Opinion filed February 14, 2019




                                      In The


          Eleventh Court of Appeals
                                   __________

                              No. 11-17-00060-CR
                                  __________

                   JASON PRESTON GROSS, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 35th District Court
                             Brown County, Texas
                        Trial Court Cause No. CR23658


                     MEMORANDUM OPINION
      After a bench trial, the trial court found Jason Preston Gross guilty of assault
family violence by occlusion. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2)(B)
(West Supp. 2018). After it found “true” as to a prior felony enhancement allegation,
the trial court assessed Appellant’s punishment at confinement for fifteen years. We
affirm.
        Appellant brings two issues on appeal. In his first issue on appeal, Appellant
contends that the trial court erred when it admitted inadmissible hearsay statements
of the alleged victim, Katrina June Valdez. In his second issue on appeal, Appellant
claims that his trial counsel provided ineffective assistance when counsel did not
object when the State called Valdez as a witness for the sole purpose of impeaching
her.
        Investigator John Fincher1 with the Brown County Sheriff’s Department
testified that, on January 14, 2014, at around 5:30 p.m., he went to the Brown County
Law Enforcement Center to respond to a “walk-in for an assault report” from Valdez.
        Investigator Fincher testified that, when he saw Valdez, she had various
injuries on her body. He observed redness, scratches on her neck and breast, and
bruising on her neck, arms, and head. Although there are no written statements in
this case, Investigator Fincher made notes of his interview with Valdez. Valdez told
Investigator Fincher that she felt like her back was bruised; her ankle was also
swollen. Valdez was upset and crying; she was “very very shaken visibly.” Valdez’s
hands were shaking, and her voice indicated that she was upset and scared.
        Valdez told Investigator Fincher that she and Appellant were in a dating
relationship and that they had been living together. On the night of January 13, 2014,
she and Appellant got into an argument. Appellant had been drinking. Valdez did
not say that she had been drinking. During the argument, Appellant threw a bottle
of conditioner at her and hit her on the side of her face and her neck. Valdez went
into the bathroom, and Appellant shut the door. Valdez could not leave the bathroom
because the door was broken. Appellant opened the door, laughed at Valdez,
knocked Valdez down, kicked her, took her pants off, and told her that she “needed


        1
          At the time of the offense, Investigator Fincher was a sergeant over patrol for the Brown County
Sheriff’s Department; at the time of trial, he was an investigator for the department. In this opinion, we
will refer to him at the rank he held at the time of trial.
                                                    2
to feel like the whore she is.” Appellant then dragged Valdez by the feet, kicked her
on her legs and hips, and dragged her by the hair down a hallway.
          Valdez also told Investigator Fincher that, at some point during the assault,
and while Valdez was on the ground, Appellant put his forearm across her neck and
restricted her airway; she could not breathe. Appellant also held a knife to her throat
and dragged it across her throat and chest.
          Investigator Fincher testified that Valdez told him that the assault stopped
when she left the house; she spent the rest of the night at a roadside park. Valdez
returned to the house at 6:00 a.m. Valdez said that, when she returned home,
Appellant was crying and apologetic and said that he was sorry for what he had done
to her.
          Appellant left the house. While he was gone, Appellant contacted Valdez and
told her that he was going to get some supplies to treat the injuries that he had caused.
Instead, when Appellant returned, he had been drinking and became angry again.
He threw a box of miscellaneous items at Valdez, and she fell. When Valdez fell,
Appellant got on top of her and put his forearm across her throat; she could not
breathe. Valdez told Investigator Fincher that “she felt dizzy, and her face felt like
it was getting bigger and bigger and was going to pop.” When Valdez tried to get
up, Appellant flipped her over, grabbed her left arm, and twisted it behind her back.
During this time, Appellant was yelling at Valdez and told her to apologize to him;
she did.
          About ten minutes later, Valdez was able to call her daughter, Courtney
Bamber. When Appellant saw that Valdez was talking to Courtney, he told Valdez
to tell Courtney that she was lying about what had happened. Appellant told Valdez
to tell Courtney that he was just trying to keep Valdez from committing suicide.
          Appellant left the house, went next door to help a neighbor, and then returned
home. When Appellant returned, he told Valdez that he wanted his cell phone and
                                             3
the keys to the vehicle. Valdez told Appellant that she did not have the cell phone
or the keys. Appellant threatened to slice her throat and her daughter’s throat and to
cripple Valdez’s son-in-law so that he could not hold his children. Appellant also
told Valdez that, if the police got involved, they would never find him. Then, with
cell phone and keys in hand, he finally left.
      Later, during her interview with Investigator Fincher, Appellant sent a text to
Valdez in which he informed her that her vehicle was in the parking lot of a
Brownwood restaurant and that the keys were inside the restaurant. She told
Investigator Fincher about the text. He went to the restaurant with Valdez, but there
were no keys either in the car or in the restaurant. As we note below, deputies would
later find the keys in Appellant’s possession.
      Appellant sent other texts to Valdez while she was with Investigator Fincher.
In one of the texts, Appellant told Valdez that he was in room 103 in a motel across
the street from the restaurant parking lot where he had left Valdez’s vehicle. Valdez
showed Investigator Fincher another text from Appellant. It read, “F--k the police.”
      Investigator Fincher, Investigator Carlisle Gover, and Deputy Joe Thomas
went to the motel where Appellant had said that he had a room, and they arrested
him. They found Valdez’s keys, Appellant’s cell phone, and a tablet in the motel
room. He was “[v]ery upset, he seemed angry.” Appellant cried, got angry, and
then began to scream at Investigator Fincher and Deputy Thomas. Although
Appellant did not want to participate in an interview with Investigator Fincher, he
made various voluntary statements from the backseat of the patrol car. The in-car
camera was running, and the trial court admitted the recording into evidence. The
recording reflects Appellant’s demeanor at the time of his arrest.
      During the recording, Appellant can be heard to refer to one of the arresting
deputies as a “piece of s--t.” He also referred to the deputy as a “lying-ass mother .
. . f-----g Obama piece of s--t.” Additionally, he said that he hoped that he haunted
                                           4
the officers at night. Appellant also informed the deputies that he was not afraid of
their “f-----g guns and tasers.” Appellant also said that he would not be in jail long
and would be out “by the end of the night.” He predicted that no charges would be
filed and that they would “[c]heck [him] in and let [him] right out.”
       Appellant can be heard to refer to Valdez as a “c--t” and a “suicidal f-----g
b---h” and can also be heard to predict that an incoming text was from Valdez and
that, in that text, she would be apologizing for turning him in and would be referring
to herself as “a f-----g liar.”       Appellant smelled of alcohol and was “a lot”
intoxicated.
       Investigator Fincher saw Valdez again the next day. Investigator Fincher gave
her the keys to her vehicle. Valdez told him that the assault was her fault and asked
about dropping the charges. Investigator Fincher told her she would have to talk to
the district attorney’s office. On January 21, 2014, Valdez signed an application to
dismiss in connection with the assault charges against Appellant.
       Although the State made many attempts to serve Valdez with a subpoena to
appear as a witness in Appellant’s trial, they were not able to serve her. Valdez did,
however, come to the trial. She testified that she avoided the subpoenas because she
thought that it would help Appellant if there were no witnesses. Further, she testified
that it was hard to admit the things that she had to admit. Valdez also testified that
she loved Appellant and did not want to “cut ties” with him.
       As we have indicated, Valdez testified at trial; the State called her as a witness.
She said that she was forty years old; that she had two children, one of whom was
Courtney Bamber (who was married to Levi Bamber); and that she had
granddaughters. She also testified that she and Appellant were living together at the
time of trial.
       Very      little   in   Valdez’s   trial       testimony   matches   the   story that
Investigator Fincher said that she told him on January 14, 2014, at the law
                                                  5
enforcement center. Valdez testified that she saw something on Appellant’s tablet
that made her think Appellant was being unfaithful and that she “just lost it.” Valdez
confronted him with the information, and Appellant denied it, which “infuriated”
her. Appellant’s demeanor was like hers, and they were screaming at each other and
throwing things, “not necessarily at each other, but [she knew] that [they] both got
hit by flying objects.” They also shoved each other. Appellant held her by the arms
to keep her from hitting him, but she “kept going at him.”
      Valdez testified that she left the house around 2:00 or 3:00 a.m. and went to a
roadside park so that they could cool off. By this time, according to Valdez’s trial
testimony, she and Appellant had been drinking for twelve hours straight, and she
had consumed more than a bottle of rum or some other kind of liquor.
      Valdez stayed at the roadside park for “a couple of hours.” During the time
that Valdez was at the roadside park, she called and texted Appellant. During the
conversations and in the texts, they were “saying rude things to each other.”
      When Valdez returned home, Appellant was asleep. Valdez woke Appellant
and told him that he needed to leave. She testified, “I basically woke him up to start
arguing again.” They did not argue again at this point; however, Appellant left in
Valdez’s car and that angered her. Valdez testified that she “wanted him to leave,
but then [she] got mad when he left.”
      Appellant returned after two or three hours, and he and Valdez began to argue
again, “just throwing stuff and screaming.” Valdez further testified that, when
Appellant left this time, she called Courtney. She also testified that she told
Courtney that she and Appellant had gotten into an argument and that he had hurt
her and stolen her car.
      Courtney and Levi arrived about an hour after Valdez called Courtney. It was
in the afternoon when Courtney and Levi arrived and took Valdez to the police
station; Valdez was not drinking then.
                                          6
      Valdez testified that she had had a drinking problem for a long time.
According to Valdez’s testimony, she went to the law enforcement center because,
when she told Courtney about the argument and when Courtney saw the condition
of the house, Courtney told Valdez that, if she did not go to the police station, she
could not see her granddaughters anymore. Valdez further testified that she went to
the police station because Courtney was “pissed off that [she] had been drinking”;
Valdez was trying to put the blame on Appellant so that she could continue to see
her grandchildren.
      According to Valdez’s testimony, she was extremely intoxicated when she
went to the police station and when she talked with Investigator Fincher. Over the
course of twelve to eighteen hours, she had consumed more than one bottle of liquor.
She testified that she had stopped drinking “a couple of hours [or] a few hours”
before she talked with Investigator Fincher. However, Valdez also testified that she
“hadn’t drank since early that morning, probably 4:00 or 5:00 in the morning.” She
testified: “I stopped drinking when he left later that day. Like I said, I don’t know
the time. I want to say it was early afternoon.”
      Valdez further testified that, when she talked to Investigator Fincher, she was
“a mess.” She said that her eyes were swollen from crying and that she bruised
easily, “like if [her] dog jumps on [her].” She also testified that she always has dark
circles under her eyes if she does not sleep much or if she has been drinking, “or
things like that.”
      The State asked Valdez what she told Investigator Fincher about what had
happened. Valdez responded, “I honestly don’t remember much of it, of what I told
him.” In fact, Valdez testified that she did not remember the conversation with
Investigator Fincher. She was not sure whether she remembered the bruises on her
arm or if someone had told her about them. Valdez did not remember whether she
told Investigator Fincher that Appellant pulled her by the hair and dragged her down
                                          7
the hallway, that Appellant said that he would slice her throat, that Appellant said
that he would slice Courtney’s throat, or that Appellant said that he would cripple
Levi. When pressed by the State, Valdez testified that she did not know whether
Appellant had said those things or whether she had just made them up. She
ultimately testified, “I don’t know what [Appellant] said.” Valdez did remember
being hit in the head by “a conditioner bottle that was flying through the air.”
      Valdez testified that she was sore underneath her chin and jaw area but, for
the first time, said that that those injuries were the result of “rough sex.” The sex
began after Valdez and Appellant had been drinking but before any altercations
began. In her testimony in court, Valdez said that she had been wanting to
experiment and had basically asked Appellant to choke her. “I’m guessing that he
did not feel comfortable doing that, because he never placed his hand on my throat.”
Valdez also testified that she could not be sure whether they used soft restraints
called “lover’s cuffs”; she thought that one of her hands might have been tied, but
not both. She did remember that they did not use the handcuffs that they had.
According to Valdez’s testimony, Appellant never impeded her normal breathing,
and if Appellant put his hands on her throat, it was because she was willingly
participating in the sexual act. She also testified that Appellant never displayed,
threatened, or harmed her with a knife.
      There was no mention of rough sex in either the application to dismiss or
during the interview with Investigator Fincher.
      Investigator Fincher testified that Valdez did not appear to be intoxicated
when he met with her and that he did not see any signs of intoxication. He saw no
signs that Valdez was not in her right mind. She appeared to have the ability to recall
events and talked about specific things as opposed to things of a general nature.
Valdez conversed with Investigator Fincher in a coherent and lucid manner.
Although Valdez told Investigator Fincher that she felt like she had verbally
                                          8
provoked Appellant, Investigator Fincher saw nothing to indicate that she was the
physical aggressor. The bruises that Investigator Fincher saw on Valdez were
consistent with the story that Valdez told him. Furthermore, Investigator Fincher
testified that scratch marks on Valdez’s breast and neck, as shown in photographs
admitted into evidence, are consistent with a knife being dragged across her breast
and neck.
      When Investigator Fincher testified, Valdez had already testified. Near the
beginning of Investigator Fincher’s testimony, Appellant’s trial counsel objected on
hearsay grounds as to any testimony from Investigator Fincher about what Valdez
had told him. Basically, Appellant’s position was that the only possible reason to
admit the testimony would be for impeachment purposes and that impeachment
evidence is not substantive evidence. As an extension of that argument, Appellant
claims on appeal that the State is not allowed to call a witness for the sole purpose
of impeaching that witness.
      In    response,    the   State   maintains     that   Valdez’s    statements    to
Investigator Fincher were admissible as exceptions to the hearsay rule under Rule
803(2) (excited utterance of the declarant) and under Rule 803(3) (a statement that
relates to the then-existing mental, emotional, or physical condition of the declarant)
of the Texas Rules of Evidence. TEX. R. EVID. 803(2), 803(3). The State further
contends that, in any event, the statements are admissible as impeachment evidence.
      First, we observe that Appellant is correct in that the State may not call a
witness for the sole purpose of introducing impeachment evidence, but an important
part of that restriction is that the State may not call a witness to impeach that witness
for the sole purpose of introducing otherwise inadmissible evidence. Rule 607 of
the Texas Rules of Evidence provides that any party may attack the credibility of a
witness even if that party called the witness to testify. TEX. R. EVID. 607. But the
State is not allowed to call a witness whom the State knows to be hostile when the
                                           9
sole purpose is to elicit otherwise inadmissible evidence. Hughes v. State, 4 S.W.3d
1, 4 (Tex. Crim. App. 1999).
      After it heard arguments from Appellant and the State, the trial court admitted
the testimony as an excited utterance; as a then-existing mental, emotional, or
physical condition; and as impeachment. If the trial court properly admitted the
testimony as substantive evidence under an exception to the hearsay rule, then we
do not reach the question of whether the State called Valdez solely for the purpose
of getting inadmissible evidence before the factfinder.
      We will first consider whether the trial court erred when it admitted the
testimony under Rule 803(2), the excited utterance exception to the hearsay rule.
We review a trial court’s ruling on admissibility of evidence for an abuse of
discretion. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). We will
uphold the trial court’s decision unless it lies outside the zone of reasonable
disagreement. Id. We must uphold the ruling that the trial court made “if it is
reasonably supported by the record and is correct under any theory of law applicable
to the case.” Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).
Whether to admit evidence at trial is a preliminary question to be decided by the trial
court. TEX. R. EVID. 104(a); Tienda v. State, 358 S.W.3d 633, 637–38 (Tex. Crim.
App. 2012).
      Here, the trial court correctly determined that Valdez’s statements were
hearsay. Hearsay is a statement, other than one made by the declarant while
testifying at trial, that is offered to prove the truth of the matter asserted in the
statement. TEX. R. EVID. 801(d); see Willover, 70 S.W.3d at 845. Generally, hearsay
evidence is not admissible unless it falls within one of several exceptions. See
generally TEX. R. EVID. 802 and 803 (pertinent to the case now before this court).
      Did the trial court err when it allowed Investigator Fincher to testify under the
excited utterance exception to the hearsay rule as to the statements that Valdez made
                                          10
to him? As we have said, one of the exceptions to the hearsay rule allows hearsay
testimony if it is an excited utterance. TEX. R. EVID. 803(2). The “excited utterance”
rule provides that “[a] statement relating to a startling event or condition, made while
the declarant was under the stress of excitement that it caused,” is not excluded by
the rule against hearsay. Id.
      In McCarty, the court set out three concerns a court should address when it
determines the admissibility of a hearsay statement under the excited utterance
exception. Those concerns are as follows: “(1) the ‘exciting event’ should be
startling enough to evoke a truly spontaneous reaction from the declarant; (2) the
reaction to the startling event should be quick enough to avoid the possibility of
fabrication; and (3) the resulting statement should be sufficiently ‘related to’ the
startling event, to ensure the reliability and trustworthiness of that statement.”
McCarty v. State, 257 S.W.3d 238, 241 (Tex. Crim. App. 2008).
      The spontaneous nature of the statement is the main factor to be considered
when a court determines the admissibility of an excited utterance. Tezeno v. State,
484 S.W.2d 374, 379 (Tex. Crim. App. 1972). The declarant must have made the
statement before the declarant’s excitement that was caused by the startling event or
condition had abated. Sandoval v. State, 409 S.W.3d 259, 284 (Tex. App.—Austin
2013, no pet.) (citing Zulinai v. State, 97 S.W.3d 589, 596 (Tex. Crim. App. 2003)).
This is so because the excited utterance exception is based upon an assumption that
the person making the statement is not then capable of the kind of reflection that
would enable her to fabricate the information that she related. Apolinar v. State, 155
S.W.3d 184, 186 (Tex. Crim. App. 2005). The trustworthiness of the statement is
founded on the fact that it is the event that speaks through the person and not merely
the declarant relating the event. Zuliani, 97 S.W.3d at 595. And it is not necessary
that the startling event be based on the original offense; the startling event may be a
subsequent event, if it is itself a startling event. See McCarty, 257 S.W.3d at 240
                                          11
(startling event may trigger spontaneous statement that relates to earlier incident).
To be an excited utterance, the statement must be triggered by the shocking or
startling event. Harvey v. State, 123 S.W.3d 623, 630 (Tex. App.—Texarkana 2003,
pet. ref’d).
       Valdez met with Investigator Fincher at around 5:30 p.m. on January 14, 2014.
She said that she and Appellant had gotten into an argument the night before and
that Appellant had been drinking. Appellant threw a conditioner bottle at her and
hit her in the head with it. Valdez went into the bathroom, and Appellant closed the
door to the bathroom; she could not open the door to get out of the bathroom.
Appellant opened the door, knocked her down, took her pants off, called her a whore,
dragged her out of the bathroom by her feet, kicked her on her legs and hips, grabbed
her by the hair and dragged her down a hallway, put his forearm across her neck so
that she could not breathe, and ran a knife across her throat and chest.
       Valdez was able to stop the assault when she left and went to a roadside park.
In her testimony, Valdez said that she went to the roadside park at around 2:00 or
3:00 a.m. Valdez also testified that, while she was at the roadside park, she and
Appellant were calling and texting and saying mean, rude things to each other. She
told Investigator Fincher that she spent the night there and returned home at
6:00 a.m. and that Appellant was apologetic and left the house. During trial, Valdez
testified that, when she went home, she woke Appellant up to start arguing again.
While Appellant was gone, he contacted Valdez to tell her that he was going to get
some supplies to treat the injuries that he had caused.
       However, Valdez had told Investigator Fincher that, when Appellant returned
home, he had been drinking.        Appellant became angry and threw a box of
miscellaneous items at her. When she fell, Appellant got on top of her, put his
forearm across her throat, and again caused her not to be able to breathe. Valdez
said that “she felt dizzy, and her face felt like it was getting bigger and bigger and
                                          12
was going to pop.” She tried to get up, but Appellant flipped her over and grabbed
her left arm and twisted it behind her back. During this time, Appellant was yelling
at her.
          Some ten minutes later, she was able to call Courtney. She either told
Courtney on the phone or when Courtney came to get her that Appellant had hurt
her. In any event, Valdez told Investigator Fincher that Appellant told her to tell
Courtney that Valdez lied about what had happened. Appellant went next door to
help a neighbor. When he returned to the house, he told Valdez that he wanted his
cell phone and the keys to the vehicle. Valdez told Investigator Fincher that, when
she told Appellant that she did not have them, Appellant told her that he would slice
her throat, slice Courtney’s throat, and cripple Valdez’s son-in-law. Appellant told
Valdez that, if she went to the police, the police would never be able to find him.
Appellant left in Valdez’s vehicle.
          Valdez testified that Appellant was gone this time for “[m]aybe two or three
hours” before Courtney and Levi got there. Valdez then corrected that testimony
and said: “Well, no. He had gone and left for two or three hours. Then came back,
and we argued again.” Valdez also testified that “Courtney and Levi got there maybe
an hour after [she] called them.” At some point in time after Appellant left for the
last time, and after Valdez called Courtney, and after Courtney and her husband Levi
arrived at Valdez’s house, they went to the law enforcement center. Investigator
Fincher testified that he responded to the “walk-in for an assault report” about
5:30 p.m. on January 14, 2014. Valdez testified that they went there in the afternoon
because it was still daylight when they got there. Investigator Fincher testified that,
when Valdez came to the law enforcement center, she was “very very shaken
visibly,” that her hands were shaking, and that her voice indicated she was upset and
scared. During the time that Valdez was talking with Investigator Fincher, Appellant
was texting her. As evidence of his continuing attempt at control over Valdez, he
                                           13
told Valdez in one of the texts where he had left her vehicle and keys when, in fact,
he still had the keys in his motel room directly across the street from where he left
her vehicle. Appellant’s attitude and demeanor is further reflected in another text
that Appellant sent to Valdez while she was talking to Investigator Fincher; he
texted: “F--k the police.” Valdez showed the text to Investigator Fincher.
      Upon these facts, we hold that the trial court did not abuse its discretion when
it admitted Valdez’s statements to Investigator Fincher as excited utterances under
Rule 803(2) of the Texas Rules of Evidence.
      The record in this case is not such that there is a definite timeline as to the
exact time that the alleged assaults began and when they ended. Basically, Valdez
told of an assault that began on the night of January 13, 2014, and continued off and
on throughout the night and at least a portion of the next day. We believe that the
trial court could infer that Appellant continued to exercise control over Valdez
through the time that Appellant sent Valdez false information about the location of
her keys. The injuries to which Investigator Fincher testified, as well as the
photographs that were admitted into evidence, confirm the severity of the assault.
We believe that the events of the night and at least a portion of the next day were
startling enough to evoke a truly spontaneous reaction from Valdez. The reaction to
the assaults was quick enough to avoid the possibility of fabrication inasmuch as the
ongoing assaults and the statements to Investigator Fincher were hours—not even a
day—apart. Furthermore, the statements that Valdez gave were directly related to
the startling events—the assaults—so as to ensure the reliability and trustworthiness
of the statements that she made to Investigator Fincher. We overrule Appellant’s
first issue on appeal.
      In his second issue on appeal, Appellant claims that his trial counsel provided
ineffective assistance when counsel did not object when the State called Valdez as a
witness for the sole purpose of impeaching her. We have held that the statements
                                         14
made by Valdez to Investigator Fincher were admissible as substantive evidence.
Trial counsel does not render ineffective assistance of counsel when he fails to object
to admissible evidence. Jackson v. State, 846 S.W.2d 411, 414 (Tex. App.—
Houston [14th Dist.] 1992, no pet.). We overrule Appellant’s second issue on
appeal.
        We affirm the judgment of the trial court.




                                                                   JIM R. WRIGHT
                                                                   SENIOR CHIEF JUSTICE

February 14, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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