Opinion issued M arch 19 , 2020

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 19
- 00066
- CR

——————————— OSCAR ALEX A NDER G O MEZ , Appella nt

V. THE STATE OF TEXAS , Appell e e
On Appeal from the 338th District Court

Harris County, T e xas Trial Court Ca se No. 1397023

MEMORANDUM OPINION Appellant O scar Alexander G ome z pleaded guilty to t he fir st

- degree offe nse of po s session with intent to deliver a controlled subs tance , weighing at least 200 grams but less than 399 grams . Gomez was pl a ced on 10 years ’ deferred

adjudication community supervision

. T h ree ye ars later, t he State fi led a motion to2

adjudicate guilt

. Based on evidence admitted a t the adjudication hear in g, t he trial court found that Gomez had violated conditions of his community supervision, including that Gomez had committ ed the offense s of sexual assault and burg lary

. T he trial cou r t adjudge d Gomez guilty and sentenced him t o 25 years in prison

. In
two issues, Gomez challenge s the adjudication of his guilt

. We affirm.
B ackgrou nd
In M a rch 2 014, the trial court placed Gomez on deferred

- adjudication community supervision after he ple a ded guilt y to t he fir st

- degree offe nse of
po s session with intent to deliver a controlled subs tance . The terms a nd con d itions of his community superv ision included tha t he would not comm it any new offenses wh ile on commun ity supervision

. The conditions a ls o requi red Gomez to have suitable employment and to make monthly payments for certain fines, fee s , and
costs.
In Decemb er 2017, the State filed a m ot ion to adjudicate Gomez ’ s guilt . T he
State assert ed that Gomez had violated six of the conditions of his c ommunity supervision . Among these, the State alle ged that Gomez had committed a new criminal offense

. Specifically , t he State a verred that Gomez ha d c ommitted the
offense of se xual assault in February 2017 a gainst an adult woman, B.D. T he State alleged th a t Gomez h ad “ unlawfully, intentionally and knowingly cause [d] the3

penetration of the anus and sexual organ of [ B.D

. ]

. . . by placing [his] sexual org an in the anus and sexual organ of [B.D .] , without [her ] consent

. ” T h e Sta te further alleged that Gomez c ompel le d B.D

. “ to submit and participate ” in the sexual assault by usin g “ physical force and violence

. ” T he State allege d that B.D . ha d “ not consented ” and that G omez knew that B.D

. “ was unc onscious and physically unable
to resist ” and “ was unaware that t h e sexual assault was occurring. ”
I n September 2018 , t he State am ended its motion to adjudi cate guilt , alleging th at Gom ez had committ ed a not her violat ion of the law . S pecifically, the State alleged that Gomez had committed the offens e of burg la r y. I n J a n uary 2019 , t he trial court conducted a n evidentia ry hearing on the motion to adjudicat e . The State presented evide nce to prove that, since be ing p laced on deferred

- adjudication co mmunity supervision, Gomez had committed the
offenses of burglary and sexua l assault. Regarding the sexual

- assa ult offense , t he S tate pres ented the testimony of
B.D. , the complainant

. B.D. te stif ied that , on Fe bruary 11, 2017, she went to a downtown Houston club to meet some friends

. While there, s h e met Gomez , and he bought her d r inks

. She said that she had never met Gomez b e fore that night. B.D. testified that the next memory she ha s from th at n ight was waking up in Gomez ’ s b edroom. S he was completely nude, and Gomez was penetrating her v aginally and anally wi th his penis

. B.D. s a id that she asked Gomez to sto p, bu t he would not . B.D

.4

testified that , during the sexual assa u lt, Gomez had h is h ands around her throat , and she cou ld barely breath. B.D. tried to leave the bedroom , but Gomez blocked the
door , and pushed B.D. back.
B.D. testified that she wait ed un til Gomez fell as leep and then ran fro m the house . She stated that she was ba refoot an d we aring only a shirt belonging to Gomez as she ran dow n the street to get away. An off

- duty police officer saw B.D. and stopped to help her

. She was taken to the hospital where she underwe nt a sexual

assault examination

. As part of the examination , vagin al a nd anal swabs wer e tak en and pl aced in a sexual assault kit. Sergeant D. Wareham with the Harris C o unty Sheriff ’ s Office spoke with
B.D. at t he hospital about the sex ual assa ult. Sergeant Wa reham testi fied that t he evidence in B.D

. ’ s sexual

- assault ki t wa s subm itted for DNA analysis

. T he analysis showed that the DNA profile from evidence in the sexual assault kit match ed
Gomez ’ s DNA p rofil e , which was in CODIS, a law

- enfor cement DNA database

. Gomez testified in his own defense . He acknowledged that h e ha d intercourse with B.D. but cla imed it had been consen sual.
W h en asked , Gomez denied several times that he had ana l s ex with B.D. He cla i med that they only h ad vag inal intercourse. To rebut Gomez ’ s claim , t he State offered the t estimony of DNA analyst , T. Ta ylor s . She testified that sp erm fraction s were f ound on the an al and vaginal swabs from B.D. ’ s sex ual

- assault kit

. She5

compar ed Gom ez ’ s DNA profile with the DNA profile s obtained from sperm fract ions on the swa

bs . Taylor testified that Gomez could n ot b e excluded as the
source of the DNA found on the an al and vaginal swabs

. She sai d that , statis tically, sh e would expe c t to test “ anothe r 5 9 sept illion individuals ” before she would see the

same DNA profile again.
At the end of the adjudication p h ase , t he trial court stated on the reco rd that

“ all of the paragraphs in the motio n to adjudicate are t rue by a preponde r ance of the evi dence , ” w h ich nece s sarily in clud ed the allegations that Gomez had commit ted the offe nses of b urg lary and sex ual assau lt.
T h e tr ial court th en conducted the pu n ishment phase. T he State prese nted evidence showing that other women had been assaulted b y Gomez

. At t he e nd of the punishment ph ase , the trial court adjudic ated Gomez ’ s guil t and sentenced him to 25 years in prison.
Go mez now appeals

. In two issues, Gom ez contends that (1) the evidence admitted at the adjudication hear ing was in sufficient t o support the tri a l court ’ s f in ding that he had committed the offense of burglary , and (2) t he trial court abused its discr etion wh e n it adm itted hearsay testimony rel ated to the sexual

- a s sault of fense and the burglary o ffense

.

Adjudication o f Guilt6

We r e view the d ecisio n to adjudicate guilt in the same manner as a community supervision revocation in which an adjudication of guilt wa s no t deferred. See T EX
. C ODE C RIM
. P ROC
. art. 42A.108 (b) ; Leonard v. State , 385 S.W.3d 570, 57 2 n.1 (Tex. Crim. App. 2012). Pr o of by a p r eponde r ance of the evidence of a single v iolation of a condition of community supervision is sufficient to support revoca t ion. See Smith

v . State , 286 S .W.3d 333, 342 (Tex. Crim. App. 2009) (“We have long held that ‘one sufficient ground for rev o cation wo u ld sup p ort the trial court ’ s order revoking’ community supervision.”) (quoting Jones v. State , 571 S. W.2d 191, 193 (Tex. C rim. App. 1978) )

. T h us, any on e of Gomez ’ s community

- superv ision violations found by
the trial cou rt wi l l support the adjudi cation of Gomez ’ s guilt

. B y finding all the State ’ s allegations in the adju dication motion as true, the trial court implicitly foun d that Gomez had committed the offense of sexual assault

a gainst B.D. On appeal, Gomez makes only one c o mplaint regarding th a t find ing.
In h i s second issue, Gomez contends that t he tria l court abused its discretion by overruling his hearsay objection to a portion of Sergeant Ware ha m ’s test imony

re lating to the sex ual

- assault offense

. See Infante v. State , 4 04 S.W.3d 656, 662 (T ex. App.

— Houston [1st Dist.] 2012, no pet.) (stating that hearsay challenge to trial
court ’ s admission of evidence is reviewed for abuse of discretion )

. Gomez co mplains
that the trial court permitted Sergeant Wareham to te st ify , over G omez ’ s hearsay object ion , about the d e scription B.D. provided of the ma n who sexually assaulted7

her. See T EX
. R. E VID
. 801(d) (defining hearsay as state ment, other tha n one made by d eclarant while testifying in court , offered to prove truth of m atter asserted ) ; T EX
. R. E VID
. 8 02 ( providing th a t h earsay is generally not admissible unless excepti o n applies ). After overruling Gomez ’ s he arsay objection , Se rgeant Wareha m testified that “ B. D. described the suspect as a middle eastern m ale around 5 ’ 5 ” average build, with a well

- t ri mmed beard. ”
Ev e n i f we assume that the trial court erred in o verruling Gomez ’ s objection,
t he admission of the complained

- of hear say testimony was harm less err or. T he admission of a hearsay statement is non

- constitutional error; it entitles the defendant to reversal onl y if it affect s the defendant ’ s substantial rights. T EX
. R. A PP
. P. 44.2(b); Coleman v. State , 428 S.W.3d 151, 162 (Tex. App.

— Houston [1st Dist.] 20 14, pet. ref ’ d). A defendant ’ s substantial rights are affected if the hearsay ’ s admission ha s “a
substantial or injurious effect in determining the verdict.” Coleman , 428 S.W.3d at 162. “We do not overturn a conviction if, after examining the record as a w hole, we have fair assurance that the error did not influence the verdict or had but a sligh t effect.” Id.
I mproper admission of evidence is not reversible error if the same or similar evidence is admitted without objectio n at another point in the trial

. Leday v. State , 983 S.W.2d 713, 718 (Tex. Crim. Ap p . 1998) ; Mayes v. State , 816 S. W.2d 79, 8 8 (Tex. Crim. Ap p . 1991) ; see Lamerand v. State , 540 S.W.3d 252, 256

– 57 (Tex.8

App.

— Houston [1st Dist.] 2018, pet. ref ’ d) ( “ The erro neous a dmission of hearsay does n ot constitute reversible error if other evidence proving the same fact is properly admitted elsewhere. ” )

. In o ther words, w hen the erroneous admission of evidence is cu mulative of other properly admitted evidence proving th e same fact, the erroneous admiss ion is considered harmless. See Brooks v. State , 990 S

. W.2d 278, 287 (Tex. Crim. App. 1999); see also Burks v . State , 876 S.W.2d 877, 898 (Tex. Crim. App. 1994) ( holding that police officer ’ s erroneously admitted hearsay
te stimony did not harm defendant wh en testimony of other trial witnesses proved same facts)

. Here, any error in admitting Serge ant Wareham ’ s te s timony was harmless because the same or simila r evidence was admitted without objection through B.D. ’ s testimony

. O n re - direct exa min a tion, B.D. t estified as follows: Q

. When you talked to the police at the hospital and they were asking y ou the medical q u estions, et cetera, do you remember how you described your perpetrator, the Defendant in this case?
A

. That he had a b eard. Q

. Is it si milar to t he one he has today in court?
A Yes. Q

. Do you remember what ethnicity that you thought he was or described hi m as?
A

. I thought he was middle eastern.9

Like Sergeant W areham ’ s testimony, B.D. ’ s testimony showed that she had
p r ovided a descript io n to po lice of the man who sexually assaulted her

. A nd her
test imony of the description was similar to t he description t h at Sergeant Wareham testif ied B.D. had provided to him

. Because B.D. ’ s testimony proved the sa me or similar facts , we conclude that , to the ex tent the complained

- of t esti mony was

errone ously admitted , it did not harm Gomez

. See T EX
. R. A PP
. P. 44.2(b); Bu r ks , 876 S.W.2d at 898

. Moreover, considering th e whole record , the admission o f the complained

- of testi mony was h armless

. E vidence of a defen dant ’ s guilt is a factor to consider in a harm analysis. Motilla v. State , 78 S.W.3d 352, 3 60 (Te x. Crim. App. 20 0 2) . Here,
B.D. testified in detail about the events that occurred before, during, and after the sexual assau lt. I n the courtroom , B.D. iden tif ied Gomez as the person who had sexually assaulted her. Sergeant Wareham testified that he inter viewed B.D. at t h e hos pital where she had b e en taken after b e ing found on the street b y an off

- duty police officer. He
t est ified th at B.D. was upset and seemed to be “ in shoc k. ” T he evi dence sh owed that
B.D. underwent a sex ual assault examination at the ho spital

. Gomez ’ s D NA profile matched th e DNA pro file detec ted in the b iolo gical samples collected from B.D. In his testimony, Gomez admitted that he had interc ourse with B.D. but

c laimed it had been cons ensu al. He also claimed that he did not have anal int ercourse10

with he r . T he State then offered its rebuttal witness, T. Taylor, a DNA analyst , who
t est ified that sperm fractions we re d etected on th e anal swabs co llected from B .D. Gomez could not be excluded as a contr ibut or to the DNA from the sperm fraction s f ound on the v a ginal and anal swabs

. D u ring th e sente ncing ph ase, t he State offered evid ence indicating that other

women had been victi mized by Gomez in sepa rate incidences . Ea ch had experienced unusual cognitive impair ment after drinking in a bar where Gomez was presen t

. One wom an testified that she aw oke in Gomez ’ s car while he was driving. She asked him to stop , but he refused

. She then jump ed out while th e car was st i ll moving. Gomez stoppe d and tried to force h er back to the car. During the incident , Gomez struck her in the face. A byst ander called police

. P hotographs taken by police

were admitted into e vid ence , show ing the woman ’ s blo ody mouth

. Additiona l evidence in dicated that Gomez had sexually assaulted at least one other woman before he had assaulted B.D. Finally, we note that the St a te did not emph asize the com plained

- of portion
of Sergeant Wareha m ’ s te stimony during the adjudication or pun ishme nt p hases. On this rec ord, we have fair assurance that any er r or in admitting Sergeant Wareham ’ s testimony about the descripti on B.D. gave t o him at the hospital of the man who had sexually assaulted her did not influence the trial court ’ s decision i n adj udic at ing Gomez ’ s guilt y or in assessing his sentence or had but a slight effect

.11

Th ere fore , we hold that the purported error did not affect G omez ’ s substantial rights

an d, consequently, was harmless error. See T EX
. R. A PP
. P. 44.2(b)

. We overrule Gom ez ’ s hear say complaint in hi s second issue regarding the admission of Sergeant Wareham ’ s testim ony . This is the only com plaint Gomez raises on app e al rel ated to the trial cour t ’ s implied finding that he violated the
conditions of his community supervision by co mmit ting the offense of sexual assault. Because a finding o f one violation is sufficient to support adjudication of
Gomez ’ s guilt , we need no t reach the r emaining complai nts raised in the first and

se cond issue s , w hich r elate to the tri al court ’ s impl ied f i ndi ng that Gom ez also violated the co nditions of his community supervision by committ i n g the offe nse of burglary. See T EX
. R. A PP
. P. 47.1.

C onclusio n We a ffir m t he jud gment of the trial court.

Richar d Hightower Justi ce Panel co nsists of Justices Keyes, Ll oyd, and High tower.12

Do not publish. T EX
. R. A PP
. P. 47 .2( b).