## In the Court of Appeals Second Ap pellate District of Texas

at Fort W orth

___________

________________ No. 02

- 22

- 00073

- CR

___________________________

On Appeal from Criminal District Court No. 1

Tarrant County, Texas Trial Court No. 1633906R
Before Sudderth, C.J.; Kerr and Womack, J J. Memorandum Opinion by Justice Womack 

### R EY 

### A LFARO 

### G UADIAN 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS 

### , Appellee2 MEMORANDUM OPINION
I. I NTRODUCTI ON By indictmen t , t he S tate charged Rey Alfaro Guadian with three counts of aggravated sexual assault of a child and on e c ount of indecency with a child by

contact
. See Tex. Penal Code Ann. §§ 21.11(a)(1), 22.021 (a)(1)(B)(i), (iii), (v)

. In a
repe at offender not i ce , the State further alleged that Guadian had been p r e viously convicted of the felony offense of driving while intoxicated (DWI) and felony repetition

. Guadian pleaded no t guilty to all counts of t he indictment and not true t o the re p e at offender notice. A jur y found h im guilty on all counts , found that he was a
repe at offender, and assessed his punishment for each count at life in prison and a
fine of $10,000

. T he trial court ordered al l four sentence s to run concurrently.
Guadian appeals only his sentences , arguing that the trial court erred in the punishment phase by allowing the State to introduce evidence of Guadian ’ s alleged
criminal hi story with a sheriff’s depar tment re cord th at was n o t properly authenticated according to the Texas Rules of Evidence

. Because we hold that any error Guadian preserved was har m l ess , we overrule h is issue and a f firm the trial court ’ s judgment s . 1

1 Although Guadian was charged, convicted, and sentenced under one cause number, the trial court entered a sep arate judgment f or each count.3 II. B ACKGROU ND The jury convicted Guadian of three counts of aggravated sexual assault of a
child and on e c ount of indecency with a child by contact. 2 By Guadian ’ s choice, the jury also assessed his punishment. See Tex. Code C r im. Proc. Ann. a rt 37.07, § 2(b).
At the trial on punishment , Guadia n did not testify, and the State called only one witness: Corporal Homero Carnero of the Tarrant Cou nty Sh eriff ’ s Office. Corporal
Carnero testified th at he works “ in t he error resolut ion desk , ” whose main duty is to
maintain the accuracy of the o ffice ’ s cri me records. A few minutes before testifying,
h e took Guadian ’ s fingerprints. When Corporal Carnero testified, the State offered the fingerpri nt card that he had just created with Guadian ’ s ink ed prin ts, as well as an
older document with Guadia n ’ s prints that had been filed in the sheriff ’ s office. Both
the card (State ’ s Exhibit 39) and the document from the sh eriff ’s office (State ’ s Exhibit 26) contained Guad ian ’ s name, his county identification ( CID ) num ber, his
date o f birth, and a full set of his prints, but the older document, which the State and Corporal C arnero referred to as “ the ten

- print card, ” 3 h ad a list of the dates and

2 Because Guadi an only assigns error to the trial court ’ s ruling at the trial on punishment, we need no t summarize the fa cts gi v ing rise to the charged offenses in this case.

3 We have previously noted that a te n

- p rin t card i s a c ard that cont ains an “arr estee ’ s iden tifyi ng information, name, date of birth, sometimes

. . . the arrest

. . . , along with the r oll prints, which are fingertip to fingertip each digit of each hand, and the bottom is just pat

- down [palm pr ints] , and that happens durin g the bookin g process.” Morga n v. State , No. 02

- 19

- 00374

- CR, 2020 WL 5949917, at *2 n . 1 (Tex. App.

— Fort Worth Oct. 8, 2020, no pet.) (mem. op., not designated for publicatio n )

.4

charg es on which Guadian h a d been arrested from 1988 to 1999. Over Guadian ’ s hearsay objection, 4 the tria l court ad mitted both exhibits in evidence. Corporal Car n ero then explaine d that any one bo oked into the Tarrant Coun t y jail system is assigned a “u nique and permanent ” CID number that is attached to the
person ’s fingerprints. Like fingerprints, a CID number is un ique t o the individual; no inmate in th e Tarrant County jail has the same CID number as any oth er i n m ate. The
State then intro duced certified copies of r e c ords fr om the Tarrant C ounty Clerk and Tarrant County District Clerk show i ng Guadian ’s c onvictions o n various charges as
far bac k as 1988. 5 Although the records included more documents from some case s than others , each exhibit containe d a copy of the doc ket sheet on the cas e file jacket, a

c opy of the j u dgm ent reflecting Guadian ’s c o n viction and sente nc e, 6 and a copy of the charging instrument

. For every case, all those documents named Rey Alfaro Guadian

a s the defendant, an d the charging instruments all containe d the same date of b i rth f or

4 When objecting , Guadian told the tria l court that he did “ n ot obj ect to the f ingerprints t hemselves. ” As we will explain in our discussion below, it appears from the record that Guadian ’ s fir st hearsay objection was limited to statements i n the ten

print card, not the newly created card.

5 The do cume nts were off

er ed and admitted as twel ve separate e x hib its, m a r k e d State ’ s Exhibit s 27 through 38.

6 In one case, Guadian ’ s sentence was probate d, an d the j u dgment is t hus styled
a “ probation order. ” However, the document states that Guadian was adj udged gu ilty of the of fen se of dr

ivin g w hi le intoxic a ted and open contain er and sentenced to 120 days in jail and a $400 fine. Th e court in that case suspended Guadian ’ s sentence and placed him o n probation for twenty

- four months.5

h i m . Co r p oral Carnero testified to other identifying informa ti on in the exhibits, including Guadian ’s prints and CID number, as well as the dates of the offenses. He
refe rred to both the ten

- print card and the inke d prints he had taken from Guadian in

c ourt that day. When the State move d to admit Stat e ’ s Exhibit s 2 7 through 38 into evidence, Guadian objected “ only to the portions of hearsay that appear in these
documents. ” The tri a l court overruled his objection a nd admitted all the e x h ibits in
evidence.
Stat e ’ s Exhibit 27 showed that Guadi a n ple ad e d guilty to a nd was con victed of the felony offense of DWI and felony repetition in the Criminal District Court No. 1
of Tarrant County, Texas, in Cause Number 07 20498D, on May 28 , 19 9 9

. The jury found that Guadian was a repeat offender

. I II. D ISCUSSION
A. Prese rv ation of Error
We first add ress whether Gua d ian has preserved any error for our review

. To
p reserve a compla int for our review, a party must have presented to the trial court a timely request, objection, or motion sufficiently stating the specific groun ds , if not apparent from the context, for the desired ruling. Tex. R. App. P . 33.1(a)(1);
Mont elongo v. State , 623 S.W.3d 819, 822 ( Tex. Crim. App. 2021) . Further, the party must obtain an express or implicit adverse trial

- court ruling or object to the t ri al court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Dixon v. State , 59 5 S.W.3d 216, 223 (Tex. Crim. App. 202 0)

. Because it i s a systemic requirement, this court should6

independently review error preservation, and we have a duty to ensure that a cla im is properly pre served in the trial court before we address its merits. D i xon , 595 S.W.3d

at 223

. Gua d ian pr esen ts his appellate i ssue as follows : “ THE TRIAL COURT
ERRED IN THE PUNISHMENT PHASE BY ALLOWING THE STATE TO
INTRODUCE EVIDENCE OF APPELLANT’S AL LEGED CRIMINAL
HISTORY WITH A SHERIFF’S DEPARTMENT RECORD THAT WAS NOT
PROP ERLY AUTHENTICATED ACCORDING TO TH E TE XAS RULES OF
EVID E NCE. ” But Guadian did not make an authentication objection at trial; he objected only to hearsay in the documents. The co mp laint made on ap peal must comport with the compl aint made in the t rial court or th e er ror is forfeited. Clark v.
State , 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) ; Lovill v. State , 319 S.W.3d 687,
691

– 92 (Tex. Crim. App. 2009) (“A complaint will not be pr eserved if the legal basis of the complaint rais ed on appeal varie s from the compl aint made at trial.”) ; Pena v. State , 285 S.W.3 d 459, 464 (Tex. Crim. App. 2009) (“Whether a party’s particular complaint is preserved depends on whether the complaint on a pp eal comports with the complaint made at trial.”)

. In his brief

, Guadian correctly stat es that “ State’ s Exhibit 26 [ the ten

- print

ca rd ] was admitted over a hea rsay objection by Appellant as a business [

- ] record exception. ” He then quotes the business

- r ecor ds (or “ Records of a Regularly
Cond ucted Activity ” ) exception to the rule ag ainst hearsay, s ee Tex. R. Evid. 803( 6),7

and cites Stapleton v. State , 8 68 S.W.2d. 781 (Tex. Crim. App. 1993 ), in support of his argument that the ten

- print card should not hav e be en admi tted pursuant to thi s except ion. 7 We hold that this comport s with hi s compl a int made at trial ab out the
h earsay in the ten

- print ca rd. However, because he di d not object to the other records of his criminal history ( S tate ’ s Exhibits 27 through 38) on any grounds other than hearsay, and because he does not a r g ue o n appeal t hat th ose exhibits containe d
inadmis sible hearsay, we also hol d that he ha s forfeite d all other error for our review.
See Clark , 365 S.W.3d at 339

. We will therefore review only Guadian ’ s ar g u ment t hat

t he t r ial court erred in admitting the ten

- print car d unde r Rule 803(6) and tha t such

er ror was harmful. B. Argum ents of the Parties
Under Rule 803(6 ), a record of an act, event, condition, opinion, or diagnosis is
not exclud ed b y the rule against he arsay if: (A) the record was made at or near t he time by

— or f rom information trans mitted by

— someone with know

ledge; (B) the record was kept in the course of a regularly conducted business activity; (C) making the record was a re gula r practice of that activ ity;

7 I n Stapleto n , the Court of Cr iminal Appeal s rul e d tha t a reco rding of a phone call from a citizen to the police department contained inadmiss ible hearsay

. 868 S.W.2d at 787

. Because no one engaged in the police activity had personal knowledge of the information rep orted by the citiz en , th e Cour t reaso ned , the fact ual statements made by her on the call were not covered by the business

- records exception prov

ided by Rule 803(6). Id. at 784

– 85

.8

(D) all these conditions are shown by t he testimo ny of the custodian or anot her qua lified witness, or by an aff idavit or unsworn declaration

. . . ; and (E) the opponent fails to demonstrate that the source of information or the method or circumstance s of preparation indicate a lack of trustwor thiness.
T ex. R. Evid. 803(6)

. Guadi an argues that this rule sho uld not apply because the State never asked whether anyone had p ersonal knowledge of the information contained in
the ten

- print card

. The State coun ters that “ the nature of the fingerprint car d made
th a t spec ific statement unnece ssary ” because the card demonstrates that it was made at the time that the fingerprints were made an d that it was made by a deputy with
knowled ge of its cont e nts who h a d creat ed and signed it

. Guadian also argues that

t he exhibit was not sponsored by the custodian of records , but the State rightly
contends that Rule 803(6) does not require the sponsoring witness to be the custodian

o f rec ords

— on ly a “ qua lified wi tn ess ”

— and C arnero m et this requirement

. In t he alternative, the State argues that the card was admissible under the public

- records exception to the r ule against hearsay. See Tex. R. Evid. 803(8).
C . Ou r Analysis
Assu ming withou t deci ding that the ten

- prin t card contained i nadmissible hearsay and that the trial court abused its discretion i n admitting the exhibit o ver Guadian ’ s hearsay objection, we are not persuaded that any such error is reve rsible

. Overru ling an object

ion to eviden ce wi ll not result in reversal when other such
evidence was rece ived w

ithout o bjection, either before or aft er th e co mplained

- of9

ruling. Leday v. State , 983 S.W .2d 713 , 718 (Tex. Crim. App. 1 9 98 )

. Here, Gua dian objected to the ten

- prin t card but no t the newer card that Co rporal Carnero created during trial. Like the t en

- p rint card, the newer card had Guadian ’ s full name, date o f
bi r th , and CID number on it. In a ddition , Corporal Carnero t old th e jury mul t i pl e

t i me s
— without obje ction

—

w hat Guadi a n ’s CID n um b e r wa s . Theref ore, Guadian was not harmed by the admission of these pieces of identifying information. See id.

at 717

– 18.
Fu rth er, when clarifying his o bjection t o th e t rial court, Guadian referenced the

ten

- print card by its exhibit number and stat ed, “ There ’ s a fai r amount o f statements
that are made on the second page. ” Thus , his objection was limite d to the stat eme nts on the second page of the document. W hen only part of the offered evidence is admissible, the objecting party must specifically point out which p a rt is inadmiss ibl e. Whitaker v. State , 286 S.W.3d 355, 369 (Tex. Crim. App. 2009); Willo ver v. State , 70 S.W.3d 841, 847 (Tex. Cr im. App. 2002).
Guadian contends that the admission of the ten

- print card was harmful because
i t “ was the s ole basis for adm i ssion ” of all of his criminal history

. The record belies
his cont e n tion. Fi rst, the court d ocuments from Guad i an ’ s p rior crimi nal cas es were

a dmissible as certifie d copies of public documents, which are self

- authenticating. S ee Tex. R. Evid. 902(2). S e cond, while Corporal Carnero did refer to a few of the d a te s li s ted on the se cond page of the ten

- p r int card when test

ify ing to the off

ense dates10

that appe a r ed on the court d ocuments from Guad ian ’ s related cases , 8 every exhibit
f rom Guadi an ’ s past criminal ca s es contained other identi fying informatio n that
matched the inform ation o n Guadian ’ s newer fingerprint card

. All but t w o of th e

ca s e file s had G uadian ’ s unique CID number in t hem , 9 and all showed th e same d ate of birth for Guadian. Hi s newer fingerpr int card also reflects th at he is a white male, as do the charging instrume nts from his past criminal cases. 10 We ha ve held that the State sufficiently linked a defendant to a prior judgment of conviction based on similar matching info rma tion. See De horne y v. State , No. 02

- 1 7

- 00157

- CR, 2018 WL 1528479, at *2 (Tex. App.

— Fort Worth Mar. 29, 20 18, pet. ref’d) (mem. op., not designated for publicatio n ) ( holding tha t State sufficiently linked defendant to prior judgment where defendant ’ s “ r ath er unique nam e ” ma tche d name of defend ant in the judgme nt , and documents associated with prior judgment re flected same birthdate ,

race , and sex of defendant )

.

8 Four of Guadian ’ s arrests

— for DWI in 1994, assault bodily injury family violence in 1995 a nd again in 19 97, a nd DWI

- felony rep e tit i on i n 1999

—

were listed on the th ird page of the ten

- print card and thus n o t covered b y his specific objection.

9 It appears that t he case files from the two oldest cases

— a 1988 conviction for DWI and op en container and a 1991 co nviction for drivi n g with li cense suspend ed

— do not include G uadian ’ s C ID number.

10 All the charging instruments from Guadian ’ s prior cases in d icat e hi s sex as
“ M ” for male, but the letters i n dicating his rac e do not appear to be leg i ble in t h e two oldest cas e files.11

Through Corporal Carner o ’s testimon y , the State l inked what was arguably the
most critical o f t he prior conv ictio ns

— the 1999 DWI felo ny that was the b asis of the
repeat

- offender charg e in the present c ase
— to Guadian by his CID n u mber and the
date of the off

e n s e. And court do c u m e nts from that 1999 case showe d that
Guadian ’s 1988 an d 1993 DWI convi ct ions were elements of t he felony charge to which Guadian had pl e ad ed g uilty. Additionally, Corporal Carnero testified that he
had compare d and matched fingerprints from several of the prior case files to the prints that he had just taken from Guadian in c ourt. 11 Finally , t he S tate elicited the following testi mony fro m Corporal Carnero without obje ction :

Q. And so the prints that you received from the gentleman sitting to the far right over there, the de fe ndant in today’s case, the prints that yo u took fro m him, are they a match to all of the judgments that have prints in

-- in evidence?
A. They are. Q. And are the prints that you took in court today from the defendant a match to that certified ten

- print ca rd that ’ s kept o n file with the Tarrant C ounty Jai l t hat ’ s also asso ciated with that county identification number?
A. Yes. Q. So do you have any concerns about any of the prior convictions that have been submitted into evidence as to whether or not they be long to the defe ndant in today ’ s case?

11 Spe cifically , Corporal Carnero matched four of the prior cases to Guadi an through the prints. Six of the other exhibits cont a ine d a t least one ink ed p rint , but Corporal Carnero testified t h at t hose pri n t s were not leg i ble.12 A. I have no c oncerns. Q. Okay. Are they the same person?
A. Yes. Thus, the State was able to link Guadian to th e court documents f r o m his prior criminal cases through other, properly admitted evidence.
Under R ule 44 .2 (b) , we must disregard an y nonconstit uti on al error that do es not affect an appellant’s substantial rights. Tex. R. App. P. 44.2(b ). A substantial right is affected when the error had a “substantial and injurious effect or influence in
det ermining the jur

y’s verdict

. ” Haley v. S tate , 173 S. W.3 d 510, 518 (Tex. C rim. App. 2005); see King v. State , 953 S.W.2d 266, 271 (Tex. Crim. App. 199 7) (citing Kot teakos v.
United States , 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, a n er ror does not aff

ect a substantial right i f the appell ate c ourt has a fair assurance from an
examination of the record as a whole that the error di d no t influence th e jury or that it had but a slight effect. Macedo v. State , 629 S.W.3d 237, 240 (Tex. Crim. App. 2021)

. Ba sed on our foregoing anal ysis , we hav e a f air assurance th at the admission of the hearsay on the second page of the ten

- print card did no t influence the jury or that it had but a slight effect , if it was even error

. We overrule Guadian ’s l one appellate
is sue .13 IV. C ON CLUSION
Hav in g overrul e d Gua dian ’s issue , w e affi rm the trial court ’ s judgment s . /s/ Dan a Womack
Da na Womack Justice
Do Not P ubl ish Tex. R. App. P. 47.2(b)
Delivered: March 16, 202 3