Alejandro Garcia v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-24-00276-CR
___________________________

ALEJANDRO GARCIA, Appellant

THE STATE OF TEXAS

On Appeal from the 372nd District Court
Tarrant County, Texas
Trial Court No. 1638251

Before Kerr, Birdwell, Walker, JJ.
Memorandum Opinion by Justice Walker
MEMORANDUM OPINION

After his niece made an outcry of sexual abuse, Appellant Alejandro Garcia was

charged by indictment with one count of continuous sexual abuse of a child (Count

One), two counts of aggravated sexual assault of a child (Counts Two and Three), and

two counts of indecency with a child by contact (Counts Four and Five). See Tex.

Penal Code Ann. §§ 21.02(b), 21.11(a), 22.021(a)(2)(B). Following a trial, a jury

acquitted Garcia of Counts One and Two and convicted him of the remaining counts.

On appeal, Garcia argues that the trial court erred by (1) denying his motion

for a mistrial after the State elicited testimony from the forensic interviewer regarding

multiple outcries of abuse in contravention of the trial court’s pretrial ruling;

(2) admitting certain out-of-court statements that the victim and the victim’s mother

had made to the sexual assault nurse examiner (SANE) over Garcia’s hearsay and

Confrontation Clause objections; (3) denying his motion for a mistrial after the jury

initially failed to return a unanimous verdict on Count One; (4) admitting certain text

messages exchanged between Garcia and the victim over his Confrontation Clause,

hearsay, and lack-of-authentication objections; and (5) inaccurately reflecting in the

written judgments the amounts of the orally pronounced fines on Counts Four and

Five. Because we overrule all of Garcia’s appellate points except for his last one

regarding the incorrect fine amounts, we affirm the trial court’s judgment on Count

Three, modify the trial court’s judgments on Counts Four and Five to correct the

amounts of the fines imposed, and affirm those judgments as modified.

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I. BACKGROUND

In 2015, Mother moved into a house with her children (including the victim,

six-year-old J.O.); her sister, S.M.; and her niece.1 Garcia, who was S.M.’s boyfriend at

the time, moved into the house the following year and eventually married S.M. Garcia

seemed very nice at first, and J.O. would often go into his and S.M.’s bedroom to

watch television and hang out. But as time went on, J.O. stopped liking him. In

January 2018, when J.O. had just turned eight, Garcia and S.M. moved out of the

house.

One morning in September 2018, J.O. woke up Mother around 5:30 a.m. and

told her that Garcia had been in the house and had touched “her private areas.”

Mother got up and saw Garcia running out the back door. Mother confronted Garcia

and then contacted the police. Two days after this incident, J.O. opened up further to

Mother and told her that Garcia had touched her inappropriately “multiple times over

a nine-month period.”

In October 2018, Samantha Torrance, a forensic interviewer with Alliance for

Children, interviewed J.O. During the interview, J.O. told Torrance about an incident

in which Garcia had made her put her hand down his pants to touch his genitals,

which J.O. described as “two plastic balls” and something that felt “like a cone.”

Because the victim was a minor at the time of the offenses, we use aliases to
1

refer to her and her family members (other than Garcia). See Tex. R. App.
P. 9.10(a)(3), (b).

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After the forensic interview, J.O. underwent a SANE exam. During the

examination, J.O. told the SANE, Pamela Simmons, about Garcia’s sexual behavior

towards her. She also told Simmons that Garcia had shown her a video on his phone

depicting a female performing oral sex on a male.

Ultimately, Garcia was arrested and indicted for the five offenses outlined

above. Garcia pleaded not guilty to all five offenses, and a jury trial was held. J.O.

testified at trial and described numerous instances in which Garcia had touched her

genitals or her anus or had instructed her to touch his genitals. Mother, Torrance, and

Simmons also testified.

After hearing all the evidence, the jury convicted Garcia of one count of

aggravated sexual assault of a child and two counts of indecency with a child by

contact. Following a punishment trial, the jury assessed Garcia’s punishment at forty

years in prison and an $8,000 fine for the aggravated-sexual-assault-of-a-child offense

and thirteen years in prison and an $8,000 fine for each of the indecency-with-a-child-

by-contact offenses. The trial court sentenced him accordingly. This appeal followed.

II. DISCUSSION

On appeal, Garcia raises ten points, many of which are interrelated. We

address each of these points in turn below.

A. POINTS ONE AND SIX: MOTIONS FOR MISTRIAL

In his first and sixth points, Garcia contends that the trial court abused its

discretion by denying his motions for mistrial after (1) the State elicited testimony

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from Torrance, the forensic interviewer, regarding multiple outcries of abuse in

contravention of the trial court’s pretrial ruling and (2) the jury initially returned a

guilty verdict on Count One but one juror disclaimed the verdict when polled. We

disagree.

1. Standard of Review and Applicable Law

We review a trial court’s denial of a motion for mistrial for an abuse of

discretion. Archie v. State, 340 S.W.3d 734, 738–39 (Tex. Crim. App. 2011); Coble v.

State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010). Under this standard, we must

uphold the trial court’s ruling if it is within the zone of reasonable disagreement.

Coble, 330 S.W.3d at 292; Marchbanks v. State, 341 S.W.3d 559, 561 (Tex. App.—Fort

Worth 2011, no pet.). “Generally, a prompt instruction to disregard will cure error

associated with an improper question or comment . . . .” Dancer v. State, 253 S.W.3d

368, 372–73 (Tex. App.—Fort Worth 2008, pet. ref’d) (per curiam). “Only in extreme

circumstances, where the prejudice is incurable, will a mistrial be required.” Hawkins

v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).

2. Improper Question to Forensic Interviewer

In his first point, Garcia contends that the trial court abused its discretion by

denying his motion for a mistrial based on an improper question that the State asked

Torrance, the forensic interviewer.

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a. Relevant Background

After conducting a pretrial outcry-witness hearing, the trial court ruled that

Torrance was an appropriate outcry witness for J.O.’s allegation that Garcia had

instructed her to put her hand down his pants to touch his genitals but that Torrance

was not an appropriate outcry witness for any other alleged instances of sexual abuse.

Nevertheless, during Torrance’s direct examination, the State asked whether J.O. had

made “more than one outcry,” and Torrance responded that J.O. had “disclosed

about multiple instances” of abuse.

Garcia objected that this exchange violated the trial court’s earlier outcry-

witness ruling and moved for a mistrial. The trial court sustained the objection and

instructed the jury to disregard the question and Torrance’s answer, but it denied

Garcia’s motion for a mistrial.

b. Analysis

On this record, we cannot say that the trial court abused its discretion by

denying Garcia’s motion for a mistrial. The trial court instructed the jury to disregard

the objected-to question and answer. Garcia has not pointed to—nor have we

found—any evidence in the record suggesting that the jury failed to follow the trial

court’s instruction. Thus, Garcia has not rebutted the presumption that the jury

disregarded the objected-to question and answer. See Pena v. State, 554 S.W.3d 242,

251 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d); see also Orr v. State, 306 S.W.3d

380, 404 (Tex. App.—Fort Worth 2010, no pet.) (stating that reviewing courts

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presume that the jury followed the trial court’s instruction to disregard “in the absence

of evidence that it did not”). Further, any potential prejudicial effect of Torrance’s

reference to “multiple instances” of sexual abuse was mitigated by the fact that J.O.

had already testified regarding numerous occasions on which Garcia had sexually

abused her. See Castaneda v. State, 694 S.W.3d 13, 20 (Tex. App.—Houston [14th

Dist.] 2023, pet. ref’d) (concluding that the prejudicial effect of improper testimony

was mitigated by the fact that the same information had been introduced without

objection during complainant’s testimony); Morales v. State, No. 04-02-00342-CR,

2003 WL 22715602, at *4–5 (Tex. App.—San Antonio Nov. 19, 2003, pet. ref’d)

(mem. op., not designated for publication) (holding that improper reference to outcry

statement’s contents had been cured because complainant had testified about this

same information). And because Torrance’s response was brief and nonspecific, its

prejudicial effect was minimal to begin with. See Castaneda, 694 S.W.3d at 20.

We overrule Garcia’s first point.

3. Nonunanimous Verdict

In his sixth point, Garcia contends that the trial court abused its discretion by

denying his motion for a mistrial after the jury originally returned a guilty verdict on

Count One, but upon polling, one juror stated that this was not his individual verdict.

Garcia asserts that the trial court erred by directing the jury to return to the jury room

and continue deliberations rather than declaring a mistrial. But the trial court did

exactly what the Texas Code of Criminal Procedure prescribes in such a situation:

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The State and the defendant each have the right to have the jury polled,
which is done by calling separately the name or identification number of
each juror and asking the juror if the verdict is the juror’s. If all jurors,
when asked, answer in the affirmative, the verdict shall be entered upon
the minutes; but if any juror answers in the negative, the jury shall retire again to
consider its verdict.
Tex. Code Crim. Proc. Ann. art. 37.05(a) (emphasis added). Under Article 37.05(a)’s

plain language, once a juror stated during polling that the verdict was not his, the trial

court had a mandatory duty to return the jury to the jury room to continue its

deliberations. See id.; see also Tex. Gov’t Code Ann. § 311.016(2) (clarifying that a

statute’s use of the term “shall” imposes a duty); Luquis v. State, 72 S.W.3d 355, 363

(Tex. Crim. App. 2002) (“The use of the word ‘shall’ generally indicates a mandatory

duty.”). We cannot conclude that the trial court abused its discretion by following this

statutory dictate.2

We overrule Garcia’s sixth point.

B. POINTS TWO THROUGH FIVE: ADMISSION OF STATEMENTS TO SANE

In his second, third, fourth, and fifth points, Garcia contends that the trial

court abused its discretion by allowing Simmons, the SANE who examined J.O., to

testify regarding certain out-of-court statements that J.O. and Mother had made in

connection with the sexual-assault examination.

In any event, because the jury ultimately acquitted Garcia of Count One and
2

because his motion for a mistrial was based solely on the jury’s nonunanimous verdict
on this count, he could not show that he was harmed by the denial of his mistrial
motion. Thus, there was no reversible error. See Tex. R. App. P. 44.2.

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Simmons testified that during the sexual-assault examination, J.O. told her that

Garcia had touched her sexually with his hand, had touched her with his “front-

middle part,” had contacted her vagina with his penis, had kissed and licked her toes,

and had showed her a video depicting a female performing oral sex on a male. In

addition, Simmons testified that Mother had told her that “[f]our Sundays” before the

examination, Garcia had touched J.O.’s leg from her thigh to her genitals after coming

into their house in the early morning hours; that Garcia had engaged in sexual

conduct towards J.O. multiple times over a nine-month period; that he had peed on

J.O.’s bed on one occasion; and that he had tried to unzip J.O.’s pajamas on another

occasion.

Garcia asserts that the trial court abused its discretion by admitting these

statements because they are hearsay and because their admission violated his rights

under the Sixth Amendment’s Confrontation Clause. We disagree.

1. Standard of Review

We review a trial court’s decision to admit or exclude evidence under an abuse-

of-discretion standard. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003);

Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990). We will not reverse a

trial court’s decision to admit or exclude evidence unless the record shows a clear

abuse of discretion. Zuliani, 97 S.W.3d at 595. An abuse of discretion occurs only

when the trial court’s decision was so clearly wrong as to lie outside that zone within

which reasonable persons might disagree. Id.

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Even if a trial court improperly admits evidence, such an error generally does

not warrant reversal unless it affects an appellant’s substantial rights. See Tex. R. App.

P. 44.2(b). “A substantial right is affected when the error had a substantial and

injurious effect or influence in determining the jury’s verdict.” Coble, 330 S.W.3d at

280. Improperly admitted evidence that did not influence the jury or had but a slight

effect on the verdict is harmless. Id. Further, a trial court’s error in improperly

admitting evidence may be rendered harmless if other evidence that proves the same

facts as the inadmissible evidence is admitted without objection. See Valle v. State,

109 S.W.3d 500, 509–10 (Tex. Crim. App. 2003).

2. Hearsay Analysis

“Hearsay” is a statement, other than one made by the declarant while testifying

at trial, offered in evidence to prove the truth of the matter asserted. Tex. R.

Evid. 801(d). Hearsay is not admissible unless a statute, a rule of evidence, or another

rule prescribed under statutory authority provides otherwise. Tex. R. Evid. 802.

Under Rule 803(4), a hearsay statement is admissible if it is made for—and is

reasonably pertinent to—medical diagnosis or treatment and describes medical

history, past or present symptoms or sensations, their inception, or their general

cause. Tex. R. Evid. 803(4); Lumsden v. State, 564 S.W.3d 858, 883 (Tex. App.—Fort

Worth 2018, pet. ref’d). Rule 803(4) is premised on the patient’s strong and selfish

motive to tell the truth to receive proper medical diagnosis or treatment. Taylor v.

State, 268 S.W.3d 571, 580 (Tex. Crim. App. 2008). Thus, to establish this exception,

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the proponent of the evidence generally must show that the out-of-court declarant

was aware that the statements were made for purposes of medical diagnosis or

treatment and that proper diagnosis or treatment depended upon the veracity of the

statements. Id. at 588–89. The proponent must also show that the statements were

pertinent to diagnosis or treatment, i.e., that it was reasonable for the care provider to

rely on the statements in diagnosing or treating the patient. Id. at 591.

This court has recognized that “[t]he object of a sexual assault exam is to

ascertain whether the child has been sexually abused and to determine whether further

medical attention is needed. Thus, statements describing acts of sexual abuse are

pertinent to the victim’s medical diagnosis and treatment.” Beheler v. State, 3 S.W.3d

182, 189 (Tex. App.—Fort Worth 1999, pet. ref’d). Texas courts have acknowledged

that a patient’s statements made to a medical professional during a SANE

examination fall within the Rule 803(4) exception to hearsay. See Gutierrez v. State,

630 S.W.3d 270, 279–80 (Tex. App.—Eastland 2020, pet. ref’d); Sharp v. State,

210 S.W.3d 835, 839 (Tex. App.—Amarillo 2006, no pet.); see also Lumsden,

564 S.W.3d at 888 (“[W]e held that [the SANE’s] testimony was admissible under the

medical-diagnosis-or-treatment exception to the hearsay rule. Her handwritten report

is similarly admissible under the medical-diagnosis-or-treatment exception to the

hearsay rule.”). A parent’s statements to a medical professional in connection with a

SANE examination may also fall within the Rule 803(4) hearsay exception if they are

pertinent to the victim’s diagnosis and treatment. See Castillo v. State, No. 07-23-

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00193-CR, 2024 WL 3958428, at *10 (Tex. App.—Amarillo Aug. 27, 2024, no pet.)

(mem. op., not designated for publication); Delavega v. State, No. 05-21-00229-CR,

2022 WL 1564548, at *4 (Tex. App.—Dallas May 17, 2022, no pet.) (mem. op., not

designated for publication).

Because Mother’s and J.O.’s statements to Simmons describing Garcia’s acts of

sexual abuse were pertinent to J.O.’s medical diagnosis and treatment, they fall within

the Rule 803(4) exception. See Gutierrez, 630 S.W.3d at 279–80; Sharp, 210 S.W.3d at

839; Beheler, 3 S.W.3d at 188; see also Castillo, 2024 WL 3958428, at *10; Delavega,

2022 WL 1564548, at *4. Further, J.O. and Mother both testified without objection

regarding the various acts of sexual abuse that Garcia had committed against J.O.

Thus, even if the Rule 803(4) exception did not apply, the admission of J.O.’s and

Mother’s out-of-court statements to Simmons would not be reversible error. See

Valle, 109 S.W.3d at 509–10; Matz v. State, 21 S.W.3d 911, 912 (Tex. App.—Fort

Worth 2000, pet. ref’d); see also Estes v. State, 487 S.W.3d 737, 757 (Tex. App.—Fort

Worth 2016) (holding that any error in the admission of sexual-assault nurse’s hearsay

testimony was not reversible because it “largely synced up” with the victim’s

testimony), rev’d on other grounds, 546 S.W.3d 691 (Tex. Crim. App. 2018); Bensend v.

State, No. 02-11-00110-CR, 2012 WL 4815467, at *1 (Tex. App.—Fort Worth

Oct. 11, 2012, pet. ref’d) (mem. op., not designated for publication) (concluding that

any error in admitting the testimony of a SANE concerning statements that the

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complainant had made was harmless because the “complainant herself had previously

testified to [the] same facts”).

We overrule Garcia’s third and fifth points.

3. Confrontation Clause Analysis

The Sixth Amendment’s Confrontation Clause, applicable to the states through

the Fourteenth Amendment, provides that “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses against him.” Crawford v.

Washington, 541 U.S. 36, 42, 124 S. Ct. 1354, 1357, 1359 (2004); Langham v. State,

305 S.W.3d 568, 575 (Tex. Crim. App. 2010) (citing U.S. Const. amend. VI). “[T]he

most important instances in which the [Confrontation] Clause restricts the

introduction of out-of-court statements are those in which state actors are involved in

a formal, out-of-court interrogation of a witness to obtain evidence for trial.” Michigan

v. Bryant, 562 U.S. 344, 358, 131 S. Ct. 1143, 1155 (2011). Once a defendant raises a

Confrontation Clause objection, the burden shifts to the State to prove either (1) that

the proposed statement does not contain testimonial hearsay and thus does not

implicate the Confrontation Clause or (2) that the statement does contain testimonial

hearsay but is nevertheless admissible. See De la Paz v. State, 273 S.W.3d 671, 680–81

(Tex. Crim. App. 2008) (citing Crawford, 541 U.S. at 68, 124 S. Ct. at 1374).

“[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.’” Adkins v. State, 418 S.W.3d 856, 861–62 (Tex.

13
App.—Houston [14th Dist.] 2013, pet. ref’d) (quoting Burch v. State, 401 S.W.3d 634,

636 (Tex. Crim. App. 2013)). A court considers the totality of the circumstances in

determining whether a statement is testimonial. Clark v. State, 282 S.W.3d 924, 931

(Tex. App.—Beaumont 2009, pet. ref’d).

Generally, we review a trial court’s decision to admit evidence under an abuse-

of-discretion standard. Wall v. State, 184 S.W.3d 730, 743 (Tex. Crim. App. 2006).

But when, as here, the admission of evidence involves a constitutional legal ruling—in

this case, whether a statement is testimonial or nontestimonial for Confrontation

Clause purposes—we give almost total deference to the trial court’s determination of

historical facts, but we review de novo the trial court’s application of the law to those

facts. See Langham, 305 S.W.3d at 576; Wall, 184 S.W.3d at 742 (applying hybrid

standard of review to issue of whether statement was testimonial).

Because J.O.’s and Mother’s complained-of statements to Simmons—a medical

professional—were made for the primary purpose of medical diagnosis and treatment,

not developing facts for later litigation, they do not constitute testimonial hearsay. See

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 312 n.2, 129 S. Ct. 2527, 2533 n.2 (2009)

(stating that “medical reports created for treatment purposes” are not testimonial);

Malone v. State, No. 02-10-00436-CR, 2011 WL 5118820, at *3 (Tex. App.—Fort

Worth Oct. 27, 2011, no pet.) (mem. op., not designated for publication) (holding that

a victim’s statement to an on-scene EMT that the defendant had kicked her was not

testimonial for Confrontation Clause purposes); Martinez v. State, No. 08-09-00065-

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CR, 2010 WL 2619647, at *4 (Tex. App.—El Paso June 30, 2010, no pet.) (not

designated for publication) (holding similarly and collecting similar cases); see also Lollis

v. State, 232 S.W.3d 803, 807 (Tex. App.—Texarkana 2007, pet. ref’d) (“[W]hen a

forensic or investigatory motive predominates, the resulting statements are

testimonial; when therapeutic or healing motive predominates, statements are not

testimonial.”).

Further, both J.O. and Mother testified at trial and were available for cross-

examination. Thus, even if their out-of-court statements to Simmons had been

testimonial, the statements’ admission would still not have violated Garcia’s

confrontation rights. See Crawford, 541 U.S. at 59 n.9, 124 S. Ct. at 1369 n.9; see also

Wells v. State, 558 S.W.3d 661, 667 (Tex. App.—Fort Worth 2017, pet. ref’d) (holding

that defendant’s confrontation rights were not violated by medical professional’s

testimony detailing complainant’s out-of-court statements made during sexual-assault

examination because the complainant testified at trial and was subjected to cross-

examination); Oliva v. State, No. 13-15-00609-CR, 2017 WL 2608280, at *7 (Tex.

App.—Corpus Christi–Edinburg June 15, 2017, no pet.) (mem. op., not designated

for publication) (holding testimony by nurse examiner’s supervisor about patient’s

“verbatim” medical history reflected in nurse’s sexual-assault report did not violate

Confrontation Clause because patient was declarant and because patient was subject

to cross-examination).

We overrule Garcia’s second and fourth points.

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C. POINTS SEVEN, EIGHT, AND NINE: ADMISSION OF TEXT MESSAGES

In his seventh, eighth, and ninth points, Garcia contends that the trial court

abused its discretion by admitting certain text messages between J.O. and him that the

police extracted from J.O.’s cellphone. In the lengthy text exchange, Garcia

repeatedly called J.O. beautiful and asked for selfies of her smiling. Garcia asserts that

the text messages were not sufficiently authenticated, were inadmissible hearsay, and

violated his confrontation rights. We disagree.

1. Authentication Analysis

To authenticate or identify an item of evidence, the proponent must produce

evidence sufficient to support a finding that the item is what the proponent claims it

is. Tex. R. Evid. 901. “In a jury trial, it is the jury’s role ultimately to determine

whether an item of evidence is indeed what its proponent claims,” and therefore, “the

trial court need only make the preliminary determination that the proponent of the

item has supplied facts sufficient to support a reasonable jury determination that the

proffered evidence is authentic.” Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim.

App. 2015) (citing Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012)). “The

trial court’s determination of whether the proponent has met this threshold

requirement is subject to appellate review for an abuse of discretion and should not be

countermanded so long as it is within the zone of reasonable disagreement.” Id.

With a text message, the association of a cell phone number with a particular

person “may be quite strong,” but that association alone “might be too tenuous” to

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link a text message to a purported author because “cell phones can be purloined.” Id.

at 601. Thus, one way a message’s authenticity may be shown is through a sponsoring

witness’s testifying to an association between a cell phone number and the purported

author of the message combined with other circumstances that “bridge the logical gap

and permit a proper inference that the purported author sent the message.” Id. at 602.

The “other circumstances” may include “the message’s ‘appearance, contents,

substance, internal patterns, or other distinctive characteristics,’ which considered in

conjunction with other circumstances support a conclusion that a message indeed

emanated from the purported author.” Id. (quoting Tex. R. Evid. 901(b)(4)).

Here, we cannot say that the trial court abused its discretion by determining

that the State met its threshold burden to supply sufficient facts to support a

reasonable jury determination that the complained-of text messages were authentic.

Mother testified that the text messages admitted as State’s Exhibit 4 “fairly and

accurately depict[ed] the content of the messages” that she had previously seen on

J.O.’s phone and that she recognized the two telephone numbers reflected in the

exhibit as belonging to J.O. and Garcia. In addition, the sender referred to himself as

“Uncle Alex”; referred to J.O. as “my . . . niece” and as “Juice,” her family nickname;

and referenced details that only a family member would know, such as the fact that

J.O. had taken a plane trip to Florida. Because the text messages’ content was

sufficient to “bridge the logical gap” and allow a reasonable juror to infer that Garcia

had sent them, the trial court did not abuse its discretion by determining that the State

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had met its burden under Rule 901. See id.; see also Nash v. State, No. 02-22-00165-CR,

2023 WL 5615807, at *8 (Tex. App.—Fort Worth Aug. 31, 2023, no pet.) (mem. op.,

not designated for publication) (holding that text messages’ content “constituted

additional circumstantial evidence” that they had been sent by the appellant, who was

the victim’s husband, because “[m]ultiple messages stated that the sender intended to

divorce [the victim],” one text referenced “‘our’ vehicle,” and another text referenced

the sexual assault in question).

We overrule Garcia’s ninth point.

2. Hearsay Analysis

As noted, “hearsay” is an out-of-court statement offered in evidence to prove

the truth of the matter asserted. Tex. R. Evid. 801(d). Here, the text messages were

offered to show the nature of Garcia and J.O.’s relationship and Garcia’s

inappropriate grooming behavior, not for the truth of any statements made therein.

Thus, they are not hearsay.3 See Ellis v. State, 517 S.W.3d 922, 929–30 (Tex. App.—

Fort Worth 2017, no pet.) (holding that trial court had not abused its discretion by

admitting text messages over appellant’s hearsay objection because their relevance

3
Even if the text messages had been offered to prove the truth of the matter
asserted, because they were properly authenticated, all of the messages sent from
Garcia to J.O. would constitute admissions by a party-opponent and would therefore
not qualify as hearsay. See Tex. R. Evid. 801(e)(2)(A); see also Jones v. State, 466 S.W.3d
252, 265–66 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d) (holding that text
messages constitute admissions by a party-opponent if there is some evidence
indicating that the defendant was responsible for their content).

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“was not in any way dependent upon the truth of the messages themselves”); see also

Velasquez v. State, 07-21-00154-CR, 2023 WL 131113, at *3 (Tex. App.—Amarillo Jan.

9, 2023, pet. ref’d) (mem. op., not designated for publication) (holding that text

message was not hearsay because it was offered for the purpose of showing that three

specific people—including the appellant—had been communicating using certain

phone numbers, not “to prove the truth of the message’s contents”); cf. Parks v. State,

No. 02-22-00011-CR, 2023 WL 2325506, at *3–6 (Tex. App.—Fort Worth Mar. 2,

2023, no pet.) (mem. op., not designated for publication) (detailing text messages

between the appellant and the victim that had been admitted as evidence of

appellant’s grooming behavior in attempted-sexual-performance-of-a-child case).

We overrule Garcia’s eighth point.

3. Confrontation Clause Analysis

As noted, “[t]he Confrontation Clause only applies to statements that are

testimonial in nature.” Rosenbusch v. State, No. 03-18-00096-CR, 2018 WL 6837741,

at *1 (Tex. App.—Austin Dec. 28, 2018, no pet.) (mem. op., not designated for

publication); accord Avant v. State, 499 S.W.3d 123, 126 (Tex. App.—San Antonio 2016,

no pet.). Here, the text messages exchanged between Garcia and J.O. were

completely informal, and nothing in the record suggests that their primary purpose

was to develop facts for a criminal investigation. Thus, they are not testimonial, and

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their admission did not violate Garcia’s confrontation rights.4 See Magee v. State,

No. 14-23-00396-CR, 2024 WL 3980248, at *10 (Tex. App.—Houston [14th Dist.]

Aug. 29, 2024, pet ref’d) (mem. op.) (holding that informal text messages obtained

from complainant’s cellphone were not testimonial); Walter v. State, 581 S.W.3d 957,

981 (Tex. App.—Eastland 2019, pet. ref’d) (holding that text messages’ informal

nature “weigh[ed] against a finding that they [were] testimonial statements”).

We overrule Garcia’s seventh point.

D. POINT TEN: FINE AMOUNTS

In his tenth point, Garcia complains that the fine amounts reflected in the

written judgments for Counts Four and Five are incorrect. The State concedes the

error, and we agree.

As noted, the jury assessed Garcia’s punishment on Counts Four and Five at

thirteen years in prison and an $8,000 fine. The trial court orally pronounced Garcia’s

sentence in accordance with the jury’s assessment. Nevertheless, the trial court’s

written judgments for Counts Four and Five reflect assessed fines of $8,100.

The trial court’s oral pronouncement of a sentence controls over its written

judgment to the extent that they conflict. Taylor v. State, 131 S.W.3d 497, 500 (Tex.

Crim. App. 2004); Mitchell v. State, No. 02-17-00112-CR, 2017 WL 6759032, at *1

4
Because J.O. testified at trial and was available for cross-examination regarding
the text messages that she had sent, those messages’ admission did not violate
Garcia’s confrontation rights. See Crawford, 541 U.S. at 59 n.9, 124 S. Ct. at 1369 n.9.

20
(Tex. App.—Fort Worth Dec. 28, 2017, no pet.) (mem. op., not designated for

publication). Accordingly, we sustain Garcia’s tenth point and modify the judgments

on Counts Four and Five to reflect assessed fines of $8,000. See Tex. R. App.

P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (holding that an

appellate court has the authority to reform a judgment to make the record speak the

truth); Mitchell, 2017 WL 6759032, at *1 (modifying written judgment to delete fine

because it had not been orally pronounced).

III. CONCLUSION

Having overruled Garcia’s first nine points and having sustained his tenth

point, we affirm the trial court’s judgment on Count Three, modify the trial court’s

judgments on Counts Four and Five to reflect assessed fines in the amount of $8,000,

and affirm those judgments as modified.

/s/ Brian Walker

Brian Walker
Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: August 14, 2025

Alejandro Garcia v. the State of Texas

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