Jose E. Pineda Paz v. the State of Texas ( 2024 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
JOSE E. PINEDA PAZ, § No. 08-23-00296-CR
Appellant, § Appeal from the
v. § County Court at Law No. 13
THE STATE OF TEXAS, § of Bexar County, Texas
Appellee. § Cause No. 709327
MEMORANDUM OPINION 1
A jury convicted Appellant Jose E. Pineda Paz of assault causing bodily injury to a family
or household member and the trial court sentenced him to one day of incarceration in the Bexar
County Adult Detention Center. On appeal, Appellant challenges the trial court’s admission of a
911 recording and brings a claim of ineffective assistance of counsel. Finding no error, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On February 5, 2023, officers from the San Antonio Police Department were called out to
a home at around 2:00 a.m. for alleged domestic violence. Appellant’s wife, Catalina Sanchez
Pineda, testified she and her husband went to sleep late that night. When their two-year-old son
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This case was transferred from our sister court in San Antonio pursuant to the Texas Supreme Court’s docket
equalization efforts. See Tex. Gov’t Code Ann. § 73.001. We follow the precedent of the Fourth Court of Appeals to
the extent it might conflict with our own. See Tex. R. App. P. 41.3.
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was crying, she asked Appellant to help her. She had to work the next day, but he had the day off.
Catalina next described that: “So he got mad. He got very upset. Like sometimes he would get
upset.” She also complained to him that he liked to be on the phone. She added that he never paid
attention to her or assisted her. Catalina grabbed his phone and “put it in the carpet.” She then laid
down on her side facing towards the wall. She felt Appellant punch her in her back with his fist.
Catalina felt pain when he hit her. She got up and ran towards the living room. As she yelled, other
persons living in the house with the couple came into the living room. Catalina grabbed a cell
phone, and when Appellant saw she was going to call the police, it appeared to her as if he wanted
to leave with their two-year-old child. Catalina then called the police, about ten minutes after the
assault.
Abbey Ruiz, Catalina’s cousin and a housemate of the couple, testified that she heard
Catalina crying. Ruiz asked Catalina what had happened, and Catalina said Appellant had punched
her in the back. Ruiz said Catalina was crying, shaking, and afraid. Catalina called the police, and
Appellant came out of his room. Appellant took the baby and wanted to leave with the baby. Ruiz
stated the other males living in the home kept Appellant from leaving with the baby, and the police
arrived.
Appellant left before the police arrived. The police officers talked to Catalina and took
pictures of her back. EMS also assessed Catalina.
In his own defense, Appellant testified that after he went to bed, where he was lying down
with their son, Catalina touched him and wanted to talk to him. He described it was this way every
time she was upset or mad, so he ignored her. He started looking at his phone. Appellant next
described that he put his phone under the pillow and went to get a glass of water and his son’s
milk, and when he returned, Catalina threw his phone at him. Catalina told him that he cared more
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about the phone than he did about her. To calm her down, he grabbed her hand and put it at her
waist behind her back. He testified that Catalina always got aggressive, wanting to hit him every
time she was mad, and that was why he grabbed her to stop her. Catalina then screamed, claiming
he had hit her. She went to the living room and said she was going to call the police. Appellant
took his son and went into the living room. He then left the house.
After deliberating, a jury returned a verdict finding Appellant guilty of assault causing
bodily injury as alleged in the information. The trial court sentenced Appellant to one day in jail.
This appeal followed.
II. ISSUES ON APPEAL
Appellant raises two issues on appeal. In his first issue, Appellant contends that the trial
court erred in admitting the recording of Catalina’s 911 call. Second, Appellant argues he was
denied his Sixth Amendment right to effective assistance of counsel at trial.
III. ADMISSION OF 911 CALL
Appellant first claims the trial court erred in admitting the recording of Catalina’s 911 call
because it was never properly authenticated as a 911 record, and it did not satisfy any hearsay
exception in the rules of evidence. The State responds that the recording was properly
authenticated by Catalina because she was a witness with knowledge of the call, and it was
properly admitted as an excited utterance exception to hearsay.
A. Authentication
Under Rule 104(a) of the Texas Rules of Evidence, a trial court decides any preliminary
question about whether evidence is admissible at trial. Tienda v. State, 358 S.W.3d 633, 637–38
(Tex. Crim. App. 2012). To be admissible, evidence must be relevant; and, if that evidence is not
authentically what its proponent claims it to be, it is not relevant. Id. at 638.
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Texas Rule of Evidence 901 governs the authentication requirement for admissibility of
evidence, including sound recordings. Rule 901 provides in pertinent part:
(a) In General. To satisfy the requirement of authenticating or identifying an item
of evidence, the proponent must produce evidence sufficient to support a finding
that the item is what the proponent claims it is.
(b) Examples. The following are examples only—not a complete list—of evidence
that satisfies the requirement:
(1) Testimony of a Witness with Knowledge. Testimony that an item is what it
is claimed to be.
. . .
(5) Opinion About a Voice. An opinion identifying a person's voice—whether
heard firsthand or through mechanical or electronic transmission or recording—
based on hearing the voice at any time under circumstances that connect it with
the alleged speaker.
Tex. R. Evid. 901(a)-(b); see Leos v. State, 883 S.W.2d 209, 211–12 (Tex. Crim. App. 1994)
(recognizing that Rule 901 governs the admissibility of electronic recordings, including sound
recordings).
As a standard of review, we defer to the trial court’s ruling on preliminary questions of
admissibility, and we review those decisions for an abuse of discretion. Tienda, 358 S.W.3d at 638
(citing Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007)); see generally Davis v.
State, 313 S.W.3d 317, 331 (Tex. Crim. App. 2010) (the trial court’s decision to admit evidence is
reviewed for abuse of discretion). Therefore, if the trial court’s ruling that a jury could reasonably
find proffered evidence authentic falls within a zone of reasonable disagreement, it will be upheld
on appeal. Tienda, 358 S.W.3d at 638; see also Buntion v. State, 482 S.W.3d 58, 71 (Tex. Crim.
App. 2016).
During Catalina’s testimony, defense counsel objected to the admission of the entirety of
the 911 call because the State had not produced the custodian of records, which, defense counsel
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argued, is required of records of a regularly conducted activity under Rule 803(6). The State
responded that Catalina could testify as to what was stated in the 911 call because “it’s her making
these statements. She has personal knowledge of what was going on at that time and made this
recording herself.” The State questioned Catalina regarding the 911 recording:
[Prosecutor]: Ms. Catalina, do you recognize this?
[Catalina]: Yes. . . . It’s the audio that you just played at the office, it’s the 911 call.
[Prosecutor]: And how do you recognize this CD?
[Catalina]: They just played it for me in the office.
[Prosecutor]: Is this your signature on this CD?
[Catalina]: My initials and today’s date.
[Prosecutor]: Have you listened to the contents of this CD?
[Catalina]: Yes.
[Prosecutor]: Are they altered in any way from the day that you made the 911 call?
[Catalina]: No.
Defense counsel took Catalina on voir dire regarding the recording:
[Defense counsel]: So you don’t know if it has been altered?
[Catalina]: No, it hasn’t been altered.
[Defense counsel]: How do you know that?
[Catalina]: Because that's what I said—What’s in there is what I said when I called to 911.
[Defense counsel]: And you remember everything that was said in the 911 call word for
word?
[Catalina]: I was scared, but I do remember that I called because he hit me.
[Defense counsel]: And you remember every voice that was on that 911 call recording?
[Catalina]: Yes.
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[Defense counsel]: And you remember everything that was said by every voice in that
recording? . . . How many voices are on that 911 call?
[Catalina]: It was my voice, then Abbey’s husband and Abbey, because Abbey’s husband
was trying to take the son--my son from my husband. . . .
[Defense counsel]: So you don’t know if it’s been edited or not?
[Catalina]: I remember what happened, and that's why I know that it hasn’t been altered.
Over Appellant’s objection, the trial court admitted the recording of Catalina’s 911 call.
Based on the testimony elicited at trial, we conclude that Catalina’s testimony satisfies the
authentication requirement of Rule 901(a). At trial, Catalina testified that: (1) she called 911;
(2) she listened to the audio recording prior to trial; (3) the audio recording represented a fair and
accurate recording of her conversation with the 911 operator; and (4) the recording had not been
altered. Because Catalina made the 911 call, she had personal knowledge of the call and of what
the State had claimed it to be, see Tex. R. Evid. 901(b)(1), and she was qualified to identify her
own voice as well as the 911 operator’s voice who she spoke to during her call. See Tex. R. Evid.
901(b)(5). Catalina’s testimony is sufficient “to support a finding that the item is what the
proponent claims it is,” and the recording was therefore properly authenticated under Rule 901.
See Tex. R. Evid. 901(a); see also Shores v. State, No. 14-18-00213-CR, 2018 WL 5797266, at *3
(Tex. App.—Houston [14th Dist.] Nov. 6, 2018, no pet.) (mem. op., not designated for publication)
(concluding trial court did not abuse its discretion in admitting audio recording of 911 call
authenticated by witness who made the call); Montemayor v. State, No. 13-14-00173-CR, 2016
WL 4272384, at *6 (Tex. App.—Corpus Christi-Edinburg Aug. 11, 2016, pet. ref’d) (mem. op.,
not designated for publication) (same). The trial court thus did not abuse its discretion in
determining Catalina’s testimony sufficiently authenticated the recording of the 911 call.
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B. Hearsay exception
Appellant next claims that because the 911 recording was not properly authenticated, it
did not meet any of the hearsay exceptions enumerated in the rules of evidence.
A statement is hearsay if the declarant does not make the statement while testifying at the
current trial, and the party offers the statement in evidence to prove the truth of the matter asserted
in the statement. Tex. R. Evid. 801(d). Statements containing hearsay are inadmissible unless an
exclusion or exception to the general hearsay rule applies. Tex. R. Evid. R. 802. “A statement
relating to a startling event or condition, made while the declarant was under the stress of
excitement that it caused” is an “excited utterance” which is an exception to the hearsay rule.
Tex. R. Evid. 803(2); Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim. App. 2001).
Like the trial court’s determination regarding the authenticity of evidence, we review a trial
court’s decision to admit or exclude evidence purportedly containing hearsay for abuse of
discretion. See Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994) (en banc); see also
Knight v. State, 457 S.W.3d 192, 201 (Tex. App.—El Paso 2015, pet. ref’d) (citing Montgomery
v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g)). We will uphold the trial
court's decision to admit or exclude evidence if it falls within the zone of reasonable disagreement,
and we afford “great discretion” to a trial court in its decision to admit evidence and give
corresponding deference to its evidentiary decisions. See Montgomery, 810 S.W.2d at 378.
Catalina’s less-than-two-minute 911 call contained about a minute of back-and-forth
between Catalina, the 911 operator, and an interpreter as the operator asked some initial questions,
got the interpreter on the line, and then asked more introductory questions through the interpreter.
During that time, Catalina can be heard quietly crying and taking jagged breaths. When Catalina
was asked what happened, she responded that her husband had hit her. When asked, “when,” she
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responded, “[j]ust now, about ten minutes ago.” Catalina then affirmed that Appellant was still
there while she was on the call. Catalina’s jagged breathing continued during those questions.
Then, her voice suddenly escalated, as she loudly cried out for Appellant not to take their child.
Appellant urges the trial court erred in admitting the 911 call under either the public record
or record of regularly conducted activity exceptions to the hearsay rule. See Tex. R. Evid. 803(6),
(8). However, we need not hold the trial court to these limitations, because if the trial court made
the right evidentiary ruling under any theory of law, we will not disturb that ruling “even if the
trial judge gave the wrong reason for his right ruling.” De la Paz v. State, 279 S.W.3d 336, 344
(Tex. Crim. App. 2009).
Here, we agree with the State that the 911 recording was properly admitted as an excited
utterance exception to the hearsay rule under Rule 803(2). “In determining whether a statement is
an excited utterance, the court may look at the time that elapsed between the event and the
statement, as well as whether the statement was in response to a question[,]” but “[t]he critical
factor in determining whether a statement is an excited utterance is whether the declarant was still
dominated by the emotions, fear, excitement, or pain of the event at the time of the statement.”
Neal v. State, 186 S.W.3d 690, 693 (Tex. App.—Dallas 2006, no pet.) (citing Zuliani v. State, 97
S.W.3d 589, 596 (Tex. Crim. App. 2003)).
The testimony of Catalina, Appellant, and Ruiz all established that Catalina called 911
within minutes after she claimed that Appellant had hit her. And although Catalina’s statements
during the 911 call were made in response to the 911 operator’s questions, that question-and-
answer format follows the typical nature of a 911 call. More importantly, the testimony also
established that Catalina was “still dominated by the emotions, fear, excitement, or pain of the
event” at the time she made the statements during the call. See Neal, 186 S.W.3d at 693. Catalina’s
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breathing was irregular, and she sounded like she was crying, and later in the call the pitch and
volume of her voice raised as she pleaded with Appellant not to take the child. Under these
circumstances, we conclude that Catalina was still dominated by the emotions and fear of the event
at the time she made the complained-of statements to the 911 operator; thus, the statements qualify
as an excited utterance. 2 The trial court did not err in admitting the 911 call as Catalina’s statements
were an exception to the hearsay rule.
We overrule Appellant’s first issue.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
In his second issue, Appellant claims the trial performance of his defense counsel was
objectively deficient and denied him his Sixth Amendment right to effective assistance of trial
counsel. The State responds that the record is not sufficiently developed for this Court to determine
whether trial counsel’s performance was deficient. We agree.
An ineffective-assistance-of-counsel claim may be raised for the first time on appeal.
Robinson v. State, 16 S.W.3d 808, 810 (Tex. Crim. App. 2000). To successfully assert such a
claim, an appellant must show that (1) trial counsel’s performance was “deficient because it fell
below an objective standard of reasonableness;” and (2) “a probability sufficient to undermine
confidence in the outcome existed that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Rylander v. State, 101 S.W.3d 107, 109–10 (Tex. Crim.
App. 2003) (en banc) (citing Strickland v. Washington, 466 U.S. 668 (1984)). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” See Strickland,
466 U.S. at 694.
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Although Appellant complains of the trial court’s admission of the entirety of the 911 recording, we conclude that
none of the statements made by the 911 operator or the interpreter were hearsay statements because none of them
could be conceived as being offered to prove the truth of the matter asserted—i.e., that Appellant had committed
domestic violence.
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“The review of defense counsel’s representation is highly deferential and presumes that
counsel’s actions fell within a wide range of reasonable professional assistance.” Mallett v. State,
65 S.W.3d 59, 63 (Tex. Crim. App. 2001). On direct appeal, “[a] substantial risk of failure
accompanies an appellant’s claim of ineffective assistance of counsel.” Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999). “[C]ounsel’s deficiency must be affirmatively
demonstrated in the trial record.” Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).
Yet, “the record on direct appeal is in almost all cases inadequate to show that counsel’s conduct
fell below an objectively reasonable standard of performance and . . . the better course is to pursue
the claim in habeas proceedings.” Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).
The only exception is when counsel’s conduct “was so outrageous that no competent attorney
would have engaged in it.” Id. at 101.
Appellant contends he had a viable self-defense claim because he had admitted that he
grabbed Catalina’s arm after she woke him, threw his cell phone at him, and escalated the situation
with verbal and physical aggression. He testified he had to grab her to stop her from hitting him.
In the context of a claim of ineffective assistance of counsel due to the failure to request a
jury instruction on self-defense, the Court of Criminal Appeals weighed in as follows:
We have consistently observed that usually “the record on direct appeal will not be
sufficient to show that counsel’s representation was so deficient and so lacking
tactical or strategic decision-making as to overcome the strong presumption that
counsel’s conduct was reasonable and professional.” Here, we can only speculate
why counsel acted or failed to act; thus, we presume that counsel’s actions were
within the wide range of reasonable and professional assistance.
Beatty v. State, No. AP-75010, 2009 WL 619191, at *10 (Tex. Crim. App. Mar. 11, 2009) (per
curiam, not designated for publication).
In this case, although Appellant filed a motion for new trial, he did not complain there of
trial counsel’s failure to request a jury instruction on self defense, and he raises this issue for the
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first time on appeal. Appellant has pointed us to no attempts to develop a record concerning the
motives behind trial counsel’s decision not to request a self-defense instruction. Like the Beatty
court, we can only speculate why Appellant’s trial counsel acted or failed to act with respect to
any self-defense claim; thus, we presume counsel’s actions were within the wide range of
reasonable and professional assistance. See id; see also Jones v. State, No. 05-15-01349-CR, 2016
WL 7190129, at *2 (Tex. App.—Dallas Dec. 12, 2016, no pet.) (mem. op., not designated for
publication) (concluding counsel’s actions in failing to request a self-defense instruction were
within the wide range of reasonable and professional assistance); Hamilton v. State, No. 2-08-096-
CR, 2009 WL 1650049, at *2 (Tex. App.—Fort Worth June 11, 2009, no pet.) (per curiam, mem.
op, not designated for publication) (same); Bazile v. State, No. 09-22-00337-CR, 2024 WL
1895166, at *7 (Tex. App.—Beaumont May 1, 2024, no pet.) (mem. op., not designated for
publication) (same).
We overrule Appellant’s second issue.
V. TRIAL COURT'S CERTIFICATION OF APPELLANT’S RIGHT TO APPEAL
As a final matter, we address the absence of Appellant’s signature on the required
certification of a right to appeal. The trial court certified Appellant’s right to appeal, but the
certification does not bear Appellant’s signature as required by Tex. R. App. P. 25.2(d); rather, it
shows that trial counsel signed the certification on Appellant’s behalf. Accordingly, pursuant to
Rule 48.4 of the Texas Rules of Appellate Procedure, the Court ORDERS Appellant’s attorney to
send Appellant a copy of this opinion and this Court’s judgment, to notify Appellant of his right
to file a pro se petition for discretionary review, and to inform Appellant of the applicable
deadlines. See Tex. R. App. P. 48.4, 68. The Court further ORDERS Appellant’s attorney to
comply with all of Rule 48.4’s requirements.
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VI. CONCLUSION
We affirm the trial court’s judgment.
GINA M. PALAFOX, Justice
July 25, 2024
Before Alley, C.J., Palafox and Soto, JJ.
(Do Not Publish)
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