Carlos Aguilera v. the State of Texas ( 2023 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
CARLOS AGUILERA, § No. 08-22-00021-CR
Appellant, § Appeal from the
v. § County Criminal Court No. 1
THE STATE OF TEXAS, § of El Paso County, Texas
Appellee. § (TC# 20190C11221)
OPINION
A jury convicted Appellant Carlos Aguilera of driving while intoxicated (DWI) with a
blood-alcohol concentration (BAC) equal to or greater than 0.15. Appellant challenges his
conviction in six issues, arguing that the evidence is legally insufficient to support his conviction
and that the trial court abused its discretion by admitting a bodycam video recording over
Appellant’s objections under Rules 401, 403, 404(b), and 801 of the Texas Rules of Evidence and
the Sixth Amendment Confrontation Clause. For the following reasons, we affirm Appellant’s
conviction.
FACTUAL AND PROCEDURAL BACKGROUND
A. DWI investigation
On the evening of December 6, 2019, Jesus Holmes was driving in El Paso, Texas, with
his wife Flor Holmes when they noticed a brown Ford F-250 truck “consistent[ly]” swerving
between lanes. As the truck continued on the road, Jesus and Flor saw it partially go off the street
causing the motorist to overcorrect with a hard left turn, resulting in the truck jumping the curb
and almost flipping over. The truck also momentarily went into the wrong lane of traffic. Jesus
flashed his lights in an attempt to get the motorist’s attention because he was “afraid that [the
motorist] would kill himself, kill somebody else or there’d be a major accident where I wouldn’t
be able to avoid it.” Flor called 911 to report the motorist’s erratic driving.
The motorist, later identified as Appellant, eventually pulled into a Valero gas station, spent
several minutes searching for something in the passenger compartment of the truck, exited the
truck, and walked into the store. Jesus parked his vehicle, and he and Flor continued to watch
Appellant from a distance. Flor only saw Appellant exit the brown truck. Both Jesus and Flor
positively identified Appellant in the courtroom as the person who was driving the truck at the
time in question.
Horizon City Police Department Sergeant Kennen Greseth was dispatched to the Valero to
investigate Appellant. Upon arriving, Sergeant Greseth spoke to Jesus, who pointed out Appellant
as the driver of the truck. Sergeant Greseth did not see another person in the truck. After Appellant
came out of the convenience store holding a bag containing two beers, Sergeant Greseth noticed
that Appellant looked at him in a “suspicious” manner and began walking in the other direction.
After making contact with Appellant, Sergeant Greseth noticed Appellant smelled of alcohol, had
slurred speech, and was unable to maintain his balance. Appellant repeatedly denied driving the
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truck and told Sergeant Greseth that his cousin was driving the truck but that his cousin had left.
According to Sergeant Greseth, several other people appeared during the encounter and told the
officer they had been drinking with Appellant at a restaurant. Sergeant Greseth asked Appellant to
perform standardized field sobriety tests (SFSTs), but Appellant refused. Sergeant Greseth arrested
Appellant for driving while intoxicated. Appellant agreed to provide a sample of his breath;
subsequent testing at the police station yielded BAC results of 0.159 and 0.160 approximately one
hour after the encounter began.
B. Procedural history
The State charged Appellant with driving while intoxicated with a BAC of 0.15 or greater.
In addition to the witness testimony above, the State offered into evidence Flor’s 911 call and two
video recordings from Sergeant Greseth’s bodycam. Appellant objected to the admission of the
videos on various grounds that we enumerate in detail below. The trial court overruled Appellant’s
objections in part and admitted redacted versions of the video recordings into evidence. The jury
found Appellant guilty of driving while intoxicated with a BAC greater than or equal to 0.15. The
trial court assessed punishment of 365 days’ imprisonment, probated for fifteen months, along
with a $250 fine and various terms and conditions of community supervision. This appeal
followed.
OVERVIEW OF ISSUES ON APPEAL
Appellant challenges his conviction in six issues. He argues that the evidence is legally
insufficient to establish that he operated the truck or that his BAC was greater than or equal to 0.15
at the time of driving. Appellant also raises five issues challenging the admission of the bodycam
video recordings; he argues that the admission of Jesus’s and Flor’s statements contained within
the video recordings violated Texas Rules of Evidence 801, 401, 403, and 404(b) as well as
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Appellant’s right to confront witnesses under the Confrontation Clause. See TEX. R. EVID. 801,
401, 403, 404(b). We address each issue in turn.
LEGAL SUFFICIENCY
A. Standard of review and applicable law
The Fourteenth Amendment guarantee of due process requires every conviction to be
supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315–16 (1979);
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). In a legal-sufficiency challenge,
we focus solely on whether the evidence, when viewed in the light most favorable to the verdict,
would permit any rational jury to find the essential elements of the offense beyond a reasonable
doubt. Jackson, 443 U.S. at 318–19; Brooks, 323 S.W.3d at 912 (establishing legal sufficiency
under Jackson v. Virginia as the only standard for review of the evidence).
Applying that standard, we recognize that our system designates the jury as the sole arbiter
of witness credibility and the weight attached to the testimony of each witness. Metcalf v. State,
597 S.W.3d 847, 855 (Tex. Crim. App. 2020); Dobbs v. State, 434 S.W.3d 166, 170
(Tex. Crim. App. 2014). Only the jury acts “to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007), quoting Jackson, 443 U.S. at 319. In doing so, the
jury may choose to believe or disbelieve any testimony. Lancon v. State, 253 S.W. 3d 699, 707
(Tex. Crim. App. 2008). The jury remains at liberty to believe “all, some, or none of a witness’s
testimony.” Metcalf, 597 S.W.3d at 855. When the record supports conflicting inferences, we
presume that the jury resolved the conflicts in favor of the verdict and defer to that determination.
Dobbs, 434 S.W.3d at 170, citing Jackson, 443 U.S. at 319. In conducting a legal-sufficiency
review, “[w]e are not to sit as a thirteenth juror reweighing the evidence or deciding whether we
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believe the evidence established the element in contention beyond a reasonable
doubt[.]”Blankenship v. State, 780 S.W.2d 198, 207 (Tex. Crim. App. 1988) (en banc). Instead,
“we test the evidence to see if it is at least conclusive enough for a reasonable factfinder to believe
based on the evidence that the element is established beyond a reasonable doubt.” Id., citing
Jackson, 443 U.S. at 318. “In reviewing the legal sufficiency of the evidence, we consider all the
evidence admitted at trial, even improperly admitted evidence.” Lopez v. State, 615 S.W.3d 238,
249 (Tex. App.—El Paso 2020, pet. ref’d) (citing Moff v. State, 131 S.W.3d 485, 488
(Tex. Crim. App. 2004)).
Appellant argues that the evidence was legally insufficient to support his conviction for
driving while intoxicated with a BAC greater than or equal to 0.15. A person commits that offense
if the person is intoxicated while operating a motor vehicle in a public place, and if it is proved
that a specimen of the person’s blood, breath, or urine showed a BAC of 0.15 or more at the time
the analysis was performed. TEX. PENAL CODE ANN. § 49.04(a), (d). In particular, Appellant argues
that the evidence is legally insufficient to establish (1) that he was the person who operated the
truck and (2) that he was intoxicated at the time of driving. We consider each element below.
B. The evidence is legally sufficient to establish Appellant’s operation of the truck
We first address Appellant’s argument that the State failed to present “credible evidence”
that Appellant operated a vehicle. Operation is not statutorily defined; however, courts examining
the sufficiency of the evidence to support operation have concluded that a person operates a vehicle
when “the totality of the circumstances . . . demonstrate that the defendant took action to affect the
functioning of his vehicle in a manner that would enable the vehicle’s use.” Kirsch v. State, 357
S.W.3d 645, 650–51 (Tex. Crim. App. 2012).
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At trial, the State presented testimony from Jesus and Flor indicating that after seeing the
brown truck being driven erratically, they followed it to a convenience store and saw a man exit
the driver’s side of the truck. Flor testified that she kept the truck in sight at all times. While in the
courtroom, both Jesus and Flor identified Appellant as the driver of the truck. Moreover, Sergeant
Greseth testified that he did not see anybody else present in the vehicle. Given the totality of the
circumstances, this is sufficient evidence to establish beyond a reasonable doubt that Appellant
operated the truck. See Vedia v. State, No. 04-18-00393-CR, 2019 WL 3208817, at *5
(Tex. App.—San Antonio July 17, 2019, pet. ref’d) (mem. op., not designated for publication)
(legally sufficient evidence supported the defendant’s operation of a vehicle where an eyewitness
testified that she saw the defendant driving the vehicle despite the witness’s admission that she
was not “one hundred percent certain” that the defendant got out of the truck from the driver’s
side, reasoning that the jury was free to credit the witness’s identification of the defendant and
discount any of her expressions of qualifying doubt).
Appellant argues that (1) the State could have but failed to present certain evidence that
would have supported his operation of the vehicle; (2) testimony from Jesus and Flor was
“exaggerated” and contained various inconsistencies that rendered their testimony not credible;
and (3) given the evidence, including the appearance of several people who claimed to be with
Appellant, Appellant’s claim that his cousin or another person was driving the truck made more
sense. These arguments fail because they are not rooted in the applicable standard of review.
Because the jury is the sole arbiter of the witness credibility and the weight to be given to
their testimony, we cannot substitute our evaluation of the evidence for that of the jury’s.
Moreover, it is solely the jury’s responsibility to resolve any inconsistencies in the evidence, and
we must view all evidence in the light most favorable to the verdict. Regarding Appellant’s claim
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that his cousin or another person had driven the truck, we consider that theory as impliedly
considered and rejected by the jury. See Maillart v. State, No. 08-20-00232-CR, 2022 WL 970334,
at *5 (Tex. App.—El Paso Mar. 31, 2022, pet. ref’d) (not designated for publication) (because a
reviewing court cannot reweigh the evidence or substitute its judgment for that of the fact finder,
the reviewing court should regard any inconsistencies in the evidence supporting a defensive
theory as impliedly considered and rejected by the fact finder in light of its verdict). Finally, to the
extent that Appellant argues that his version of events was more credible and required the State to
disprove Appellant’s version to uphold his conviction, we are not to engage in the long-disavowed
“reasonable alternative hypothesis” construct and hold the State to this burden; instead, we must
only determine whether any rational jury could have found the elements of the charged offense
beyond a reasonable doubt. See Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012) (“For
the evidence to be sufficient, the State need not disprove all reasonable alternative hypotheses that
are inconsistent with the defendant’s guilt.”).
For these reasons, we hold that legally sufficient evidence established Appellant’s
operation of a motor vehicle at the time of the offense.
C. The evidence is legally sufficient to establish Appellant’s intoxication at the time he
operated the truck
Next, Appellant argues the State failed to establish he was intoxicated at the time he
operated the truck. The Texas Penal Code provides for two theories under which the State can
prove intoxication—a “subjective” theory and a “per se” theory. Aguirre v. State, No.
08- 20- 00057-CR, 2022 WL 3225160, at *6 (Tex. App.—El Paso Aug. 10, 2022, pet. ref’d) (not
designated for publication) (citing TEX. PENAL CODE ANN. § 49.01(2)(A), (B)). The subjective
theory is shown by the defendant “not having the normal use of mental or physical faculties by
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reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, or a
combination of two or more of those substances, or any other substance into the body.” TEX. PENAL
CODE ANN. § 49.01(2)(A). The per se theory is shown by the defendant “having an alcohol
concentration of 0.08 or more.” Id. § 49.01(2)(B). A finding under either theory is sufficient to
prove intoxication. Aguirre, 2022 WL 3225160, at *6 (citing Crenshaw v. State, 378 S.W.3d 460,
466 (Tex. Crim. App. 2012)). We examine the evidence to determine where there was sufficient
proof of intoxication. Id. (citing Crenshaw, 378 S.W.3d at 466 that “definitions of intoxicated are
purely evidentiary matters”).
Here, Appellant contends that the State failed to prove that he was intoxicated at the time
he operated the truck, pointing to (1) the length of time between his stop and the collection of his
breath specimen and (2) the lack of evidence regarding retrograde extrapolation or Appellant’s
performance on SFSTs. We disagree.
Appellant’s breath test yielded BAC results of 0.159 and 0.160 approximately one hour
after Sergeant Greseth made contact with Appellant, but the State did not present retrograde-
extrapolation evidence to establish his approximate BAC at the time he was driving. As the Court
of Criminal Appeals has noted, although the test results without retrograde-extrapolation evidence
will not suffice by themselves to prove intoxication under the per se theory, the test results may be
sufficient to prove per se intoxication if other evidence supports an inference that the defendant
was intoxicated at the time of driving as well as at the time of taking the test. See Kirsch v. State,
306 S.W.3d 738, 745–46 (Tex. Crim. App. 2010). To that end, a suspect’s breath-test results are
“pieces in the evidentiary puzzle” for the jury to consider in determining his intoxication at the
time of driving under either the per se or subjective theories. Stewart v. State, 129 S.W.3d 93, 97
(Tex. Crim. App. 2004) (en banc); see Kirsch, 306 S.W.3d at 744–46 (recognizing that although
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BAC-test results are not conclusive evidence of a defendant’s intoxication at the time of driving,
the results nonetheless have “considerable probative value” that can prove both the per se or
subjective theories of intoxication at the time the defendant was driving).
In addition to the BAC test results, the State also presented ample circumstantial evidence
to support that Appellant was intoxicated at the time he was driving. See Dobbs, 434 S.W.3d at
170 (“Circumstantial evidence is as probative as direct evidence in establishing the guilt of the
actor, and circumstantial evidence alone may be sufficient to establish guilt.”). In particular, Jesus
and Flor testified about Appellant’s irregular driving behavior and his inability to locate something
in his vehicle for several minutes, suggesting the impairment of his normal mental or physical
faculties. Moreover, Sergeant Greseth testified that (1) Appellant came out of the convenience
store holding two beers and tried to walk away from him; (2) Appellant smelled of alcohol, had
difficulty maintaining his balance, and had slurred speech; (3) Appellant refused to perform
SFSTs; 1 (4) other people at the scene told him that Appellant had been drinking with them at a
restaurant; and (5) Sergeant Greseth, who had training and experience in dealing with intoxicated
people, believed Appellant was intoxicated based on his “confusing” narrative of the events that
night, his slurred speech, and the continued smell of alcohol coming from his person. 2
Based on the totality of the circumstances, the jury could have rationally found beyond a
reasonable doubt that Appellant was intoxicated at the time of driving the truck. See Kirsch, 306
S.W.3d at 744–46; see also Aguirre, 2022 WL 3225160, at *6–7 (evidence was sufficient to
1
See Lonsdale v. State, No. 08-05-00139-CR, 2006 WL 2480342, at *4 (Tex. App.—El Paso Aug. 29, 2006, pet.
ref’d) (not designated for publication) (recognizing that “[a] defendant’s refusal to perform field sobriety tests is
relevant and admissible” in a DWI prosecution) (citations omitted).
2
See Fletcher v. State, No. 08-13-00043-CR, 2014 WL 4922625, at *4 (Tex. App.—El Paso Sept. 30, 2014, no pet.)
(not designated for publication) (“In general, an officer’s testimony that a person is intoxicated provides sufficient
evidence to establish the intoxication element for the offense of DWI.”) (citing Annis v. State, 578 S.W.2d 406, 407
(Tex. Crim. App. 1979)).
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support the subjective theory of intoxication where the defendant was speeding, had a can of beer
in his vehicle, exhibited slurred speech and bloodshot eyes, had trouble locating his insurance, and
showed negligible signs of intoxication on SFSTs, notwithstanding the defendant’s BAC below
the legal limit at the time of testing).
Accordingly, we overrule Appellant’s first issue.
ADMISSION OF VIDEO RECORDINGS
Having found legally sufficient evidence to sustain Appellant’s conviction for the charged
offense, we next address whether the trial court abused its discretion on multiple grounds by
admitting the video recordings from Sergeant Greseth’s bodycam.
A. Factual background
During its case-in-chief, the State offered two video recordings from Sergeant Greseth’s
bodycam. Appellant objected that the first recording (1) contained inadmissible hearsay; (2)
constituted improper character evidence; (3) was irrelevant because the video did not concern
Appellant’s operation of the truck; (4) would be cumulative of Jesus’s and Flor’s anticipated
testimonies and contained their statements that would be unfairly prejudicial to Appellant; and (5)
contained statements from witnesses who had not been subpoenaed, thus violating the
Confrontation Clause. The trial court asked why the State had not subpoenaed the other witnesses
who appeared in the video, and the prosecutor responded that he did not believe their testimony
would be necessary to proving the State’s case. Appellant objected that the second recording was
cumulative of what was depicted in the first recording, and the State responded that Appellant
made the statement, “I was driving—I mean my cousin was driving” solely in the second
recording.
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After reviewing the videos, the trial court admitted the first and second video recordings
as State’s Exhibits 3-A and 3-B, respectively. However, the court sustained Appellant’s
Confrontation-Clause objection and removed the portions of the videos containing statements from
witnesses who were not available to testify. Further, the court sustained Appellant’s cumulative-
evidence objection and excluded portions of State’s Exhibit 3-B that were cumulative of what was
depicted on State’s Exhibit 3-A. In light of these rulings, the court also instructed the State to make
a new version of State’s Exhibit 3-B for admission into evidence that did not contain the
cumulative portions from State’s Exhibit 3-A, as well as versions of the recordings that did not
contain statements from witnesses who had not been subpoenaed.
B. Standard of review
We review a trial court’s ruling on the admission of evidence under the abuse-of-discretion
standard. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). The trial court only
abuses its discretion if it acts “without reference to any guiding rules and principles or acts
arbitrarily or unreasonably.” Id. We will not disturb the trial court’s ruling if it is correct under any
applicable theory of law, even if the court articulated the wrong reason for the right ruling. Lopez,
615 S.W.3d at 257 (citing Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016)).
And if a trial court admits evidence in error, the erroneous admission is reviewed under the
harmless-error standard set forth in Texas Rule of Appellate Procedure Rule 44.2(b). Under that
standard, “Any other error, defect, irregularity, or variance that does not affect substantial rights
must be disregarded.” TEX. R. APP. P. 44.2(b). An appellate court may not reverse for non-
constitutional error if the court, after examining the entire record, has a fair assurance that the error
did not have a substantial and injurious effect or influence in determining the verdict. Maillart,
2022 WL 970334, at *17 (citing Casey v. State, 215 S.W.3d 870, 884–85 (Tex. Crim. App. 2007)).
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C. TEX. R. EVID. 801
In his second issue, Appellant argues that the trial court abused its discretion by admitting
the bodycam videos because they contained inadmissible hearsay statements from Jesus and Flor.
Hearsay is a statement a declarant makes outside of his testimony at the current proceeding
that a party offers into evidence to prove the truth of the matter asserted. TEX. R. EVID. 801(d).
Absent an exclusion or exception to the rule, hearsay is not admissible. TEX. R. EVID. 802. At trial,
the State argued that Jesus’s and Flor’s statements were admissible under the present-sense-
impression exception to the hearsay rule. That exception provides that “[a] statement describing
or explaining an event or condition, made while or immediately after the declarant perceived it” is
not excluded by the hearsay rule. TEX. R. EVID. 803(1). A statement must be made immediately
after or with only a slight lapse of time after the event described to fall within the present-sense-
impression exception. Valmana v. State, 605 S.W.3d 490, 507 (Tex. App.—El Paso 2020, pet.
ref’d). However, “[o]nce reflective narratives, calculated statements, deliberate opinions, or
conscious ‘thinking-it-through’ statements enter the picture, the present sense impression
exception longer allows [a statement’s] admission.” Fischer v. State, 252 S.W.3d 375, 381
(Tex. Crim. App. 2008). “Similarly, factual observations, narrations, opinions, and conclusions
made by a citizen or bystander that might be intended by the declarant to be made with an eye
toward future litigation or evidentiary use are inadmissible under the rule.” Id. at 384.
On appeal, Appellant argues that Jesus’s and Flor’s statements to Sergeant Greseth that
they believed Appellant was intoxicated, that he was posing a risk and possibly going to kill
someone, and that he would have killed someone had they not gotten involved are more than just
observations or explanations from an observation. Instead, Appellant posits that the statements
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constitute opinions or conclusions that Jesus and Flor formed after the opportunity for reflection
and deliberation, which took their statements out of the purview of the present-sense-impression
exception. The State responds that Jesus and Flor made the statements within a close-enough
period of time such that there would be “little opportunity for Jesus and Flor to make a calculated
misstatement of the events they perceived,” thus fulfilling Rule 803(1)’s purpose of allowing
statements from witnesses who did not have sufficient time to fabricate or alter their statements.
Assuming, without deciding, that the trial court abused its discretion by admitting the video
recordings containing hearsay statements, any error was harmless. Here, Jesus’s and Flor’s
statements in the video recordings regarding Appellant’s intoxication and erratic driving were
cumulative of other properly admitted evidence establishing the same facts, including testimony
at trial by Jesus and Flor as well as Flor’s statements in her 911 call. Both Jesus and Flor testified
that (1) they believed Appellant was intoxicated; (2) he was driving erratically by driving on the
wrong side of the road, striking the curb, and almost flipping his truck; and (3) they were concerned
for his safety and the safety of others, with Jesus specifically testifying that he was afraid that
Appellant was going to kill himself or another person through his driving. Moreover, Flor told the
police dispatcher in the 911 call she believed Appellant was “very, very drunk,” that he was driving
a brown Ford F-250 pickup truck, that he was swerving, that he almost flipped his truck, that he
drove on the wrong side of the road, and that she did not want him to cause an accident. 3
If erroneously admitted hearsay evidence is cumulative of the same evidence admitted by
other means, the error is usually harmless. See Brooks v. State, 990 S.W.2d 278, 287
(Tex. Crim. App. 1999); Willits v. State, No. 08-17-00072-CR, 2019 WL 364612, at *5–6
3
Although Appellant made a hearsay objection at trial to the admission of the 911 call, he does not complain about
its admission on appeal.
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(Tex. App.—El Paso Jan. 30, 2019, no pet.) (not designated for publication) (citing Mitchell v.
State, 419 S.W.3d 655, 660 (Tex. App.—San Antonio 2013, pet. ref’d)). Because the complained-
of statements in the video recordings were cumulative of other evidence proving the same facts,
we conclude that any claimed error on this basis in admitting the video recordings did not affect
Appellant’s substantial rights and would have been harmless. Brooks, 990 S.W.2d at 287 (any
error in admitting a hearsay statement under the present-sense-impression exception “was harmless
in light of other properly admitted evidence proving the same fact”).
Accordingly, we overrule Appellant’s second issue.
D. TEX. R. EVID. 401
In his third issue, Appellant argues that the trial court abused its discretion by admitting
the video recordings because Jesus’s and Flor’s statements that they did not want Appellant to kill
someone by his erratic driving were irrelevant, reasoning that “[t]he dangerousness of an erratic
driver presumed intoxicated is not a fact of consequence for the guilt-innocence phase of trial.”
We disagree.
“Evidence is relevant if it has any tendency to make a fact more or less probable than it
would be without the evidence[,] and the fact is of consequence in determining the action.” TEX.
R. EVID. 401. To be relevant, evidence need not conclusively prove a fact of consequence, but
rather must only create a “small nudge” toward proving the fact. Pena v. State, No.
08- 16- 00236- CR, 2019 WL 1374152, at *8 (Tex. App.—El Paso Mar. 27, 2019, pet. ref’d) (not
designated for publication) (citing Stewart v. State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004)).
As such, “[t]he threshold for relevance under Rule 401 is very low.” Haley v. State, 173 S.W.3d
510, 520 (Tex. Crim. App. 2005) (Keller, J., concurring).
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Here, the State was required to prove that Appellant operated a vehicle while he was
intoxicated; thus, operation and intoxication were two facts of consequence in determining
Appellant’s guilt for driving while intoxicated. See TEX. PENAL CODE ANN. § 49.04(a). Jesus’s and
Flor’s statements that Appellant could have killed somebody through his dangerous driving
provided a “small nudge” to help establish the extent to which Appellant was impaired while he
was driving. This in turn made both his operation of a vehicle and his impaired faculties caused
by his intoxication more likely than those facts would have been had the State not presented the
evidence. Thus, the evidence met the test for relevance and the trial court did not abuse its
discretion by admitting the video recordings over Appellant’s relevance objection.
Accordingly, we overrule Appellant’s third issue.
E. TEX. R. EVID. 403
In his fourth issue, Appellant argues that the trial court abused its discretion by admitting
the video recordings because Jesus’s and Flor’s statements that they did not want Appellant to kill
someone by his driving “conjure up emotions and visions of carnage left in the aftermath of a
drunk driver.” Appellant posits that even if Jesus’s and Flor’s statements were relevant, the
admission of the statements caused the potential for the jury to decide the case on a misleading
and irrational basis, thus violating TEX. R. EVID. 403. 4
Texas Rule of Evidence 403 allows a trial court to exclude otherwise relevant evidence if
its probative value is substantially outweighed by one or more of the following: “unfair prejudice,
4
Although the trial court did not expressly undertake a Rule-403 analysis, the record indicates that it engaged in
several discussions regarding the admission of the video recordings and reviewed the videos outside the presence of
the jury before overruling Appellant’s objection and admitting the video recordings into evidence. Moreover, the trial
court excluded portions of State’s Exhibit 3-B that were cumulative of what was depicted in State’s Exhibit 3-A,
impliedly suggesting that the court undertook the analysis. See TEX. R. EVID. 403 (excluding evidence whose probative
value is substantially outweighed by, inter alia, needlessly cumulative evidence).
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confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative
evidence.” TEX. R. EVID. 403. “Rule 403 favors admissibility of relevant evidence, and the
presumption is that the relevant evidence will be more probative than prejudicial.” Montgomery v.
State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990). In performing a Rule-403 analysis, a court
must balance (1) the inherent probative force of the proffered item of evidence
along with (2) the proponent’s need for that evidence against (3) any tendency of
the evidence to suggest decision on an improper basis, (4) any tendency of the
evidence to confuse or distract the jury from the main issues, (5) any tendency of
the evidence to be given undue weight by a jury that has not been equipped to
evaluate the probative force of the evidence, and (6) the likelihood that presentation
of the evidence will consume an inordinate amount of time or merely repeat
evidence already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006).
As noted above, the statements regarding Appellant’s dangerous operation of a vehicle that
posed a risk to other motorists were probative of two elements of the charged offense: operation
and intoxication. In particular, the statements show the degree of Appellant’s erratic operation of
the vehicle, which in turn is probative of the degree of his intoxication through the loss of his
normal use of mental and physical faculties. See TEX. PENAL CODE ANN. § 49.01(2)(A). And given
that one of Appellant’s primary defensive theories was that he had not operated the vehicle, the
State had need of such evidence tending to establish that Appellant was driving and to rebut his
defensive theory and to prove the operation and intoxication elements of the offense. Although
there was some possibility for the statements to render a decision on the basis of the risks posed
by intoxicated drivers generally instead of whether Appellant committed the charged offense, the
complained-of statements were nonetheless sufficiently connected to the main issues in the case,
i.e., whether Appellant operated a motor vehicle while intoxicated. Moreover, there is no
indication that the jury was unequipped to properly evaluate the evidence, and the evidence did
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not consume an inordinate amount of time to present. For these reasons, we conclude that the trial
court’s decision to overrule Appellant’s Rule-403 objection and admit the evidence was not outside
the zone of reasonable disagreement.
Moreover, even if the trial court had abused its discretion by admitting the statements over
Appellant’s objection, any error was harmless. See TEX. R. APP. P. 44.2(b). In determining whether
Appellant was harmed by the erroneous admission of evidence, we would consider “(1) the
character of the alleged error and how it might be connected to other evidence; (2) the nature of
the evidence supporting the verdict; (3) the existence and degree of additional evidence showing
guilt; and (4) whether the State emphasized the complained-of error.” Maillart, 2022 WL 970334,
at *17 (citing Bagheri v. State, 119 S.W.3d 755, 762–63 (Tex. Crim. App. 2003)).
Jesus’s and Flor’s statements in the video recordings supported Appellant’s operation of
the truck and his intoxication and were connected to other evidence proving the same facts. And
as explained above, there was strong evidence indicating Appellant’s guilt, including (1) testimony
from Jesus and Flor that Appellant was driving dangerously and that they saw him exit the driver’s
side of the truck; (2) Sergeant Greseth’s testimony that he saw Appellant come out of the
convenience store with two beers, he admitted that he had been drinking, he smelled of alcohol
and had slurred speech, and he refused to perform SFSTs; and (3) Appellant’s BAC-test results of
0.159 and 0.160 approximately one hour after Sergeant Greseth made contact with Appellant.
When the State argued in its closing statements that Appellant’s operation of the truck was
dangerous, the State did not emphasize the particular statements that Appellant could have possibly
killed someone with his driving. Thus, had the trial court erred in admitting the statements in the
video recordings over Appellant’s Rule-403 objection, any such error would have been harmless.
See TEX. R. APP. P. 44.2(b).
17
Accordingly, we overrule Appellant’s fourth issue.
F. TEX. R. EVID. 404(b)
In his fifth issue, Appellant argues that the same complained-of statements forced him to
defend himself against “uncharged imaginary crimes in addition to the charged offense,” including
intoxication assault and intoxication manslaughter. He contends that these statements constitute
improper character evidence under TEX. R. EVID. 404(b) and erroneously allowed his conviction
based on his bad character and future dangerousness.
“Evidence of a crime, wrong, or other act is not admissible to prove a person’s character
in order to show that on a particular occasion the person acted in accordance with the character.”
TEX. R. EVID. 404(b)(1). But impermissible evidence of an extraneous offense must involve
evidence of “prior criminal conduct” by the defendant, and if the evidence does not show that an
offense was committed or that the accused was connected to the offense, there is no evidence of
an extraneous offense. McKay v. State, 707 S.W.2d 23, 31–32 (Tex. Crim. App. 1985) (en banc);
Bendy v. State, No. 08-15-00369-CR, 2016 WL 6473054, at *4 (Tex. App.—El Paso Nov. 2, 2016,
no pet.) (not designated for publication).
Here, Appellant complains that Jesus’s and Flor’s statements regarding the potential for
Appellant to injure or kill another person through his intoxicated driving implicated his purported
commission of two uncharged offenses: intoxication assault and intoxication manslaughter. See
TEX. PENAL CODE ANN. §§ 49.07, .08. However, neither Jesus nor Flor claimed that Appellant
actually caused bodily injury or death to another person while he was driving; instead, their
testimonies only alluded to the possibility that he could do so. Because there was no evidence or
allegation that Appellant actually committed an extraneous offense, his argument fails. See McKay,
707 S.W.2d at 31–32; Bendy, 2016 WL 6473054, at *5 (witness testimony referencing the
18
defendant’s connection to prior criminal investigations did not include evidence that he had
committed any prior criminal conduct therefore no extraneous-offense evidence had been admitted
and Rule 404(b) had not been violated).
Accordingly, we overrule Appellant’s fifth issue.
G. Confrontation Clause
Finally, Appellant argues in his sixth issue that the trial court abused its discretion by
admitting the video recordings because he had no prior opportunity to cross-examine Flor before
the video recordings had been admitted and presented to the jury, thus violating the Sixth
Amendment’s Confrontation Clause under Crawford v. Washington. 541 U.S. 36, 68 (2004). He
asserts that the video recordings could only be admitted “only after, or contemporaneously with,
[Flor’s] testimony” (even though Flor was available for cross-examination during the trial and
Appellant did in fact cross-examine her). The State responds that because Appellant did not object
to the admission of the video recordings on this basis, he has waived his appellate complaint on
this basis.
To preserve an issue for appellate review, an appellant has the burden to make a timely and
specific objection in the trial court. TEX. R. APP. P. 33.1(a); see Dixon v. State, 595 S.W.3d 216,
223 (Tex. Crim. App. 2020) (noting that the appealing party has the burden to bring forth a record
showing that error was preserved). “In making the objection, terms of legal art are not required,
but a litigant should at least ‘let the trial judge know what he wants, why he thinks himself entitled
to it, and to do so clearly enough for the judge to understand him at a time when the trial court is
in a proper position to do something about it.’” Ortiz v. State, No. 08-15-00344-CR, 2017 WL
3667829, at *4 (Tex. App.—El Paso Aug. 25, 2017, pet. ref’d) (not designated for publication)
19
(quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). This requirement
applies to appellate complaints implicating the Confrontation Clause. See id.Our review of the record shows that Appellant objected to the video recordings on the
grounds of hearsay, Rule 403, and Rule 404(b), and that he made some references to whether
certain witnesses had been subpoenaed and were available to testify. However, Appellant did not
raise a sufficiently specific objection, either in his pretrial filings or during trial, to the video
recordings on the basis that they violated the Confrontation Clause because they were being
admitted and presented to the jury before Flor was subjected to cross-examination. Had he raised
this objection, the trial court could have chosen to taken measures to ensure that Flor was subjected
to cross-examination before the video recordings were played before the jury. 5 But because the
record lacks Appellant’s sufficiently specific objection on these grounds, we conclude that he has
not preserved this issue for our review and his claim is waived. See TEX. R. APP. P. 33.1(a); see
also Ortiz, 2017 WL 3667829, at *4 (appellant waived his Confrontation Clause appellate claim
because although he objected to the evidence on hearsay grounds, he did not make an objection in
the trial court specifically based on the Confrontation Clause). 6
5
Although Appellant asserts that a witness must be subjected to cross-examination at trial before her out-of-court
testimonial statements may be admitted during the trial, he cites no case law expressly supporting his position. In
response, the State cites several cases in which a trial court admitted a witness’s out-of-court testimonial statement
before the witness was subject to cross-examination at trial. See Jaycox v. State, No. 13-13-00639-CR, 2015 WL
5233200, at *3 n. 2 (Tex. App.—Corpus Christi Sept. 3, 2015, no pet.) (mem.op.) (not designated for publication)
(recognizing that where a declarant was subject to cross-examination at trial, “[t]he Confrontation Clause is not
offended if the declarant . . . is available and later testifies at trial.”) (emphasis added); DeLeon v. State, No. 02-12-
00629-CR, 2014 WL 3953902, at *4–5 (Tex. App.—Fort Worth Aug. 14, 2014, pet. ref’d) (mem. op., not designated
for publication) (no violation of the Confrontation Clause occurred where an out-of-court testimonial statement was
admitted prior to the declarant’s being subject to cross-examination at trial); Marzek v. State, No. 06-10-00087-CR,
2011 WL 238347, at *2 (Tex. App.—Texarkana Jan. 25, 2011, no pet.) (mem. op., not designated for publication) (no
Confrontation-Clause violation occurred where the out-of-court testimonial statement was admitted prior to the
declarant’s testimony during a hearing because the witness was subjected to cross-examination). But because
Appellant did not preserve this issue for our review, we need not expressly decide the matter in this appeal.
6
The State and trial court both referred to Crawford v. Washington during several different bench conferences, and
at one point the prosecutor noted that Appellant had not formally raised an objection under Crawford. 541 U.S. 36,
20
Accordingly, we overrule Appellant’s sixth issue.
CONCLUSION
We affirm the judgment supporting Appellant’s conviction.
LISA J. SOTO, Justice
March 8, 2023
Before Rodriguez, C.J., Soto, J., Marion, C.J. (Ret.)
Marion, C.J. (Ret.) (sitting by assignment)
(Do Not Publish)
68 (2004). The trial court also seems to have excluded portions of the video recordings sua sponte, specifically stating
that she would be “treating [the video] as a Crawford [issue].” Although the State and the trial court discussed the
matter, the record confirms that Appellant did not meet his burden to raise the issue or the arguments he asserts on
appeal himself. See Dixon v. State, 595 S.W.3d 216, 223 (Tex. Crim. App. 2020) (noting that the appealing party has
the burden to bring forth a record showing that error was preserved).
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