Jorge Alberto Alcala v. State ( 2019 )

NUMBER 13-18-00327-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JORGE ALBERTO ALCALA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 138th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Memorandum Opinion by Chief Justice Contreras
By two issues, appellant Jorge Alberto Alcala challenges his conviction for evading
arrest or detention with a vehicle. See TEX. PENAL CODE ANN. § 38.04(b)(2)(A). First,
appellant contends that the trial court improperly admitted hearsay evidence, causing
reversible error. Second, appellant asks that the admission of certain hearsay testimony
be considered constitutional error as a violation of the Confrontation Clause under the
Sixth Amendment, thereby giving cause for reversal. We affirm as modified.
I. BACKGROUND
Appellant was charged by indictment with the third-degree felony of evading arrest
or detention with a vehicle. See id. He was found guilty after a jury trial and, after pleading
true to two enhancement allegations, his punishment was enhanced to second-degree
felony range. See id. § 12.42(a). The jury assessed punishment at thirteen years in the
Texas Department of Criminal Justice–Institutional Division and a $10,000 fine.
At trial, the State presented video footage from the dashcam of Officer Juan
Iracheta of the San Benito Police Department. The footage showed that, on October 6,
2017, the officer attempted to initiate a traffic stop of a white Jeep after it ran a red light.
About fifteen to twenty seconds after running the red light, the Jeep pulled into a gas
station parking lot and stopped briefly before circling to exit the parking lot onto a frontage
road. Just before pulling onto the frontage road, the Jeep stopped and a passenger, Joe
Anthony Gonzalez (also known as Kirby), exited the vehicle. According to Iracheta, Kirby
exclaimed “I don’t want to get involved in the incident” as he exited the Jeep. The Jeep
then sat still for two and a half minutes before proceeding onto the frontage road. Iracheta
proceeded to arrest Kirby for public intoxication and later took him to the police station for
booking. Meanwhile, Officer Ariel Villafranca and another officer pursued the Jeep for
two and a half minutes, exceeding 100 miles per hour, before they gave up the pursuit.1
The officers did not see the driver’s face at any point during the pursuit.
1 Villafranca explained that “[t]he sergeant at the time advised us to just disengage the pursuit due
to unsafe speeds because of the other driver, the driver of the jeep.”
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While Iracheta was booking Kirby, Kirby’s cell phone was sitting on a table, with
the screen facing up, when it received a call. According to the record, the name that
appeared on the screen was that of appellant. Iracheta testified that he asked Kirby about
the call, and Kirby responded: “This is the driver.”
Lorrisa Longoria, appellant’s girlfriend at the time of the incident, testified that
appellant had possession of her vehicle on the day of the incident. Longoria’s family
members informed her that her Jeep was involved in a pursuit, at which time she checked
her text messages. Longoria had many missed calls and messages from appellant. One
message said, “Don’t ask questions just report the jeepstolen [sic] and you don’t know
Kirby and my name is Juan Gonzales but don’t ever say my name please!!” Longoria
testified that appellant came to her house after the incident and told her that he was the
one driving the Jeep. When asked if appellant told her why he fled the police, she
testified: “Yes. He said that he was getting pulled over because he had ran a red light,
and I asked why didn’t you stop. He said because I’m on parole and if I get pulled over
and they catch me[,] I’m going to go away for a long time.” After the incident, appellant
led Longoria to the place where her Jeep was hidden; he left and she drove the Jeep to
the police station where a search was conducted on the vehicle. A third person’s ID was
found under the front passenger seat of the car and Longoria testified that it belonged to
a person whom she saw in her vehicle when it was originally taken by appellant.
Longoria’s testimony also reflects a plan between appellant and herself to pin the incident
on Longoria’s brother, but the plan was not followed through.
Appellant was convicted of evading arrest in a motor vehicle. This appeal followed.
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II. DISCUSSION
A. Hearsay and Exceptions
By his first issue, appellant contends that the trial court abused its discretion in
admitting hearsay testimony at trial.
1. Applicable Law and Standard of Review
We review a trial court’s admission or exclusion of evidence under an abuse of
discretion standard. Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990).
Therefore, a reviewing court should not reverse unless a clear abuse of discretion is
shown. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). An abuse of
discretion occurs when the trial court acts arbitrarily, unreasonably, or without reference
to guiding rules or principles. Montgomery, 810 S.W.2d at 380. We will sustain a trial
judge’s admission of evidence if the decision is correct under any theory of applicable
law. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).
Hearsay is an out-of-court statement offered to prove the truth of the matter
asserted. TEX. R. EVID. 801(d). Hearsay is generally inadmissible, but there are
exceptions, including present sense impressions and excited utterances. See TEX. R.
EVID. 803(1), (2). A “present sense impression” is a statement describing or explaining
an event or condition, made while or immediately after the declarant perceived it. TEX. R.
EVID. 803(1). An “excited utterance” is 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). The basis for the excited utterance exception is “a psychological
one, namely, the fact that when a man is in the instant grip of violent emotion, excitement
or pain, he ordinarily loses the capacity for reflection necessary to the fabrication of a
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falsehood and the ‘truth will out.’” Evans v. State, 480 S.W.2d 387, 389 (Tex. Crim. App.
1972). In determining whether hearsay is admissible as an excited utterance, we
consider three factors: (1) the “exciting event” should be startling enough to evoke a truly
spontaneous reaction from the declarant; (2) the reaction to the startling event should be
quick enough to avoid the possibility of fabrication; and (3) the resulting statement should
be sufficiently “related to” the startling event as to ensure the reliability and
trustworthiness of that statement. McCarty v. State, 257 S.W.3d 238, 241 (Tex. Crim.
App. 2008). The critical determination is “whether the declarant was still dominated by
the emotions, excitement, fear, or pain of the event” at the time of the statement.
McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992), overruled on other
grounds by Bingham v. State, 915 S.W.2d 9, 14 (Tex. Crim. App. 1994).
The erroneous admission of hearsay evidence is non-constitutional error and as
such must be disregarded unless it affects the substantial rights of the defendant. See
TEX. R. APP. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)
(evaluating error in admission of hearsay testimony under the standard for non-
constitutional error); Linney v. State, 401 S.W.3d 764, 780 (Tex. App.—Houston [14th
Dist.] 2013, pet. ref’d) (same). 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) (citing Kotteakos v. United States, 328 U.S.
750, 776 (1946)). In our harm analysis, we evaluate the entire record on appeal to
determine whether the error affected the jury’s verdict. Schutz v. State, 63 S.W.3d 442,
444 (Tex. Crim. App. 2001). If, after evaluating the record as a whole, we have fair
assurance “that the error did not influence the jury or had but a slight effect,” then a
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criminal conviction will not be overturned. Morales v. State, 32 S.W.3d 862, 867 (Tex.
Crim. App. 2000). Moreover, as held by the Texas Court of Criminal Appeals, “any error
in admitting the evidence [is] harmless in light of other properly admitted evidence proving
the same fact.” Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999).
2. Analysis
At trial, the State called Iracheta to the stand and explored the events that
transpired while Iracheta was booking Kirby. The State asked the officer for Kirby’s
response to the cell phone ringing; this drew a timely hearsay objection which was initially
sustained by the court. The State then made arguments for two exceptions to the rule
against hearsay: (1) present sense impression and (2) excited utterance. The record
reflects that the court admitted the evidence under the excited utterance exception but
did not rule on the present sense impression argument. On appeal, the State argues both
exceptions.
As to the excited utterance exception, the State argues that the “startling event”
was the “receiving of a phone call from the Appellant while being booked for a public
intoxication arrest following the evading arrest in a motor vehicle incident.” In reference
to the amount of time between a startling event and the utterance, the State points to
Zuliani, where as many as twenty hours had passed and the declarant was still held to be
under stress and emotion of the event. See 97 S.W.3d at 596. However, in Zuliani the
intense nature of the startling event caused severe injury to the declarant, including an
scalp wound in need of stiches, which was still untreated at the time of the declaration.
See id.
Appellant argues that it may be inferred from the trial record that Kirby was no
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longer emotionally dominated by the events surrounding the evading arrest incident, and
that the event of the phone call alone did not startle Kirby into producing a truly
spontaneous reaction. Appellant also notes that Kirby’s statement “was not
spontaneously made; rather, Officer Iracheta’s [sic] elicited the statement while [Kirby]
was under custodial interrogation.” But the fact that a declarant’s statement is a response
to a question does not render the statement non-spontaneous. Id. (citing Lawton v. State,
913 S.W.2d 542, 553 (Tex. Crim. App. 1995)).
The State offers no argument to support its claim that a ringing cell phone qualifies
as a “startling event” and the record is void of any reference to the declarant’s emotional
state at the time of the declaration. There is no evidence showing that Kirby was startled
by the event or that the event itself was startling enough to evoke a truly spontaneous
reaction. See McCarty, 257 S.W.3d at 241.
The State contends that Kirby’s statements, if not excited utterances, are present
sense impressions, but it offers no support for that argument. Appellant argues that
Kirby’s hearsay statement was not a present sense impression because it “lacked the
spontaneity and contemporaneity required under Rule 803(1).” See TEX. R. EVID. 803(1).
Citing a case out of the El Paso Court of Appeals, appellant asserts that “[w]here there is
an opportunity for the declarant to have reflected on the event or condition such that the
statement is no longer contemporaneous, then the statement does not properly fall within
this exception.” See Beauchamp v. State, 870 S.W.2d 649, 653 (Tex. App.—El Paso
1994 pet. ref’d). Appellant also asserts “the statement will not properly fall within this
exception where it expresses an opinion (rather than an explanation) about the event or
condition.” Id. The statement in Beauchamp was an officer’s opinion on whether the
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defendant was intoxicated. See id. The court noted that the declarant’s reflection took
place not only on previous events and conditions but also on the subsequent facts and
information learned. Id. In other words, the officer stated an opinion on the defendant’s
intoxication, learned new information over nineteen minutes later, and then changed his
opinion. Furthermore, the court noted that “a statement of opinion about a condition or
event, as opposed to a statement of description or explanation about something observed
or otherwise sensed,” is not a present sense impression. Id. at 652.
Here, there was a ringing cellphone, appellant’s name on the screen, a quick
question, and a response: “That’s the driver.” The record does not indicate reflection on
the ringing cell phone but simply a quick question and answer. Moreover, the answer is
not an opinion about the phone ringing; rather, it is a report of the caller’s previous actions.
If Kirby had said, “I think he’s calling to talk about running from the police,” then it would
clearly be an opinion about why the phone was ringing. If he had said, “The phone is
ringing,” then it would be a simple description of the event. “That’s the driver,” however,
does not describe the event of a phone ringing; it offers information from outside the event
by describing what the caller was doing earlier. Cf. Brooks, 990 S.W.2d at 286–87 (finding
no abuse of discretion in admitting, as present sense impression, witness’s testimony that
declarant “said [appellant and others] were jacking [the victim],” where declarant was
describing the event that he had just witnessed).
Assuming, without deciding, that the trial court abused its discretion in admitting
the hearsay testimony, we conclude that its admission was harmless. A review of the
entire record gives us fair assurance that the hearsay evidence’s effect on the jury was
slight to none. Other properly admitted evidence shows appellant was driving the vehicle
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at the time of the attempted traffic stop. Specifically, appellant told the vehicle owner
(Longoria) that he was driving the Jeep, ran a red light, and would not pull over because
he did not want to be caught while on parole. Additionally, text messages and
conversations between the appellant and Longoria indicate a plan to blame the situation
on Longoria’s brother. Longoria knew appellant had her vehicle at the time the pursuit
took place. This evidence was admitted at trial without objection.
Appellant argues, in support of his argument that he suffered harm, that “[Kirby]’s
hearsay statement was the only direct identification evidence that placed [appellant]
behind the wheel of the vehicle” and that Longoria’s testimony was circumstantial. But
“[c]ircumstantial evidence is as probative as direct evidence in establishing guilt, and
circumstantial evidence alone can be sufficient to establish guilt.” Winfrey v. State, 393
S.W.3d 763, 771 (Tex. Crim. App. 2013) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007)). The properly admitted evidence proves the same fact proved by the
hearsay evidence, making its admission harmless. See Brooks, 990 S.W.2d at 287
(“[A]ny error in admitting the evidence was harmless in light of other properly admitted
evidence proving the same fact.”). We overrule appellant’s first issue.
B. Confrontation Clause
By his second issue, appellant argues that the court erred by admitting the hearsay
evidence because it violated his Sixth Amendment right to confront witnesses.
1. Applicable Law and Standard of Review
The Confrontation Clause of the Sixth Amendment to the United States
Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.” U.S. CONST. amend VI. “This
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bedrock procedural guarantee applies to both federal and state prosecutions.” De La Paz
v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008) (quoting Pointer v. Texas, 380 U.S.
400, 403 (1965)). A witnesses’ out-of-court statement, that is also testimonial, is barred
by the Confrontation Clause, unless the witness is unavailable and the defendant had an
opportunity to cross-examine the witness. See Crawford v. Washington, 541 U.S. 36, 59
(2004). “[E]ven if the Sixth Amendment is not solely concerned with testimonial hearsay,
that is its primary object, and interrogations by law enforcement officers fall squarely
within that class.” Id. at 53. However, interrogations by law enforcement do not always
produce hearsay that is testimonial. See, e.g., Davis v. Washington, 547 U.S. 813 (2006).
Generally, preserving error for appellate review requires a timely objection, stating
specific grounds to make the trial court aware of the complaint, unless the grounds were
apparent from the context. TEX. R. APP. P. 33.1(a)(1); TEX. R. EVID. 103(a).
The basic principle of both rules is that of party responsibility. Thus, the
party complaining on appeal (whether it be the State or the defendant) about
a trial court’s admission, exclusion, or suppression of evidence must, at the
earliest opportunity, have done everything necessary to bring to the judge’s
attention the evidence rule [or statute] in question and its precise and proper
application to the evidence in question.
Martinez v. State, 91 S.W.3d 331, 335–36 (Tex. Crim. App. 2002). In preserving error,
the issue is whether the complaint on appeal was raised at the trial level. Id. at 337.
Failure to properly object constitutes a forfeiture and an appellant may not argue that
complaint for the first time on appeal. Id.
2. Analysis
At trial, defense counsel objected to the admission of the testimony as inadmissible
hearsay. The objection was specifically and solely on the grounds of hearsay with no
indication of any other objection. On appeal, appellant claims that his trial counsel
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preserved error “in objecting to [Kirby’s] statement as a violation of his right to cross-
examine a proponent of testimonial evidence when the proponent is under custodial
interrogation,” but appellant cites to nowhere in the record where this objection may be
found.
The State argues that the issue has not been preserved for review. We agree.
There must be a timely objection made at trial, and the issue on appeal must comport
with the objection. TEX. R. APP. P. 33.1; Martinez, 91 S.W.3d at 335. Here, when the
State elicited hearsay evidence, defense counsel objected only on the basis of
inadmissible hearsay. See TEX. R. EVID. 802. Because defense counsel did not object
on Sixth Amendment grounds, appellant’s issue does not comport with the objection
made at trial. See Martinez, 91 S.W.3d at 335; Eustis v. State, 191 S.W.3d 879, 886
(Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (holding hearsay objection did not
preserve Confrontation Clause claim); see also Briggs v. State, 789 S.W.2d 918, 924
(Tex. Crim. App. 1990) (“Even constitutional errors may be waived by failure to object at
trial.”). We overrule appellant’s second issue for that reason.
III. MODIFICATION OF JUDGMENT
The judgment of conviction in this case states in part “Plea to Enhancement
Paragraphs: n/a” and “Findings on Enhancement: n/a.” The record clearly reflects,
however, that appellant pleaded true to two enhancement allegations, and the jury found
them true, thereby enhancing appellant’s punishment to second-degree felony range.
See TEX. PENAL CODE ANN. § 12.42(a). We have the power to modify a judgment to speak
the truth when we have the necessary information to do so. See TEX. R. APP. P. 43.2(b);
Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). Accordingly, we modify
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the judgment of conviction to reflect that appellant pleaded true to, and the jury found as
true, the two enhancement allegations.
IV. CONCLUSION
We affirm the judgment of the trial court as modified herein.
DORI CONTRERAS
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
20th day of June, 2019.
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