                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                          No. 07-18-00187-CR


                                    CORLES NASH, APPELLANT

                                                     V.

                               THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 272nd District Court
                                      Brazos County, Texas
            Trial Court No. 17-00269-CRF-272; Honorable Travis B. Bryan III, Presiding

                                            November 7, 2019

                                  MEMORANDUM OPINION
                        Before QUINN, C.J., and PIRTLE and PARKER, JJ.


        Appellant, Corles Nash, appeals from his conviction by jury of the second degree

offense of aggravated assault with a deadly weapon1 and the resulting court-imposed

sentence of forty-five years of imprisonment.2                 Appellant challenges his conviction


        1
        TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2019). As indicted, an offense under this section is a
second degree felony. Id. at § 22.02(b).

         2 TEX. PENAL CODE ANN. § 12.33 (West 2019). A second degree felony is punishable by

imprisonment for any term of not more than twenty years or less than two years and a fine not to exceed
$10,000. The indictment here also included two enhancement allegations, one of which was found to be
“true” at trial. That elevated the applicable punishment range to that of a first degree felony, allowing for
imprisonment for life or any term not more than ninety-nine years or less than five years and a fine not to
exceed $10,000. TEX. PENAL CODE ANN. §§ 12.32, 12.42 (West 2019).
through three issues.3 First, Appellant contends the trial court erred in admitting hearsay

evidence of the complainant’s statements to a co-worker when she was available and did

testify at trial. Secondly, he contends the trial court erred in admitting evidence of an

extraneous offense; and, finally, he alleges the trial court erred in admitting evidence that

he committed a prior assault against the complainant.                     We affirm the judgment as

modified. TEX. R. APP. P. 43.2(b).


        BACKGROUND

        Appellant was indicted for assaulting his girlfriend, Betty, by “grabbing, restraining,

and hitting her head against a hard object.” The indictment further alleged that he used

or exhibited a knife during the assault.4


        At the time of the assault, Appellant and Betty had been together for about two

years, but the relationship was coming to an end. A deputy testified Betty provided to

police a written statement about the assault and he read that statement into the record at

trial. In that statement, Betty said Appellant came to her home after sending threatening

text messages to her. When she let him in, he pushed her “hard” and it caused her to fall

on the floor. She said it hurt her thigh and the back of her head. She said Appellant

yelled at her and then “grabbed [her] by [her] right arm and pulled [her] all the way into

the bedroom.” He grabbed her hair and “started banging [her] head on [her] headboard

several times really hard.” He put her head down on the bed and she “saw he had pulled


        3 Originally appealed to the Tenth Court of Appeals, this appeal was transferred to this court by the
Texas Supreme Court pursuant to its docket equalization efforts. Tex. Gov’t Code Ann. § 73.001 (West
2013). Should a conflict exist between precedent of the Tenth Court of Appeals and this court on any
relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R.
APP. P. 41.3.
        4This case first went to trial in September 2017. It ended in a mistrial after a dispute arose between
Appellant and his counsel. New counsel was appointed, and this second trial followed.
                                                      2
out a knife . . . .” Appellant was arrested based on the information in that written

statement. At trial, the State also offered the testimony of one of Betty’s co-workers, who

corroborated many of the statements Betty made to the police.


        Appellant did not testify at the guilt-innocence phase of trial and did not present

any witnesses. The jury found Appellant guilty as charged in the indictment. The court

held a punishment hearing and sentenced Appellant as noted.5 Appellant appeals,

arguing the trial court erroneously permitted Betty’s hearsay statements and erroneously

admitted evidence of Appellant’s extraneous offenses.


        ISSUE ONE—HEARSAY

        A hearsay statement is any statement of a declarant, not made while testifying at

trial, which is offered into evidence to prove the truth of the matter asserted in the

statement. TEX. R. EVID. 801(d). Evidentiary rules pertaining to hearsay statements are

in place to exclude out-of-court statements that pose any of the four “hearsay dangers”

of faulty perception, faulty memory, accidental miscommunication, or insincerity. Fischer

v. State, 252 S.W.3d 375, 378 (Tex. Crim. App. 2008); TEX. R. EVID. 801, 802. Where

these dangers are minimized, there are several exceptions to the general rule excluding

hearsay statements. See TEX. R. EVID. 803 (setting forth twenty-four exceptions). One

exception to the general rule excluding hearsay is the “excited utterance,” defined as a

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

the stress of the excitement that it caused.” TEX. R. EVID. 803(2). The admissibility of an

out-of-court statement under any of the exceptions to the general hearsay exclusion rule


        5  Appellant filed a motion for new trial, alleging the State failed to provide to him exculpatory
information and asked for a new punishment hearing. That motion was denied. That ruling is not at issue
in this appeal.
                                                    3
is a matter within the sound discretion of the trial court. Lawton v. State, 913 S.W.2d 542,

553 (Tex. Crim. App. 1995).


       To determine whether a statement is an excited utterance, trial courts should

determine “whether the declarant was still dominated by the emotions, excitement, fear,

or pain of the event or condition when the statement is made. Factors that the trial court

may consider include the length of time between the occurrence and the statement, the

nature of the declarant, whether the statement is made in response to a question, and

whether the statement is self-serving.” Apolinar v. State, 155 S.W.3d 184, 190 (Tex.

Crim. App. 2005) (citations omitted).


       Here, the State presented the testimony of Betty’s co-worker, Veronica. Veronica

testified Betty came into work one day with “puffy” eyes. The two went into a private room

and when Veronica shut the door, Betty “started crying.” Appellant objected on hearsay

grounds.    After some additional questioning, and Veronica’s admission that Betty

appeared “stressed out,” Appellant again objected, citing as grounds hearsay. The court

overruled that objection on the ground that the statements were “excited utterances” and

exceptions to the hearsay rule. TEX. R. EVID. 803(2). Veronica was then permitted to

describe for the jury what Betty told her about the assault by Appellant. Veronica testified

Appellant “came to [Betty’s] house and that he had assaulted her and that they -- he had

gotten physical to her, threw her to the ground. Well, he threw her to the floor -- I'm sorry




                                             4
-- because they were inside. Threw her to the floor. She hit her head on the wall and

pulled a knife out on her and told her that he would use it on her.”6


        In Appellant’s first issue, he argues Betty’s statements were not admissible as an

exception to the hearsay rule because they did not satisfy the requisites of an excited

utterance under Rule 803(2). Appellant contends Betty’s statements to Veronica were

not excited utterances because she had been “away from Appellant for at least eight

hours, from 6 a.m. to 2 p.m.” Further, the evidence showed only that Betty was upset

while talking to Veronica, not that she was dominated by the emotions of the assault to

the point that she was incapable of reflection from the time of the assault to the time of

the statement. Appellant also asserts Betty’s statements were not spontaneous but were

rather in response to the conversation with Veronica. Finally, Appellant argues Betty’s

statements were self-serving because she had had time to “contemplate her statements

and chose to make them to a person who she knew did not approve of the relationship

with Appellant.” The State responds that the evidence showed the statements were

excited utterances and thus, admissible as exceptions to the general rule prohibiting

admission of hearsay statements.               We agree the trial court could have viewed the

evidence this way and thus, did not abuse its discretion in admitting the statements.


        The trial court heard Veronica’s testimony that Betty arrived at work with “puffy”

eyes that could have been due, in Veronica’s opinion, to Betty crying or not sleeping well.

Veronica testified it appeared Betty might have wanted to talk to her about something.

As soon as the two women were in a private room, Betty “started crying” and seemed to


        6 Appellant also objected on the bases of the violation of his “right to confront, cross-examine” under
the Sixth and Fourteenth Amendments. The trial court overruled those objections as well; however, those
rulings are not at issue on appeal.
                                                      5
Veronica to be “stressed out.” While Appellant contends that the passage of time, from

6 a.m. to 2 p.m., between the assault and Betty’s statements to Veronica was too long for

the statements to satisfy the requirements of the excited utterance exception, the passage

of time alone is not determinative. Sadler v. State, No. 10-07-00323-CR, 2009 Tex. App.

LEXIS 2962, at *11-12 (Tex. App.—Waco April 29, 2009, no pet.) (mem. op., not

designated for publication) (statement made ten or eleven hours after assault admissible

as excited utterance); Mayfield v. State, No. 04-02-00635-CR, 2003 Tex. App. LEXIS

7660, at *5-6 (Tex. App.—San Antonio Sept. 3, 2003, pet. ref’d) (mem. op., not designated

for publication) (statement made after ten hours was admissible). Snellen v. State, 923

S.W.2d 238, 242-43 (Tex. App.—Texarkana 1996, pet. ref’d) (statement made twelve to

thirteen hours after the event ruled admissible). While we agree that the passage of time

was fairly significant here, it was not so long of a period of time that we can say the trial

court abused its discretion in determining the exception applied.


       This is particularly true given that while Betty was physically separated from

Appellant for that period of time, the two continued to maintain contact through a text

message exchange. Because of this extended contact, we cannot agree with Appellant’s

comparison of the facts in this case to those in Vera v. State, 709 S.W.2d 681, 684 (Tex.

App.—San Antonio 1986, pet. ref’d). Appellant argues that in that case, like here, several

hours passed in which the victim was outside the presence of the defendant, the victim

had at some point stopped crying, and had made statements to others, causing the trial

court to conclude the statements at issue were not excited utterances.            Appellant

distinguishes the facts of this case from those in Zuliani v. State, 97 S.W.3d 589, 596

(Tex. Crim. App. 2003), asserting that there, some twenty hours had passed but the victim

had not been apart from the defendant during that time. In this case, it is undisputed
                                             6
Betty had been away from Appellant for around eight hours. However, during that time,

the two exchanged many text messages. Those text messages, and the messages

exchanged before the assault, were a large part of the trial. We cannot agree with

Appellant that the physical separation between the parties alone overcame the fact that

the two continued to exchange threatening text messages. Accordingly, the trial court

could have reasonably seen the circumstances as being sufficient to find Betty’s

statements to Veronica satisfied the requirements of an excited utterance.


         Based on Veronica’s observations as described in open court, it appeared Betty

was still very upset and under the stress of the assault by Appellant. We note also that

the trial court could have found that Veronica initiated the conversation with Betty for no

other reason than personal concern and that Betty’s responses during that conversation

were spontaneous. Nothing in the record indicates otherwise. See Sadler, 2009 Tex.

App. LEXIS 2962, at *11-12 (similar finding). Lastly, while Appellant speculates that Betty

chose to speak to Veronica, a person who had expressed disapproval of Betty’s

relationship with Appellant, because of some self-serving motive, the record does not

support this assertion. Betty and Veronica worked together and had been friends for “a

little over ten years.” They socialized and discussed their romantic lives. The record

shows that before the assault, Appellant and Betty exchanged several text messages.

The assault occurred in the early morning hours and the threatening text messages

resumed a couple of hours later. Betty went into work that afternoon and told Veronica

about the assault and the text messages. We cannot say that, considering the sequence

of events, the trial court erred in determining that statements Betty made to Veronica

about the assault were excited utterances. Accordingly, we overrule appellant’s first

issue.
                                             7
       ISSUES TWO AND THREE—EXTRANEOUS OFFENSE EVIDENCE

       Evidence of other crimes, wrongs, or acts is not admissible to prove character

conformity, but may be admissible for other purposes, “such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or lack of

accident.” TEX. R. EVID. 404(b)(2). “[A] party may introduce evidence of other crimes,

wrongs, or acts if such evidence logically serves to make more or less probable an

elemental fact, an evidentiary fact that inferentially leads to an elemental fact, or defensive

evidence that undermines an elemental fact.” Martin v. State, 173 S.W.3d 463, 466 (Tex.

Crim. App. 2005); Johnston v. State, 145 S.W.3d 215, 220 (Tex. Crim. App. 2004). Rule

404(b) is “a rule of inclusion rather than exclusion.” De La Paz v. State, 279 S.W.3d 336,

343 (Tex. Crim. App. 2009) (citation omitted). The exceptions enumerated under Rule

404(b) are “neither mutually exclusive nor collectively exhaustive.” Id.


       A trial court has wide discretion in determining whether to admit or exclude

evidence of extraneous offenses. Montgomery v. State, 810 S.W.2d 372, 390-93 (Tex.

Crim. App. 1991) (op. on reh’g). Accordingly, we review a trial court’s decision to admit

or exclude evidence under an abuse of discretion standard. Henley v. State, 493 S.W.3d

77, 82-83 (Tex. Crim. App. 2016). A trial court abuses its discretion when the decision

falls outside the zone of reasonable disagreement. Id. (citations omitted). Before a

reviewing court may reverse the trial court's decision, “it must find the trial court’s ruling

was so clearly wrong as to lie outside the zone within which reasonable people might

disagree.” Id. (citation omitted).




                                              8
       Here, over Appellant’s objection, the trial court admitted evidence of two

extraneous offenses. The first came in through text messages between Appellant and

Betty. Several of the messages referred to Appellant as being on parole. Appellant asked

that those messages be removed or redacted since they were a “very minor part of the

message chain.” The trial court overruled the objection but provided to the jury a limiting

instruction at the time the evidence was offered and again in the written charge to the

jury. The evidence of the second extraneous offense showed Appellant had previously

assaulted Betty. Over Appellant’s objection, Betty testified that on a prior date, Appellant

confronted her at her home and pushed her down on her bed.


       REFERENCE TO PAROLE

       One exception to Rule 404(b) allows extraneous offense evidence to be admitted

if it is contextual evidence. Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000).

There are two types of contextual evidence, only one of which is at issue here; that type

of evidence is evidence of other offenses connected with the primary offense, referred to

as same transaction contextual evidence. Mayes v. State, 816 S.W.2d 79, 86-87 (Tex.

Crim. App. 1991). Same transaction contextual evidence is admissible “only to the extent

that it is necessary to the jury’s understanding of the offense.” Wyatt, 23 S.W.3d at 25;

Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993).           Extraneous acts are

considered to be same transaction contextual evidence when the charged offense would

make “little or no sense without also bringing in the same transaction contextual

evidence.” Wyatt, 23 S.W.3d at 25 (citations omitted). Such evidence is admissible

because in relating the crime for which the defendant is on trial, it is “impracticable to

avoid describing” the contextual evidence. Mayes, 816 S.W.2d at 86 n.4. Such evidence

offers the jury information crucial to understanding the context and circumstances of
                                             9
events that are blended or interwoven. Davis v. State, No. 10-07-00206-CR, 2011 Tex.

App. LEXIS 835, at *24 (Tex. App.—Waco Feb. 2, 2011, pet. ref’d) (mem. op., not

designated for publication) (citing Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim.

App. 1993)).


       During trial, a witness read to the jury several text messages between Appellant

and Betty. Those messages were part of a long exchange between the two the night of

the assault. Photographs of the text messages were also introduced into evidence. In

some of the messages, Appellant referred to his parole. He mentioned completing his

parole paperwork to show Betty’s address as his address, his desire not to return to prison

because of an issue with the address in the paperwork, and how many parole officers he

had had. Appellant also said he would not go back to prison but if he did, “it’s going to be

for something.”    The messages further indicated Appellant was angry because he

believed Betty was seeing someone else. The messages reflected his anger over the

situation regarding his address with his parole officer. He apparently told Betty he would

move in with her and changed his address with his parole officer to her address.

However, he did not move in with her and remained living with another woman. Some of

the messages seemed to show that he also would not move in with Betty because she

was now involved with someone else. The messages referencing Appellant’s parole were

interspersed with the other messages regarding Betty’s alleged relationship with another

man and threatening messages from Appellant.


       At trial, Appellant objected to the admission of those messages and argued they

were not relevant, were more prejudicial than probative, and were not admissible for any

of the enumerated reasons set forth in Rule 404(b). The State responded that if the

                                            10
messages concerning parole were removed, the rest of the messages would not make

sense. As such, the messages were part of the same transaction as the assault and were

contextual evidence. After the complained-of text messages were read to the court and

the court had considered the arguments of the parties, it overruled Appellant’s objections

and admitted the text messages. The trial court did, however, give a limiting instruction

to the jury which provided, “You’re instructed in reference to any references to the

Defendant having been on parole, if any, that are contained in text messages, those can

be considered by you only for the purpose of determining the context of the text messages

and for no other purpose.” The court also provided a limiting instruction in its written

charge to the jury.


       We agree that the trial court could have viewed the text messages containing

Appellant’s parole status as “blended or interwoven” with the other messages. The trial

court could have reasonably determined that presentation of all of the messages were

necessary for the jury to understand the events and circumstances leading to the assault.

The messages offered to the jury evidence of Appellant’s motive to assault Betty, namely

his anger over her alleged infidelity and issues with the address in his parole paperwork.

The purpose of admitting same transaction contextual evidence is to put the current

offense in context. Davis, 2011 Tex. App. LEXIS 835, at *25 (citing Mayes, 816 S.W.2d

at 86-87). Accordingly, we cannot find the trial court abused its discretion in admitting the

evidence concerning Appellant’s parole. We overrule Appellant’s second issue.




                                             11
       PREVIOUS ASSAULT

       Extraneous offense evidence may also be admissible to rebut defensive theories.

Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008). And, in cases in which the

prior relationship between the victim and the accused is a material issue, “illustrating the

nature of the relationship may be the purpose for which evidence of prior bad acts will be

admissible.” Garcia v. State, 201 S.W.3d 695, 703 (Tex. Crim. App. 2006).


       Betty testified to a previous assault against her by Appellant. Appellant objected

and the trial court overruled the objection but gave to Appellant a “running objection to

previous instances, if any.” Betty then testified that she went out one night and did not

come home immediately after going out. When she did come home, Appellant was

outside her house in his car. She went inside and he followed her in. He followed her to

her bedroom and “grabbed” her phone to see who she had been with that night. He did

not have her passcode so he “pretty much pushed [her] down on [her] bed, grabbed [her],

and told [her] just if I don’t open the phone, then that was it.” She told the jury Appellant

pushed her with his hands and grabbed her neck and that she was “scared.” However,

she did not report the assault to police because Appellant told her “he was sorry.” The

two continued their relationship after this assault.


       Betty’s testimony as to the prior assault was first discussed before she testified.

The court initially asked Appellant whether he objected to the testimony. Appellant

responded, “oh, yes” but didn’t specify what his objections were. After discussion of the

cases relevant to Betty’s testimony, Appellant objected under Rules of Evidence 401,

403, and 404(b) and also argued that a particular text message referencing the previous

assault was self-serving because it was sent about six hours after the assault. The trial

                                             12
court overruled the objections. When Betty testified, Appellant again objected and

requested and received a running objection.


       At trial, the State’s theory was the text messages concerning the prior assault and

Betty’s testimony about that assault were admissible to rebut Appellant’s theory of

fabrication under 404(b), which he argued in his opening statement, and, further, to show

the nature of the relationship between the parties under article 38.371. See TEX. R. EVID.

404(b); TEX. CODE CRIM. PROC. ANN. art. 38.371 (permitting evidence or testimony

regarding the “nature of the relationship between the actor and the alleged victim”).


       On appeal, Appellant argues Betty’s testimony about the prior assault lacked a

time frame and described an isolated incident. He also asserts that because the prior

assault is similar to the charged assault, the limited probative value was outweighed by

the risk of unfair prejudice. Appellant does not address whether the evidence was

admissible to rebut the defensive theory of fabrication.


       As it did at trial, the State argues Betty’s testimony was admissible under both

article 38.371 and Rule 404(b). The State asserts that Appellant opened the door to this

evidence in his opening statement when he told the jury, “the real thing [they] need[ed] to

focus on [was] Betty[‘s] testimony” and that “she will give you a story about what

happened that does not make sense.” This indicated, according to the State, that the

defensive theory was one of fabrication. The State contends Appellant also opened the

door to the challenged testimony when he cross-examined Veronica. He asked several

questions that “suggested Betty was fabricating the assault allegations as well as the

evidence in this case.” Further, Appellant’s cross-examination of other witnesses focused

on the possibility that Betty altered the text messages contained in State’s exhibits 10
                                            13
through 92. Accordingly, the State asserts Betty’s testimony concerning the prior assault

was admissible to rebut Appellant’s defensive theory of fabrication. See Banks v. State,

494 S.W.3d 883, 892-93 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (admission

under Rule 404(b) of prior conviction for purpose of rebutting defensive theory of

fabrication of charged assault). See also Mapolisa v. State, No. 05-16-00711-CR, 2017

Tex. App. LEXIS 6370, at *13-14 (Tex. App.—Dallas July 11, 2017, pet. ref’) (mem. op.,

not designated for publication) (finding evidence admissible to show nature of the

relationship between defendant and victim and to rebut defensive theory that victim

fabricated the assault).


       The State also argues Betty’s testimony about the prior assault was admissible

under article 38.371 to show the nature of the relationship between Appellant and Betty.

The fact that she testified to only one prior occasion without identifying when it occurred

does not render the testimony inadmissible for this purpose. Under the applicable rules,

the testimony was relevant to show the dynamics of Appellant and Betty’s relationship

and was not admitted simply to show Appellant acted in conformity with his character.

See Garcia, 201 S.W.3d at 697-98 (evidence that the defendant “pushed [the victim] out

of the car” months before he apparently killed her was admissible under Rule 404(b) to

show the nature of the relationship between the defendant and victim). See also McCleery

v. State, No. 03-17-00154-CR, 2017 Tex. App. LEXIS 9853, at *23-24 (Tex. App.—Austin

Oct. 20, 2017, no pet.) (mem. op., not designated for publication) (finding trial court did

not abuse its discretion when it admitted photographs because they constituted “evidence

regarding the nature of the relationship between” the defendant and the victim under

article 38.371). Because we cannot find the trial court abused its discretion in finding

Betty’s testimony concerning the prior assault was admissible to rebut a defensive theory
                                            14
or, alternatively, to show the nature of the relationship between Betty and Appellant, we

overrule Appellant’s third issue.


       MODIFICATION OF JUDGMENT

       In reviewing the appellate record, we noted a clerical error in the written judgment

of conviction. The first page of the trial court’s judgment reflects that punishment was

assessed by the jury. However, the reporter’s record shows that the trial court assessed

punishment in this case.


       This court has the power to modify an incorrect judgment to make the record speak

the truth when we have the necessary information to do so. TEX. R. APP. P. 43.2(b);

Ramirez v. State, 336 S.W.3d 846, 852 (Tex. App.—Amarillo 2011, pet. ref’d) (citing

Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993)). Courts of appeals have

the power to reform whatever the trial court could have corrected by a judgment nunc pro

tunc where the evidence necessary to correct the judgment appears in the record.

Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref’d) (citation

omitted).   “The authority of an appellate court to reform incorrect judgments is not

dependent upon the request of any party, nor does it turn on the question of whether a

party has or has not objected in the trial court.” Id. (citations omitted). Because the record

plainly shows the trial court assessed punishment, we modify the judgment to reflect that

the trial court, not the jury, assessed punishment.




                                             15
       CONCLUSION

       Having resolved each of Appellant’s issues against him, we affirm the judgment of

the trial court as modified herein.




                                                Patrick A. Pirtle
                                                     Justice


Do not publish.




                                           16
