Justine Laray Villarreal v. the State of Texas ( 2022 )

NUMBER 13-20-00485-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JUSTINE LARAY VILLARREAL, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 377th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Tijerina, and Silva
Memorandum Opinion by Justice Silva
Appellant Justine Laray Villarreal appeals his conviction for attempted kidnapping,
a state jail felony enhanced to a third-degree felony. See TEX. PENAL CODE ANN. §§ 15.01
(criminal attempt), 20.03 (kidnapping). By a single issue, Villarreal asserts that the trial
court reversibly erred in admitting hearsay testimony. See TEX. R. EVID. 801. We affirm.
I. BACKGROUND
Villarreal was indicted for the offense of attempted kidnapping, alleged to have
occurred on or about December 5, 2019. Villarreal waived his right to a jury trial and
proceeded with a bench trial. The trial court heard testimony from the complainant
M.A.G., 1 a witness to the offense, two Victoria Police Department (VPD) officers, and
Villarreal’s former paramour and her employer. Villarreal did not testify.
M.A.G., a thirteen-year-old girl, testified that on the morning of December 5, 2019,
she was walking alone to school when she was solicited at a stop sign by an unknown
male in a gray car. M.A.G. said the man exposed his genitals to her, asked her if she
“need[ed] a ride,” and proceeded to masturbate in front of her. M.A.G. immediately
declined and turned around to walk back home. According to M.A.G., the man continued
to follow her in his vehicle, “driving ahead of [her],” and then stopping to “wait[]” for her to
cross his path. M.A.G. testified that she began running “[a]s fast as [she] could.” She ran
on the street, cut through an open field, and changed course several times trying to lose
him. M.A.G. was standing in a residential yard when an unknown male driving “a green
truck” pulled up and asked her if she was okay. “[I]n tears and [in] shock,” M.A.G. was
unable to respond. M.A.G. testified that the man told her that he was on the phone with
the police, and she eventually got into his truck. She said that he tried to catch up to the
gray car to get license plate information but was unsuccessful. He drove M.A.G. to her
middle school, where they waited for the police to arrive. At trial, M.A.G. identified
1 To protect the identity of the minor child, we refer to the child by her initials. See TEX. R. APP. P.
9.8 cmt.
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Villarreal as her pursuer. M.A.G. testified that the only thing that was going through her
mind throughout the whole ordeal was that Villarreal was going to “[r]ape” her. The trial
court admitted the Child Advocacy Center interview of M.A.G.
Benito Ozuna Jr. was identified at trial as the driver of the green truck. Ozuna
testified that he had been on his way to work on December 5th when he was forced to
drive around a gray, “[e]arly 2000s,” four-door Chevrolet Impala with tinted windows that
was stopped at a stop sign for a prolonged period. Ozuna testified he also noticed “a
young girl on the sidewalk” near the Impala and “figured maybe they knew each other.”
Ozuna continued to observe their interaction through his rear view mirror as he drove
away. Ozuna witnessed the Impala repeatedly “pass[] the girl up” and then pull up ahead
“where she would have to pass him again.” Ozuna estimated that the driver of the Impala
tried to engage M.A.G. “at least six times.” After Ozuna saw M.A.G. run across the street,
Ozuna dialed 9-1-1 and attempted to intervene. Ozuna found M.A.G. standing in the
middle of a yard “at a standstill, pretty much scared” when he caught up to her. Ozuna
testified that by the time he convinced M.A.G. to get into his truck, the Impala had turned
the street corner, and Ozuna shortly thereafter lost sight of the vehicle. Ozuna described
the driver of the Impala as a “Hispanic or maybe black-Hispanic mix” male “by the look of
the hair.” Ozuna’s 9-1-1 call recording was admitted into evidence without objection,
wherein Ozuna reiterated much of the same statements he testified to at trial, and his
initial interactions with M.A.G. can be heard.
VPD Officer Haley Watkins testified that on December 5th, she was dispatched to
a nearby middle school after receiving a welfare call concerning a young female. The
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following colloquy, in pertinent part, occurred:
[State:] And what was the [caller’s] name, or what—what was
the person’s name?
[Watkins:] Mr. Ozuna.
[State:] Do you recall his first name?
[Watkins:] I believe Benito.
[State:] And what did he tell you happened?
[Defense counsel:] Objection, hearsay, Your Honor.
THE COURT: Objection is overruled.
[State:] You can answer.
[Watkins:] I’m sorry. Can you repeat the question?
[State:] What did he tell you happened?
[Watkins:] He said that he was traveling on East North Street to
turn onto Lone Tree, when he observed a female
walking towards [the middle school]. And she was
stopped by a silver vehicle, a Chevy Impala. And he
thought it might have been a parent at first. So he just
kept driving. But then he noticed that the female turned
back around to walk towards Ben Jordan Street. So he
got concerned and turned around and just stopped in a
parking lot—I do not recall which parking lot at this time
—and just continued to watch the female just to make
sure that she was okay.
[State:] And did he tell you whether he ultimately picked the
female up or not?
[Defense counsel:] Objection, hearsay, Your Honor.
THE COURT: Objection is overruled.
[Watkins:] Yes. He said after watching the female and the
interaction between the female and the subject in the
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Impala that he became concerned. So he went and
saw the—the female running away from the vehicle. So
he went and followed after, and eventually got to the
female on Nelson [S]treet and was able to get the
female inside the car and take her to [the middle
school]. That’s when he called 9[-]1[-]1.
Watkins’s VPD-issued body camera recording was admitted into evidence without
objection. The footage included Watkins’s questioning of Ozuna, wherein she elicited the
same testimony she testified to at trial.
VPD Investigator Christina Tate also spoke with Ozuna on December 5th, and her
recorded interview with Ozuna was also admitted into evidence. Tate testified she ruled
out several possible suspects using the vehicle and driver descriptions provided by
M.A.G. and Ozuna before ultimately connecting Villarreal to the offense. In the course of
VPD’s investigation, nearby residents provided footage captured by their home doorbell
camera. The recording was admitted, and M.A.G. can be seen running across a front yard
at approximately 8:31 a.m., followed closely by a slow-moving gray four-door vehicle. The
same vehicle is observed driving the opposite direction at a fast speed trailed by a green
truck at approximately 8:34 a.m.
Crystal Nuells, Villarreal’s former paramour, testified that in December 2019, she
had just recently begun making payments towards a gray, four-door 2008 Chevrolet
Impala after Villarreal “got into an accident” driving her previous vehicle. Nuells testified
that on the morning of December 5th, Villarreal was helping her distribute newspapers for
her paper delivery route. According to Nuells, they finished at “[l]ike, 7:30 [a.m.], 7:00
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[a.m.]” 2 and returned to her residence at “about 8:00 [a.m.], 8:15 [a.m.].” Nuells fell asleep
soon thereafter, and when she awoke around 1:00 p.m., Villarreal was not home.
Villarreal returned to the residence “[a]round maybe 2:00 [p.m.], 2:30 [p.m.]” claiming to
have been at his mother’s house. Nuells recalled seeing images relating to the kidnapping
investigation and noted that her car matched the description. Nuells testified she asked
Villarreal “about it,” and he just stated “that wasn’t the car.” Nuells opined at trial that she
never considered him as possible suspect because “he has five daughters,” and she did
not “think he would do it.”
Following a three-day bench trial, Villarreal was found guilty, he pleaded true to an
enhancement paragraph alleging a prior conviction for aggravated assault with a deadly
weapon, and the trial court sentenced Villarreal to ten years’ imprisonment. This appeal
followed.
II. DISCUSSION
By his sole issue, Villarreal argues that the trial court “erred when it admitted the
responding officer’s hearsay testimony over objection, causing harm which tipped the
scales, resulting in the finder of fact deciding to convict.”
A. Standard of Review and Applicable Law
We review a trial court’s decision to admit objected-to evidence under an abuse of
discretion standard. Colone v. State, 573 S.W.3d 249, 263–64 (Tex. Crim. App. 2019).
2 Shannon Cash, the newspaper’s circulation manager, testified that Nuells had a distribution
deadline of 6:00 a.m., and although Cash would “get complaints often” from customers on Nuells’s route
when she distributed past the deadline, records indicated that Nuells did not receive any complaints on the
day in question. Cash surmised that it was “statistically” likely that Nuells had met her 6:00 a.m. deadline.
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Unless it is outside the zone of reasonable disagreement, we uphold the trial court’s
ruling. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018).
Hearsay is a written or oral statement, other than one made by the declarant while
testifying at the trial or hearing, offered into evidence to prove the truth of the matter
asserted. TEX. R. EVID. 801(a), (d); Patterson v. State, 606 S.W.3d 3, 33 (Tex. App.—
Corpus Christi–Edinburg 2020, pet. ref’d). Hearsay is inadmissible evidence unless
expressly excepted or excluded from this general rule by statute or the rules of evidence.
TEX. R. EVID. 802.
Admission of inadmissible hearsay, however, constitutes non-constitutional error.
Amberson v. State, 552 S.W.3d 321, 334 (Tex. App.—Corpus Christi–Edinburg 2018, pet.
ref’d); see TEX. R. APP. P. 44.2(b). Its admission will be considered harmless if the
reviewing court, “after examining the record as a whole,” is reasonably assured that the
error did not have “a substantial and injurious effect or influence” on the verdict or “had
no or only a slight influence on the verdict.” Amberson, 552 S.W.3d at 334 (quoting
Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011)); see TEX. R. APP. P. 44.2(b);
see also Prestiano v. State, 581 S.W.3d 935, 944 (Tex. App.—Houston [1st Dist.] 2019,
pet. ref’d) (undergoing the same analysis on appeal when reviewing a hearsay objection
made during a bench trial). We consider the following in our examination of the record:
“(1) the character of the alleged error and how it might be considered in connection with
other evidence; (2) the nature of the evidence supporting the verdict; (3) the existence
and degree of additional evidence supporting the verdict; and (4) whether the State
emphasized the error.” Macedo v. State, 629 S.W.3d 237, 240 (Tex. Crim. App. 2021).
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B. Analysis
Assuming arguendo that the statements here were inadmissible hearsay, 3 for
reasons explored below, we conclude the error was harmless. See id. (“[a]ssuming for
the sake of argument” inadmissible hearsay was admitted and concluding the admission
was harmless non-constitutional error); see also Rodriguez v. State, No. 13-13-00572-
CR, 2015 WL 6395481, at *8 (Tex. App.—Corpus Christi–Edinburg Oct. 22, 2015, pet.
ref’d) (mem. op., not designated for publication) (same).
Watkins testified, over Villarreal’s hearsay objection, what Ozuna reportedly told
her that he observed on December 5th. However, Watkins’s reiteration of Ozuna’s
observations was not characteristically harmful, described no actual offense, and did not
identify Villarreal with any particularity. See TEX. PENAL CODE ANN. §§ 20.01 (definitions),
20.03 (kidnapping); Crawford v. State, 562 S.W.3d 106, 111 (Tex. App.—Corpus Christi–
Edinburg 2018, pet. ref’d); see, e.g., Yanez v. State, 199 S.W.3d 293, 308 (Tex. App.—
Corpus Christi–Edinburg 2006, pet. ref’d) (concluding the admission of hearsay
statements at trial did not affect appellant’s substantial rights when the hearsay
statements connected appellant to a get-away vehicle but were otherwise not “inherently
harmful or prejudicial” and there was other evidence connecting defendant to the offense).
Moreover, the State elicited the same facts underlying Watkins’s hearsay
3 The State argues for the first time on appeal that the complained-of statements—the officer’s
recitation of what Ozuna told her—fell under two exceptions to hearsay. See TEX. R. EVID. 803(1) (present
sense impression), (2) (excited utterance). However, it was “incumbent on the State to apprise the trial
court of all hearsay exceptions” at trial. Amberson v. State, 552 S.W.3d 321, 331 (Tex. App.—Corpus
Christi–Edinburg 2018, pet. ref’d) (conducting an “[e]ven if” analysis on rehearing). “Once the opponent of
hearsay evidence makes the proper objection, it becomes the burden of the proponent of the evidence to
establish that an exception applies that would make the evidence admissible in spite of its hearsay
character.” Id. at 327 (quoting Taylor v. State, 268 S.W.3d 571, 578–79 (Tex. Crim. App. 2008)).
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testimony elsewhere. Ozuna testified at trial regarding his own recollections with far more
specificity—describing Villarreal, Villarreal’s vehicle, and what he observed as Villarreal’s
multiple attempts to pursue and force unwanted engagement with M.A.G. The exact
statements Ozuna relayed to Watkins, captured on Watkins’s body camera recording,
were also admitted without objection—as was Ozuna’s 9-1-1 call recording and recorded
interview with Tate, which further included substantially similar statements. See
Prestiano, 581 S.W.3d at 946 (concluding hearsay testimony cumulative of other
evidence in the record was harmless); see also Sanchez v. State, No. 13-18-00370-CR,
2020 WL 2610799, at *4 (Tex. App.—Corpus Christi–Edinburg May 21, 2020, pet. ref’d)
(mem. op., not designated for publication) (same); Alcala v. State, No. 13-18-00327-CR,
2019 WL 2529041, at *4 (Tex. App.—Corpus Christi–Edinburg June 20, 2019, pet. ref’d)
(mem. op., not designated for publication) (same); Rodriguez, 2015 WL 6395481, at *8
(same).
Additionally, it does not appear that the State emphasized the error at trial. See
Macedo, 629 S.W.3d at 240. Although the State argued in closing that Ozuna’s testimony
at trial was corroborated by his 9-1-1 call recording and statements to officers, the State
made repeated reference to Watkins’s body camera recording and Tate’s recorded
interview—not Watkins’s complained-of testimony. See id.; see also Taylor v. State, 268
S.W.3d 571, 593 (Tex. Crim. App. 2008) (concluding that although the State argued in
closing that the inadmissible hearsay evidence enhanced the complainant’s credibility
because it showed her story had not changed, such emphasis of the complained-of error
did not render the error harmful).
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Even without the inadmissible hearsay, there was overwhelming evidence to
support the trial court’s verdict, including M.A.G.’s testimony at trial. See Macedo, 629
S.W.3d at 240; see also Nino v. State, No. 13-18-00641-CR, 2020 WL 1887768, at *2
(Tex. App.—Corpus Christi–Edinburg Apr. 16, 2020, no pet.) (mem. op., not designated
for publication) (“If believed, the [complainant’s] testimony alone is sufficient to support a
guilty verdict.”); Vela v. State, No. 02-16-00330-CR, 2018 WL 2248562, at *3 (Tex. App.—
Fort Worth May 17, 2018, pet. ref’d) (mem. op., not designated for publication)
(concluding the minor complainant’s testimony that appellant had followed her in his
vehicle, asked her to “get in,” tried to reach out of his vehicle to grab her, and then
continued to pursue her by “blocking her way” was “sufficient to prove [appellant]
committed the offense of attempted kidnapping”).
Therefore, we conclude that any error in admitting the objectionable portion of
Watkins’s testimony would have had but a slight effect if any; thus, the error was
harmless. See TEX. R. APP. P. 44.2(b); Macedo, 629 S.W.3d at 240; Amberson, 552
S.W.3d at 334.
We overrule Villarreal’s sole issue on appeal.
III. CONCLUSION
We affirm the trial court’s judgment.
CLARISSA SILVA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
17th day of February, 2022.
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