COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

ERNESTO CASTRO-VAL ENZ UEL A, Appellant,

v.
THE STATE OF TEXAS, Appellee

. § § § § § § No. 08-08-00317- CR

Appea l from the
243rd District Court of El Paso County , Texas (TC# 20080D02850)

O P I N I O N
Ernesto Castro-Va lenzuela, Appellant, was convicted of injury to an elder ly individual and

senten ced to ten y ear s’ confine ment. I n three issues on appea l, Appellant complains of the trial
court’s admiss i o n o f ex cited utteranc es, the violation of his confr ontation rig hts, and the impeachme nt of two witnesses. We af firm.
BACK GR OUND
On May 28, 2008, Offic ers L oy a and Castaneda wer e dispatched to a residenc e l o ca t ed at
3615 East Missouri in ref

ere nce to an “unknown problem.” Upon arr ival, the office rs noticed debris 1
and lawn chair s “thrown in front of the house,” that the g ate wa s o ff , t h at p art of the fenc e was
broken and lay ing on the s idewalk, and that the front door was broke n off. Office r L oy a also saw
three or four males g etting into a vehicle in a near by parking lot. Be cause Offic er L oy a did not know
what ty pe of call they wer e responding to, he ran to the g roup and detained them to deter mine their
involvement.

T h e 9 1 1 c a l l w a s m a d e f r o m t h e h o u s e l o c a t e d a c r o s s t h e s t r e e t a t 3 6 1 0 E a s t M i s s o u r i

. 1Meanwh i le, Offic er Castaneda approa ched the front entra nce of the house afte r seeing a

woman hiding outside “like she was in dang er of something” and pointing towards the inside of the
house. Peering past the opened door, Offic er Castaneda saw Appellant and order ed him to come out. Appellant complied and Offic er Castaneda handcuf fed him for safe ty rea sons. At that point, Offic er
L oy a deter

mined that the g roup was not involved, and upon seeing Offic er Castaneda handcuf fing Appellant, Offic er L oy a went to a ssist. Appellant appea red to be intox icated, and he was escor ted

to the patrol car
. Once Appellant was inside the ca r, Of fi cer L oy a went to speak with Salvador Castro, who wa s 84 y ear s old, to determine wha t was g oing on.
Offic er L oy a observe d a small cut o n t h e b ri dg e of Castro’s nose, a cut on his fore head, a
lace ration on his r ight fore arm, a cut on his left fore arm, a nd various other

small cuts. T he office r
noted that Castro appea

red to be scar ed – Castro was shaking and hi s ey es wer e wide open and “g lazy ,” conditions he has seen in other elder ly persons when they wer e afr aid. Castro’s voice was shaking , he talked in incomplete sentenc es, and “[h] e couldn’t piece toge ther what had happene d.”
Acc ording to Offic er L oy a, Castro told him that Appellant, his g randson, hit him by punching him
in the face two to three times, pushing h i m aga i nst the fence, which cause d him to fall down, and kicking him mult iple times while he wa s on the g round.
After speaking to Castro, Offic er L oy a made contac t with Be verly Ba rra g an and Andy Ba ca,
who lived at 3610 East Missouri. The office r noted that Ba rra g an appea

red to be scar ed – her voice

was shaking , she was trembling , her ey es wer e wide open, as if she “saw something traumatic,” and
she was nervous and afr aid. Ba ca was not as shaken up as Barr ag an. Acc ording t o Officer L oy a,
Ba rra g an told him that she saw Appellant assault Castro by striking him in the fac e with closed fists

two or three times, pulling him to the g round, and kicking him two or three times while Castro was on the g round. Afte r spea king to B arr ag an, the of

fice rs forma lly

arr ested Appe llant.At trial, Castro testified that the door, g ate, and fenc e fell off by themselves. He denied that

any one “thre w” him or “hit” him, and explained that the cuts on his nose, fore head, and arms wer e

cause d when he scra tched himself a nd fell. Simil arly , Ba

rra g an, who a lso testified at trial, denied witnessing any

thing outsi de her house t hat ni g ht. Her upsetting demeanor that night was because
of something that happene d betwee n her and Ba ca. She denied speaking to the police, claiming that the police only

spoke to Ba ca.
EXCITED UTTE RANCES Appellant’s first issue, and part of his second issue, contend that the trial court abused its discretion by overr

uling his hear say objections to Offic er L oy a’s r ecitation of statements made by
Castro and B arr ag an just minutes after the assault occ urre d. We disag ree
. Standard of Review

Hea rsay is a statement offe red by one other than the decla rant to prove the truth of the matter

as s er t ed i n t hat statement at trial. T E X

. R. E V I D

. 801(d). Hea rsay is not admissible except as provided by statute or t he evidentiary rules. T E X

. R. E V I D

. 802. Ex cited utt era nces, however , are

n ot excluded from the proscr ibed hear say rule. T E X

. R. E V I D

. 803(2). Be cau s e t h ey ar e
“stateme nt[ s] rela ting to a startling event or condition made while the decla rant was under the stress
of excitement cause d by the event or condition,” excited utteranc es are inhere ntly reliable and
there fore admissible. T E X

. R. E V I D

. 803(2); Salazar v. State , 38 S.W .3d 141, 154 (Tex. Crim. App. 2001).
A trial court’s decision to admit a statement as an excited utteranc e is revie wed for an abuse
of discre tion. W

all v. State , 184 S.W .3d 730, 743 (Tex. Crim. App. 2006). Some r eleva nt f actor s
that aid in deter

mining whether a hear say statement qualifies as an excited utteranc e include the time elapse d and whether the statement was in response to a question. Sala z a r , 38 S.W .3d at 154.Howeve r, t he critical deter minatio n i s whether the declara nt was sti ll dominated by the emoti ons, excitement, fea

r, or pa in of the eve nt at the time of the stateme nt. Id

. Application

Her e, both Castro’s and Ba rra g an’s statements wer e undoubtedly rela ted to a startling event

– Castro had just been assaulted. Second, the statements wer e made approxima t el y ei gh t to ten
minutes afte r the assault occur red; there fore , only a short amount of time had elapse d. Third, both
Castro and Ba

rra g an wer e still under the stress of excitement cause d by the assault and dominated by the emotions, fea

r, and pa in of the eve nt. I ndeed, O ffice r L oy a testified that Castro w as sca red
and shaking , that his ey es wer e wide open and “g lazy ,” that his voice was shaky , and that he spoke
in incomplete s entences and could not piece toge ther what happene d. Simi larly , Offic er L oy a
testified that Ba

rra g an looked scar ed, was shaking , and trembling , that her ey es wer e wide as if she just saw something traumatic, that she seeme d nervous and afr aid, and that her voice was cra ckling

. Ba sed on these fac tors, we conclude that the trial court did not abuse its discretion by admitting the

s t at em ents under the excited utteranc e ex ception. See Zuli ani v. Stat e , 97 S.W .3d 589, 596 (Tex

. Crim. App. 2003) (holding that statements made twenty hours afte r an incident by an individual who

was “sca red to death” and “tired” wer e excited utteranc es); Rey es v. State , 48 S.W .3d 917, 920 (Tex. App. – For

t Worth 2001, no pet.) (conc luding that witness’s statements made fiftee n minutes a fter

an assault wer e excited utter ance s beca use the witness was “ dominated by the emotion, fea

r, pain,
and excitement resulting from appellant’ s assault, and that her statement was rela ted to the startling

occur renc e of the assault”) ; W

ells v. State , No. 04-08-00668- CR, — S.W .3d —, 2010 WL 1486642,
at *5-6 (Tex. App. – S an Antonio Apr. 14, 2010, no pe t. h.) (not y et reported) (finding statements
admissible as excited utteranc es when wife rela ted what husband told her afte r the murder occur red;
short time ha d passed, the statements rela ted to the event, and husband was “complete ly out of it,”“ra

mbling,” a

nd “re ally . . . nervous a

nd scar ed” w hen he ma de the state ments).

Ne v er t h eless, Appellant arg ues t hat t he ex cited utt era nces were not trustworthy as Officer

L oy a was not a cre dible witness. He points out that Offic er L oy a’s r eport wa s “poor” as it did not

rec ite whether he or his partne r, Offic er Castaneda , spoke to the complainant, much l es s wh et h er they spoke to him in Eng lish or S p anish. He also asser ts that the repor

t does not contain ever

y

statement uttered by Castro that Offic er L oy a testified to at trial, nor does it separ ate those statements
made by Ba

rra g an from those by Andy Ba ca. Fur ther, Appellant contends that Offic er L oy a’s testimony was conflicting as it d i ff er ed on voir dire, direc t, and cross examinations. Thus, 2 Appellant conclude s that Offic er L oy a’s “poor” repor t writing and relianc e sole l y o n his “fa ulty ”

memory did not make the excited uttera nces trustwor

thy

. Howeve r, excited utteranc es are inhere ntly reliable

. Be cause the dec lara nt is in t he instant

g rip of violent emotion, excitement, or pain when t h e s t atement is made, he ordinarily loses the

capa city for ref

lection nece ssary for fabr ication, and the truth comes out. Zuliani , 97 S.W .3d at 595.

I n other words, the statements are trustworthy beca use they repr esent an event speaking throug h the

A p p e l l a n t ’ s b r i e f i n t h i s r e g a r d s t a t e s : 2

O f f i c e r L o y a p r i d e d h i m s e l f o n h i s g o o d m e m o r y a n d d i d n ’ t f e e l t h e n e e d t o w r i t e d o w n s t a t e m e n t s m a d e b y t h e c o m p l a i n i n g w i t n e s s o r o t h e r w i t n e s s e s
. B u t , h i s t e s t i m o n y d e m o n s t r a t e d t h a t h i s m e m o r y w a s f

a u l t y
. S o m e e x a m p l e s : O f f i c e r L o y a a t f

i r s t t o l d t h e j u r y t h a t w h e n A p p e l l a n t w a s d e t a i n e d a n d p l a c e d i n h a n d c u f f s , h e w a s y e l l i n g o u t t h i n g s l i k e “ L e a v e m e a l o n e
. I d i d n ’ t d o a n y t h i n g
. ” L a t e r h e t o l d t h e j u r y t h a t A p p e l l a n t w a s p r e t t y c a l m a n d s m i l i n g w h e n h e w a s p l a c e d i n t h e p a t r o l c a r , a n d h e r e m e m b e r e d A p p e l l a n t s a y i n g ( n o t y e l l i n g ) “ H e y , I d i d n ’ t d o a n y t h i n g
. L e t m e g o
. ” O f

f i c e r L o y a s a i d h e m e t w i t h t h e p e r s o n a c r o s s t h e s t r e e t a t 3 6 1 4 E

. M i s s o u r i w h o h a d m a d e t h e 9 1 1 c a l l

. H e r e p e a t e d t h a t h e m e t w i t h a m a n a n d a w o m a n a t 3 6 1 4 E

. M i s s o u r i , b u t h e c o u l d n ’ t r e c a l l t h e i r n a m e s
. H e s a i d t h a t h e m e t w i t h t h e w o m a n i n s i d e h e r f e n c e
. L a t e r a f

t e r t h e w o m a n , B e v e r l y B a r r a g a n , t e s t i f i e d t h a t s h e l i v e d a t 3 6 1 0 M i s s o u r i , h e c h a n g e d h i s t e s t i m o n y w h e n h e w a s t a k e n o n V o i r D i r e t o s a y i n g t h a t h e s p o k e t o a m a n a n d w o m a n a c r o s s t h e s t r e e t a t 3 6 1 0 E

. M i s s o u r i

. D u r i n g h i s V o i r D i r e t e s t i m o n y , O f f i c e r L o y a s t a t e d t h a t h e m e t w i t h t h e m a n a n d w o m a n o u t s i d e o n t h e l a w n
. L a t e r w h e n h e t e s t i f i e d b e f o r e t h e j u r y , h e s a i d h e m e t w i t h t h e m a n a n d w o m a n o n h e r f r o n t p o r c h

. O u t s i d e t h e p r e s e n c e o f t h e j u r y , O f f i c e r L o y a t e s t i f

i e d t h a t M s
. B a r r a g a n t o l d h i m t h a t s h e s a w t h e A p p e l l a n t p u s h M r
. C a s t r o u p a g a i n s t t h e f e n c e , g r a b h i s a r m a n d t h r o w h i m t o t h e g r o u n d

. W h e n h e t e s t i f i e d b e f o r e t h e j u r y , h i s t e s t i m o n y w a s t h a t M s
. B a r r a g a n s a w A p p e l l a n t g r a b M r
. C a s t r o b y t h e a r m a n d p u l l h i m t o t h e g r o u n d

.person rathe r than the person speaking about the event. Id .; W ells , 2010 WL 1486642, at *5.
There fore , whether Offic er L oy a wrote a “poor” repor t or had a “fa

ulty ” memory did not make the
excited utteranc es testified to untrust wo rt h y
. Rather, those fac tors attache d to the weig ht and

cre dibilit y of his testimony , which was an i s s u e for the trier of fac t. See Marquez v. State , 165
S.W .3d 741, 747 (Tex. App. – San Antonio 2005, pet. ref ’d); Tex. Dept. of Public Safety v. W alter , 979 S.W .2d 22, 27 (Tex. App. – Houston [14t h Dist.] 1998, no pet.). Having deter

mined that the trial court did not abuse its discretion in admitting the statements

as excited utteranc es, we overr ule Appellant’s first issue and the first part o f Ap p ell ant’s second
issue.
CONF RONTATION RIGHTS
The rema ining portion of Appellant’s second issue alleg es a Crawf ord violation. Acc ording 3 to Appellant, B aca , not Ba rra g an, made the excited utter ance s to O ffice r L oy a, and since Ba ca did

not testify at trial, Appellant conclude s that his con fr o n t at i o n rig hts wer e violated when Ba ca’ s

st at em ents wer e admitted throug h Offic er L oy a’s testimony under the g uise that they wer e
Ba rra g an’s statements. Appellant does not arg ue that if the statements wer e actua lly Ba rra g an’s, that
there was a

ny Crawf ord violation. Applicable Law
The Six th Amendment g uara ntees the a ccuse d, in ever y criminal prose cution, the rig ht “to
be confr onted with the witnesses ag ainst him.” U.S. C O N S T

. amend. VI

. Gene rally , that g uara ntee
extends to out-of-c ourt statements used as evidenc e ag ainst the acc used at trial. Crawf ord , 541 U.S.

at 51-54. I f those statements are tes t i m o n i al, then the Confrontation Clause bars their admission
when the decla

rant does not appea

r at trial, unless he was unavailable and the acc used had a prior

C r a w f o r d v

. W a s h i n g t o n , 5 4 1 U

. S

. 3 6 , 4 2 , 1 2 4 S

. C t

. 1 3 5 4 , 1 3 5 9 , 1 5 8 L

. E d

. 2 d 1 7 7 ( 2 0 0 4 )

. 3opportunity for cross-e x amination. Crawf ord , 541 U.S. at 53-54. Converse l y , i f the decla rant

appea rs for cross-e x amination at trial, the Confrontation Clause place s no constraints on the use of
his prior out-of-c ourt testimonial statements. Id

. at 59 n.9. We revie w the trial court’s deter mination

on the admissibili ty of such evidenc e under a b i fu rc ated standard, g iving defe renc e to the court’s finding s reg arding any pertinent historical fac ts but revie wing de novo the court’s application of the
law to those fa cts. W

all , 184 S.W .3d at 742-43; Grey v. State , 299 S.W .3d 902, 907 (Tex. App. – Austin 2009, pet. ref

’d). Application

Her e, Appellant arg ues that Offic er L oy a’s rec itation of Ba rra g an’s statements wer e actua lly statements made by

Ba ca, w ho did not appear at trial. I f that we re true , Appellant’s c onfrontation rig hts may

have be en violated if the statements themselves we re te stimoni al. Crawf ord , 541 U.S.

at 53-54 (testimonial statements by an absent decla rant are inadmissible unless he was unavailable
and the acc used had a prior opportunity for cross-e x amination). But Offic er L oy a did not testify to

any statements made by Ba ca, nor does t h e re co rd ref lect that Offic er L oy a believed Ba rra g an’s

statements wer e actua lly uttered by Ba ca. Rather, Offic er L oy a specific ally testified that the

statements wer e made by a woman who appea red to be in her middle 40’s to ear ly 50’s. He further
identified the decla

rant as Be verly Ba

rra g an and noted that she looked as if she just saw something

traumat i c, that she was trembling , and that her voice was shaky and cra ckling

. Ba sed on this
evidenc e, the tria l court, as the g ateke eper of the admissibili ty of evidenc e, was e ntitled to believe
that the statements wer e made by Ba rra g an, not Ba ca, and in revie wing the admis s i bility of such
evidenc e, we aff

ord due defe renc e to that implicit and historical deter mination. See Manzi v. State , 88 S.W .3d 240, 244 (Tex. Crim. App. 2002) (“ T ri al courts are the traditional finders of fac t, and
their deter

mination s of historical fac t are entitled to defe renc e. The Court of Appea ls corr ectlyemploy ed a defe rential standard of revie w of the trial court’s resolution of the historical fac ts from

conflicting aff

idavits.”).

Be cause we defe r to the trial court’s deter mination that Ba

rra g an, not Ba ca, uttered the
statements, and beca

use none of Ba ca’ s statem en t s were admitted at trial, there can be no
confr ontation clause violation in this reg ard. See Stringer v. State , 276 S.W .3d 95, 101 (Tex. App.

– For t Worth 2008) (questioning how a defe ndant’s confr ontation rig hts are violated by statements
in a document that was not admit ted i nto evidenc e), aff’d on other grounds, 309 S.W .3d 42 (Tex.
Crim. App. 2010). As Appellant’s co n fr ontation clause complaint on appea l is only direc ted at
Ba ca’ s alleg ed statements and not at any other witnesses’ statements, we do not addre ss whether the
admission of any statements made by Castro or Ba rra g an violated Appellant’s confr ontation rig hts.
We theref ore ove rrule the rema ining por tion of Appellant’s sec ond issue.
HUGHES VIOLATIO N
Citi ng Hughes v. State , 4 S.W .3d 1 (Tex. Crim. App. 1999), Appellant’s last issue contends
that the trial court err ed by allowing the State to call Castro and Ba rra g an when it knew they would testify unfavor ably and was solely calling them for the purpose of eliciting otherwise inadmissible impeachme nt evidence . Howeve r, Appe llant’s complaint is not preserve d for our revie w.
Preserv ation of Error
As prese rvation of err or i s a s y s t em i c require ment, we may revie w i t on our own motion.

Martinez v. State , 22 S.W .3d 504, 507 n.7 (Tex. Crim. App

. 2 0 0 0 ); Hughes v. State , 878 S.W .2d 142, 151 (Tex

. C ri m
. App. 1993), cert. denied , 511 U.S. 1152, 114 S.Ct

. 2184, 128 L .Ed.2d 902 (1994). Gene rally , to prese rve an issue for our revie w conce rni ng the admission of err oneous
evidenc e, the record mus t demonstrate that the defendant ti mely objected to that evidenc e at trial, stating the specific g rounds for the desired ruling

. T E X

. R. A P P

. P. 33.1(a) (1); Hatley v. State , 206S.W .3d 710, 720 (Tex. App. – Texarkana 2006, no pet.). Fur ther, the trial court must have ruled on
the reque st, objection, or motion, either expressly or implicitl y , or the complaining party must have objected to the trial court’s ref usal to rule. T E X

. R. A P P

. P. 33.1(a) (2); Mende z v. State , 138 S.W .3d 334, 341 (Tex. Crim. App. 2004). An objection stating one leg al theory may not be used to support
another leg al theory on appea l. See Camacho v. State , 864 S.W .2d 524, 533 (Tex. Crim. App. 1993). Application

I n a hear ing prior to e mpaneling the venire panel, the trial court g rante d the State’s reque st
for a writ of attac hment for B arr ag an as she failed to a ppear
. The State fur

ther infor med the cour

t
that it suspected that Castro and Ba rra g an may chang e their stories. Appellant then objected that “the only rea son that we can see [t hat Offic er L oy a] will be called in this case is to impeach” Castro and

Ba rra g an. Wit hout ruling on the objection, the trial court responde d that the objection was too soon
and that he should ra ise it “when w e g et there .”
After a jury was selec ted, Appellant objected to any statements made by Castro and Ba rra g an
that would be elicited during Offic er L oy a’s testimony as a violation of Crawf ord , and ag ain, the trial

court told Appellant to raise the object i o n s wh en the office r testified. During Offic er L oy a’s testimony , Appellant objected t o “hea rsay ” and “ confr ontation” af ter the State la id the foundation
for Castro’s excited utteranc es. I n a hear ing outside the prese nce of the jury , Appellant arg ued that
the st at em ents lacke d reliability and there fore did not meet the excited-utteranc e exception. Appellant further asser

ted that under Crawf

ord , he had the rig ht to cross-e x amine the witness befor e
Offic er L oy a testified to the utteranc es
. T h e t ri al court found no Crawf ord violation and that the

statements wer e excited utteranc es. Officer L oy a then testified befor e the jury to Castro’s

statements.
L ater , afte r Offic er L oy a, Of fice r Castenada , Castro, and an investiga tor from the DistrictAttorney ’s Offic e testified, the State wanted to rec all Offic er L oy a for p u rp o s es of admitting

Ba rra g an’s excited utteranc es befor e Ba rra g an testified. The State noted that it did “not want to run
afoul of the rule ag ainst impeaching a witness that we call.” Appel l an t d id not object that calling
Offic er L oy a would violate th e Hu g h es rule. The trial court did not believe that the order of
witness es would “make any differ ence ” as the complained-of hearsay statements were admissi ble

as excited utter ance s, an exception to the hear say rule, not as impea chment evide nce. F urther, the
trial court was made awar e that Ba rra g an rece ived a bad spi der bite to her foot and would need to
leave . Thus, the trial cour t instructed the State to ca ll Bar rag an first.
After Ba rra g an testified, another heari n g o u t s i d e the prese nce of the jury was had to
deter mine whether Ba

rra g an made any excited utteranc es to Offic er L oy a. When the parties finished questioning Offic er L oy a on voir dire, Appellant arg ued that the st at em ents wer e not excited

utteranc es. The trial court disag ree d and found the statements to be excited utteranc es. Offic er L oy a

t hen testified befor e the jury , and the only objection Appellant raised during his testimony was
“hea rsay ,” which w as over

ruled.

We have car efully revie wed the rec ord and cannot find any objection, save t h e o b j ec t i on
made befor e jury voir dire, claiming that the State’s sole purpose in calling Castro and Ba rra g an was

to elicit otherwise inadmissible impeachme nt evidenc e. Nor has Appellant in his brief attempted to
demonstrate that he raised this improper impeachme nt claim at any time befor e, during , or afte r any
witnesses’ testimony

. The initial objection was cer tainly inadequa te to prese rve err or as Appellant
did not obtain an adver se ruling but rathe r acquie sced to raising any such objections later during the
office r’s testimony , which he n ever did. See W ooten v. State , 267 S.W .3d 289, 309 (Tex. App.

–
Houston [14t h Dist.] 2008, pet. ref ’d) (“B eca

use appellant did not rec eive an adver se ruling , appellant has not prese rved t h e i s s u e for our revie w as to the statements appellant made to thepara

medic as c ontained in the hospital rec ords.”)

. Moreove r, Appellant cannot re ly on the State’s
initiation of the possible Hughes violation later during trial since Appellant never objected at those
times that the St a

te w a s c alling the witnesses solely to impeach their testimony throug h Offic er L oy a. See, e.g., Swain v. State , 181 S.W .3d 359, 365 (Tex. Crim. App. 2005) (ar g uments not specific ally
stated in defe ndant’s motion to suppress or a t hear ing w ere not preser ved for appea l); Robinson v.
State , 728 S.W .2d 858, 860 (Tex

. Ap p
. – Austin 1987, no pet.) (stating that “ appellant has the
burden to of

fer a timely objection at trial on specific g rounds and to obtain a ruling by the court as

to the objection”) (empha sis added)

. Simpl y , Appellant did not fol l o w u p o n t h e State’s conce rn
with an objection, nor did he raise the complaint now arg ued on appea l when the State called Offic er
L oy a to the stand. The only objections raised by Appellant an d ru l ed on by the trial court wer e
g ener al “he arsa

y ” objec tions, but t hose do not comport with the ar g ument now urg ed on appe al.
See Goff v. State , 931 S.W .2d 537, 551 (Tex. Crim. App. 1996) (“Where his trial objections do not
comport with his arg uments on appea l, appellant has fa i l ed t o p rese rve err or on those issues.”).

Be cause Appellant never raised a timely Hughes objection at trial, nor did he obtain an adver se ruling on his prema ture objection, his co m p l ai n t i s not prese rved for our revie w. See Starnes v.
State , No. 06-06-00099- CR , 2007 WL 1217339, at *2 (Tex. App. – Texarkana Apr. 26, 2007, no pet.) (mem. op., not desig nated for publication); S co t t v. S tate , No. 01-06-00209- CR, 2007 WL 1119911, at *4 (Tex. App. – Houston [1st Dist.] Apr. 12, 2007, pet. ref ’d) (mem. op., not desig nated
for publication); Castil lo v

. State , No. 08-04-00377- CR, 2006 WL 1710062, at *8 (Tex. A pp. – El

Paso J une 22, 2006, no pet.) (op., not desig nated for pu b l i ca t i o n); Hardeman v. State , No. 10-01-
2 6 9-CR, 2003 WL 21357262, at *3 (Tex. App. – Waco J une 11, 2003, pet. ref ’d) (op., n o t desig nated for publication) (ca ses holding Hughes violation not prese rved for appellate revie w when appellant never made the argume nt to the trial court). Acc ording ly , Appellant’s third issue isoverr

uled. 4

CONCLUSION Having overr

uled Appellant’ s issues, we af firm the trial c ourt’s judg ment.

GUADA L UPE RI VERA, J ustice

J uly 28, 2010

Be fore Chew, C.J ., McClure, a nd Rivera, JJ

. (Do Not Publish)

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