### 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. 03-13-00167- CR

Ism ael Sarinana, Ap pellant

v. The State of Texas, App ellee

F ROM CO UNTY COURT AT LAW NO . 2 O F B ELL COUNTY , NO. 2C10- 0295 5, H ONO RAB LE JO HN MI CHAEL M ISCH TIAN, JUDGE P RESIDING

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

I smael Sarin an a was char g ed with assaulting Esmera lda Guer rer o, who was a member of

his family

. See Tex. P enal Code § 22.01( a). The alleg ed assa ult occurr ed at the home that Sarinana and Guer

rer o wer e living in. During the trial, Sarinana , Guer rer o, and one of the police office rs who responde d to the scene , J oshua Moore, all testified reg arding the events that occur red.
At the conclusion of the t rial, the jury found Sarinana g uilty and imposed a sentenc e of 300 day s in jail. See id. §§ 22.01(b) (explaining that offe nse is class A misdemeanor) , 12.21 (providing that
p u n is h me n t f

o r Cl a s s A mi s d e me a

n o r ma y n o t e xc e e d c o n f

in e me n t f o r 1 y e a r )

. A f te r h is s e n te n c e w a s imposed, Sarinana appea led his conviction. We will aff irm the trial court’s judgme nt of conviction.

STANDARD OF REVIEW All of the issues prese nted on appea l challeng e the trial court’s ruling s reg arding the admission of evidenc e. Appellate courts revie w a trial court’s evidentiar y ruling s under an abuse- of-discretion standard of revie w. Page v. State , 213 S.W .3d 332, 337 (Tex. Crim. App. 2006). Under

that standard, a trial court’s decision to admit or exclude evidenc e is g iven wid e l at i t ude, and its ruling will only be deeme d an abuse of discretion if it is so clea rly wrong as to lie outside the zone of rea sonable disag ree ment, Lopez v. State , 86 S.W .3d 228, 230 (Tex. Crim. App. 2002), or is arbitra ry or unre asonable , State v. Me chler , 153 S.W .3d 435, 439 (Tex. Crim. App. 2005).

DISCUSSIO N On appea l, Sarinana prese nts two issues challeng ing his conviction. I n his first issue, Sarinana contends that the trial court err ed by allowing Offic er Moore to rea d portions of his police
repor t to the jury

. Specifica lly , he contends that the testimony was hear say and that it impermissibly bolstered the prior testi mony of Gue rre ro. I n his second issue, Sarinana arg ues t hat t he trial court

err ed by allowing the State to discuss the basis for his arr est and by allowing the arr esting office r to “re cite bef

ore the jury

the basis for a

rre sting” him.
Hearsay and Bols ter ing

As mentioned above, in his first issue, Sarinana contends that the trial court err ed by allowing Offic er Moore to rea d p o rt i o n s o f the police repor t that he made when taking a statement from Guer

rer o. That report chronic les the conversation t hat he had wi t h Guerrer o afte r he arr ived on the scene of the a lleg ed assa ult. Sarinana a

rg ues that the testimony

was he arsa

y and impermissibly

bolstered the pr ior testimony of Gue rre ro re g arding the alleg ed assa ult.
At trial, Sarinana objected to this p ortion of Officer Moore’ s testimony on hear say
g rounds. See Tex. R. Evid. 801 (def ining hear say as “a statement, other than one made by the

2decla

rant while testify ing at the trial or hear ing, offe red in evidenc e to prove the truth of the matter

asser ted”) , 802 (providing that h ea rs ay “is not admissible except as provided by statute or these rules”)

. I n response , the State urg ed that Offic er Moore’ s testimony was not hear say beca use it fell under the excited-utteranc e exception to hear say . See id. R. 803(2). That exception excludes from hear say statements “re lating to a startling event or condition made while the decla rant was under the stress of e x citement ca

used by the eve nt or condition.” Id.
Be fore rea di n g fr o m his repor t, Offic er Moore explained that, on the night in
ques t i o n , he was notified of a possible disturbance at Sarinana and Guer rer o’s home, and he estimated that he arr ived at the home within 5 minutes of rec eiving the call. When descr ibing what he observe d upon his arr ival, he stated that he saw Sarinana standing outside the home and hear d
Guer re ro cry ing. Moreove r, Offic er Moore rela ted that he observe d a blood trail and saw broken
g lass. Fur

thermore , he testified that when he went to talk with Guer rer o, she appea

red “hy sterica l” and “wa s cry

ing, embar

rasse d, [and] very upset.” I n addition, he rela ted that he “could not g et her
t o calm down.” Offic er Moore also testified that he started asking Guer rer o questions while she was upset, a

nd her a nswers f ormed the ba sis for his testimony and for the re port that he pre pare d.
I n light of the prec eding , we cannot conclude that the trial court abused its discretion by deter mining that the testimony qualified under the excited-utteranc e exceptio n t o hear say and, there fore , by

overr uling Sar inana’ s hear say

objection. 1

I n his brief, Sarinana contends that the office r should not have been allowed to rea d his 1 repor t be cause the repor

t w as consistent with the testimony that Guer rer o g ave at trial and beca use consistent statements ar e not a dmissibl e under Rule of Evidence 613(c)

. See Tex. R. Evid. 613(c) (providing that, in g ener al, “[a] prior statement of a witness which is consistent with the testimony of the witness is inadmissible”). Assuming for the sak e o f ar gument that Rule 613 applies to the 3As di s cussed above, Sarinana also objected to Offic er’ s Moore’ s rea ding from his

repor t on the g round that it constituted impermissible bolstering of Guer rer o’s prior testimony

. The
term bolstering is used to ref er to evidenc e that is offe red for the sole purpose of persua ding the fac t-finder that a prior witness “is worthy of cre dit, without substantively contributing ‘to make the exis tence of a fa ct t h at i s of consequence to the determination of t he action more or less probable than it would be without the evidenc e.’” Cohn v. State , 849 S.W .2d 817, 819-20 (Tex. Crim. App. 1993) (quoting Tex. R. Evid. 401). Acc ording ly , if the evidenc e “cor robora tes another witness’s story or enhance s infere nces to be drawn from another source o f ev i d en ce, in the s ense that it has

an incre mentally further tendenc y to establish [ a] fact of

conseque nce,” then it does not constitute bolstering

. Id. at 820.

Be fore Offic er Moore rea d from his repor t, Sarinana aske d during his crossexamination of Moore abo u t his training and his ability to “wr ite a full, acc urate [,] and complete
repor t.” Next, Sarina

na questioned the acc urac y of the repor t by inquiring whether Offic er Moore k n ew t hat there was a witness at the scene and then pointing out that there is no mention of the witness in the repor

t. Fur ther, Sarinana not ed t h at t h er e was nothing in the repor t detailing any

conver sation that any office r had with the witness. Moreove r, Sarinana inquired whether Of fi cer M o o re was familiar with the alleg ations ag ainst Sarinana , mentioned that there wer e alleg ati o n s

circ umstances prese nt here , Sarinana did not make a simil ar arg um en t t o t he trial court and, there fore , failed to pr eser ve this arg

ument for appea l. See Tex. R. App. P. 33.1 (explaining that to prese rve issue for ap p ellate revie w, rec ord must show that “the complaint was made to the trial court” and that court either m ade ruling or refu s ed to); Perry v. State , 367 S.W .3d 690, 694 (Tex. App.—Texarkana 2012, no pet.) (conc luding that issue was not prese rved for appellate revie w when “complaint made on appea l does not comport with the complaint made at trial”). 4that Sarinana broke Guer rer o’s phone and forc ibly remove d her clot h i n g, an d questioned Moore about why

he did not sear ch for

or collec t the phone or the clothes. After Sarinana finished his questioning of Off i cer Moore, the State urg ed that Sarinana had questioned the acc urac y of the repor t and of Moore’ s investiga tion. Fur ther, the State
arg ued that “[w]ithi n that repor t are statements that show i t was a complete r eport” and that at the time tha t the repor

t w as made Offic er Moore was foc used on obtaining a stateme nt from Guer rer o instead of g ather in g ev i d en ce. Acc ording ly , the State arg ued that it was “entitled to g o into how thoroug h the re port was to show that” Offic er Moor e wa s prese rving other ty pes of “ evidenc e and document[ing] it in his repor t” and to combat the impression that Moore “didn’t do a g ood job beca use he didn’t f

ind clothes and a

phone.” I

n response , Sarinana

made his bolstering objection, which the tria l court over ruled.
We note that g iven rec ent case law by this Court, it is not entirely clear that a bolstering objection actua lly prese rves err or for revie w. See Lubojasky v. State , No. 03-10-00780- CR, 2012 Tex. App. L EXI S 8760, at *48 n.13 (Tex. App.—Austin Oct. 19, 2012, pet. ref ’d) (mem.
op., n o t d esig nated for publication); Muniz-Luna v. State , No. 03-09-00266- CR, 2010 Tex. App.
L EXI S 7989, at *7 n.4 (Tex. App.—Austin Sept. 30, 2010, pet. ref ’d) (mem. op., not desig nated for publication); Biddy v. State , No. 03-01-00182- CR, 2002 Tex. App. L EXI S 2 5 9 3 , at *7 n.3 (Tex. App.—Austin Apr. 11, 2002, no pet.) (not desig nated f or publication). 2

Prior to the adoption of the Rules of Evide nce, bolster ing w as a pr oper obje ction, but the 2 Rules do not contain a provision expressly cover ing bolstering

. See Cohn v. State , 849 S.W .2d 817, 821 (Tex. Crim. App. 1993) (Campbell, J ., concur ring ) (stating that bolstering objection should no longe r be rec og nized be cause “an objection that cer tain evidenc e is ‘ bolstering ’ in no way invokes th e Ru le s o r in f

o r ms th e tr ia l c o u

r t o f th e b a s is f

o r e xc lu s io n u

n d e r th e Ru le s ” ) ; s e e a ls o R iv a s v
. S ta te , 5Assuming for the sake of arg ument that Sarinana has proper ly prese nted an issue for revie w, in light of Sarinana ’s q uestioning of Offic er Moore and of the rea sons g iven by the State
reg arding why it was nece ssary for Offic er Moore to r ead from his r eport, we cannot conclude that the trial court abused its discretion by d et er m i n ing that the evidenc e was not being offe red for the sole purpose of showing that Guer rer o’s prior testimony was cre dible. Cf. Tex. R

. E v i d

. 107 (expla ining that if part of writing is g iven in evidenc e, rema inder may be inquired into and that writing may “be g iven in evidenc e” if “nec essar y to make it fully understood or explain the same” );
W alters v. State , 247 S.W .3d 2 0 4 , 2 1 7 -1 8 (Tex. Crim. App. 2007) (noting that rule of optional completen es s i s exception to hear say rule, allows introduction of evidenc e nece ssary to explain
matter discussed b y o p p o sing party , and is desig ned to reduc e possibili ty that jury will rec eive false impre ssion).

For these re asons, we ove rrule Sar inana’ s first issue on appea l.

Basis f or Ar rest
I n addition to o b

j ec t ing to the portions of Offic er Moore’ s testimony in which he

rea d from his police repor t, Sarinana also objected to Offic er Moore’ s testimony g iven befor ehand that di s cu s s ed his observa tions on the night in question and his interac tion with Guer rer o shortly afte r the incident. First, Sarinana objected on the g round that Offic er Mo o re ’s t est imony was hear say and then ur g ed that Of

fice r Moore ’s t estimony constituted impermissible bolstering

. The

275 S.W .3d 880, 886-87 (Tex. Crim. App. 2009) (explaining that “bolstering ” objections are ambig uous beca

use law addre ssing those objections preda tes Rules of Evidence b ut also beca use term implicates sever al Rules and that “[m] any appellate courts have cited the Cohn concur renc e as authority to abandon ‘ bolstering ’ as a valid objection to prese rve e rror for r eview” ). 6State responde d by say ing tha t his testim ony was not hear say and that “[t] hese a re f acts that a re a t issue, Your Honor, and we’ re require d to prove them bey ond a rea sonable doubt. I t also forms the basis of the arr est.

. . . We need to establish why he was later arr ested and char g ed with assault with bodily injury .” Once the State finished its explanation, Sarinana asser ted that he was “not contesting the rig ht to arr est” or “ra ising probable cause ” and that the State was “not entitled t o go i n t o it in front of the jury , and I object.” After Sarinana made this final objection, the trial court overr uled it. This final objection for

ms the basis for his sec ond issue on appea l, a nd he ar g ues in this issue that
t h e t ri al court err ed by overr uling his objection beca

use he did not challeng e the exis tence o f probable cause or the ba sis for the ar rest. As a preliminary matter, we note that it is not entirely clea r what Sarinana ’s challeng e extends to. Fr om his brief, it seems that he is asser ting that Offic er Moore should not have been able
to provide testimony reg arding Guer rer o’s statements that Sarinana broke her phone and forc ibly

remove d her clothing. Howeve r, the rec ord shows that these events occur red as part of the alleg ed 3
assault on Guer

rer o or immediately befor e or afte r the assault, and evidenc e of extraneous offe nses of this na ture c an be a dmitted as same tra nsaction contextual e vidence , which is e vidence of other offe nses t hat are connected with the offense charg ed. See W yatt v. Stat e , 2 3 S

. W

. 3 d 1 8 , 2 5 (Tex.

As support for hi s ar gu m en t , S arinana ref ers to two case s in which the court of criminal 3 appea ls reve rsed criminal convictions beca use evidenc e of extraneous offe nses was admitted during the trials. See Christ opher v. State , 833 S.W .2d 526, 527, 529 (Tex. Crim. App. 1992) (addr essing conviction for burg lary of items that wer e found i n ca r d ri ven by defe ndant and deter mining that b ec au s e defe ndant did not challeng e during trial exis tence of probable cause to support police office r’s decision to stop vehicle, trial court err ed by admitting evidenc e showing that car was stolen); Gaston v. State , 574 S.W .2d 120, 121 (Tex

. C rim. App. 1978) (re versing conviction for possession of controlled substance when evidenc e was admitted during trial showing that defe ndant had committed burg lary

). We find those case s to be distinguishable from the circ umstances prese nt in this case. 7Crim. App. 2000). Contex tual evidenc e may be admissible in circ umstances like those prese nt here

in which “‘se vera l crimes are intermix ed, or blend ed wi t h o n e another , or connec ted so that they form an indivisi ble criminal transac tion, and full proof by testimony

. . . of any one of them cannot b e g iv e n w it

h o u t s h o w in g th e o th e r s . ’ ” S e e R o ge r s v
. S ta te , 8 5 3 S. W. 2 d 2 9 , 3 3 ( T e x. Cr im

. A p p . 1 9 9 3 ) (quoting Maye

s v. State , 816 S.W .2d 79, 87 n.4 (Tex. Crim. App. 1991) (interna l citations omitted));

see also W

esbrook v. State , 29 S.W .3d 103, 115 (Tex. Crim. App. 2000) (explaining that “e v ents do not occur in a vacuum, and the jury has a right to hear what occurre d immediately prior to and

s u b s e q u e n t to th e c o mm is s io n o f th a t a c t s o th a

t it ma y r e a li s ti c a ll y e v a lu a

te th e e v id e n c e ” ) ; B u r

k s v
. S ta te , 876 S.W .2d 877, 900 (Tex. Crim. App. 1994) (noting that fac ts and circ umstances surrounding commission of offense are nece ssary to provide jury

with complete picture of wha t occur red)

. Fur thermore , we cannot ag ree with Sarinana ’s sug g estion that the evidenc e was not admissible beca

use he did not challeng e the leg ality of his arr est or reque st a jury instruction asking the jury to de cide whether his arre st was supported by probable cause . See Tex. Code Crim. Proc

. art. 38.23(a) (providing that if there is indication that evidenc e was obtained illega lly , “the jury shall be instructed that if it believes, or has a rea sonable doubt, that the evidenc e was obtained in violation of the provisions of this Ar ticle, then and in suc h event, the jury shall disreg ard any such evide nce

so obtained”)

. Offic er Moore’ s testimony may well have been rele vant to the propriety of Sarinana ’s

arr est, but it also bore upon the elements of the offe nse for which Sarinana was char g ed and tried and for which the State had the burden of proving bey ond a re asonable doubt. See McClellan v. State , 143 S.W .3d 395, 401 (Tex. App.—Austin 2004, no pet.) (explaining that State has burden to prove that defe ndant is g uilty

bey ond rea sonable doubt).

8Finally , to the extent that Sarinana contends that t h e portions of Offic er Moore’ s

testimony in which he rela ted t he st atements that Guer rer o made to him at the sce ne we re he arsa y and should not have been admitted, the rea sons a rticulated above conce rning the excited utter ance exception to hear say would seem equally applicable to these portions of Offic er Moore’ s testimony

as we ll.
I n light of the prec eding , we cannot conclude that the trial court abused its discretion b y o v e r r u li n g Sa r in a n a ’ s c h a ll e n g e t o O f

f i c e r M o o r e ’ s te s ti mo ny . A c c o r d in g ly , w e o v e r r u le Sa r in a n a ’ s second issue on a

ppeal.

CONCLUSION Having overr

uled Sarinana ’s two issues on appea l, we aff irm the trial co u rt ’s judgme nt of conviction.

__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Rose, and Goodwin Affir med Filed: Aug ust 27, 2014 Do Not Publish

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