TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-25-00588-CR
Michael Anthony Rodriguez, Appellant
v.
The State of Texas, Appellee
FROM THE 421ST DISTRICT COURT OF CALDWELL COUNTY
NO. DCCR-24-309, THE HONORABLE CHRIS SCHNEIDER, JUDGE PRESIDING
MEMORANDUM OPINION
Michael Anthony Rodriguez was charged with violating a protective order twice
within twelve months. See Tex. Penal Code §§ 25.07, .072. The indictment contained
enhancement allegations asserting that he was previously convicted of the felony offenses of
possession of a controlled substance and aggravated assault with a deadly weapon. See Tex.
Health & Safety Code § 481.115; Tex. Penal Code §§ 22.01, .02. After the guilt-innocence
phase, the jury found Rodriguez guilty of the charged offense. The punishment hearing was held
before the trial court, which found the enhancement allegations to be true, sentenced him to
twenty-five years’ imprisonment, and rendered its judgment of conviction. See Tex. Penal Code
§ 12.42. In four issues on appeal, he contends that the trial court erred by admitting into
evidence recordings of jail phone calls, the protective order, and its accompanying application;
that the evidence was insufficient to support the enhancement findings; and that there are clerical errors in the judgment of conviction that should be corrected. We will reverse the trial court’s
judgment of conviction and remand for a new punishment hearing.
BACKGROUND
On May 1, 2024, a woman identifying herself as K.G. called 911 to ask for help. 1
She explained that her boyfriend had become aggressive and was yelling at her. She also
provided a description of the clothes he was wearing.
Three officers from the Caldwell County Sheriff’s Office responded to the 911
call. First, Officer Haley Menefee arrived at K.G.’s home. The officer saw a man later
identified as Rodriguez outside the home and observed him leaving the property. The officer
walked to the porch of the home and found K.G. crying and hyperventilating. The officer
noticed that K.G.’s face was swollen and red and that K.G. had bruises on her body, including on
her arms and lips. Some of the bruises looked recent while others appeared older. K.G. told the
officer that Rodriguez had caused the injuries. After the officer learned that K.G. had been
assaulted, she went to look for Rodriguez but was unable to find him. The officer returned to the
porch to continue talking with K.G.
While Officer Menefee was talking with K.G., Officers Christopher Jackson and
Kyle McConnell arrived and approached the home. The three officers learned that Rodriguez
might be in a nearby abandoned home and went there to look for him. Although they did not
1 In the interests of protecting the victim’s privacy, we will refer to her by a pseudonym. See Tex. Const. art. I, § 30(a)(1) (“A crime victim has the . . . right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process.”); see also Tex. R. App. P. 9.8 cmt. (recognizing appellate court’s authority to disguise identities in appropriate circumstances); Tex. Code Crim. Proc. art. 58.202 (allowing victim of family violence to be referred to by pseudonym).
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find Rodriguez, they found clothes matching the description K.G. provided for the clothes he
was wearing earlier.
Before leaving the scene, Officer Menefee gave K.G. her cell phone number, and
K.G. later communicated with Officer Menefee through text messages. In one message, K.G.
asked Officer Menefee to send a patrol car after seeing Rodriguez walking in the neighborhood.
She subsequently asked if the police found him because she was “scared for my life.” She also
expressed concern that Rodriguez could be hiding inside her house because there was “no telling
with him. [H]e [is] crazy.” In another text, K.G. stated that Rodriguez tried to take her car and
items from inside her house.
After taking K.G.’s statement, Officer Menefee completed an application for a
protective order in which she requested that an order be issued that prohibited Rodriguez from
communicating with K.G. and her family members and that prohibited him from going to her
home or to her children’s schools. Officer Menefee also obtained an arrest warrant for
Rodriguez, and Rodriguez was subsequently arrested. After Officer Menefee submitted the
application for a protective order, a magistrate issued an order effective for 61 days from July 24,
2024, to September 23, 2024.
Approximately a week after the May 1 incident, the case was assigned to
Detective Marshall Crabb. While the detective was investigating, K.G. called him multiple times
for updates. As part of the investigation, the detective reviewed jail call logs and learned that
Rodriguez had called K.G. 71 times between August 1, 2024, and August 21, 2024. The
detective then reviewed the call recordings. On those calls, Rodriguez expressed his displeasure
that K.G. was not doing enough to get him out of jail and directed her to do and say certain
things regarding his case. On several of the calls, Rodriguez argued with K.G. During a call on
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August 17, Rodriguez threatened K.G. by telling her to keep talking and see what happens and to
wait until he gets out. Earlier that same day, Rodriguez called K.G. eleven times. After
reviewing the calls, the detective interviewed Rodriguez who described the May 1 incident as a
misunderstanding. When the detective discussed the protective order, Rodriguez stated that he
believed it had expired.
Following Detective Crabb’s discussion with Rodriguez, he forwarded the case to
the district attorney’s office, and Rodriguez was charged with violating a protective order twice
within twelve months. The indictment alleged that Rodriguez had been previously convicted of
the felony offenses of possession of a controlled substance in 2011 and aggravated assault with a
deadly weapon in 2013.
During the guilt-innocence phase, the three officers and the detective were called
as witnesses and testified about the events described above. A social worker was called to testify
about protective orders and about how victims can recant claims of abuse if they are still in a
relationship with the abuser. The trial court admitted into evidence the following exhibits: the
911 call made by K.G., copies of text messages between K.G. and Officer Menefee, footage
from Officer Menefee’s dashboard camera and body camera, photos of injuries to K.G.’s arms
and lips, the application for a protective order and the accompanying order, recordings of jail
phone calls between Rodriguez and K.G., and Detective Crabb’s probable cause affidavit.
K.G. was also called as a witness. She testified that she called 911 on May 1
because she was drunk and because she became angry with Rodriguez after seeing him in a car
with another woman. K.G. stated that Rodriguez did not touch her that day and described their
relationship as a good and supportive one. Although K.G. seemed to agree that Rodriguez
caused some of her injuries, she said the injuries depicted in the photos happened when she was
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cleaning, and she denied that Rodriguez hit her. When discussing the text messages that she sent
to Officer Menefee, K.G. said she did not remember sending them because she was drunk when
she sent them. K.G. testified that no one told her that the police were requesting a protective
order and that she did not want to pursue one. She also explained that she tried to file an
affidavit of non-prosecution concerning the May 1 incident. She stated that she got back
together with Rodriguez after May 1 and that she was still romantically involved with him.
Regarding the jail phone calls, she stated that Rodriguez did not pressure her to help him get out
of jail and did not threaten her. Further, she testified that she wanted Rodriguez to call her and
gave him money so that he could.
After considering the evidence, the jury found Rodriguez guilty of the charged
offense and was excused. During the punishment phase held before the trial court, an
investigator for the district attorney’s office testified about efforts he made to link Rodriguez to
two prior convictions that formed the basis for the enhancement allegations. Rodriguez called
K.G. and one of his friends to testify on his behalf.
At the conclusion of the punishment hearing, the trial court found the
enhancement allegations to be true and sentenced Rodriguez to twenty-five years’ imprisonment.
Rodriguez appeals the trial court’s judgment of conviction.
DISCUSSION
In his first two issues on appeal, Rodriguez contends that the trial court erred by
admitting into evidence the application for emergency protection, the order, and recordings of
jail phone calls. In his third issue, he argues that the evidence was insufficient to support the
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enhancement findings. In his final issue, he asserts that the judgment contains clerical errors
concerning his pleas to the enhancement allegations.
Application and Protective Order
In his first issue, Rodriguez argues that the trial court erred by admitting into
evidence the application for an emergency protective order and the accompanying order. When
presenting this issue, Rodriguez makes two sets of arguments challenging the trial court’s ruling.
First, he argues that the documents were not properly authenticated. As support, Rodriguez
notes that before the documents were admitted into evidence, the officer who prepared the
application, Officer Menefee, testified that she did not sign the application and had no further
involvement in the case after she gave the application to a dispatcher, meaning that she was not
present when the order was granted or executed and had no personal knowledge of the order
itself. Next, Rodriguez asserts that when the documents were admitted during Detective Crabb’s
testimony, he generally testified that he had attended hearings in which protective orders were
issued but admitted he was not present when the emergency protective order was issued in this
case. Further, Rodriguez emphasizes that Detective Crabb recognized the names on the order but
did not recognize the signatures and could not testify that the order was signed by Rodriguez or
any witness.
To preserve error for appeal, a defendant must generally make a timely, specific
objection, request, or motion to the trial court stating the specific grounds for the ruling sought,
unless the specific grounds were apparent from the context. Tex. R. App. P. 33.1(a).
Preservation of error is a “systemic requirement” on appeal. See Darcy v. State, 488 S.W.3d
325, 327 (Tex. Crim. App. 2016). “To avoid forfeiting a complaint on appeal, the party must ‘let
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the trial judge know what he wants, why he thinks he is entitled to it, and [] do so clearly enough
for the judge to understand him at a time when the judge is in the proper position to do
something about it.’” Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (quoting
Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). “[T]he point of error on
appeal must comport with the objection made at trial.” Yazdchi v. State, 428 S.W.3d 831, 844
(Tex. Crim. App. 2014). An objection stating one legal theory may not be used to support a
different legal theory on appeal. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).
The preservation rule “ensures that trial courts are provided an opportunity to correct their own
mistakes at the most convenient and appropriate time—when the mistakes are alleged to have
been made.” Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002). Appellate courts should
not address the merits of an issue that has not been preserved for appellate consideration. See
Blackshear v. State, 385 S.W.3d 589, 591 (Tex. Crim. App. 2012).
During the trial, Rodriguez did not object to the two documents on the ground that
they were not properly authenticated. Instead, he objected that they were not relevant and
contained hearsay. Therefore, we must conclude that Rodriguez failed to preserve his
authentication claim for appellate consideration. See Tex. R. App. P. 33.1; see also HopkinsMcGee v. State, No. 01-19-00475-CR, 2020 WL 7251452, at *14 (Tex. App.—Houston [1st
Dist.] Dec. 10, 2020, no pet.) (mem. op., not designated for publication) (determining that
appellant failed to preserve authentication claim where there was no objection made on that
ground and no ruling by trial court); Edwards v. State, 497 S.W.3d 147, 163 (Tex. App.—
7
Houston [1st Dist.] 2016, pet. ref’d) (concluding that relevancy objection did not preserve
authentication claim). 2
In his next set of arguments, Rodriguez contends that the two documents
contained hearsay and that the hearsay exception for records of a regularly conducted activity
found in Rule of Evidence 803(6) did not apply here. See Tex. R. Evid. 803(6). Regarding the
exception, Rodriguez argues that the record did not establish that Detective Crabb “had personal
knowledge of the mode of preparation of the records here in question,” which Rodriguez asserts
was required for him to have qualified as a witness who could authenticate the documents under
Rule of Evidence 803(6). Rodriguez urges that the detective could not lay the predicate as a
custodian or other qualified person and that the trial court erred by admitting the documents
without the proper predicate.
Because Rodriguez is challenging an evidentiary ruling, we review the trial
court’s decision for an abuse of discretion. See Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim.
App. 2001). Under that standard, a trial court’s ruling will only be deemed an abuse of
discretion if it is so clearly wrong as to lie outside “the zone of reasonable disagreement,” Lopez
v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002), or is “arbitrary or unreasonable,” State
v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). “If the trial court’s evidentiary ruling
2 We note that when Rodriguez thought that the application for the protective order would be admitted earlier during Officer Menefee’s testimony, he objected on authentication grounds. However, the State explained that it would not be offering the application through Officer Menefee’s testimony, and the trial court made no ruling. See Tex. R. App. P. 33.1 (requiring, in general, that ruling be made to preserve complaint for appeal). Moreover, as set out above, Rodriguez did not object on authentication grounds when the document was actually offered for admission into evidence later. See Villarreal v. State, No. 01-01-00053-CR, 2002 WL 501605, at *3 & n.2 (Tex. App.—Houston [1st Dist.] Apr. 4, 2002, no pet.) (op., not designated for publication) (determining that premature objection made before State offered exhibit did not preserve claim for appellate consideration where defendant did not later object when exhibit was actually admitted into evidence).
8
is correct under any applicable theory of law, it will not be disturbed even if the trial court gave a
wrong or insufficient reason for the ruling.” Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim.
App. 2016).
Under the Rules of Evidence, hearsay is a statement that “the declarant does not
make while testifying at the current trial or hearing” and that “a party offers in evidence to prove
the truth of the matter asserted in the statement.” Tex. R. Evid. 801(d). Hearsay is not
admissible unless provided otherwise by “a statute,” the Rules of Evidence, or “other rules
prescribed under statutory authority.” Id. R. 802.
The protective order reflected that it was requested on behalf of K.G. following
Rodriguez’s arrest for an offense involving family violence and that it was effective from
July 24, 2024, to September 23, 2024. The order prohibited him from communicating with K.G.
or members of her family, from going within 500 feet of her residence or her children’s schools,
and from possessing a firearm. The order included warnings regarding potential consequences
for possessing a firearm during the effective period and included definitions for terms like family
violence, abuse, dating violence, and stalking. The order did not include a description of the
incident leading to the request for a protective order.
The protective order was issued under article 17.292 of the Code of Criminal
Procedure, which establishes legal obligations and prohibitions when issued. See Tex. Code
Crim. Proc. art. 17.292. As set out above, Rodriguez was charged with violating the protective
order twice within a twelve-month period, which required proof of the existence of the protective
order. See Tex. Penal Code §§ 25.07, .072; Harvey v. State, 78 S.W.3d 368, 372-73 (Tex. Crim.
App. 2002); see also Villarreal v. State, 286 S.W.3d 321, 324 (Tex. Crim. App. 2009) (noting
that protective order was admitted into evidence). The State offered the order to prove the
9
existence of a protective order in effect during the relevant time and not to prove the truth or
falsity of the allegations leading to the issuance of the order; the document was “original
evidence and not hearsay.” See Norton v. State, 564 S.W.2d 714, 717 (Tex. Crim. App. 1978)
(quoting Burchfield v. State, 475 S.W.2d 275, 277 (Tex. Crim. App. 1972)); see also Dinkins
v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995) (noting that “writing which is offered for
the purpose of showing what was said rather than for the truth of the matter stated therein does
not constitute hearsay”).
In light of the preceding, the trial court could have reasonably concluded that the
document was not being offered for the truth of the matters asserted in the order and, therefore,
did not constitute impermissible hearsay. Cf. American Maint. & Rentals, Inc. v. Estrada,
896 S.W.2d 212, 223 (Tex. App.—Houston [1st Dist.] 1995, no pet.) (explaining that statements
affecting legal rights of parties and attaching duties and liabilities based on statements’ content,
like contract, are admissible because they are not offered to prove truth of statements).
Accordingly, the trial court did not abuse its discretion by admitting the protective order. See
Tex. R. Evid. 801(d), 802.
Regarding the application, it contained much of the same information present in
the order itself, including that the application was being filed on behalf of K.G. after Rodriguez
committed an offense involving family violence and that the applicant was requesting that
certain communication and geographical limitations be imposed on Rodriguez. Like the order,
the application does not describe the incident that led to the request for a protective order. The
application also had checked boxes indicating Rodriguez had violent tendencies, posed an escape
risk, and was armed and dangerous.
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Arguably, the application was admissible for the same reason as the order itself:
the application was not offered for the truth of its contents but instead to show that a protective
order was sought and obtained. See id. R. 801(d)(2); see also Sapp v. State, No. 14-06-00268-CR, 2007 WL 1784011, at *3 (Tex. App.—Houston [14th Dist.] June 21, 2007, pet. ref’d) (mem.
op., not designated for publication) (determining that admission of application for protective
order containing statement that defendant engaged in family violence “was not hearsay because
it was not offered for the truth of the matter asserted”). Even if Rodriguez is correct that the
application constituted hearsay and was not admissible under an exception to hearsay, we would
still be unable to sustain this issue.
“It is well settled that the erroneous admission of [evidence] is not cause for
reversal ‘if the same fact is proven by other [evidence] not objected to.’” Smith v. State,
499 S.W.3d 1, 6 (Tex. Crim. App. 2016) (plurality op.) (quoting Leday v. State, 983 S.W.2d 713,
718 (Tex. Crim. App. 1998)). In other words, error in the improper admission of evidence is
harmless if the same or similar evidence is admitted at another point in the trial. Estrada
v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010). This is true regardless of whether
the other evidence “was received . . . before or after the complained-of ruling.” Coble v. State,
330 S.W.3d 253, 282 (Tex. Crim. App. 2010) (quoting Leday, 983 S.W.2d at 718).
Before the application and order were admitted, Officer Jackson testified that he
responded to a 911 call regarding a domestic disturbance in which K.G. was the victim, and he
described K.G. as being upset and scared when he arrived. Further, the officer related that he
was informed that the offender had left the scene. The officer discussed how he and other police
officers found clothes in a nearby abandoned house matching what Rodriguez had been wearing
earlier but did not see Rodriguez. Officer McConnell later corroborated this testimony.
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Officer Menefee testified that she also responded to the 911 call concerning a
domestic disturbance. She recalled seeing Rodriguez leaving the property as she arrived and
testified that she and the other officers responding to the scene were unable to find him later once
they realized that an offense had occurred. Further, Officer Menefee described K.G.’s face as
swollen and red and noticed that there were bruises and other injuries to her body, including on
her arms and lips. The officer recalled that K.G. was distressed and crying and identified
Rodriguez as the assailant. Regarding the application, the officer explained that police officers
can file an application for a protective order in domestic violence cases and testified that she
filled out and submitted an application due to the injuries that she observed and the information
she learned when responding to the 911 call. In his testimony, Detective Crabb discussed the
photos of injuries to K.G.’s body and testified that the images showed recent injuries as well as
injuries that were inflicted previously. Additionally, in her texts with Officer Menefee after
calling 911, K.G. explained that she was afraid for her life and that she was worried Rodriguez
was hiding in her house.
Because the testimony and other evidence concerning the underlying offense
forming the basis for the application, the efforts by Rodriguez to leave the scene, K.G.’s fear of
Rodriguez, and the preparation of the application were similar to the contents of the application
itself, we conclude that any error stemming from the admission of the application was harmless.
See Lamerand v. State, 540 S.W.3d 252, 257 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d)
(determining that any error from admission of hearsay in medical report was harmless because
other evidence established same facts); see also Anderson v. State, 717 S.W.2d 622, 627 (Tex.
Crim. App. 1986) (“Whether or not the testimony complained of was admissible as an exception
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to the hearsay rule is irrelevant” “[i]f the fact to which the hearsay relates is sufficiently proved
by other competent and unobjected to evidence.”).
For these reasons, we overrule Rodriguez’s first issue on appeal.
Jail Phone Calls
In his second issue, Rodriguez argues that the trial court erred by admitting into
evidence the recordings of his jail phone calls with K.G. As support, he notes that the recordings
were admitted during Detective Crabb’s testimony and emphasizes that the detective testified
that he was not the custodian of records for jail phone calls. Further, Rodriguez highlights that
the detective did not identify any of the voices on the recordings or testify that he became
familiar with Rodriguez’s and K.G.’s voices during his investigation in this case. Additionally,
Rodriguez asserts that the voices on the calls were not identified through the context of the phone
calls, through the contents of the statements made during the calls, or through the disclosure of
information that would have been known to Rodriguez and K.G. Finally, Rodriguez asserts that
admitting the recordings without proper authentication harmed him because they provided the
only information from which the jury could have concluded that he made threatening or
harassing communications.
In his brief, Rodriguez characterizes the trial court’s error as admitting evidence
without proper authentication. “Appellate courts review a trial court’s decision regarding the
admission of evidence over an authentication objection under an abuse-of-discretion standard.”
See Lozano v. State, 706 S.W.3d 429, 455 (Tex. App.—Austin 2024, no pet.). The
authentication of evidence is a condition precedent to the admissibility of the evidence. See Tex.
R. Evid. 901(a); Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). Under the Rules
13
of Evidence, the proponent must “make a threshold showing that would be ‘sufficient to support
a finding that the matter in question is what its proponent claims.’” Tienda, 358 S.W.3d at 638
(quoting Tex. R. Evid. 901(a)). Whether the proponent has crossed the evidentiary threshold is a
preliminary determination for the trial court, but the jury must determine whether the “item of
evidence is what its proponent claims.” Id. “The preliminary question for the trial court to
decide is simply whether the proponent of the evidence has supplied facts that are sufficient to
support a reasonable jury determination that the evidence he has proffered is authentic.” Id.
“Conclusive proof of authenticity before allowing admission of disputed evidence is not
required.” Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim. App. 2018). “If the trial court’s
ruling that a jury could reasonably find proffered evidence authentic is at least ‘within the zone
of reasonable disagreement,’ a reviewing court should not interfere.” Id. (quoting Tienda,
358 S.W.3d at 638); see also Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015)
(providing that appellate reviews of authentication determinations apply “liberal standard
of admissibility”).
“Rules of Evidence 901 and 902 govern the authentication requirement.” Jones
v. State, 572 S.W.3d 841, 848 (Tex. App.—Houston [14th Dist.] 2019, no pet.). For evidence
that is not self-authenticating, Rule 901 provides that “[t]o satisfy the requirement of
authenticating or identifying 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(a). Rule 901 sets out examples of the types of extrinsic evidence that will satisfy the
authentication requirements. Id. R. 901(b). Regarding voices, Rule 901 allows evidence to be
authenticated through an opinion identifying a person’s voice. Id. R. 901(b)(5). However, Rule
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901 clarifies that the examples given are “not a complete list” of ways in which evidence may be
authenticated. Id. R. 901(b).
As an initial matter, we note that Rodriguez’s primary concern is that no witness
identified whose voices were on the recordings before they were admitted into evidence. See id.
R. 901(b)(5). 3 However, the recordings could have been authenticated through means other than
voice identification. See id. R. 901(b) (providing several options for how evidence can
be authenticated).
Before the recordings were admitted, Detective Crabb testified that all individuals
in custody are assigned an inmate number, that Rodriguez created a PIN for the purpose of
making phone calls, and that the detective learned Rodriguez’s inmate number and PIN as part of
the investigation. Further, the detective related that the recordings offered for admission were of
calls made by someone with Rodriguez’s inmate number and using his PIN and that the calls
were outgoing ones made to K.G.’s number. See Garcia v. State, No. 13-19-00390-CR,
2020 WL 7757378, at *6 (Tex. App.—Corpus Christi-Edinburg Dec. 30, 2020, pet. ref’d) (mem.
op., not designated for publication) (determining that jail phone call recordings were
authenticated, in part, because officer obtained recordings of calls made with defendant’s
“unique inmate identification number”).
3 In its appellee’s brief, the State contends that Rodriguez failed to preserve any complaint regarding the authentication of the phone calls because he objected on the ground that Detective Crabb was not the custodian of records and because that objection does not align with the authentication claim presented in his second issue. Although we agree that the main focus of Rodriguez’s objection was on whether Detective Crabb was the proper witness for the recordings to be admitted under an exception to hearsay, Rodriguez also informed the trial court that his objection was “a multi-argument one.” Further, Rodriguez asserted that Detective Crabb could not “authenticate” the recordings and that the recordings could not “be authenticated.” Accordingly, Rodriguez preserved an authentication claim for appellate consideration.
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Regarding the calls, Detective Crabb explained that between August 1, 2024, and
August 21, 2024, Rodriguez called K.G. 71 times, and other evidence previously admitted
established that these calls were made to K.G. a few weeks after a protective order had been
issued following an alleged incident of domestic abuse involving Rodriguez and K.G. See
Mosley v. State, 355 S.W.3d 59, 69 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (noting that
“the context and timing of the telephone call” can help authenticate record of call); see also
Garcia v. State, No. 01-21-00349-CR, 2022 WL 17981855, at *4 (Tex. App.—Houston [1st
Dist.] Dec. 29, 2022, pet. ref’d) (mem. op., not designated for publication) (explaining that phone
number to which call was made can help authenticate recording of call).
Moreover, Detective Crabb explained that although the date and time for the calls
do not appear in the recordings, the jail’s phone system automatically logs the calls when made
and includes the dates and times the calls were made in the file names. More specifically, he
testified that the file name for each call includes the year, month, day, and time the call was
made and that the file names also list the inmate number of the caller and the phone number
called. See Tex. R. Evid. 901(9) (noting that evidence can be authenticated by “[e]vidence
describing a process or system and showing that it produces an accurate result”).
Although Detective Crabb admitted that he did not know if a file name could be
altered in some fashion, “such a categorical exclusion is not necessary to establish the
authenticity of jail call recordings.” See Knight v. State, No. 13-22-00217-CR, 2023 WL
4662942, at *3 (Tex. App.—Corpus Christi-Edinburg July 20, 2023, pet. ref’d) (mem. op., not
designated for publication). Additionally, he stated that he did not know how to alter the file
names and that the recordings were direct copies of the files he had pulled with no alterations.
Next, he explained that he pulled the recordings from the jail phone system, that he had his own
16
login credentials for obtaining recordings, and that the exhibit containing the recordings was a
direct copy of what he pulled from the jail phone system.
Considering the preceding, the trial court could have reasonably concluded that
the jail phone call recordings had been authenticated. See Tex. R. Evid. 901; see also Wheeler
v. State, No. 05-19-00191-CR, 2020 WL 1873481, at *7 (Tex. App.—Dallas Apr. 15, 2020, no
pet.) (mem. op., not designated for publication) (concluding that trial court could have
reasonably concluded that jail phone call recordings were authenticated where officers explained
how jail recording system worked, how system made accurate recordings, how phone calls had
to be made with specific inmate’s PIN, and how two phone calls at issue were made with
defendant’s PIN).
As set out above, Rodriguez asserts on appeal that Detective Crabb was not the
custodian of records when arguing that the recordings were not properly authenticated.
However, it is not necessary for a custodian of records to testify in order for a recording to be
authenticated under Rule 901, and recordings can be authenticated without testimony from a
records custodian as set out above. See Tex. R. Evid. 901. Whether a witness qualifies as a
custodian of records is an issue to be considered when deciding if evidence that is hearsay may
be admitted under the records-of-regularly-conducted-activity exception to the rule prohibiting
the admission of hearsay. See id. R. 803(6). Although Rodriguez focuses his second issue on
authentication and does not explicitly make any argument concerning hearsay, he does cite the
portion of Rule of Evidence 803 pertaining to hearsay records of regularly conducted activity,
and he did object at trial that the recordings were not admissible under an exception to hearsay.
To the extent that Rodriguez is arguing on appeal that the evidence should have been excluded as
hearsay, we cannot sustain his issue on that basis either. See Houston v. State, 729 S.W.3d 508,
17
533 (Tex. App.—Austin 2026, no pet.) (noting that multifarious claims may be rejected on
that basis).
Under Rule of Evidence 803, the following type of statement is excluded from the
rule against hearsay:
Records of a Regularly Conducted Activity. A record of an act, event, condition,
opinion, or diagnosis 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); see Mitchell v. State, 750 S.W.2d 378, 379 (Tex App.—Fort Worth 1988,
pet. ref’d).
Concerning the first three elements, Detective Crabb’s testimony satisfies the
Rule’s requirements. As discussed above, Detective Crabb testified that recordings of jail phone
calls are automatically made as part of the jail phone call system. Although Detective Crabb did
not use the phrase “kept in the course of a regularly conducted business activity,” he explained
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that jail phone calls are recorded, logged with the accompanying date and time when they are
made, and could be reviewed and copied. See Tex. R. Evid. 803(6)(A)-(C); see also Bahena
v. State, 634 S.W.3d 923, 928 (Tex. Crim. App. 2021) (concluding that first three elements were
met based on similar testimony).
Regarding the fourth element, Detective Crabb conceded that he was not the
custodian of records. However, in addition to allowing a custodian of records to testify
concerning the first three elements, Rule 803 authorizes “another qualified witness” to testify
regarding those elements. Tex. R. Evid. 803(6)(D). A qualified witness “does not need to be the
creator of the record or have personal knowledge of its content”; instead, he need only have
“personal knowledge” of the way the records were prepared. State v. Villegas, 506 S.W.3d 717,
734 (Tex. App.—El Paso 2016, pet. dism’d). As discussed above, Detective Crabb explained in
his testimony how the recordings of the jail calls were made and stored. Additionally, he
testified that he was authorized to review and download the calls stored on the system and that he
was provided with his own login credentials to use the system. Further, he testified that he was
able to pull the recordings and make copies of them and that the files on the exhibit were copies
of the recordings that he pulled.
Concerning the final element, Detective Crabb admitted he did not know whether
it was possible to alter a file name; however, he explained that he downloaded the recordings and
did not alter any file name. Further, he testified that the files in the exhibit were direct copies he
made and had not been altered in any way. See Tex. R. Evid. 803(6)(E); see Bahena,
634 S.W.3d at 928-29 (noting that witness checked files to ensure they were defendant’s phone
calls). Under these circumstances, the trial court could have reasonably concluded that
Rodriguez did not show “that the source of the information contained in the records, or the
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circumstances of its preparation indicate a lack of trustworthiness.” See Bahena, 634 S.W.3d
at 929.
We conclude that the trial court did not abuse its discretion by admitting into
evidence the jail phone call recordings as records of regularly conducted activity. See Tex. R.
Evid. 803(6); Bahena, 634 S.W.3d at 929.
For all the reasons previously given, we overrule Rodriguez’s second issue.
Sufficiency of Evidence Regarding Enhancement Allegations
In his third issue, Rodriguez contends that the evidence was insufficient to
establish that he committed the two offenses alleged as enhancements in the indictment: a 2011
felony conviction on March 9, 2011, in cause number D-1-DC-10204608 for possession of a
controlled substance, and a 2013 felony conviction on January 15, 2013, in cause number 12-118
for aggravated assault with a deadly weapon. First, he contends that the State failed to meet its
evidentiary burden when it chose to have the contents of the pen packet associated with two prior
convictions established through testimony rather than request that the pen packet and its
accompanying documents, including the judgments of conviction, be admitted into evidence.
Secondly, he argues that there was no evidence regarding the offense level for the 2011
conviction for possession of a controlled substance. He notes that possession of a controlled
substance can be a state jail felony depending on the amount possessed but that state jail felonies
cannot serve as enhancements under the repeat felony offender statute. Finally, although he
concedes that the investigator’s testimony identified him as the person associated with the prior
convictions, associated the records to the convictions “enumerated in the enhancement
paragraphs of the indictment,” and “established that the prior convictions were finalized in
20
sequence,” he contends that the evidence was insufficient because “no evidence whatsoever was
adduced as to the dates the offenses were committed.” More specifically, he asserts there was no
evidence that the aggravated assault was committed after the conviction for possession of a
controlled substance became final; on the contrary, he argues that the evidence established only
the final dates of conviction in each case. For these reasons, he urges this Court to reverse his
sentence and remand the case for a new punishment hearing.
When reviewing the legal sufficiency of the evidence, we view all the evidence in
the light most favorable to the judgment to determine whether any rational trier of fact could
have found the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319 (1979); Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App. 2020). In making this
determination, “[w]e view the evidence in the light most favorable to the verdict and consider all
of the admitted evidence, regardless of whether it was properly admitted.” Stahmann,
602 S.W.3d at 577. The factfinder “is the sole judge of credibility and weight to be attached to
the testimony of the witnesses.” See id. The factfinder “can draw reasonable inferences from the
evidence so long as each inference is supported by the evidence produced at trial,” id., and is
“free to apply common sense, knowledge, and experience gained in the ordinary affairs of life in
drawing reasonable inferences from the evidence,” Eustis v. State, 191 S.W.3d 879, 884 (Tex.
App.—Houston [14th Dist.] 2006, pet. ref’d). “Conclusions reached by speculation are
insufficiently supported by the evidence.” Stahmann, 602 S.W.3d at 577.
“To establish that a defendant has been convicted of a prior offense, the State
must prove beyond a reasonable doubt that (1) a prior conviction exists, and (2) the defendant is
linked to that conviction.” Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). For
repeat felony offenders, section 12.42 of the Penal Code requires the imposition of enhanced
21
punishments. See Tex. Penal Code § 12.42. If an individual has been sequentially convicted of
two felony offenses, subsection 12.42(d) mandates, with a few exceptions not applicable here,
that the defendant “be punished by imprisonment . . . for life, or for any term of not more than 99
years or less than 25 years.” Id. § 12.42(d). However, that provision clarifies that “[a] previous
conviction for a state jail felony punishable under Section 12.35(a) may not be used for
enhancement purposes under this subsection.” Id.; see also id. § 12.35(a) (setting out
punishment range for state jail felony); Wilkerson v. State, 391 S.W.3d 190, 199 (Tex. App.—
Eastland 2012, pet. ref’d) (explaining that it is improper to enhance defendant’s punishment in
felony case based on prior conviction for state jail felony).
Turning to Rodriguez’s arguments concerning the 2011 conviction for possession
of a controlled substance, the investigator explained that the prior conviction was for possession
of methamphetamine. Further, the investigator stated that a state identification number (“SID”)
is assigned to an individual during his first encounter with the criminal justice system. The
investigator linked Rodriguez to the prior conviction by comparing Rodriguez’s known
fingerprints to those present in the 2011 judgment and by testifying that Rodriguez’s name, date
of birth, and SID matched those found in the 2011 judgment and accompanying paperwork. See
Flowers, 220 S.W.3d at 921; Williams v. State, 946 S.W.2d 886, 895 (Tex. App.—Waco 1997,
no pet.). The investigator also explained that the photo included in the pen packet for the person
convicted in 2011 was a photo of Rodriguez. However, as pointed out by Rodriguez, no
judgment of conviction or other documents pertaining to the conviction were admitted into
evidence, and the investigator did not testify about the offense level for the 2011 conviction or
the amount of methamphetamine possessed or even generally state that the 2011 conviction was
for a felony offense.
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As with the statutes currently in effect, the provisions of the Health and Safety
Code applicable to the 2011 conviction listed methamphetamine in Penalty Group 1. Act of
May 27, 2009, 81st Leg., ch. 739, § 1, sec. 481.102(6), 2009 Tex. Gen. Laws 1869, 1872
(amended 2017, 2021, and 2023) (current version at Tex. Health & Safety Code § 481.102(6)).
Depending on the amount, possession of a substance listed in Penalty Group 1 could have been a
state jail felony, a third-degree felony, a second-degree felony, or a first-degree felony. Act of
May 29, 1993, 73d Leg., R.S., ch. 900, § 2.02, sec. 481.115(b)-(f), 1993 Tex. Gen. Laws 3586,
3706 (amended 2009, 2021, and 2023) (current version at Tex. Health & Safety Code
§ 481.115(b)-(f)). For that reason, possessing methamphetamine could have been a state jail
felony punishable under subsection 12.35(a) of the Penal Code; however, as set out above, that
type of conviction cannot serve as an enhancement allegation for repeat felony offenders under
subsection 12.42(d). See Tex. Penal Code §§ 12.35(a), .42(d). In addition, unlike other cases in
which ambiguity concerning the offense level has been resolved by evidence concerning the
punishment assessed in the prior case, the investigator in this case did not testify to what
punishment was imposed as part of the 2011 conviction. See Fobbs v. State, No. 01-15-00043-CR, 2016 WL 4375269, at *8 (Tex. App.—Houston [1st Dist.] Aug. 16, 2016, pet. ref’d) (mem.
op., not designated for publication) (relying on punishment imposed in prior conviction when
resolving ambiguity regarding whether defendant was previously convicted of state jail felony or
felony for possessing controlled substance); see also Brown v. State, 508 S.W.3d 453, 456 (Tex.
App.—Fort Worth 2015, pet. ref’d) (noting punishment given in prior case when determining
prior conviction was for felony offense).
Accordingly, even viewing the evidence in the light most favorable to the finding
in this case and considering the reasonable inferences that the judge was free to make from the
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evidence presented, the evidence was insufficient to establish that the 2011 conviction was for a
felony offense. See Stahmann, 602 S.W.3d at 577; see also Hartwell v. State, 476 S.W.3d 523,
540-41 (Tex. App.—Corpus Christi-Edinburg 2015, pet. ref’d) (determining that evidence was
insufficient to support enhancement allegation because evidence in record did not indicate
whether prior conviction was for state jail felony or for offense that would allow for
enhancement under subsection 12.42(d)). Therefore, we must conclude that the evidence was
insufficient to support the enhancement finding for the 2011 conviction. Cf. Smith v. State,
687 S.W.2d 479, 480 (Tex. App.—Dallas 1985, no pet.) (concluding that there was insufficient
evidence to support enhancement); Fite v. State, 60 S.W.3d 314, 319-20 (Tex. App.—Houston
[14th Dist.] 2001, pet. ref’d) (determining that prior conviction for possession of controlled
substance could not serve as enhancement because it was state jail felony).
When an appellate court determines that the evidence was insufficient to support a
finding of true regarding an enhancement allegation, the remedy is to remand the case for a new
punishment hearing. See Tex. Code Crim. Proc. art. 44.29 (authorizing new punishment
hearings when appellate courts determine there was error in punishment phase); see also
Ex parte Rich, 194 S.W.3d 508, 514 (Tex. Crim. App. 2006) (providing that if “an appellate
court finds error at the punishment stage of the trial, the case may be remanded to the trial court
for the proper assessment of punishment”); Rodriguez v. State, No. 03-18-00260-CR, 2018 WL
6425018, at *14 (Tex. App.—Austin Dec. 7, 2018, pet. ref’d) (mem. op., not designated for
publication) (remanding for new punishment hearing after determining that one of enhancement
allegations was improper).
“[W]hen, as here, the State fails to present sufficient evidence to support [an]
enhancement allegation[],” “the State may present” during a new punishment hearing “evidence
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of the existence of [the] prior conviction[] and that the defendant is linked” to it. Wise v. State,
394 S.W.3d 594, 600-01 (Tex. App.—Dallas 2012, no pet); see also Jordan v. State, 256 S.W.3d
286, 292 (Tex. Crim. App. 2008) (“When a reviewing court determines that the State’s evidence
fails to show that an enhancement allegation is true, the Double Jeopardy Clause does not bar the
use of the enhancement conviction during a retrial on punishment.”). 4
Because we are remanding the case for a new punishment hearing, we need not
address Rodriguez’s remaining arguments in this issue asserting that the evidence was
insufficient to support the enhancement finding for the 2013 conviction. See Tex. R. App. P.
47.1; see also Mikel v. State, 167 S.W.3d 556, 557, 560 n.3 (Tex. App.—Houston [1st Dist.]
2005, no pet.) (concluding that evidence was insufficient to support second enhancement and
explaining that in light of that resolution, it was unnecessary to reach issue addressing
sufficiency of evidence supporting first enhancement).
For these reasons, we sustain Rodriguez’s third issue.
Clerical Errors
In his fourth issue, Rodriguez contends that the judgment of conviction “contains
non-reversible clerical errors regarding [his] plea to the enhancement allegations.” When
4 Although not expressly stated in the opinion, the analysis by the Court of Criminal Appeals in Jordan v. State seemingly implicitly overruled that court’s prior reasoning in Porier v. State, which determined that “the State may not attempt to reprove [an enhancement] allegation[]” if an appellate court determines that “the evidence was insufficient to support the . . . enhancement.” 662 S.W.2d 602, 606 (Tex. Crim. App. 1984); see also Wiley v. State, 112 S.W.3d 173, 175 (Tex. App.—Fort Worth 2003, pet. ref’d) (applying more recent precedent from Court of Criminal Appeals that was inconsistent with prior case from that court). Further, we note that the reasoning from Porier is also inconsistent with more recent case law from the Supreme Court in the noncapital-sentencing context explaining that Double Jeopardy protections are typically “inapplicable to sentencing proceedings . . . because the determinations at issue do not place a defendant in jeopardy for an ‘offense’” and that “the Double Jeopardy Clause does not preclude retrial on a prior conviction allegation in the noncapital sentencing context.” Monge v. California, 524 U.S. 721, 728, 734 (1998).
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making this claim, he notes that the judgment nunc pro tunc issued by the trial court in this case
specifies that he pleaded not true to the two enhancement allegations but asserts that he did not
enter a plea regarding either enhancement allegation during the punishment hearing.
Accordingly, he asks this Court to reform the judgment nunc pro tunc to reflect that he made no
plea for either enhancement allegation.
As set out in the previous issue, we are remanding the case for a new punishment
hearing. Because the trial court will be issuing a new judgment of conviction, Rodriguez’s
fourth issue has become moot. See Tate v. State, 414 S.W.3d 260, 265 n.4 (Tex. App.—Houston
[1st Dist.] 2013, no pet.); see also Tex. Code Crim. Proc. art. 44.29(b) (explaining effect of
determining that there were errors in punishment hearing); Wise, 394 S.W.3d at 597, 601
(determining that appellate court did not need to reach issue asserting that judgment should be
reformed to show plea of not true was entered to enhancement paragraphs after concluding that
evidence was insufficient to support enhancement findings).
Accordingly, we overrule his fourth issue.
CONCLUSION
We overrule Rodriguez’s first, second, and fourth issues but sustain his third one.
Although this disposition requires that we reverse the trial court’s judgment of conviction, the
finding of guilt remains intact, and the trial court need only convene a new punishment hearing
on remand and issue a new judgment of conviction reflecting the new punishment. See Tex.
Code Crim. Proc. art. 44.29; see also Ex parte Vela, 460 S.W.3d 610, 615 (Tex. Crim. App.
2015) (noting that when case is remanded for new punishment hearing, “there is a finding of
guilt but there is no judgment of conviction”).
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Karin Crump, Justice
Before Justices Triana, Crump, and Ellis
Reversed and Remanded
Filed: August 6, 2026
Do Not Publish
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