### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-18-00021- CR

Ke vin S cott , Appellan t

v. The State of Texas, App ellee

F ROM CO UNTY COURT AT LAW NO . 8 O F TRAVIS CO UNTY NO. C-1 -CR- 17- 5011 71, H ONO RAB LE CHUCK MI LLER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Ke v i n Scott was char g ed with indece nt exposure for alleg edly exposi ng his peni s “in a public place , to Olivia Keller , who did not know [hi m] and did not invite such ex posure.”
See Tex. Penal Code § 21.08 (setting out elements of offe nse and specify ing that offe nse “is a Class B misdemeanor” ). At the en d o f t he g uilt-or-innoce nce phase, the jury found Scott g uilty

. D u r in g th e p u

n is h me n t p h a s e , Sc o tt a

n d th e St a te e n te r e d in

to a n a g r e e me n t r e g a

r d in g th e p u

n is h me n t that should be imposed. The county court at law rende red its judgme nt of conviction and assessed
Scott’s punishm ent at 100 day s’ confine ment in county jail in acc ordanc e with the ag ree ment. See id. § 12.22 (setting out permissi b l e punishment rang e for “a Class B misdemeanor” ). On
appea l, Scott contends that the county court at law erred by overr uling his objection reg arding the admission of an audio and video rec ording of Keller

. We will aff irm the county court at law’s judgme nt of conviction.BACK GR OUND As set out above, Scott was char g ed with indece nt exposure. During the trial, sever al witnesses were called to the s tand, i ncluding Keller , who was the alleg ed victim; Offic er Vanessa
Br emner , who responde d to a 911 call made by Keller ; Offic er Cantu, who was involv ed in the 1 investiga tion of this case ; Detec tive Chris Be rnal, who interviewe d Scott as part of the investiga tion; and Christine A lexandra, who testified as a defe nse witness. I n addition, a rec ording from Offic er Br emner ’s dashboar d came ra, a rec ording of the 911 call that Keller made, and a rec ording of Keller g oing throug h a photo lineup of potential suspects in this case wer e all admitted into evidenc e and play ed for

the jury

. I n her testimony , Offic er Br emner explained that s h e re s ponded to a 911 call and that she talked with Keller about the alleg ed incident. Reg ar d ing her conver sation with Keller , Offic er Br emner testified that Keller rela ted that s h e wa s o utside exercising when a “blue For d
Taurus- ty pe vehicle” passed her, that the car t urned around, that the car pul l ed up beside her, t hat the m al e driver whistled at her to g et her attention, that she noticed that the driver had exposed hi s p en i s , and that she y elled at the driver to leave

. Fur ther, Offic er Br emner rec alled that Keller provided the license- plate number for the vehicle. I n addition, Offic er Br emner stated t h at she provided Kelle r wi t h a victim-assistance- information pamphlet but that Keller did not want to
use any victim-assistance se rvice s. During Offic er Br emner ’s testimony , the State soug ht to admit into eviden ce a

rec ording from Of

fi ce r Br emner ’s dashboar d came ra chronic ling her conver sation with Keller

.

The re cord doe s not mention Office r Cantu’s first na me. 1 2Scott objec ted and asse rted that the statements on the rec ording wer e hear say and that the excitedutteranc e except i o n t o h ea rs ay did not apply

. I n a hear ing held outside the prese nce of the jury , Offic er Br emner testified that she arr ived at the scene approximately thirty minutes afte r the alleg ed offe nse, that Keller was not riled up, that Keller “st at ed t hat she was not traumatized but that she

was g rossed out” by what had happe ned, and tha t Keller indica ted that she did not need to use any victim-assistance service s. At the end of the hear ing, the county court at law overr uled the objection and st ated that Scott had “a running obj ection to this entire l i n e o f t estimony and the prese ntation of the infor

mation on the” re cording

. After the county court at law made its ruling , the rec ording was published to the jury

. On the rec ording , Keller told Offic er Br emner that a male driver whistled at her to g et her attention, that the driver’ s pants wer e not zipped, th at t h e d river’ s penis was “fully out,” that the driver’ s penis was ere ct when sh e s aw i t , t h at she was “g rossed out” by the incident, and that she told the driver to lea

ve. Next, Offic er Cantu was called to the stand. I n her testimony , Offic er Cantu rela ted
t h at s h e ran the license- plate number that Keller g ave to the 911 opera tor, that the owner of t h e vehicle was Scott, that she found Scott’s Fa cebook pag e, and that the pag e contained a status update with a photogra

ph of a For d Taurus. I n addition, Offic er Cantu testified t h at Keller descr ibed t he
perpe trator as “a white male or Hispanic male” and that the photogr aph associate d with the Fa cebook profile was consistent with t h at d es cr i p t ion and with a picture from the police databa se for the

owner of the vehicle. During Offic er Cantu’s testimony , a photogr aph of Scott f rom his F ace book

3pag e as w ell as a photogra ph of one of hi s status updates we re a dmitted into evidence. The status update display ed a blue For d Taurus w ith the caption “I finally g ot a fre aking vehicle.” After Offic er Cantu f

inished testify ing, the State called Keller to the stand, and she rela ted that she was exercising at a p ar k o n t h e day in question, that a car passed her, that the car turned around, that the car pulled up next to her with the window down, that she had never seen the driver befor e, that the driver was “sitting in the driver’ s seat with his penis out,” that his penis was

ere ct, t hat hi s pant s we re unzipped but not all the way down because she could s ee the pants, that she did not see any tattoos on the driver, that she did not rec all seeing the driver’ s hand on his penis, that she scre amed at the driver to leave , that she reme mbere d the license- plate number, and that she called the police. During her testim o n y , Keller explained that althoug h the incident occur red quickly , she wa s “[p] retty confide nt” that Scott was the pe rpetrator. Moreove r, she state d that the

car found on Scott’s Fa cebook pa g e wa s the “[s] ame” or “ve ry simil ar” to the one that she sa w on the day in question. Additionally , Keller rela ted that as part of the invest i gat i o n she was g iven a photo lineup of six individuals, that she went throug h the lineup twice, that she thought two of the individuals could have been the perpe trator durin g h er fi rst time throug h the lineup, that she identified Scott as the perpe trator during the second time throug h the lineup, that she h ad s o m e doubts when g oing thr oug h the picture s, and that she wa s “fa irly confide nt” in her c hoice. During Keller ’s testimony , a rec ording of the 911 call that she made was play ed for the jury as well as a rec ording of her g oing throug h the photo lineup. On the 911 rec ording , Keller stated t hat a m an d ro v e past her with his penis exposed and that the driver was masturbating, and Keller descr ibed the car as a blue sedan and g ave the license- plate number for the vehicle. Fur ther,

4Keller stated that the man was Hispanic, Asian, or Middle Easter n. On the photo-lineup rec ording , Keller can b e s een g oing throug h the lineup twice. Fur ther, the rec ording documents that Keller rela ted that two of the men looked simil ar and could have been the perpe trator when g oing throug h the phot os the first time, that she deliberated for s ome t i m e b ef ore determining during the s econd
pass throug h the photos that Scott was the perpe trator, that she asked whether she could look throug h the phot os for a third time, that Keller was tol d that it was the police departm ent’s poli cy
to only allow individuals to view the lineup twice, that she explained that she selec ted an individual that she believe d was the perpe trator, and that she st ated that she was “f airly confide nt” that Scott was the pe rpetra

tor based on he r memory

of the pe rpetrator’s fa ce. After Keller finished testify ing, Detec tive Be rn al was called to the stand. I n his testimony , Detec tive Be rnal rela ted that he co n t ac t ed Scott about the investiga tion and that Scott
ag ree d to come in for an interview. Reg arding the interview, Detec tive Be rnal explained that Scott denied co m m i t t i n g the offe nse in question multipl e times but that Scott answe red some of the questions in an unusual way . For example, Detec tive Be rnal stated tha t when he a sked Scott if he flag g ed women down and then exposed his penis to them, Scott answe red by deny ing that he flag g ed

women down without also deny ing that he exposed his penis to unsuspecting women. Additionally , Detec tive Be rnal rela ted that when h e asked Scott if “this was something that he did serially or if it was a one -time thing,” Scott paused bef ore a nswering and stated tha t it was “a one -time dea l.” During Detec tive Be rnal’s testimony , a rec ording of Scott’s interview was play ed for the j ury . On the re cording , Scott ge nera lly denied dr iving with his penis exposed and specifically denied the alleg ations in this case , but Scott also admitted that he drives a blue For d Taurus and that he was driving around the t i m e o f t h e o ff ense. Fur thermore , Scott stated that if the police “think
5[he] did it,” he “wa s sorry that he did it” and that “this was just a one- t i m e d ea l ” ra t h er than a

behavior that he re g ularly

eng ag es in. Finally , Scott called Christine Alexandra to the stand, and she testified that Scott has a tattoo on his arm and a

larg e tattoo on his thigh. After the witnesses finished testify ing and afte r both sides rested and closed, the jury found Scott g uilty

.

DISCUSSIO N

I n one issue on appea l, Scott challeng es the propriety of the co u n ty court at law’s rul ing admitting into evidenc e the rec ording from Offic er Br emner ’s dashboar d came ra. W h en
prese nting this issue, S co t t contends that the recording was hearsa y and that the ex cited-utter ance exception did not apply in this case beca use Keller was not under the excitement of a startling event
at the time that she interac ted with Offic er Br emner . See Zuliani v. State , 97 S.W .3d 589, 596 (Tex. Crim. App. 2003) (noting that “a revie wing court must deter mine whether the statement was made ‘under such circ umstances as would rea sonably show that it resulted from impulse rathe r than rea son and ref lection’” and that “cr itical deter mination” is w hether decla rant was dominated by emotions

or excitement of event at t i me statement is made (quoting Fowler v. State , 379 S.W .2d 345, 347 (Tex. Crim. App. 1964))). I n his brief, Scott notes that the county court at law did not revie w t he

rec ording befor e making its ru l i n g an d then points to the testimony from Offic er Br emner g iven during the hear ing convene d afte r Scott objected to the admission of the rec ording as su pport for the proposition that the excited-utteranc e excep t i o n d i d n o t apply

. I n particula r, Scott notes that Offic er B remne r testified that she a rrived on the scene approximately 30 minutes afte r the a lleg ed

6offe nse, that Keller was not “riled up,” that Keller responde d to the questions that Offic er Br emner

asked, that Keller stated t hat s he was not traumatized by the event, that Keller s t at ed that she was simply “g rossed out,” and that Keller declined to take advanta g e of any victim-assistance service s. I n light of the prec eding , Scott asser ts that the county court at law abuse d i t s d i s cr et ion when it deter mined that the require ments for the excited-utteranc e exception w ere satisfied here

. See Tex.
R. Evid. 801(d), 802 (def ining hear say and stating that hear say is g ener ally i n ad m i s s i b le), 803(2) (setting out excited-utteranc e exception to g ener al rule barr ing admission of h ea rs ay); see also Till man v. State , 354 S.W .3d 425, 435 (Tex. Crim. App. 2011) (explaining that appellate courts revie w trial cour

t’s ruling reg arding admission or exclusion of evidence for a buse of discr etion). 2
For purposes of resolving this issue on appea l, we will assume without deciding that the county court at law abused its discretion by overr uling Scott’s hear say objection. I f an appellate
court deter

mines that a trial court abused its discretion when making an evidentiar y deter mination, the appellate court must then evalua te whether the defe ndant was harme d by the trial court’s ruling

. See Kirby v . State , 208 S.W .3d 568, 574 (Tex. App.—Austin 2006, no pet.).

As an initial m at t er , we note that the State urg es in its appellee ’s brief that Scott did not 2 prese rve this complaint for appellate consideration. See Tex. R. App. P. 33.1 (setting out proce dure f o r p r e s e r v in g a p p e ll a te is s u e )

. A lt

h o u g h th e St a

te a c k n o w le d g e s th a

t Sc o tt o b je c te d to th e a d

mi s s io n of the rec ording , the State asser ts that Scott was require d to but did not specify which portions of the rec ording constituted impermissible hear say . See W atson v. State , No. 05-16-00140- CR, 2017 WL 6 5 0 6 3 1 3 , a

t * 3 ( T e x. A

p p . — D a ll a s D e c . 2 0 , 2 0 1 7 , n o p e t. ) ( me m. o p . , n o t d e s ig n a te d f o r p u b li c a ti o n ) (stating that “[a] trial court does not a buse its discretion when it admits the exhibi t in its e ntirety if the objecting party fails to se g reg ate the admissible f rom the inadmissible”); Sanchez v. State , No. 05-14-00908- CR, 2015 WL 2400783, at *3 (Tex. App.—Dallas May 20, 2015, no pet.) (mem. op., not desig nated for publication) (dete rmining that trial court did not abuse its discretion in admitting entire 911 rec ording when defe ndant failed to specific ally point ou t “t h e objectionable portion”). We will assume for the sake of arg ument that Scott prese rved his claim for appellate consideration. 7The err oneous admission of evidenc e is not constitutional err or. See Casey v. State ,

215 S.W .3d 870, 885 (Tex. Crim. App. 2007). Acc ording ly , the error must be dis reg arde d unless it aff ecte d substantial rig hts. Tex. R. App. P. 44.2(b). A defe ndant’s substantial rig hts are aff ecte d “whe n the err or had a substantial and injurious eff ect or influence in deter

mining the jury ’s verdic t.” King v. State , 953 S.W .2d 266, 271 (Tex. Crim. App. 1997). I n deter mining whether a defe ndant’s

s u b s t anti al rig hts wer e aff ecte d, the revie wing “cour t should consider ever

y thing in the rec o rd , including any testimony or phy sical evidenc e admitted for the jury ’s consideration, the nature of the evidenc e supporting t h e verdic t, the charac ter of the allege d err or and how i t might be considere d in c onnection with othe r evidenc e in the case .” Morales v. State , 32 S.W .3d 862, 867 (Tex. Crim. App. 2000); see Motilla v. State , 7 8 S

. W

. 3d 352, 355 (Tex. Crim. App. 2002). “The revie wing
court may also consider the jury instructions, the State’s theory and any defe nsive theories, closing
arg uments and even voir dire, if applicable ,” and the court may als o co n s i d er “whe ther the State emphasized the err or.” Motilla , 78 S.W .3d at 355-56. I f the revie wing court, “af ter examining the

rec ord as a whole, has fair assura nce that the err or did not influence the j u ry , or had but a slight eff ect,” then the defe ndant’s substantial rig hts wer e not af fec ted. Id. at 355 (quoting Solomon v. State , 49 S.W .3d 3 5 6 , 3 6 5 (T ex . Crim. App. 2001); Johnson v. State , 967 S.W .2d 410, 417 (Tex. Crim. App. 1998)).

When asser

ting that the admission of t h e d ashboar d rec ording harme d him, Scott points to portions of the reco rd and asser ts that the evidenc e shows that Keller “wa s only fairly

cer tain that she picked the rig ht person in the lineup and wanted to revie w the lineup a third time,” that Keller ’s phy sical descr iption of the driver was inconsistent with Offic er C antu’s testimony
reg arding how Keller descr ibed the perpe trator, and that Keller “c ould not descr ibe acc urate ly
8what she actua lly saw in the car , whether the suspect[’]s pants wer e unzipped, or pulled down to the

thighs or even further and whether the suspect was masturbating , holding his penis or did not have h i s h an d on his penis at all.” Fur ther, S cott insists that those inconsistencies “were larg ely wip ed

awa y with the admission of her out of court statements which occur red ab[o] ut 30 minutes afte r the
event and wher e she was not subject to difficult or pry ing questions” and that the err or harme d him “and aff ecte d his substantial rig hts in prese nting a sound defe nse and signific antly contributed to the conviction in this case.”

As an initial matter, we note that the rec ording was only a few minutes long and that the statements on the rec ording indicating that a crime had occur red beca use an individual drove up
next to Keller and exposed his ere ct penis to her befor e driving off wer e also introduced throug h the testimony of Offic er Br emner and Keller as well as throug h the rec ording of the 911 call that Keller made shortly

afte r the incide nt. Furthe r, we note that althoug h Scott c ontends that he wa s harmed by the admission of the rec ording beca use the statements made on the rec ording wer e not subject to

cross-e x amination, Scott was able to extensively cross-e x amine Keller reg arding her rec ollection of the events in question, reg arding her descr iption of the perpe trator, reg arding her ability to identify

a suspect during the photo lineup, and reg arding how cer tain she was that Scott was the perpe trator. Moreove r, althoug h Scott asser ts that there are inconsistencies betwee n Keller ’s testimony and the
911 rec ording reg arding whether the perpe t ra t o r was masturbating or otherwise holding his penis during the offe nse and further asser ts that Keller was unable to des cr ibe the deg ree to which the
perpe trator’ s pants had bee n lowere d, Keller consistently stated t o the police a nd testified that she

was a ble to see the perpe trator’ s ere ct penis whe n he drove up next t o her a nd exposed himself.

9Additionally , Scott emphasized the alleg ed inconsist e n c ie s s u mm a r iz e d a b o v e d u r ing his closing arg uments and further attempted to undermine Keller ’s cre dibilit y by noting that Keller specific ally testified that she did not see any tattoos on the perpe trator despite the testim o n y from Alexandra demonstrating that Scott has tattoos on his arm an d t h i gh

. M oreove r, as part of his defe nsive strateg y , Scott was able to arg ue during his closing arg ument that the p o t en t i al l y inculpatory statements that he made during his interview with Detec tive Be rnal wer e made as a result of intentionally dece ptive questions posed by Detec tive Be rnal and wer e made afte r Scott repe atedly denied a ny wrong doing. F urthermor e, the State made no ref ere nce to the recording in its opening or in its closing a

rg ument.
I n addition, evidenc e indicating that Scott was the perpe trator was admitted throug h

sever al source s. Cf. Geude r v. State , 142 S.W .3d 372, 376 (Tex. App.—Houston [14t h Dist.] 2004, pet. ref ’d) (noting that “the pr esenc e of ove rwhe lming evide nce of g uilt may be considere d” when perf orming “a g ener al 44.2(b) harm analy sis”). First, Keller s t at ed on the rec ording of her g oing throug h the photo lineup that she was fairly cert ai n t h at t h e p h oto of Scott was a photo of the
perpe trator, and Keller identified Scott as the perpe trator during her testimony at trial. Additionally , the 911 rec ording documented that Keller descr ibed the perpe trator as driving a blue sedan and g ave the license- plate number to the police, and Offic er Br emner testified that Keller descr ibed the car as

a blue For d Taurus. Fur

thermore , Offic er Cantu explained that Scott was the owner of the car with the license- plate number that Keller observe d on the perpe trator’ s car , and a photogr aph from Scott’s
Fa cebook pag e showed that Scott had purcha sed a blue For d Taurus. Moreove r, Keller testified that the car depicted in that ph o t o wa s t h e s ame as or simil ar to the one that she saw on the day of t he

10offe nse. Finally , the testimony fro m Detective Be rnal and the rec ording of Detec tive Be rnal’s

conver sation with Scott demonstrated that althoug h Scott initially denied committing the offe nse in question, he also made statements indicating his g uilt including admitting t o d ri ving a blue For d
Taurus on the day in question, expressing his remorse for committing the offe nse if t h e p o l i ce believed that he had committed the offe nse, and indicating that his behavior on the day in question
“wa s just a one-time dea l” ra ther than a pattern of

behavior

. I n light of the prec eding , we must conclude that any err or stemming from the county

c o u r t a t la w ’ s d e c is io n to a d

mi t in to e v id e n c e th e r e c o r d in g f r o m O f f ic e r B r e mn e r ’ s d a s h

b o a r d c a me r a did not have “a s ubstantial and inj urious eff ect or influence in determining the jury ’s ver dict” and th e r e f o r e d id n o t a f

f e c t Sc o tt ’ s s u

b s ta n ti a l r ig h ts

. S e e Ki n g , 9 5 3 S. W. 2 d a

t 2 7 1

. A c c o r d in g ly , w e h o ld that any err or would be harmless and overr ule Scott’s issue on appea l. See Tex. R. App. P. 44.2(b).

CONCLUSION Having overr

uled Scott’s sole issue on appea l, we aff irm the county court at law’s judgme nt of conviction.

__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Goodwin, and B ourland Affir med Filed: Oc tober 11, 2012 Do Not Publish

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