OPINION
Appellant Jeffrey Lynn Wilkinson appeals from his misdemeanor conviction for assault involving family violence. After a jury found appellant guilty, the trial court assessed his punishment at one year confinement and suspended that sentence for two years. In five issues, appellant contends the trial court erred in admitting certain hearsay evidence, including an EMS incident report, Facebook posts by the complainant, and several statements by the complainant and her friend. We affirm.
Background
Appellant was charged with assaulting his wife; however, by the time of trial, the complainant had recanted her earlier statements, and she testified that she did not know how she sustained her injuries. The State therefore relied on other evidence to prove appellant’s guilt. Crystal
Farr, who lived about three hours away from the complainant, called 9-1-1 and requested a “welfare check” on the complainant. Farr then' managed to reach the complainant on the phone after numerous attempts. According to Farr, the complainant was crying, fearful, panicked, and hysterical. The complainant told Farr that appellant had hit her, that they had been drinking, they argued, and then he hit her. The complainant then left the house .and drove away in her .car. Farr further stated that the complainant texted two photographs of herself to Farr, showing a cut above her eye that was bleeding. At some point, a police officer called Farr from the complainant and appellant’s residence. Based on her conversation with the officer, Farr instructed the complainant to drive to a police station, Farr also said that she could hear appellant in the background during the call with the officer, and appellant said, “That b**** called the cops on me. Wait until she gets here. I’ll get her,”
Farr further testified that in the afternoon of the same day, she' again talked to the complainant on the phone. The complainant said that the abuse had been going on since right after she became pregnant with- the couple’s -toddler son. The complainant further expressed fear that her ex-husband, not appellant, would take custody of her older daughter because of the abuse. A few days later, when Farr and the complainant spoke again,' the complainant indicated that she had been verbally and emotionally abused in addition to physically. The complainant also revealed thát she was again living with appellant. By August 2015, the complainant said that she was not afraid of appellant and did not want the case against him to go forward. Farr indicated that she and the complainant were no longer friends. Farr also said that she lost the pictures of the complainant’s injuries.
Deputy. Harris County Constable Kristen Boethel testified that she was one of the officers , who went to the complainant and, appellant’s residence on March 20, 2015 to. perform a welfare check. According to Boethel, appellant took about five minutes to answer the door., and then became aggressive, angry, and. belligerent towards the officers. Boethel spoke to Farr on the telephone, .and Farr reported that the complainant had been assaulted by appellant and Farr had received photographs. of the complainant’s injuries. Boe-thel also talked with the complainant on the telephone. The complainant sounded frightened and was crying, and she confirmed that appellant had hit and injured
Boethel called EMS to examine the complainant, and the EMS incident report was admitted into evidence over appellant’s hearsay objection. The report states in relevant part:
-42 year old female was having a verbal argument with her husband. Patient told EMS that the two were arguing when the patient’s husband started to hit her repeatedly in the face. Patient was pushed in to-closet and struck in the face with per patient possibly a closed fist. Patient told EMS that she did not loose [sic] consciousness.... Patient was assessed with only findings being a small abrasion with some swelling to the left side of patient’s forehead. Patient also had some dried blood in the same area....
The complainant signed the report as refusing transport to a hospital:
The defense called the complainant and appellant to testify. The complainant stated that she told the prosecutor that she did not want appellant prosecuted; in fact, she still lives with appellant, says she is not afraid of him, and previously went to court to urge the judge to allow appellant to stay in their home. She explained that she suffers from panic attacks and takes Xanax for anxiety. She said that the attacks can affect her memory and acknowledged that her Xanax prescription bottle listed a warning to avoid ingesting alcohol while on the medication. The complainant said that on the morning in question she had a couple of beers with a friend at a restaurant, and she and appellant argued when she got home because he was angry that she had been out’ drinking. She had two more beers during the course of the argument and eventually took a Xanax because she was stressed by the argument and wanted to go to sleep. At some point, she went into the couple’s walk-in closet to get away from appellant and go to sleep. When she woke up, she realized that her face had been injured; she became scared and left the house. She said that at the time, she thought appellant had hit her. Now, however, she thinks that the combination of the beers and the Xanax makes her memory of how she got hurt “blurry,” Régarding whether appellant’ hit her' that evening, the complainant stated, “I no longer1 am sure about that.” She also said that she could not say for sure that he did not hit her. She thinks he followed her into the closet that morning but her memory is blurry.
The complainant additionally recounted that about two weeks before the alleged assault, appellant-had gotten angry at her, raised his fist, and said “I wish I could. I wish I could.” She thinks that this might explain why she thought he had hit her on the morning in question. She also described appellant on more than one occasion pointing his fingers in the shape of-a gun at her head and* saying he understood why a man would kill his wife. ■
In his testimony, appellant acknowledged that he consumed 4-6 beers during the course of the night and early morning hours and that he and the complainant argued about her going out, but he denied hitting her. He also acknowledged becoming aggressive with the officers that came to his house to check on the complainant, but he explained that his reaction was in response to one of the officer’s planting a foot inside his doorway.
Standards of Review
We review a trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Martinez v. State,
Hearsay is defined as a statement, other than one made by the declarant while testifying at the current trial or hearing, offered into evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay is generally inadmissible; however, the Texas Rules of Evidence contain a number of exceptions under which hearsay is deemed admissible. Id. 802, 803. Several of these exceptions will be discussed below.
Errors in the admission of hearsay evidence are typically nonconstitutional in nature; accordingly, even when such error is established, it will be disregarded unless it affected a defendant’s substantial rights. See Tex. R. App. P. 44.2(b); Shaw v. State,
The EMS Records
In his first issue, appellant contends that the trial court erred in admitting the EMS incident report over his hearsay objection. Appellant acknowledges that an exception to the hearsay rule exists for records of a regularly conducted activity that meet certain criteria set forth in the Rules of Evidence. See Tex. R. Evid.
Defense counsel raised the hearsay objection during a pretrial hearing and told the judge that he had never received the report and affidavit, much less fourteen days before trial. Defense counsel even allowed the prosecutor to check defense counsel’s files.for the documents, and it appears from the record that the prosecutor looked but did not find the documents. In response, the prosecutor initially emphasized that the EMS report and accompanying affidavit had been filed with the court itself over fourteen days before trial,. and a certificate of service signed by a prior prosecutor showed defense counsel received notice of this filing. While such filing and notice may have been adequate under a prior version of Rule 902, the rule was modified effective in 2014 to require delivery of a self-authenticating record to the opposing party fourteen days before trial. Tex. R. Evid. 902(10) & cmt. to 2014 change; see also Tex. Sup. Gt. Mise. Docket No. 14-9080 (amending Rule 902(10) effective Sept. 1, 2014).
The prosecutor additionally represented that he had in his possession a fax confirmation sheet showing “successful transmission” of an “EMS records affidavit” to defense counsel. The prosecutor did not claim, however, that the EMS report itself was sent to defense counsel, as required by Rule 902(10), and it does not appear from the record that the prosecutor actually provided the judge with a copy of the fax confirmation. No such document is found in the record on appeal. Nonetheless, the trial judge concluded that the State had satisfied its obligations and overruled appellant’s objection.
However, even if the trial judge erred in admitting the EMS report, such error was harmless. See Tex. R. App. P. 44.2(b); Shaw,
Based on the quality and quantity of the evidence indicating appellant hit the complainant on the morning in question, however, any error in the admission of the EMS report either did not influence the jury or had only a slight effect. See Jabari v. State,
The Facebook Posts
In his second issue, appellant contends that the trial court erred in admitting State’s exhibit 1—containing screen shots of Facebook posts from the morning Of the alleged assault—under the present-sense-impression exception to the hearsay rule. See Tex. R. Evid. 803(1). A “present sense impression” is “[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” Tex, R. Evid. 803(1). “The rule is predicated on the notion that ‘the utterance- is a reflex product of immediate sensual impressions, unaided by retrospective mental processes.’ ” Fischer v. State,
The Facebook posts in question included the complainant’s saying, “My husband is angry again I and [sic] can’t stop being scared.... I was afraid to tell anyone. I finally did and it seems like I didn’t. “Always drunk at night and in a rant. He’s yelling right now telling me.I come from a family w/o money.” And, “I’m scared and freaking ou[]t.”
Appellant’s objection in the trial court was a general hearsay objection to the entire exhibit. Appellant did not highlight specific objectionable statements for the trial court as he now does on appeal or argue that certain statements related to memories are not present sense impres
When evidence is admitted, a part of which is admissible and a part of which is not, it is incumbent on the party objecting to the admissibility of the evidence to specifically point out what part is inadmissible to preserve the alleged error. Hernandez v. State,
Statements by Complainant to Farr
In issue three, appellant asserts that the trial court erred in overruling his hearsay objection to Farr’s testimony concerning a statement the complainant made during the afternoon after the alleged early-morning assault. Appellant specifically complains regarding Farr’s recounting that the complainant revealed that afternoon the “verbal and physical abuse[ ]had been going on for a while.” At the time of the testimony, appellant objected on hearsay grounds, and he now explains that the statement was too far removed from the alleged abuse to fall under the excited-utterance exception to the hearsay rule. See Tex. R. Evid. 803(2).
Generally, the improper admission of evidence is not reversible error if the same or similar evidence is admitted without objection at another point in the trial. E.g., Chapman v. State,
Farr’s Statement to Boethel
In his fourth issue, appellant contends that the trial court erred in admitting Farr’s statement to Boethel that appellant had assaulted the complainant. Specifically, Boethel testified, “Mrs. Farr told me that her friend, [the complainant], had been assaulted by her husband.” Appellant objected on hearsay grounds, and the prosecutor urged that the statement was admissible under the excited utterance exception to the hearsay rule. See Tex. R. Evid. 803(2).
An “excited utterance” is defined as “[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.” Id. The reasoning behind the excited utterance exception is psychological: when a person is in the instant grip of violent emotion, excitement, or pain, that person ordinarily loses capacity for the reflection necessary for fabrication, and the truth will come out. Zuliani v. State,
Appellant specifically argues that Farr’s statement regarding the assault did not qualify as an excited utterance because there was no showing (1) “of when the complainant made the statement in relation to when Farr relayed the statement to Boethel” or (2) “that Farr made the statement so close in' time to a startling event that she did not have the capacity for reflection.” We disagree with both contentions.
The evidence supports the trial court’s reasonable conclusion that Farr relayed the statement to Boethel not long after receiving the information from the complainant and while Farr was still dominated by the emotions, excitement, fear, or pain of the startling event. See Salazar,
Statements regarding Photographs
Lastly, in his fifth issue, appellant asserts that the trial court erred in overruling his hearsay objection to Boe-thel’s testimony that Farr told Boethel about having seen photographs of the complainant’s injuries on the morning in question. Farr herself had testified she received photographs from the complainant, but lost them. Appellant argues the trial court erred in admitting Boethel’s hearsay testimony as a prior consistent statement of Farr. A prior consistent statement is not considered hearsay when the statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive and the declarant made the statement before the alleged improper influence or motive arose. Tex. R. Evid. 801(e)(1); Hammons v. State,
According to Boethel, Farr’s statements about receiving the photographs were made during the same conversation in which Farr told her that the complainant had been assaulted by appellant. As discussed above, Farr’s statement that an assault occurred was admissible as an excited utterance because at the time, Farr was still dominated by the emotions, excitement, fear, or pain of the startling event. See Nadal,
We affirm the trial court’s judgment.
Notes
. The State also called an investigator with the constable's office and a caseworker with the district attorney’s office to testify. They both discussed why victims of domestic abuse will sometimes minimize or recant their accusations after a period of time passes.
. Although the statement itself was not offered into evidence, the complainant confirmed its contents during cross-examination.
. Rule 803(6) provides that a record of an act, event, condition, opinion, or diagnosis is not excluded by the rule against hearsay if
(A) the record was made at or near the time by—or from information 'transmitted by—someone with knowledge;
(B) the record was kept in the course of a regularly conducted business activity;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by an affidavit or unsworn declaration that complies with Rule 902(10); and
(E)the opponent fails to. demonstrate that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness; "Business” as used in this paragraph includes, every kind of regular organized activity whether conducted for profit or not.
Tex. R. Evid. 803(6). Rule 902(10) provides that for business records to be considered "self-authenticating,” meaning they require no extrinsic evidence of authenticity, they generally must be accompanied by an affidavit and the records and affidavit must be served on the other party at least 14 days before trial. Id. 902(10).
. The State also argued in support of admission of the Facebook posts under the hearsay exception, for statements of then-existing mental, emotional, or physical condition. See Tex. R. Evid. 803(3).
. As discussed above, exhibit 1 contained additional posts by several other people as well as the complainant herself.
. fiuring the voir dire examination, Farr indicated that she knew the complainant wrote the posts at or around the time of the alleged assault because the complainant told- appellant so on the telephone shortly thereafter.