Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-14-00563-CR
Richard H. VARELA, Appellant
v. The The STATE of Texas, Appellee
From the County Court at Law No. 7, Bexar County, Texas Trial Court No. 354648 Honorable Genie Wright, Judge Presiding
Opinion by: Karen Angelini, Justice Dissenting Opinion by: Rebeca C. Martinez, Justice
Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice
Delivered and Filed: April 22, 2015
AFFIRMED
A jury found appellant, Richard H. Varela, guilty of “assault on a person,” and the trial
court assessed punishment at one year confinement, plus a fine of $1,000. In three issues on
appeal, Varela asserts: (1) the evidence is legally insufficient to support the jury’s finding that he
committed the offense; (2) the trial court erred when it admitted statements the complainant made
to police; and (3) the trial court’s written judgment is not congruent with the record and should be
reformed. We affirm. 04-14-00563-CR
BACKGROUND
The complainant did not testify, and the only witnesses at trial were police officers. Officer
Rodney Olivarez, a detective assigned to the San Antonio Police Department Crime Scene Unit,
testified he handles major crimes and family violence cases. Olivarez testified he responded to a
family violence call at a house located at 3015 East Southcross. When Olivarez arrived, the
complainant and two other officers were present, but Varela was not.
Olivarez described the complainant’s demeanor as “visibly upset that this type of violence
took place on her birthday.” He said the scene was still in disarray and a little confused when he
arrived. He said the scene was not “completely calm.” While taking photographs of the
complainant’s injuries, Olivarez explained he generally only photographs visible injuries, but
because he could feel a bump on the complainant’s head, he photographed the area of her head
where she claimed she had been injured. In addition to photographs of her head, Olivarez also
photographed the red mark and swelling on her right eye and the right cheek area of her face, a cut
upper lip, and scratch marks on her chest and right knee. Olivarez did not take any photographs
of Varela.
Officer William Dains, a San Antonio patrol officer, testified he was dispatched to assist
another officer on a call for potential family violence. When he arrived at the East Southcross
house, only one other police officer, Officer Martin, was present. Dains said he went to the back
of the house, while Martin went to the front of the house. When Dains heard Martin make contact
with a man, Martin left the back of the house and walked around to the front porch. At Martin’s
request, Dains stayed on the porch with the man, who was identified as Varela. Dains could not
remember the complainant’s demeanor, but he described her as bruised from “some sort of recent
injury,” and it was “very apparent that she had just gone through some sort of traumatic
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experience.” Dains described Varela as initially angry, but then becoming fairly quiet. Dains said
Varela had no obvious bruising.
Finally, Officer Matthew Martin, a San Antonio patrol officer, testified he was the first
officer to respond to the family violence call at the East Southcross house. Martin said he heard
two people yelling from inside the house as he approached the house. He said the woman sounded
distraught and very upset, “almost like a—somebody whose spirit had been crushed.” According
to Martin, as he approached the house, he heard the woman say “look at my face[,] I can’t believe
you did this to my face on my birthday.” Martin testified the man responded, “I can’t believe you
called the police. Just wait until they leave, and then see what I do to your face.” When Martin
knocked on the door, the woman answered. A protective sweep of the house revealed only two
occupants: the woman (who is the complainant) and Varela. Martin identified the female’s voice
he heard as the complainant’s and the male’s voice as Varela’s.
Martin said the complainant, who was wearing a black party dress, had injuries on her face,
and was crying uncontrollably, her mascara was smeared down her face, she had a mark under her
right eye, and her lip was cut. Martin placed Varela in handcuffs, escorted him outside, and asked
him to wait with Officer Dains. Martin then went back inside the house, where he asked the
complainant to sit down and take several deep breaths because she was hysterical. When Olivarez
arrived to take photographs, Martin went outside, and placed Varela inside his patrol car. Martin
saw no injuries on Varela.
Olivarez, Dains, and Martin all stated they had no personal knowledge of who hit the
complainant.
OBJECTION TO THE COMPLAINANT’S STATEMENTS
In his second issue, Varela asserts the trial court erred when it overruled his objections to
the police officers’ testimony about what the complainant said. Varela argues the statements were -3- 04-14-00563-CR
testimonial in nature, and admitting them violated his Sixth Amendment right to confront the
The Confrontation Clause of the Sixth Amendment to the United States Constitution
provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him.” U.S. CONST. amend. VI. Testimonial evidence is inadmissible unless
(1) the witness appears at trial and is cross-examined or (2) the witness is unavailable and the
defense had an opportunity to cross-examine. Burch v. State, 401 S.W.3d 634, 636 (Tex. Crim.
App. 2013). “[T]estimonial statements are those ‘that were made under circumstances which
would lead an objective witness reasonably to believe that the statement would be available for
use at a later trial.’” Id. (quoting Crawford v. Washington, 541 U.S. 36, 52 (2004)). Whether a
particular statement is testimonial is a question of law. De La Paz v. State, 273 S.W.3d 671, 680
(Tex. Crim. App. 2008). Accordingly, we review whether the challenged statements are
testimonial de novo. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).
In determining whether a statement is testimonial, we use the standard of the objectively
reasonable declarant standing in the shoes of the actual declarant. Id. at 742-43. The determination
does not depend on the declarant’s expectations. See Michigan v. Bryant, 131 S. Ct. 1143, 1156
(2011) (confirming that objective inquiry is required). A statement is more likely to be testimonial
if the person who heard, recorded, and produced the statement at trial is a government officer. See
Crawford, 541 U.S. at 51.
A statement is testimonial when the surrounding circumstances objectively indicate that
the primary purpose of the interview or interrogation is to establish or prove past events potentially
relevant to later criminal prosecution. Bryant, 562 U.S. at 1157; Davis v. Washington, 547 U.S.
813, 822 (2006). In determining whether a statement is testimonial, we may examine whether (1)
the situation was still in progress, (2) the questions sought to determine what was transpiring, (3) -4- 04-14-00563-CR
the primary purpose of the interrogation was to render aid rather than memorialize a possible crime,
(4) the questioning was conducted in a separate room away from the alleged attacker, and (5) the
events were deliberately recounted in a step-by-step fashion. Davis, 547 U.S. at 829-30; Vinson
v. State, 252 S.W.3d 336, 339 (Tex. Crim. App. 2008).
A. Olivarez’s Testimony
First, Varela complains about Olivarez’s testimony that the complainant told him about her
injuries and she was upset she had been assaulted on her birthday. At trial, the State questioned
Olivarez as follows:
Q. When you photograph complainants do you only photograph visible injuries? A. Predominantly. [The complainant] complained of injuries on her —
At this point, defense counsel objected, and the trial court excused the jury to consider the
objection. Outside the jury’s presence, Olivarez explained:
[The complainant] had identified the injuries that she had and pointed to an area on the top of her head where she also had injuries, but due to the amount of hair [sic] was unable to see. I did feel the bump on the top of her head. That’s the reason why I attempted to try and take a photograph of the area, which I usually don’t do if I don’t feel any type of injury there. So she separated her hair as best she could and we took a photograph of that general area.
...
Q. [by defense counsel] And that was for the purposes of establishing that a crime had occurred, right? A. Helping me determine where the actual injuries were. Sometimes you can’t see them all.
The trial court overruled Varela’s objection. 1 On appeal, Varela argues there was no
ongoing emergency by the time Olivarez arrived on the scene, Varela (the alleged attacker) was
1 After the jury returned to the courtroom, Olivarez again stated the complainant said she was injured on her head. Although defense counsel objected, the trial court did not rule on the objection, but instead, asked the State to rephrase the question. Because counsel did not obtain a ruling on the objection, any complaint as to this statement is not preserved for our review on appeal. See TEX. R. APP. P. 33.1(a)(1),(2) (providing that a party must object and obtain the trial court’s adverse ruling).
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not present when Olivarez spoke to the complainant, and Olivarez’s questions were intended to
preserve past events for presentation in a future criminal case. We disagree.
The Confrontation Clause applies only to testimonial hearsay. See Davis, 547 U.S. at 821;
Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010). Statements that are properly
offered and admitted not to prove the truth of the matter, but rather for a non-hearsay purpose do
not implicate confrontation clause rights and are admissible under Crawford. See Langham, 305
S.W.3d at 576 (“[A]n out-of-court statement, even one that falls within [the] definition of
‘testimonial’ statements, is not objectionable under the Confrontation Clause to the extent that it
is offered for some evidentiary purpose other than the truth of the matter asserted.”); Del Carmen
Hernandez v. State, 273 S.W.3d 685, 688-89 (Tex. Crim. App. 2008) (concluding such where co-
defendant’s statement to police was offered and admitted as non-hearsay to impeach co-
defendant’s credibility). For example, when a statement is “offered to show the reason for the
[police officer’s] actions,” and not for the truth of the matter asserted, it is not hearsay. Kimball v.
State, 24 S.W.3d 555, 564-65 (Tex. App.—Waco 2000, no pet.) (concluding that officer’s
testimony as to out-of-court conversations between officer and police dispatcher regarding
conversation between unknown motorist and 911 operator regarding possible DWI was non-
hearsay and its admission did not violate confrontation clause).
Because Olivarez’s testimony was properly offered and admitted, not to prove the truth of
the matter—that Varela committed assault—but rather for the non-hearsay purpose of explaining
how and why Olivarez took a photograph of the complainant’s head—she said she had a head
injury he could not readily see—the statement was not hearsay, and did not implicate Varela’s
confrontation clause rights. See Del Carmen Hernandez, 273 S.W.3d at 689 (concluding
statement, as non-hearsay, did not implicate right of confrontation); see also Kimball, 24 S.W.3d
at 564-65 (concluding trial court committed no hearsay and no confrontation clause violations). -6- 04-14-00563-CR
Under these circumstances, we cannot conclude the trial court erred by admitting this statement
over Varela’s objection.
B. Martin’s Testimony
Next, Varela complains about Martin’s testimony that the complainant said “look at my
face[,] I can’t believe you did this to my face on my birthday.” 2 We do not believe this statement
was testimonial in nature.
First, the situation was still in progress because Martin overheard the remark as he
approached the East Southcross house. Martin explained that, generally, when he arrives at a
scene, he approaches “at an offset angle,” and ensures no one is outside or running from the
location. He said when he arrived at the East Southcross house, and before Varela or the
complainant knew of his presence, he could hear yelling as he approached. Second, Martin had
not made any contact with the couple, much less asked any questions, when he overheard what the
complainant said. In other words, the complainant was speaking to Varela, and not a police officer,
about events as they were actually happening. Under these circumstances, we conclude Martin’s
testimony about what he overheard the complainant say as he approached the house did not
implicate Varela’s confrontation clause rights. See Davis, 547 U.S. at 827 (statement not designed
to prove some past fact but to describe current circumstances requiring police assistance are
nontestimonial). Accordingly, we cannot conclude the trial court erred by admitting this statement
2 Varela also complains about Martin’s testimony that Varela replied to the complainant, “I can’t believe you called the police. Just wait until they leave, and then see what I do to your face.” A police officer’s in-court testimony about what the defendant said does not implicate the defendant’s confrontation clause rights.
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SUFFICIENCY OF THE EVIDENCE
In his first issue, Varela asserts the evidence is legally insufficient to establish that he was
the assailant. Specifically, Varela argues there were no witnesses to the alleged assault and the
complainant did not testify; therefore, the jury was left with only speculation that he assaulted the
When reviewing the legal sufficiency of the evidence to support a criminal conviction, we
review the evidence in the light most favorable to the verdict to determine whether a rational juror
could have found the essential elements of the offense beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).
Under this standard, we are required to defer to the jury’s determination of the credibility of
witnesses “and the weight to be given their testimony.” Brooks, 323 S.W.3d at 899.
“Under the Jackson test, we permit juries to draw multiple reasonable inferences as long
as each inference is supported by the evidence presented at trial.” Hooper v. State, 214 S.W.3d 9,
15 (Tex. Crim. App. 2007). “However, juries are not permitted to come to conclusions based on
mere speculation or factually unsupported inferences or presumptions.” Id. “A presumption is a
legal inference that a fact exists if the facts giving rise to the presumption are proven beyond a
reasonable doubt.” Id. at 16. A jury may find the element of the offense sought to be presumed
exists, but it is not bound to find so. Id. “In contrast, an inference is a conclusion reached by
considering other facts and deducing a logical consequence from them.” Id. “Speculation is mere
theorizing or guessing about the possible meaning of facts and evidence presented. A conclusion
reached by speculation may not be completely unreasonable, but it is not sufficiently based on
facts or evidence to support a finding beyond a reasonable doubt.” Id.
Each fact need not point directly and independently to the defendant’s guilt, as long as the
cumulative force of all the incriminating circumstances is sufficient to support the conviction. Id. -8- 04-14-00563-CR
at 13. Circumstantial evidence is as probative as direct evidence, and alone, may be sufficient to
establish guilt. Id. We do not ask whether we believe the evidence at trial established guilt beyond
a reasonable doubt; instead, we consider only whether the jury reached a rational decision. Brooks,
323 S.W.3d at 899.
Here, Officer Martin heard a man and a woman arguing as he approached the house; and
he heard the woman say “look what you did to my face” and the man say “wait until [the police
leave] and then see what I do to your face.” Martin identified the man’s voice as that of Varela.
All three officers witnessed recent injuries to the complainant, and described her as distraught,
upset, and crying. Only two people were inside the house: Varela and the complainant.
Considering the totality of the circumstances and the reasonable inferences that can be drawn
therefrom, we hold the evidence was legally sufficient for a rational jury to find beyond a
reasonable doubt that Varela assaulted the complainant.
WRITTEN JUDGMENT
Finally, Varela asserts the judgment in not congruent with the record and should be
reformed to reflect the trial proceedings. Specifically, Varela contends (1) the judgment contains
boiler plate language that he pled nolo contendere when he actually pled not guilty, and (2) the
trial court stated at sentencing it would note in the judgment no affirmative finding of family
violence, but the written judgment contains no such language. Therefore, Varela asks this court
to remand the cause to the trial court with instructions to enter a correct judgment.
A supplemental clerk’s record filed with this court contains a judgment that reflects Varela
entered a plea of not guilty. Therefore, no remand for this purpose is necessary. As to his second
complaint, the judgment states Varela is guilty of “assault bodily injury-married.” 3 Varela
3 On appeal, Varela does not challenge this wording.
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contends remand is required for the trial court to include an affirmative finding of no family
violence. The State filed a cross-appeal asserting the evidence supports an affirmative finding of
family violence; therefore, the trial court was statutorily required to enter an affirmative finding
on family violence, and the judgment should be reformed to include this finding.
“[I]f the court determines that the offense involved family violence, as defined by Section
71.004, Family Code, the court shall make an affirmative finding of that fact and enter the
affirmative finding in the judgment of the case.” TEX. CRIM. PROC. CODE ANN. § art. 42.013 (West
2006). Thus, a trial court is statutorily required to enter an affirmative finding of family violence
in its judgment, if during the guilt phase of trial, the court determines the offense involved family
violence as defined by section 71.004. Butler v. State, 189 S.W.3d 299, 302 (Tex. Crim. App.
2006).
The Texas Family Code defines “family violence” to mean: “(1) an act by a member of a
family or household against another member of the family or household that is intended to result
in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places
the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does
not include defensive measures to protect oneself; [or] . . . (3) dating violence, as that term is
defined by Section 71.0021.” TEX. FAM. CODE ANN. § 71.004 (West 2014).
“Dating violence” means an act, other than a defensive measure to protect oneself, by an
actor that: (1) is committed against a victim: (A) with whom the actor has or has had a dating
relationship; or (B) because of the victim’s marriage to or dating relationship with an individual
with whom the actor is or has been in a dating relationship or marriage; and (2) is intended to result
in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places
the victim in fear of imminent physical harm, bodily injury, assault, or sexual assault.” Id.
§ 71.0021(a). “Dating relationship” means “a relationship between individuals who have or have - 10 - 04-14-00563-CR
had a continuing relationship of a romantic or intimate nature. The existence of such a relationship
shall be determined based on consideration of: (1) the length of the relationship; (2) the nature of
the relationship; and (3) the frequency and type of interaction between the persons involved in the
relationship.” Id. § 71.0021(b). “A casual acquaintanceship or ordinary fraternization in a
business or social context does not constitute a ‘dating relationship’ under Subsection (b).” Id.
§ 71.0021(c).
During the guilt/innocence phase in this case, the police officers testified they responded
to a “family violence” call. However, no evidence was presented about the relationship between
the complainant and Varela, or whether they lived together. The Information charged Varela with
the offense of “intentionally, knowingly, and recklessly caus[ing] bodily injury to another, namely:
[the complainant], . . . by striking the complainant with the hand of the defendant.” The Complaint
stated Varela committed the offense of “[Penal Code section 22.01] Assault B/I Married/Cohab.”
The jury charge stated Varela was charged with the offense of “assault on a person,” and the
judgment states Varela was adjudged guilty of the offense of “assault bodily injury-married/ a
misdemeanor.”
At the end of the guilt/innocence phase, but before the sentencing phase began, the State
asked for an affirmative finding of family violence. Although the trial court acknowledged the
case was brought to the court as a family violence case “based on probable cause,” the court
repeatedly reminded the State that no evidence of the nature of the relationship was brought up at
trial. The State asserted Varela had a prior arrest for “assault bodily injury, married that was
dismissed in September of 2010 with the same complainant,” but the court noted there was no
proof the couple had been married in the past. The trial court asked for additional case law before
deciding whether to make the affirmative finding.
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A few days later at the sentencing hearing, the trial court, without hearing additional
argument, stated that an assumption about the relationship between the parties was not sufficient
for sentencing purposes. Therefore, the court announced it would not make an affirmative finding
of family violence as requested by the State. The trial court apparently recognized that it was not
statutorily required to make an affirmative finding of no family violence, as requested by Varela,
and the court declined his request to make such a finding. 4
On appeal, Varela cites no authority for his argument that a trial court must make an
affirmative finding of no family violence, and we conclude the trial court did not err by refusing
Varela’s request for such a finding. Because the record contains no evidence about the nature of
the relationship between the complainant and Varela, we conclude the trial court did not err by
refusing the State’s request to make an affirmative finding of family violence.
CONCLUSION
We overrule all issues on appeal, and affirm the trial court’s judgment.
Karen Angelini, Justice
Do not publish
4 The trial court, nevertheless, stated on the record that it would “put in parentheses no affirmative finding of family violence.” And, in fact, the judgment contains the parenthetical “(NO AFFV),” which may very well stand for “no affirmative finding family violence.” Neither party, however, references or explains the meaning of this notation.
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