights of the appellant were affected, the

appellate court should 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,

                                                12
the character of the alleged error, the arguments, and the voir dire. Motilla v. State, 78 S.W.3d

352, 355–58 (Tex. Crim. App. 2002). “A criminal conviction should not be overturned by the

erroneous admission of evidence ‘if the appellate court, after examining the record as a whole,

has fair assurance that the error did not influence the jury, or had but a slight effect.’” Ex parte

Henderson, 384 S.W.3d 833, 860–61 (Tex. Crim. App. 2012) (quoting Johnson v. State, 967

S.W.2d 410, 417 (Tex. Crim. App. 1998)). The strength of the evidence of guilt, especially if it

is overwhelming, is a factor to be considered. Motilla, 78 S.W.3d at 357–58. Whether the State

emphasized the error can also be a factor in the appellate court’s consideration. Id. at 356. If

there are “grave doubts” about whether the error did not affect the outcome, then the error is

treated as if it did affect the outcome. Fowler v. State, 958 S.W.2d 853, 865 (Tex. App.—Waco

1997), aff’d, 991 S.W.2d 258 (Tex. Crim. App. 1999).

       After examining the record as a whole, we conclude that the admission of Moore’s

testimony about the ways that the incident has affected her life had only a slight effect, if any, on

the jury during the guilt/innocence phase of the trial. The remainder of Moore’s testimony, if

believed by the jury, was sufficient to prove beyond a reasonable doubt that Garza had severely

beaten Moore with his hands and with the pistol and, thus, committed the offense charged. The

testimony of Berna and Diaz also supports conviction, as do the text messages from Garza, the

recorded telephone conversation, and the medical records. The only reference the State made to

the testimony during its closing argument was an oblique mention that Moore “was terrorized

and still lives with that.” The State did not otherwise emphasize the error. We cannot say that

we are in “grave doubt” about whether the error affected the outcome, and we have a fair

                                                 13
assurance on this record that the error had little to no effect on the jury’s guilty verdict. Given

the strength of the evidence of guilt, we find the erroneous admission of the victim-impact

testimony harmless. Accordingly, we overrule this point of error.

       D.      State’s Cross-Appeal to Modify Findings in Judgment of Conviction

       As noted before, in its cross-appeal, the State asks this Court to modify the judgment so

as to reflect Garza’s plea of true to the enhancement, the jury’s finding of true to the

enhancement, and a finding of family violence.

       The Texas Rules of Appellate Procedure give this Court authority to modify judgments

and correct typographical errors to make the record speak the truth. TEX. R. APP. P. 43.2; Bigley

v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); French v. State, 830 S.W.2d 607, 609 (Tex.

Crim. App. 1992); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d).

       Here, the judgment lists “N/A” next to the spaces for “Plea to 1st Enhancement

Paragraph” and “Findings on 1st Enhancement Paragraph.” The record clearly reflects that

Garza pled true to the enhancement alleged by the State. The jury found the enhancement true.

       Article 42.013 of the Texas Code of Criminal Procedure provides that if the trial 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. CODE CRIM. PROC. ANN. art. 42.013 (West 2006); Butler v.

State, 189 S.W.3d 299, 302 (Tex. Crim. App. 2006) (“[T]he trial court is statutorily obligated to

enter an affirmative finding of family violence in its judgment, if during the guilt phase of trial,

the court determines that the offense involved family violence as defined by TEX. FAM. CODE

                                                 14
ANN. § 71.004(1).”); Thomas v. State, 150 S.W.3d 887, 889 (Tex. App.—Dallas 2004, pet. ref’d)

(“[T]he trial court had no discretion in entering a family violence finding once it determined the

offense involved family violence.”). “Family violence” includes “dating violence.” TEX. FAM.

CODE ANN. § 71.004(3) (West 2014). “Dating violence” includes an act that is “committed

against a victim . . . with whom the actor has or has had a dating relationship” and that is

intended to result in assault, or that “reasonably places the victim in fear of imminent physical

harm, bodily injury, assault, or sexual assault.” TEX. FAM. CODE ANN. § 71.0021(a)(1)(A), (a)(2)

(West 2014).

       The indictment and the jury charge each alleged that Garza presently or previously had a

dating relationship with Moore and that Garza was a member of Moore’s family or household.

The application portion of the jury instructions instructed the jury, in pertinent part,

               Now, bearing in mind the foregoing instructions, if you unanimously find
       from the evidence beyond a reasonable doubt that on or about May 5, 2012, in
       Dallas County, Texas, the defendant, Juan Garza, Jr., did unlawfully then and
       there intentionally or knowingly or recklessly cause bodily injury to Kelly Moore,
       hereinafter called complainant, by striking complainant with hand or hands, and
       [Garza] did use or exhibit a deadly weapon, to-wit: a firearm during the
       commission of the assault,
               and you further find beyond a reasonable doubt that [Garza] has or has had
       a dating relationship with the said complainant or [Garza] was a member of the
       complainant’s family or household, then you will find [Garza] guilty of
       aggravated assault as charged in the indictment.

The jury found Garza guilty as charged in the indictment; therefore, the jury found the allegation

of family violence to be true.




                                                  15
       Here, Moore gave undisputed testimony that she and Garza dated and lived together.

Despite the evidence provided at trial and the jury’s verdict, the judgment fails to include an

affirmative finding of family violence.

       Accordingly, we modify the judgment to include an affirmative finding of family

violence and the prior felony enhancement and affirm the judgment, as modified.




                                           Bailey C. Moseley
                                           Justice

Date Submitted:       August 28, 2014
Date Decided:         October 30, 2014

Do Not Publish




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