Judgment Modified and Affirmed as Modified and Opinion filed February 6,
2020.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00268-CR

            ALEXANDER PORTERFIELD SANCHEZ, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 147th District Court
                            Travis County, Texas
                   Trial Court Cause No. D-1-DC-17-201426

                                   OPINION

      Appellant Alex Porterfield Sanchez appeals his conviction for a felony
assault offense involving strangulation. In three issues, he complains that he was
not properly notified of the State’s intent to use extraneous offenses as a basis for
enhancing the conviction, that the trial court abused its discretion in admitting
“backdoor” hearsay, and that the trial court reversibly erred in later permitting the
same officer to testify about the complainant’s answers to his questions. We
affirm.

                      I. PROCEDURAL AND FACTUAL BACKGROUND

       Appellant was indicted for an assault offense as described under section
22.01(b-1) of the Penal Code,1 or “Assault–Family Violence by Strangulation with
a Prior Family Violence Conviction.”                 The original indictment contained
paragraphs listing two prior felony family-violence convictions in 2008 and 2012.
On the day of jury selection, the State filed an amended indictment, removing the
paragraph listing the prior 2012 Assault Family Violence conviction.

       At trial, the jury heard testimony from the complainant, her son, a neighbor,
a responding paramedic, two of the responding officers, (Christopher Morrison and
Christopher Knodel), the State’s retained non-expert paramedic with experience
treating strangulation victims (Cheryl Bahktiari), and a victim service counselor
with the Austin Police Department (Jeannie Tomanetz). Appellant also testified.

       Appellant and the complainant began dating in 2015. The two had broken
up and reignited their relationship several times leading up to the February 25,
2017 offense      at issue in today’s case. The complainant and appellant each
admitted that on the night in question, they had been drinking and were arguing.
After parting ways on poor terms at a service station, the complainant drove to pick
up her son from his workplace and to help him with a car problem.                           The
complainant and her son drove to a fast-food restaurant to eat and then went back
to the complainant’s apartment so that she could get a “jumper box.” Her son
waited in the car.

       As the complainant’s task to fetch the jumper box appeared to be taking too
long, the son went to the apartment. As he approached, he heard his mother
       1
         Under the current statutory revision, the same offense is defined under subsection (b-3)
of section 22.01 of the Texas Penal Code.

                                               2
screaming. The neighbor also testified that she heard screaming and called the
police. The son entered the bedroom and found his mother lying on the bed, her
face was bloody and her eye was swollen. She was not recognizable. The
complainant’s son testified that appellant was hovering above the complainant.
The son described appellant as jumpy. When the son told appellant to leave,
appellant refused and pushed him out of the room. The son left to get his cell
phone.

      The complainant testified that when she went into the apartment, appellant
grabbed her by the back of the neck and pushed her into the bedroom. She did not
remember anything after that until she woke up in the hospital the next day. The
complainant testified that she did not remember being interviewed by a police
officer in the hospital.

      Responding police officer Knodel testified about his investigation, including
his hospital interview with the complainant and his preparation of the victim-
assault statement and its strangulation supplement. Over appellant’s overruled
hearsay objection, the trial court let Knodel testify as to the complainant’s answers
to Knodel’s questions.

      Appellant presented a different version of the events occurring in the
apartment. He said the complainant was there when he arrived, and that she went
to the bathroom and screamed for him to leave. He said that when she came out,
she laid down on the mattress and pulled the covers over her. Appellant reported
that she then started punching him in the face with her fists, that she put her hand
inside his mouth, and that he bit her in an attempt to get away.

      Appellant admitted that he had been convicted of family-assault offenses in
the past, including two prior Assault Family Violence convictions in 2008 and
2012, but he said that in this instance, he was the victim and was acting in self-
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defense.

      The trial court admitted into evidence recordings of post-indictment jail calls
between the appellant and the complainant.         In several calls the complainant
remarked that appellant nearly killed her and asked appellant to admit it. During
one call, in response to appellant’s accusation that the complainant hit him, the
complainant responded, “if I hit you, it was because you were choking me.”

      Photos of the complainant taken while she was in the hospital revealed
scratches and marks on each side of her neck. Officer Knodel and paramedic
Bahktiari both reviewed the photographs and testified that these injuries were
consistent with defensive marks commonly found on victims of strangulation.

      The trial court instructed the jury on the second-degree felony offense of
Assault–Family Violence by Strangulation with a Prior Family Violence
Conviction, the third-degree felony of Assault–Family Violence with Prior Family
Violence Conviction, and the lesser offense of Deadly Conduct. The charge also
included instructions on self-defense.

      The jury found appellant guilty of the second-degree felony offense,
Assault–Family Violence by Strangulation with a Prior Family Violence
Conviction. Before the punishment phase commenced, appellant’s trial counsel,
acknowledging the State’s previously filed Notice of Intent to Seek Higher
Punishment Based on Prior Conviction Pursuant to Brooks v. State, 957 S.W.2d 30
(Tex. Crim. App. 1997) (“Brooks Notice”), objected to enhancement. Appellant’s
trial counsel argued that the State had misled the jury about the punishment
associated with the offenses at issue, stating, “we feel that it is misleading and
disingenuous now to, in fact, move forward on a different level.” The trial court
overruled the objection, and stated “if, in fact, the Court believes that that was this
individual who was convicted of that, then, as far as punishment range, it's in my
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discretion to punish within the first-degree range based on him being convicted of
a Second Degree.” Based on a prior felony conviction, the trial court enhanced
appellant’s punishment and used the range of punishment for a first-degree felony.
At the conclusion of the punishment phase, the trial court assessed appellant’s
sentence at 25 years’ incarceration.

                             II. ISSUES AND ANALYSIS

A. Did the trial court err in permitting the State to use evidence of appellant’s
prior 2012 felony family-violence conviction as enhancement evidence?
      In his first issue, appellant claims that the State failed to provide proper
notice of its intent to use evidence of a prior conviction for purposes of enhancing
punishment and that this alleged failure caused the trial court to enhance
appellant’s punishment and assess an illegal sentence.

      We first consider whether appellant preserved his complaint for appellate
review. The record must show, among other prerequisites to preserving error, that
the objection raised at trial comports with the complaint raised on appeal. Tex. R.
App. P. 33.1(a)(1); Nino v. State, 223 S.W.3d 749, 755 (Tex. App.—Houston [14th
Dist.] 2007, no pet.). The record does not show that appellant objected to any
alleged defect in the Brooks Notice itself or complained that the State failed to
provide the Brooks Notice.     Yet, on appeal, those arguments form the crux of
appellant’s complaint. Because appellant failed to present these objections in the
trial court, he has forfeited these arguments on appeal. See Nino v. State, 223
S.W.3d 749, 755 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

      Under his first issue, appellant also asserts that the judgment is facially
invalid because the judgment indicates a conviction for a second-degree felony,
“N/A” as to all fields relating to enhancement paragraphs, and a sentence that



                                         5
exceeds the permissible range for a second-degree felony.2 Neither party disputes
the manner of the trial court’s oral rendition or that the trial court adequately
explained that punishment for the second-degree felony had been enhanced by
virtue of a prior third-degree felony conviction. Though the statements in the trial
court’s judgment are correct, the trial court did not mention in the judgment that
appellant’s punishment had been enhanced.                 We have authority to modify a
judgment to make the record speak the truth when the matter has been called to our
attention by any source. French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App.
1992). Specifically, we may modify judgments to correct improper recitations or
omissions relating to punishment when the court has the necessary data for
reformation. See Tex. R. App. P. 43.2(b) (permitting the court of appeals to modify
the trial court's judgment); Lopez v. State, 515 S.W.3d 547, 550 (Tex. App.—
Houston [14th Dist.] 2017, pet. ref'd)(reforming judgment to conform to the
sentences that were orally pronounced). We modify the judgment to add a
statement that the trial court enhanced appellant’s punishment based on a prior
third-degree felony conviction and used the range of punishment for a first-degree
felony. See Tex. Pen. Code Ann. § 12.42.

B. Did the trial court err by allowing the State to present “backdoor” hearsay
testimony offered through the investigating officer?
       In his second issue, appellant complains that the trial court abused its
discretion by permitting inadmissible “backdoor” hearsay testimony to reveal the
complainant’s answers to questions about the victim-assault statement.

2
  The Penal Code provides punishment ranges in felony cases that vary based on the degree of
the felony. A second-degree felony carries a “term of not more than 20 years or less than 2
years,” a first-degree felony carries a “term of not more than 99 years or less than 5 years.” The
relevant enhancement statute provides that “if it is shown on the trial of a felony of the second
degree that the defendant has previously been finally convicted of a felony other than a state jail
felony punishable under Section 12.35(a), on conviction the defendant shall be punished for a
felony of the first degree.” Tex. Pen. Code Ann. § 12.42.

                                                6
      The hearsay rule, subject to various exceptions, prohibits out-of-court
“statements” other than those “made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.” Tex. R.
Evid. 801(d). The rule does not limit just out-of-court verbal assertions. See Tex.
R. Evid. 801(a). The rule defines “statement” to include “a person's oral or written
verbal expression, or nonverbal conduct that a person intended as a substitute for
verbal expression.” Tex. R. Evid. 801(a). An out-of-court “statement” need not be
directly quoted to run afoul of the hearsay rule. Head v. State, 4 S.W.3d 258, 261
(Tex. Crim. App. 1999). The “backdoor” (or indirect) hearsay doctrine aims to
prevent parties from eliciting testimony that indirectly reveals the substance of out-
of-court statements. Schaffer v. State, 777 S.W.2d 111, 113 (Tex. Crim. App.
1989).

      As a threshold inquiry, we consider whether appellant preserved error on his
appellate complaint in the trial court by a proper objection and a ruling on that
objection. Leyba v. State, 416 S.W.3d 563, 569 (Tex. App.—Houston [14th Dist.]
2013, pet. ref'd); Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003). To
preserve error the objection must be timely and specific enough to make the trial
court aware of the grounds for the objection (unless the ground is implied by the
context of the objection). Tex. R. Evid. 103(a); Tex. R. App. P. 33.1(a). The
objection at trial must comport with the complaint raised on appeal. Tex. R. App.
P. 33.1(a)(1); Nino v. State, 223 S.W.3d 749, 755 (Tex. App.—Houston [14th
Dist.] 2007, no pet.).     And, the objecting party must complain each time
inadmissible evidence is offered unless the complaining party obtains a running
objection or obtains a ruling on the complaint in a hearing outside the presence of
the jury. Lopez v. State, 253 S.W.3d 680, 684 (Tex. Crim. App. 2008); Ethington v.
State, 819 S.W.2d 854, 858–59 (Tex. Crim. App. 1991); Washington v. State, 449


                                          7
S.W.3d 555, 565–66 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The record
shows appellant failed to preserve error.

      The record reflects a single instance where appellant lodged an objection
fairly characterized as hearsay or “backdoor” hearsay.       After Officer Knodel
testified generally about the investigative use and purpose of victim-assault
statements, the following exchange took place:

      Q. Now, I don't want you to tell me what her answers were, but I
      would like to know if you asked her if she -- if the defendant had ever
      threatened to kill her?
      MS. BODE VAZQUEZ: I'm going to object to hearsay.
      MS. MAY: Your Honor, this is not hearsay. I'm asking him to provide
      --
      THE COURT: Let me read the question.
      MS. BODE VAZQUEZ: She's asking what he said.
      THE COURT: No. The question was “Now, don't want you to tell me
      what her answers were, but I would like to know if you asked her if
      she -- if the defendant had ever threatened to kill her.” It's just a
      question.
      So, he can answer that question.
      Q. (By Ms. May) Officer Knodel, did you ask Jada Hernandez if the
      defendant ever threatened to kill her?
      A. Yes, ma'am.
      Q. Don't tell us what the answer was, but did she provide an answer?
      A. Yes, ma'am.
      Q. Did you document that answer on the AVS?
      A. Yes, ma'am.
      The prosecutor continued with more questions to Knodel about whether he
asked, and whether the complainant answered, other questions derived from the
victim-assault statement and its supplement, including the following:


                                            8
      Had appellant ever tried to strangle her before?
      Had she ever moved away from appellant?
      Whether she had children living in the house?
      The method or manner that she was strangled?
      Whether appellant was right handed or left handed?
      How long was she strangled?
      Pressure used during strangulation?
      What appellant said while strangling her?
      What she said while appellant was strangling her?
      What she thought was going to happen if he continued?
      What made appellant stop strangling complainant?
      The State asked and Knodel answered these questions virtually
uninterrupted. Appellant lodged no “hearsay” or “backdoor hearsay” objection
beyond the first question, and did not request a running objection.        Appellant’s
counsel interrupted once when the prosecutor asked Knodel about the questions he
asked the complainant about how she was strangled, and then objected only on
grounds of “relevance” and “leading”. To the extent appellant contends that these
objections sufficed to preserve any part of his “backdoor hearsay” complaint for
appellate review, his argument fails because neither of these objections comport
with the hearsay complaint appellant urges on appeal. See Nino v. State, 223
S.W.3d 749, 755 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Moreover,
because appellant failed to object to the subsequent questions and answers, failed
to obtain a running objection, and failed to get rulings on any objection outside the
jury's presence, appellant has not preserved his “backdoor hearsay” complaint to
any of the subsequent testimony concerning the victim-assault statement and its
supplement. See Merrit v. State, 529 S.W.3d 549, 556 (Tex. App.—Houston [14th
Dist.] 2017, pet. ref'd). So, these issues afford no basis for appellate review.


                                           9
      We now turn to appellant’s “backdoor”-hearsay-based complaint to the trial
court’s admission of testimony pertaining to the State’s first question from the
assault-victim statement about whether Knodel had asked the complainant if the
appellant “had ever threatened to kill her.”      Whether the disputed testimony
violates the hearsay prohibition necessarily turns on how strongly the content of
the out-of-court statement can be inferred from the context, or whether the strength
of the inference produces an “inescapable conclusion” that the evidence is being
offered to prove the substance of an out-of-court statement.        Head v. State, 4
S.W.3d 258, 261-62 (Tex. Crim. App. 1999).

      In Schaffer, the defendant, facing narcotics charges, testified at trial that at
the time of his arrest he was working as an informant, and named his police contact
as “Jimmy Seals.” Schaffer v. State, 777 S.W.2d at 113. In lieu of calling Seals to
the stand, the State called another officer who testified that he had spoken to Seals
earlier that day, and that after his conversation with Seals he would not ask the
State to drop the case. Id. The Court of Criminal Appeals agreed with the court of
appeals, that the officer’s testimony was offered solely to rebut the defendant’s
testimony. Id. Without stating that Seals told him that the defendant was not an
informant, or even paraphrasing such a conversation, the testifying officer’s
testimony informed the jury that Seals told him that the defendant was not an
informant. Id.

      Neither the question posed to Officer Knodel nor his answer bears any
resemblance to the testifying officer’s testimony in Schaffer. Officer Knodel’s
testimony that he asked the complainant if appellant had ever threatened her life
before, as well as the immediate follow-up questions, did not lead to any
inescapable conclusions as to the substance of the complainant’s out-of-court
statements; rather, the testimony revealed only that the officer had asked these

                                         10
questions and the complainant had answered the questions. “Yes,” “No,” “I don’t
know” all seemed reasonably possible answers, but none had been indirectly
revealed. See Head v. State, 4 S.W.3d 258, 261-62 (Tex. Crim. App. 1999)
(finding investigator’s testimony that complainant’s out-of-court statements were
“consistent with” family-member statements that already were in evidence did not
indirectly reveal the substance of such out-of-court statements). Thus, as to these
first questions to Officer Knodel pertaining to the assault victim statement, the trial
court did not abuse its discretion in overruling appellant's objection and permitting
the testimony. Id. In any event, if the trial court erred in permitting this evidence
the error would be harmless for the reasons set forth in Part II.C, below. We
overrule appellant’s second issue pertaining to “backdoor” or indirect hearsay.

C. Presuming the trial court erred in admitting the complainant’s responses
to the investigating officer’s questions, did the admission of the evidence harm
appellant?
      In his third issue, appellant complains that the trial court committed
reversible error by allowing inadmissible hearsay — the complainant’s responses
to the assault victim statement — through Officer Knodel on the ground that the
State had laid a hearsay exception predicate under Texas Rule of Evidence 803(5).
Appellant contends that the State failed to lay the proper predicate because the
complainant failed to vouch for the accuracy of the statements.

      Presuming, without deciding, that the trial court abused its discretion by
permitting Officer Knodel to testify as to the complainant’s answers, we move
directly to the harm analysis and consider whether appellant’s substantial rights
were affected by the admission of the testimony.

      The erroneous admission of hearsay is non-constitutional error. Tex. R.
App. P. 44.2(a); Fischer v. State, 207 S.W.3d 846, 860 (Tex. App.—Houston [14th
Dist.] 2006), aff'd, 252 S.W.3d 375 (Tex. Crim. App. 2008). As the reviewing
                                          11
court, we disregard a non-constitutional error that does not affect a criminal
defendant's substantial rights. See Tex. R. App. P. 44.2(b); Johnson v. State, 43
S.W.3d 1, 4 (Tex. Crim. App. 2001). Error affects a substantial right when it has a
substantial and injurious effect or influence in determining the jury's verdict.
Johnson, 43 S.W.3d at 4. We deem the error harmless if, after examining the
record as a whole, we find reasonable assurance that the error did not influence the
jury's verdict or had but a slight effect. See Johnson v. State, 967 S.W.2d 410, 417
(Tex. Crim. App. 1998). A trial court’s improper admission of evidence is not
reversible error if the trial court admits the same or similar evidence without
objection at another point in the trial. Merrit v. State, 529 S.W.3d 549, 556 (Tex.
App.—Houston [14th Dist.] 2017, pet. ref'd).

      During Officer Knodel’s second trip to the witness stand he testified that the
complainant answered “Yes” when he asked her if appellant ever threatened to kill
her, “Yes” when he asked if she had ever left the appellant after living together,
and “Yes” when he asked if she wanted an emergency protective order. Knodel
also testified to the complainant’s answers to the strangulation supplement.
Knodel reported that the complainant’s answers reflected that appellant had tried
to strangle her with two hands, that appellant strangled her for one to two minutes,
that she estimated, on a scale of 1 to 10, that the pressure during the strangulation
reached a “10,” that she told appellant to stop, that she had tried to push appellant
off, that she did not remember anything appellant said to her, that she thought she
was going to die while he was strangling her, that appellant stopped strangling her
when her son came in, and that he had attempted to strangle her once before.

      Most of the information conveyed through Officer Knodel’s testimony about
the complainant’s answers to the assault-victim statement matched the same or
similar evidence admitted without objection at other points in the trial:

                                          12
   • The complainant testified that appellant had tried to strangle her
     before, which itself is life-threatening conduct.
   • The complainant, her son, and appellant all testified that the
     complainant and appellant had broken up and ceased living
     together before appellant had moved back in with her two
     months before the strangling event in question.
   • Appellant testified that a protective order was in place and he
     admitted to having violated it. During the jail calls, the
     complainant expressed a desire that appellant stay out of her
     life.
   • Officer Knodel testified that when he visited the complainant in
     the hospital he saw neck injuries consistent with strangling with
     considerable pressure.      Knodel took photographs of the
     complainant’s injuries that the trial court admitted those
     photographs into evidence. Knodel explained the marks on the
     complainant’s neck as consistent with defensive marks of a
     victim trying to move the hands of the attacker from the
     victim’s neck.
   • Bahktiari also testified that the complainant’s wounds appeared
     to be defensive marks. The photographs revealed these marks
     on both sides of the complainant’s neck. Bahktiari also
     discussed common symptoms of a strangulation victim when
     the pressure exerted is significant enough to impede blood
     circulation. These symptoms are consistent with the
     complainant’s trial testimony, her statements made during jail
     calls relating to her vision and balance, and photographs of the
     her swollen neck.
   • The complainant stated during jail calls that appellant was
     trying to kill her, and if she hit appellant it was in defense
     because he was choking her.
   • The complainant’s son testified about the time he spent in the
     car waiting for the complainant to return, and his entry into the
     home. His account was consistent with the timeframe of the
     strangulation and his interruption of the strangulation. The
     complainant’s son testified that when he walked into the room
     appellant was hovering over his mother.
Additionally, the victim service counselor (Jeannie Tomanetz) explained that
                                  13
it was common for victims of strangulation not to remember things, which could
have provided the jury some basis for reconciling the complainant’s inability to
remember anything appellant said to her or anything the officer said to her.

       During closing argument, the primary factual dispute related to whether
appellant strangled the complainant, assaulted the complainant without strangling,
or acted in self-defense. Though the State referred to the complainant’s hearsay at
times, the State also referred to other evidence to relate the same facts presented to
the jury. For example, the State referred to the jail call, in which the complainant
recounted that during the incident appellant was “choking” her. Even without the
presumed hearsay statements from the complainant, the jury had ample evidence to
conclude that appellant strangled the complainant. We find reasonable assurance
any error in admitting the hearsay did not influence the jury's verdict or had but a
slight effect.

       After examining the record as a whole, we conclude that any error in the trial
court’s admission of Officer Knodel’s testimony of the complainant’s answers
during the hospital interview did not have a substantial and injurious effect or
influence in determining the jury’s verdict. See Rivera-Reyes v. State, 252 S.W.3d
781, 788 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (finding improper
admission of hearsay statement harmless when other evidence that did not draw an
objection proved the same thing); Diamond v. State, 496 S.W.3d 124, 142–43
(Tex. App.–Houston [14th Dist.] 2016, pet. ref'd) (holding admission of hearsay
testimony harmless error where the testimony was cumulative of other evidence in
the record); Wilkinson v. State, 523 S.W.3d 818, 825–26 (Tex. App.—Houston
[14th Dist.] 2017, pet. ref'd)(finding harmless any error in the admission of
emergency medical services report narrative containing domestic assault victim’s
statement where most of the details provided in the report were admitted without

                                         14
objection through other testimony). We therefore overrule appellant’s third issue.

                                 III. CONCLUSION

      We modify the judgment to add a statement that the trial court enhanced
appellant’s punishment based on a prior third-degree felony conviction and used
the range of punishment for a first-degree felony. We affirm the judgment as
modified.



                                       /s/    Kem Thompson Frost
                                              Chief Justice



Panel consists of Chief Justice Frost and Justices Spain and Poissant.

Publish — TEX. R. APP. P. 47.2(b).




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