Opinion issued December 18, 2018

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-17-00711-CR

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RAUDEL ALVAREZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Case No. 1556876

MEMORANDUM OPINION

The State charged Appellant, Raudel Alvarez, with attempted aggravated 

kidnapping.1 Appellant pleaded not guilty. The jury found him guilty, and the trial 

court assessed punishment at 55 years’ confinement. In two issues on appeal, 

 

1 See TEX. PENAL CODE §§ 15.01(a)–(b), 20.04(a)–(b).
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Appellant argues the trial court abused its discretion by overruling two of his hearsay 

objections.

We affirm.

Background

Roxanne Hernandez was at work at a store on August 18, 2016. Appellant, 

her then husband, came to the store, began cursing at her, and told her to come 

outside. Appellant raised his shirt and pulled out a gun. Hernandez attempted to 

close an interior door on Appellant. He then punched her in the face, and she fell to 

the ground. Appellant dragged Hernandez by the hair to the front of store. Appellant 

kicked her in the face, and she lost consciousness. Appellant then fled the store.

Hernandez’s supervisor called 911. As the EMTs were arriving, Hernandez 

told her supervisor, “I’m so sorry, Micah. He had a gun.”

When the EMTs arrived, Hernandez had significant injuries to her face. Both 

her eyes and mouth were swollen, and she was bleeding. The responding EMTs 

made a note of Hernandez’s condition and her statement that Appellant “had a gun 

with him but did not hit her with it.”

At trial, the State presented the testimony of Hernandez’s supervisor. The 

supervisor testified about Hernandez telling him that Appellant had a gun. He also 

described the surveillance video that was shown to the jury. He testified that the 

video showed Appellant pulling a gun out of his pants.
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The State also moved to admit the EMT report into the record. Appellant 

objected on the basis that it contained Hernandez’s statement about Appellant having 

a gun. The trial court overruled the objection.

Additionally, the State presented the testimony of the officer that investigated 

the offense, Officer Polk. The State asked Polk if he learned during the investigation 

that Appellant might be armed, and Polk said he did. Appellant objected, and the 

trial court overruled the objection.

Standard of Review

We review a trial court’s decision to admit or exclude evidence for an abuse 

of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); see 

also Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (“The 

admissibility of an out-of-court statement under the exceptions to the general 

hearsay exclusion rule is within the trial court’s discretion.”). A trial court has broad 

discretion in determining whether evidence is admissible as an exception to the 

hearsay rule. See Zuliani, 97 S.W.3d at 595; Apolinar v. State, 106 S.W.3d 407, 416

(Tex. App.—Houston [1st Dist.] 2003) aff’d, 155 S.W.3d 184 (Tex. Crim. App. 

2005). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or 

without reference to any guiding rules or principles. Montgomery v. State, 810 

S.W.2d 372, 380 (Tex. Crim. App. 1990). When considering a trial court’s decision 

to exclude evidence, we will not reverse the ruling unless it falls outside the “zone 
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of reasonable disagreement.” Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 

1996) (internal quotations omitted). And we will uphold a trial court’s evidentiary 

ruling if it is correct on any theory of law applicable to the ruling. De La Paz v. 

State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

Analysis

Appellant’s issues on appeal concern the trial court’s overruling two of his 

hearsay objections. Both objections concerned testimony about Appellant 

possessing a gun during the offense.

A. Error

Appellant’s first issue concerns the unredacted admission of the EMT report. 

One passage in the report provided, “[Patient] stated [Appellant] had a gun with him 

but did not hit her with it.” Appellant objected to this passage being included in the 

exhibit provided to the jurors based on hearsay. The trial court overruled the 

objection.

Hearsay is a statement, other than one made by the declarant while testifying 

at a trial or hearing, offered in evidence to prove the truth of the matter asserted. 

TEX. R. EVID. 801(d). Hearsay is generally not admissible unless it fits into one of 

the exceptions provided by the Texas Rules of Evidence or other rule or statute. See

TEX. R. EVID. 802.
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One exception to the hearsay rule is an “excited utterance,” which is defined 

as a “statement relating to a startling event or condition, made while the declarant 

was under the stress of excitement that it caused.” TEX. R. EVID. 803(2). “In 

determining whether a hearsay statement is admissible as an excited utterance, the 

court may consider the time elapsed and whether the statement was in response to a 

question.” Zuliani, 97 S.W.3d at 595. However, the “critical determination is 

‘whether the declarant was still dominated by the emotions, excitement, fear, or pain 

of the event’ or condition at the time of the statement.” Id. at 596 (quoting 

McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992), overruled on 

other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994)).

Appellant surprised Hernandez at work, kicked her, dragged her through the 

office, assaulted her with his fists, and caused her to lose consciousness. 

Hernandez’s supervisor immediately called 911. The record reflects that the EMT

arrived within 10 minutes of the dispatch. Hernandez testified that she was in shock, 

scared, and worried when the EMT arrived. She testified that she could not 

“remember speaking to the EM[T]” and that she only “remember[ed] being scared 

because [she] couldn’t see.”

We hold that Hernandez’s out-of-court statements were admissible under the 

excited utterance exception to the hearsay rule. See Campos v. State, 186 S.W.3d 

93, 99–100 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (holding complainant’s 
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statements to police officers, made 43 minutes after robbery, were admissible under 

excited utterance exception when statements were made in response to questioning 

and officers testified that complainant was crying, upset, and frightened).

We overrule Appellant’s first issue.

Appellant’s second issue concerns testimony from the investigating officer. 

Officer Polk testified that he met the complainant at the hospital. During this portion 

of the testimony, the following exchange occurred:

Q: So in the course of your investigation, did you learn that the 

suspect may be armed?

A: Yes, sir.

[Appellant’s Counsel]: Your Honor, I’m sorry. I have to re-urge the 

objection. That is back-door hearsay.

THE COURT: Overruled.

We do not need to reach whether the trial court abused its discretion by 

overruling this objection because, even if it did, the error was harmless.

B. Harm

The erroneous admission of a hearsay statement is non-constitutional error; it 

entitles the defendant to reversal only if it affects the defendant’s substantial rights. 

TEX. R. APP. P. 44.2(b); Coleman v. State, 428 S.W.3d 151, 162 (Tex. App.—

Houston [1st Dist.] 2014, pet. ref’d). A defendant’s substantial rights are affected if 

the hearsay’s admission has “a substantial or injurious effect in determining the 
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verdict.” Coleman, 428 S.W.3d at 162. “We do not overturn a conviction if, after 

examining the record as a whole, we have fair assurance that the error did not 

influence the verdict or had but a slight effect.” Id. “The erroneous admission of 

hearsay does not constitute reversible error ‘if other evidence proving the same fact 

is properly admitted elsewhere.’” Lamerand v. State, 540 S.W.3d 252, 256–57 (Tex. 

App.—Houston [1st Dist.] 2018, pet. ref’d) (quoting Infante v. State, 404 S.W.3d 

656, 663 (Tex. App.—Houston [1st Dist.] 2012, no pet.)).

We have already held that it was not error for the trial court to admit the 

statement about Appellant having a gun in the EMT report. In addition, Hernandez’s 

supervisor testified that Hernandez said to him after the attack, “I’m so sorry, Micah. 

He had a gun.” No objection was raised for this testimony. Later, the supervisor 

provided some details on the surveillance video presented to the jury without 

objection.

Q: Did you see the defendant with the gun on the video?

A: Yes.

Q: When was that?

A: . . . Mr. Alvarez approached the door and opened it and . . . he 

stepped back and pulls up his tank top and pulls out the gun.

Because testimony that Appellant had a gun during the offense was properly 

admitted multiple times in the record, any error regarding the officer’s testimony is 

harmless. See Lamerand, 540 S.W.3d at 256–57.
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We overrule Appellant’s second issue.

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of Justices Higley, Lloyd, and Caughey.

Do not publish. TEX. R. APP. P. 47.2(b).