### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00877
- CR NO. 0 3
- 19
- 00879
- CR

Elio Hugo Garfias , Appellant

v. The State of Texas , Appellee

FROM THE 207TH DISTRICT COURT OF COMAL COUNTY NO S . CR2015
- 464 & CR2015
- 137 , THE HONORABLE DANIEL H. MILLS , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Ap pellant Elio Hugo Garfi as appeals from judg ments of conviction finding him guilty of assault family violence with prior conviction, see Te x. Penal Code § 22.01 (b)(2)(a) , and repeated viol a tions of a bond condition in a family

- v iolence case , see id. § § 12.42(a),
25.072 (a), (e)

. The court sentenced him to two c oncurrent terms of 20 years ’ confinement with the Texas Department of Criminal Justice . On appeal, Garfia s contends that the trial c ourt abused its discretion by admitting evidence of a prior conviction that was more than t en year s o ld at the time of trial. Finding no abuse of discretio n , we will affirm.2 BACKGROUND On April 15, 2015, a grand jury i ndicted G a rfias with a ssaul t family violence with prior conviction . The charges arose from a June , 2014 alter cation b e tw een Garfia s and Hel ena, his long

- term girl friend and t he mother of his four children

. As a condition of bo nd , the trial court ordered Garfias not to “ go near nor attempt any communication , directly or indirectly, with . . . Helena. ” On Oc tober 14, 2015 , a grand jury indicted Garfias with repeated violations of a condition of bond in a family violence case, finding that Garfias ha d violated the condition by attemp ting to contact or appro ach Helena on at least thirteen occasions between the first we ek of
J u ly and the first week of A ugust of that year

. Both charg es were tried to jury over two days in October of 2019

. The jury heard testimony from four witnesses

— H e lena; Jaso n Shane Rapp, a constable with Comal County; Chris topher Koepp, a narc o tics detect iv e with the Comal County Sher iff ’ s Office ; and Garfias.

Helena Helena testified that at the time of the altercation she and Garfias were in a long

term romantic relationsh ip. She explained that th ey had dated for ten years before having children, with th ose children being ten, nine, and six years of age at the time of trial. 1 She testified that two of the three have Ehlers‐Danlos Syndrome and that all three have attention

deficit disorder. She described herself as primarily a stay

- at

- home mom at the time of the alleged altercation but stated that she and Garfias worked together as independent construction contractors when p ossible

.

1 Hel ena also has one adult child . Garfias is not the father of Helena ’ s eldest.3 Helena testi fied that in J une of 2014, she and Garfias had just moved the family from Bee Cave to Canyon Lake. She testified that the move was “ frustrating ” and that she and Garfias were not getting along well, but she agreed with counsel ’ s c h aracterization that t hey as a couple “ were trying to make [the] relationship work for [the] kids , ” who were all aged five or younger at the time. Helena explained that the ho usehold was under financial strain and that income came primarily from govern men tal assistance, checks from her family, and odd job s. Helen a then testified tha t on June 21, 2014, Garf ias was driving the family in what she described as an “ older ” Suburban with Helena riding beside him and the children asleep in the back. The famil y w as proceeding along FM 306 in Comal County when th e Subur ban ran out of gas and the couple began arguing over who was at fault. Helena went on to testify that they “ argued for a little bit [before] he

— he threw his hand back and he h it ” her across the n ose , causing her nose to b leed “ for a l ong time ” such that “ it wouldn ’ t stop. ” According to Helena, Garf ias then exited the vehicle, walked around to the passenger side, op ened her door, and the two began “ physically fighting. ” When asked where Garfias w as st riking her, Helena testified that she could not remember. She conceded that she “ hit ” Gar f ias but said she was trying to “ get
out

— out of the v ehicle ” to get a way from Garfias. While testifying, Helena repeatedly indicated that she could not remember the details of the incident but that s he was certain that the two were

“ fighting ” and “ h itting ” each other, both in the vehicle and “ on the grass. ” She said the children had been sleeping but awoke when the fighting got “ re ally loud. ” Helena testified that she saw a passing police cruiser a nd tried to wa ve it down because she “ didn ’ t know what else to do. ” She testified that she was likely crying when the offi cer s arrived and recalled that they took photos of her injuries , which were ultimately determ ined to include a broken nose and multip le lacerations and contusions. Helena explained4 that because of the incident, the Department of Family and Protective Services ( “ CPS , ” which she referred to as “ the children ’ s police ” ) removed the chi ldren from the home. She indicated that the children w ere returned t o her whe n she comple ted her services. Helena con ceded that she assisted Garfias with obtaining a bond and allowed him to move back into the h ousehold for mul tiple reasons, including that she loved hi m, th at she wanted to stay together for the children, and that she needed access to their professional c lient contact information

. She also conc eded that both she and Garfias understood the condition that Garfias could not have any contact or communicatio n wit h Helena but that they jointly agre ed to violate that condition through cohabitation and c ontact by phone and messaging. Helena testified that her position changed in July of 2015 when Garfias became “ very violent and talked

. . . very ugly and

— and h e was very dangerous ” and she realized t hat she could not “ work with him anymore. ” When asked to describe what made Garfias seem “ dangerous, ” Helena explained that he would “ fo llow ” her around town to find out where she was going and that he would sometim es ca mp out in her car to prevent her fr om going anywh ere at all

— even to work. She recalled several incidents during which Garfias would tail Helena ’ s car and wait for a red light, then exit his own vehicle and pound on the side of Helena ’ s vehicle . She also testified that at one point , Garfia s “ s mashed ” al l the windows of her car to render it unusable. She described herself as “ terrorized ” by the behavior. Finally , Helena test ified that Garfias had c alled her the day before trial to warn her not to app ear a t trial becau se she was the one the courts “ wante d ”

a nd that “ CPS was going to take the kids away again ” if she appeared and testified at trial

. On cross

- examination, Helena conceded that at least one of the chil dren had tested positive for illegal substances at birth and that a 2 008 prot ective service s investigation had been directed at her

— not at Garfias.5 Constable Rapp Rapp testified that he was on patr ol around mi dnight on the ni ght of the altercation. He recalled that he was traveling along F M 306 when he passed a darke ned vehicle with doors aja r and an individual standing nearby on the shoulder. He test i fied that he illuminated both his emergency lights and his flood light and pull ed up behind the vehicle. When asked to recite what he obser ved, he said:

I observ ed a fema le subje ct that was

— she kind of made herself visible from the driver ’ s side. She was screaming hysterically and

— and I noticed immediately with the hysterical screaming that she was covered with a significant amount of blood , which is obviously an unus ual situatio n.

He test ified that he recalled her screami ng, “ He ’ s beating me to death! ” Upon visual inspection, Rapp concluded Hel ena had be en stricken “ multiple times ” due to trau ma to “ the eye and the eye socket, ” “ the chee kbone and cheek area , ” th e no se, and the chi n. Rapp nex t testified that he located and apprehended Garfias, who had “ blood in his hairline with what appeared to be possibly some tissue matter or something of that nature ” and “ a laceration across the brid g e of his nose

. ” R app sa id he “ did not observe any lacer ations or any type of wounds to the hairline area or the top of his scalp that would create that blood ” but agreed that photos taken at the scene suggest Garfias had suffered multiple facial injuries

. Rapp ’ s report in dicate s t hat Garfias conceded to Rapp that he “ struck his wife in the face with a closed fist

. ” The constable testified that , following th at concession, he placed Garfias under
arrest and called for back up

. Rapp the n testified as t o the scene insi de the v e hicle. He expl ained that there

we re “ three small children ” in the back of the vehicle. He desc ribed them as awake but “ calm. ”6 R app testified that there was “ blood splatter ” throughout the front of the vehicle, including in the

c onsole, in the f loorbo ard s , on the dashb oard , and on the pa ssenger door

.

K oepp Koepp testified that he first became invol ved in the case on July 31, 2014, when the district attorney ’ s office reported that Helena had complained that Garfias was violating the condition s of h is bond. K oepp expla ined that he visite d Helena at her home, where she consented to a search of her phone via digital sca n. He testified that he then “ printed the entire report ” of calls and tex t messages and went through the report wi th Helena. Koepp d esc ribed the

“ pattern of com munication ” as primarily one of Garfias initiating the contact. He testified that around July 6 , the frequency of Garfia s ’ s texting “ increased dramatically ” and became both

“ threatening ” and “ harassing

. ” On the stand, Koepp read a se ries o f pro fa n ity

- laden threats i n to the record and s aid that Garfias repeatedly frightened Helena by threatening to report her to CPS or have her arrest ed. He ind icat ed that , a fter reviewing the phone records and obtaining several
po lice reports, he filed cha r ges f or violation of condit ions of a bond order. Koepp described this

as “ the extent of [ his ] involvement in the case. ”
Objection to Evidence of Prior Convictions Just before Garfias testified in his own defense, the counselor s approached the bench out side t he presence of the jur y to discuss which of Garfias ’ s prio r convictions should be admitted into evidence. Garfi as st ipulated to a 2013 conviction for assault family viol ence against Helen a. O ther prior convictions tendered as possible evidence incl ude d a 19 9 1 conviction for a ssault ; convictions for the ft in 1991, 1 992, 1994 , and 2006 ; a 1994 conviction for unauthorized use of a motor vehicle ; a 1995 conviction for burglary ; and a 2004 conviction for7 assault against a f emale

. The trial court agre ed t o admi t the 2004, 2006, and 2013 convictions but deemed the other convictions “ too remote ” to allow for admission. Gar fias objected to admission of the 2004 and 20 0 6 offenses, arguing that admission would violate Rule 609, which allows admission of co nvic tions ol der than ten years “ only if its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect

. ” See Tex. R. Evid. 609(b).
In evalu ating admissibility of the 2004 and 200 6 convictions , the tria l co urt ad dr essed counsel for G arfias and observ ed :
Well, [it] depend[s] on whether there ’ s a tacking. If there ’ s a felony and then there ’ s another crime, then that

— that ten‐year statute doesn ’ t apply if there ’ s continui ng criminal conduct.

. . . That ’ s the way the rule works. That ’ s the way I recall it. The State can tell me if I ’ m wrong or you can tell me if I ’ m wrong
. . . . Cf. Meadows v. State , 4 5 5 S.W.3d 1 66, 17 0

– 7 1 (Tex. Crim. App. 2015 ) ( describing common law

“ tacking ” doctrine before holding that Rule 6 09 had “ supplanted ” th at doctrine). W hen the counselors disagreed as to the p r oper interpretation of the rule , the trial court then clarified:
[W] e have an assault that is being tried. So that tends to make [the 2004 conv iction] become more probative her e, especially if you ’ re going to put on self‐defense

. . . . Clearly the relationship

— the other assault comes in between him an d her, the one out of Travis County. But the fact that he may have been

— he ’ s claiming the woman was the aggressor, I think th at makes

— that case in 2004 of assault of another female. I think it makes it more probative than it does prejudicial for that reason.

The trial court co ncluded, “ [T] he two probative ones that deal with the violence against women

. . . I think are more pr ob ative than anything e lse in this case ” in light of Garfia s ’ s theory that he

was acting in self

- def ense duri ng the altercation

.8 Garfias Garfias test ified that Helena had been drinking throughout the day of the alter cation

— perh aps “ half a bottle of vod ka ”

— and that that “ she sa id she had been doing some meth or something, some drugs

. . . cocaine

. . . one of them

. ” He explained that she uses drug s

“ regularly ” and that these had “ altered her ” on the day of the altercation. He recalled that while they wer e driving later that ni ght , he had taken a “ wrong turn , ” had realized the Sub urban ’ s tank was running low , and had warned Helena that they were running out of gas. He then testified that she “ started getting angry and started hitting [him ] in the back o f the head ” with “ some ha rd object , ” very “ aggressively ” and “ repeatedly. ” Garfias was not certain but thought the object

was a perf ume bottle or a phone. He te stified that he realized his hea d was bleeding and that he ha d to hit her “ two or three times ” t o regain control of the vehicle and navi gate it safely to the shoulder. 2 Garfias testified that Helena struck him “ maybe 20 ti mes. ” He denied that he
appro ached the passenger side of the vehicle to contin ue fighting with Helena and test ified that the onl y physical violence occ urred while they were both insi de the vehicle. He conceded that he caused all the injuries to Helena that were documented through law enforcement p hotography

. He also conceded that non e of the photography reflects an injury to h is head. With res pect to the allegations of violated bond condition s , Garfias testified that at all relevant times he understood the condi tions of bond. While testif ying, h e initially denied that he sent Helena any text messages but conceded that he mad e o ne phone call on July 1 2, 2015

. He then denied that the phone number attributed to him was in fact his but conceded that he sent certain text messages the day before trial discouraging Helena from appearing at trial and

2 The record reflects that Garfias gesti culated to indicate how he h a d used his fist to hit Helena.9 warning her that CPS would remov e t he children if she appe ared

. He denied t hat he ever followed Helen a ’ s vehicle or damaged the windows of her vehicle. Garfias surmised that if anyone had tailed Helena or damaged her veh icle, it likely would have b e en someone associated with Hel ena ’ s a ll e ged drug use. He dispu ted evidence that Helena had repeatedly tested negative for alcohol and illegal substances throughout the pendency of the 2014 CPS case

.

E xhibits The State tendered, and the trial court admitted, exhibits that included text
message s Helena received, voic email Helena received, the bond ord er, the stipulation to the 2013 judgment o f conviction against Ga rfias, a c opy o f a report in the 2014 child

- protection case initiated after the altercation , and photo graphs tak en at the sc ene of th e altercation and durin g Garfias ’ s booking. Garfias tendered, and the trial court admitted , several photo graphs of Helena
pos ing w it h firearms. Garfias alleged that Helena sent the se photo graphs by text message to intimidate him.
Judgment and Sentencing
At t he conclusion of trial, the jury found Garfias guilty as to both charges

. For the sentencing hearing, the trial court admitt ed additional evidence of t he 2013 assault and a recording of a phone call Garfias placed to Helena from the Comal County Jai l immediately following trial

. In the recording, Garfias and Helena discuss bail , a possible plea bargain, and how to deal with th e attorneys. The trial court ultimately sentenced Garfias to two te rms of twenty years of confinement “ to run concurrently w ith ea ch other. ” Garfi a s fil ed motions f or new trial , which were denied by operation of law, and then timel y filed these appea ls.10 D ISCUSSION In a single , identical issue on appeal in both causes , Garfias complains that the trial court erroneously admitt ed evidence of his 2004 c on viction for assault. We review a trial
court ’ s ruling on the admissibility of the evidence for an abuse of discretion. See State v. Story , 445 S.W.3d 729, 732 (Tex. Crim. App. 2014) (citing State v. Dixon , 206 S.W.3d 587, 590 ( Tex. Crim. App. 2006)). Wh ere the trial court does not make explicit findings of fact, as is the case here, we view the evidence in the light most favorable to the trial court ’ s ruling and assume that the trial court made implicit findings of fact support ed by the record. See Le rm a v. State , 543 S.W.3d 184, 190 (Tex. Crim. App. 2018) (citing Ford v. State , 158 S.W.3 d 488, 493 (Tex. Crim. App. 2005)). A trial c ourt ’ s ruling will be upheld if it is correct under any theory of law applicable to the case. S ee i d

. (citing Arguellez v
. State , 409 S.W.3d 657, 662

– 63 (Tex. Crim. App. 2013)); see also Story , 44 5 S.W.3d at 732. In this case, Garfias comp lains of the tr ia l court ’ s invocation of the common law

“ tacking ” doctr in e to allow admission of evidence of t he 2004 assault

. “ Under th e tacking doctrine, a conviction that is more th an ten years old can be tacked onto a more recent conviction for remoteness purposes , which then alters the legal standard governing its admission. ” Meadow s , 4 5 5 S.W.3d at 170 (citin g Jones

– Jackson v. State , 4 4 3 S.W.3d 400, 403 (Tex

. App.

— Eastland 2014, no pet.). Pur suant to that doctrine, “ i f a defendant has one or more prior

co nvictions that are more than ten years old and also has more recent convictions for felonies or misdemeano rs involving moral turpit ud e , such intervening convictions remove the taint of remoteness from the prior con viction and make a conviction older than t en years admissible. ” Id . (c iting Jackson v. State , 11 S.W.3d 336, 339 (Tex. App.

— Houston [1st Dist.] 199 9, pet. ref ’ d) , and Herna ndez v

. State , 976 S.W.2d 753, 755 (Tex. App.

— Houston [1st Dist.] 1998, pet.11 ref ’ d) )

. But t he Court of Criminal Appe als has hel d “ that the unambiguous plain language of [Rule of Evidence 609] supplants the common

- law tacking doctr ine , ” see id. at 169, and that

a dmissibility of evidence of convictions older than ten years must be evaluated under that rule , see id. at 170

– 71

. Rule 6 0 9(b) provides that evidence of a “ criminal conviction ” ol der than ten years

“ is admissible only if its probative value, support ed by s pecific facts and circumstances, substantially outweighs its prejudicial effect. ” See Tex. R. Evid. 609(b). In this cas e , the State tendered evidence that Garfias had been con v icted of assault against a n unnamed female in 2004. The State intended to us e that evidence t o rebut Garfias ’ s theories that Helena was the ins tigator in the altercation and that Garfias was acting s olely in self

- defense during the altercation

. Although the trial court ma de a passing reference to th e tacking doctrine , it we nt on t o e xplain that evidence o f this offense was “ more probative than anything else in the case ” due to Garfias ’ s de fens ive theories , including his t h eory that he was acting exclusively in self

- defense

. “ It is well settled that when an accused claims se lf

- def e nse, the State, in order to show the accused ’ s intent, may introduce rebuttal evidence of prior violent acts by the accused in order to show the intent of the person claiming self

- defense. ” Jones v. State , 241 S.W.3d 666, 6 69 (Tex. App.

— Texarkana
2 007 , no pet. ) ( analy zing admissibility under p redecessor to Rule 609 and citing Halliburton

v. State , 528 S.W.2d 216, 21 8

– 19 (Tex. Crim. App. 1975) , Joh n son v. State , 963 S.W.2d 140, 144 (Tex. App.

— Texarkana 1998, pet. ref ’ d) , and Armstrong v. State , 850 S .W.2d 2 3 0, 236 (Tex. App.

— Texarkana 1993) , aff ’ d 897 S. W.2d 361 (Tex. Crim. App. 1995) )

. “ Evidence of prior violent acts also may be admissible to refute a defensive theory. ” Id . (citing Hallibur t on , 528 S.W.2d at 218 , Albrecht v . State , 486 S.W.2d 97, 1 01 (Tex. Crim. App. 1972) , and Morrow
v. State , 735 S .W.2d 907, 909 (Tex. App.

— Houston [14th Dist.] 1987, pet. ref ’ d) ) ; see also12 Grant v. State , 247 S.W.3d 360, 367 (Tex. App.

— Austin 2008 , pet. ref ’ d ) ( explaining that

ev idence of p rior acts of violence wou ld be admissible under Rule 609(b) to refute theory of self

- defense). Therefore, because the trial court applied the correct standard to conclude that, in this instance, evidence of the 2004 convict i on is substantially more probat ive than prejudicial, the trial court did not abuse its dis cretion in admitting the evidence of that conviction. See Jone s , 241 S.W.3d at 670

. We overrule Garfias ’ s sole issue on appeal.

CONCLUSI ON Having overruled Garfi as ’ s sole is sue on ap peal, we affirm the judgments of conviction.

__________________________________________ Edward Smith , Justice Before Chief Ju s tice Byrne, Justices Baker and Smith Affirmed Filed: December 2, 2021 Do Not Publish