Opinion issued December 14, 2017




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-17-00007-CR
                           ———————————
                        JOSE OYERVIDEZ, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


          On Appeal from the County Criminal Court at Law No. 2
                           Harris County, Texas
                       Trial Court Case No. 2082989


                         MEMORANDUM OPINION

      Jose Oyervidez was convicted of assault of a person with whom he had a

dating relationship or a member of his household, his live-in girlfriend, the

complainant, Maria Botello.1 In three issues, Oyervidez contends that (1) there is


1
      See TEX. PENAL CODE § 22.01(a)(1); TEX. FAM. CODE § 71.0021.
legally insufficient evidence that he and Botello were in a dating relationship or

members of the same household, (2) the admission of Botello’s out-of-court

statements through the testimony of the responding officers violated the

Confrontation Clause and rule against hearsay, and (3) the prosecutor made

improper and incurable comments to the jury regarding Botello’s failure to testify

at trial. We affirm.

                                   Background

      One afternoon, a woman called 911. In the recorded telephone call, she

identified herself as Maria Guajardo and said she needed the police sent to her

apartment. Her voice was shaky, and she sounded like she was crying. She told the

operator that she had been in an altercation with her “boyfriend,” whom she

identified as Jose Oyervidez. She said that she had been “with him four years

already” and that they had been living together for “almost a year.”

      She said that Oyervidez had hit her, tied her up with a rope, and then left the

apartment. She provided the operator with her address and a description of

Oyervidez. Houston Police Department Officers J. Rivera and M. Hernandez were

dispatched to the scene.

      While the officers were in route, the woman remained on the phone with the

operator. As she provided the operator with further details about the altercation,

she suddenly became frantic. She told the operator that Oyervidez had returned and


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was trying to enter the locked apartment through the window. She then said that it

sounded like Oyervidez had given up and left. Then she realized that the police had

arrived, and she ended the call.

      When they arrived, Rivera and Hernandez found Oyervidez outside the

apartment, next to the window and its screen, which had been removed. They

detained Oyervidez and then knocked on the front door of the apartment. A woman

opened the door. She was crying, and her hands were shaking. She identified

herself as Maria Botello (not Maria Guajardo) and provided them with her driver’s

license. The officers observed injuries on her wrists and arms that were consistent

with having been tied up with a rope.

      While Hernandez waited outside with Oyervidez, Rivera spoke with Botello.

She told him that she and Oyervidez had gotten into a fight and that Oyervidez had

tied her up with a rope and left the apartment. She explained that, while Oyervidez

was gone, she untied herself, locked the front door, and called 911. Rivera found a

jump rope in the apartment, which Botello identified as the rope Oyervidez used to

tie her up. As Rivera interviewed Botello, a third officer, Sergeant J. Lancaster,

arrived and began to take photographs of the apartment and Botello’s injuries.

      Oyervidez was arrested and charged with misdemeanor assault of Maria

Botello, a person with whom he had a dating relationship or a member of his

household. The State’s principal evidence consisted of the recording of the 911 call


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and the testimony of Hernandez, Rivera, and Lancaster. Though she was

subpoenaed, Botello did not appear at trial.

      The jury found Oyervidez guilty as charged, and the trial court sentenced

him to 90 days’ confinement in county jail, suspended for one year while under

community supervision. Oyervidez appeals.

                                 Legal Sufficiency

      We begin by considering Oyervidez’s third issue, in which he contends that

there is legally insufficient evidence to support his conviction. Specifically,

Oyervidez contends that there is legally insufficient evidence that Botello and he

were in a dating relationship or members of the same household at the time of the

assault.

      We review a challenge to the sufficiency of the evidence under the standard

enunciated in Jackson v. Virginia, 443 U.S. 307, 318–20, 99 S. Ct. 2781, 2788–89

(1979). See Brooks v. State, 323 S.W.3d 893, 894–913 (Tex. Crim. App. 2010)

(plurality op.). Under that standard, evidence is insufficient when, considered in

the light most favorable to the verdict, no rational factfinder could have found that

each essential element of the charged offense was proven beyond a reasonable

doubt. See Jackson, 443 U.S. at 317–19, 99 S. Ct. at 2788–89; Laster v. State, 275

S.W.3d 512, 517 (Tex. Crim. App. 2009). We consider all the evidence and all




                                          4
reasonable inferences that may be drawn from that evidence. Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007).

      We defer to the factfinder to resolve any conflicts in the testimony, to weigh

the evidence, and to draw reasonable inferences from “basic facts to ultimate

facts.” Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.

We presume that the factfinder resolved any conflicts in the evidence in favor of

the verdict and defer to that resolution, provided that the resolution is

rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. If we conclude that the

evidence is insufficient under this standard, we must reverse the judgment and

enter an order of acquittal. See Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211,

2218 (1982).

      The only evidence that Oyervidez and Botello were in a dating relationship

or members of the same household was the recording of the 911 call. In the call,

the woman said that her “boyfriend” had assaulted her. She identified her

boyfriend as “Jose Oyervidez” and said that she had been “with him four years

already” and that they had been living together for “almost a year.” The woman,

however, did not identify herself as “Maria Botello.” Instead, she identified herself

as “Maria Guajardo.” Thus, Oyervidez argues, there is legally insufficient evidence

that Maria Botello was a person with whom he had a dating relationship or a

member of his household. We disagree.


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      When the recording of the 911 call is compared with the testimony of the

responding officers, it can be readily inferred that “Maria Guajardo” and “Maria

Botello” are the same person. In the 911 call, “Guajardo” told the operator that her

live-in boyfriend, Jose Oyervidez, had tied her up with a rope, left the apartment,

and then tried to reenter the apartment (which she had locked in the interim after

untying herself) through the window but stopped when the police arrived. The

officers testified that they drove to the address that “Guajardo” provided the

operator, found Oyervidez standing outside the apartment, noticed that the screen

to the window had been removed, and then knocked on the front door, which was

answered by a woman who identified herself as Botello. Botello told the officers

that she had called 911 because her live-in boyfriend, Oyervidez, had tied her up

with a rope and then left her alone in the apartment. She showed the officers the

rope that she alleged Oyervidez used to tie her up and exhibited injuries that were

consistent with her account of the incident.

      From the congruence between the 911 call and the officers’ testimony, any

rational factfinder could have found that the 911 caller, Maria Guajardo, and the

woman the officers encountered at the apartment, Maria Botello, were the same

person. Because this evidence shows that Guajardo and Oyervidez were in a dating

relationship and members of the same household, any rational factfinder could

have found that Botello and Oyervidez were too.


                                          6
      Presuming that the jury rationally resolved the conflict between the name

provided to the operator (Maria Guajardo) and the name provided to the officers

(Maria Botello) in favor of the verdict, we hold that there is legally sufficient

evidence that Botello and Oyervidez were in a dating relationship or members

of the same household when the assault occurred. Therefore, we overrule

Oyervidez’s third issue.

                     Admission of Out-of-Court Statements

      We next consider Oyervidez’s first issue, which concerns the trial court’s

admission of Botello’s out-of-court statements through the testimony of Officer

Rivera. Oyervidez contends that the admission of these statements violated the

Confrontation Clause of the Sixth Amendment to the United States Constitution.

See U.S. CONST. amend. VI; Crawford v. Washington, 541 U.S. 36, 53–54, 124 S.

Ct. 1354, 1365 (2004). However, when Rivera testified at trial, Oyervidez did not

object that the testimony violated the Confrontation Clause; he objected that the

testimony was inadmissible hearsay. See Mitchell v. State, 238 S.W.3d 405, 409

(Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (“A general hearsay objection

does not preserve error on confrontation clause grounds.”). Oyervidez made a

pretrial motion in limine that the trial court rule on the admissibility of Botello’s

out-of-court statements outside the presence of the jury, citing both hearsay and

confrontation clause grounds. But motions in limine do not preserve error.


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Castrejon v. State, 428 S.W.3d 179, 185 (Tex. App.—Houston [1st Dist.] 2014, no

pet.). Because Oyervidez did not object on confrontation clause grounds when the

statements were offered at trial, he failed to preserve error on appeal. See Mitchell,

238 S.W.3d at 409 (holding that defendant who failed to object on confrontation

clause grounds waived error on appeal).

      Oyervidez further contends that the trial court abused its discretion in

overruling his hearsay objection to the admission of Botello’s out-of-court

statements. See Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (trial

court’s ruling on hearsay objection reviewed for abuse of discretion). We disagree.

      Although hearsay is generally inadmissible, see TEX. R. EVID. 802, there is

an exception for hearsay that qualifies as an “excited utterance,” which is defined

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

was under the stress of excitement that it caused.” TEX. R. EVID. 803(2). “In

determining whether a hearsay statement is admissible as an excited utterance, the

court may consider the time elapsed and whether the statement was in response to

a question.” Zuliani, 97 S.W.3d at 595. However, the “critical determination is

‘whether the declarant was still dominated by the emotions, excitement, fear, or

pain of the event’ or condition at the time of the statement.” Id. at 596 (quoting

McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992)).




                                          8
       The responding officers’ testimony shows that Botello was “still dominated

by the emotions, excitement, fear, or pain” of the assault when she made her

statements to Rivera. Id. Rivera testified that when he and Hernandez arrived at the

apartment, Botello was “crying” and “her hands were shaking.” He said that

Botello was so upset that it took her five or ten minutes to even start talking to him.

Hernandez likewise testified that Botello was “afraid” and “physically shaking.”

And Lancaster testified that, while Rivera interviewed Botello, he noticed that her

voice was “extremely nervous” and “emotional.” He “could tell she was

distraught.” The officers’ testimony is supported by the recording the 911 call,

which was made shortly before the officers arrived and shows Botello in a

distraught, frantic state.

       We hold that Botello’s out-of-court statements were admissible under the

excited utterance exception to the hearsay rule. See Campos v. State, 186 S.W.3d

93, 99–100 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (holding that

complainant’s statements to police officers, made 43 minutes after robbery, were

admissible under excited utterance exception when statements were made in

response to questioning and officers testified that complainant was crying, upset,

and frightened). Accordingly, we overrule Oyervidez’s first issue.




                                          9
                                   Jury Argument

      Finally, we consider Oyervidez’s second issue, in which he argues that the

trial court abused its discretion in denying his motion for mistrial because the

prosecutor made improper and incurable comments during closing argument.

      We review the trial court’s denial of a defendant’s motion for mistrial for an

abuse of discretion. Williams v. State, 417 S.W.3d 162, 172, 175 (Tex. App.—

Houston [1st Dist.] 2013, pet. ref’d). “A mistrial is an appropriate remedy in

‘extreme circumstances’ for a narrow class of highly prejudicial and incurable

errors.” Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). In

determining whether the trial court abused its discretion in denying a motion for

mistrial, we balance three factors: (1) the severity of the misconduct, (2) the

curative measures taken by the trial court, and (3) the certainty of conviction

absent the conduct. Williams, 417 S.W.3d at 176. In most instances, an instruction

to disregard the remarks will cure the error. Id. at 175.

      At the beginning of the State’s closing argument, the prosecutor speculated

that Botello did not appear and testify at trial because she was afraid of Oyervidez:

      Again, I want to turn your attention back to what we discussed on voir
      dire. You yourselves gave examples, reasons why a victim of
      domestic violence may not want to come in and testify. One of those
      reasons, you or some of your panel members said, was out of fear.
      And, you know what, this is the reason right here why Miss Botello is
      not here. She’s fearful of the defendant Mr. Jose Oyervidez.



                                          10
Oyervidez objected that the prosecutor was “giving the jury a false impression.”

The trial court sustained the objection and instructed the jury to disregard the

prosecutor’s comments:

      Members of the jury, the only evidence you could consider during
      trial is what you hear from the witness stand. What these lawyers say
      during argument is not to be considered as any evidence. You may
      proceed.

Oyervidez then moved for mistrial, which the trial court denied.

      Oyervidez argues that the trial court’s denial of his motion for mistrial was

an abuse of discretion. We disagree.

      The prosecutor’s comments were isolated. The trial court instructed the jury

to disregard the comments, and “we generally presume the jury follows the trial

court’s instructions in the manner presented.” Thrift v. State, 176 S.W.3d 221, 224

(Tex. Crim. App. 2005). And the certainty of conviction absent the comment was

high, as there was compelling evidence of Oyervidez’s guilt, including the 911

call, the largely uncontested testimony of the responding officers, and the photos

depicting Botello’s injuries.

      Assuming that the prosecutor’s comments were improper, they were not so

extreme under the circumstances as to render ineffective an instruction to

disregard. See Moore v. State, 999 S.W.2d 385, 405–06 (Tex. Crim. App. 1999)

(concluding that instruction to disregard cured harm from comment on defendant’s

failure to testify), cert. denied, 530 U.S. 1216, 120 S. Ct. 2220 (2000). We hold
                                        11
that the trial court did not abuse its discretion in denying Oyervidez’s motion for

mistrial. Therefore, we overrule his second issue.

                                    Conclusion

      We affirm the trial court’s judgment.




                                                Harvey Brown
                                                Justice

Panel consists of Justices Jennings, Bland, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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