Summary
holding that witness's translation of a phone conversation between herself and the appellant conducted in Urdu, a mix of Hindi and another language, was not in error because it "did not have a tendency to suggest a decision on an improper basis, did not have a tendency to confuse or distract the jury from the main issue in the case, and did not consume an inordinate amount of time"
Summary of this case from Zhigang Wang v. StateOpinion
NO. 02-17-00119-CR
05-17-2018
GHUFRAN ZAFAR APPELLANT v. THE STATE OF TEXAS STATE
FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
TRIAL COURT NO. 1452366D MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. INTRODUCTION
A jury convicted Appellant Ghufran Zafar of murdering his wife Asma and assessed his sentence at life imprisonment, which the trial court imposed. See Tex. Penal Code Ann. § 19.02(c) (West 2011). In eight issues, Zafar challenges the admission of certain testimony and the admission of State's Exhibit No. 130. Because Zafar's complaints do not raise any reversible error, we will affirm.
II. BRIEF BACKGROUND
Because Zafar specifically states in his brief that he "does not challenge the sufficiency of the evidence to support his conviction," we omit a detailed factual background and instead include the pertinent facts under each issue.
Asma's nine-year marriage to Zafar was marked by Zafar's abusive and controlling nature, as reflected by his beating Asma's head against a wall, holding a gun to her forehead and threatening to kill her, installing cameras in their home to watch her, checking her cell phone when he came home from work, and threatening to shoot her if she called 911. On April 16, 2016, the abuse culminated in a 911 call from Zafar and Asma's home. Because the call disconnected and the 911 operator's return calls went to voicemail, police were dispatched to the home. A young boy answered the door and said he needed help because his sister had told him that their mother (Asma) was dead. Police found Asma dead on the kitchen floor with a gunshot wound to her head. Police arrested Zafar as he drove into a cul-de-sac near his home; they found a gun in the door of his vehicle.
III. EVIDENTIARY RULINGS
In his first through seventh issues, Zafar challenges the trial court's rulings on objections to testimony and to the admission of State's Exhibit No. 130. Because these issues challenge evidentiary rulings, we set forth the applicable standard of review only once and refer to it, as necessary, in our analysis of each of these issues.
A. Standard of Review
We review a trial court's evidentiary rulings under an abuse-of-discretion standard. See Jenkins v. State, 493 S.W.3d 583, 607 (Tex. Crim. App. 2016). A trial judge's decision is an abuse of discretion only when it falls outside the zone of reasonable disagreement. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). An evidentiary ruling will be upheld if it is correct on any theory of law applicable to the case. Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App.), cert. denied, 549 U.S. 1024 (2006).
B. Testimony from Asma's Brother and from Asma's Best Friend
Regarding what Asma Told Them about Her Relationship with Zafar
In his first, second, and fourth issues, Zafar argues that the trial court reversibly erred by allowing Asma's brother Muhammad Rahman and Asma's best friend Saiqua Mehreen to testify regarding what Asma had told them about her relationship with Zafar. Zafar argues that the testimony constitutes inadmissible hearsay, that the testimony lacked probative value, that any probative value of the testimony was substantially outweighed by the danger of undue prejudice, that a forfeiture by wrongdoing did not occur, and that the admission of Asma's testimony violated his rights under the Confrontation Clause.
1. The Testimony
a. From Rahman
Because Zafar does not identify the specific portions of Rahman's testimony that he complains of on appeal, we set forth a brief summary of his testimony regarding what Asma told him.
Rahman testified that from the beginning of Asma's marriage to Zafar, she had called him at least two or three nights almost every week while he lived in Bangladesh to tell him about the abuse Zafar inflicted on her. Rahman testified that every time she called him, she would cry, and her voice would shake because she was scared and upset. Rahman explained that on one occasion, Zafar hit Asma in the jaw "and that's how she got senseless." Another time, Zafar held Asma's head and banged it against the wall.
After Rahman came to the United States and moved in with Zafar and Asma, a fight occurred during which Zafar held a gun against Asma's head. Rahman was not in the home when the fight occurred, but Asma called him crying because she was still scared and upset about what had transpired. On another occasion, Zafar left the house after a fight with Asma, and she told Rahman that they (Rahman, Asma, and her four children) needed to leave right then because "if he comes back, he's going to kill me. He's going to shoot me." Rahman took Asma and the children to Mehreen's house in Florida.
Rahman also testified about Zafar's controlling nature. Rahman said that Zafar suspected that Asma was cheating on him and installed cameras in their house to monitor her. Zafar would not allow Asma to go out of the house without his permission and assaulted her one time when he found that a curtain was a little open.
b. From Mehreen
Before Mehreen testified, the trial court held a hearing outside the presence of the jury to determine the admissibility of the statements that Asma had made to Mehreen. Mehreen testified that after she moved to Florida in 2014, Asma called her on the phone and was upset. Asma said that she and Zafar had been arguing over a "family matter." During the phone call, Asma started crying and shared for the first time that Zafar had abused her in the past. Mehreen testified that Asma did not call her immediately after any of the abuse happened; instead, Asma would typically cool off a bit and then call Mehreen.
Zafar points to Mehreen's testimony that Zafar was suspicious that Asma was seeing another man; that Zafar had hit Asma and had beaten her up whenever they argued; that Zafar had held Asma by the hair and had beaten her forehead against a wall; that Asma wanted to move back to Bangladesh but that Zafar had sent her to Mehreen's house instead; that Asma had no access to money because Zafar controlled all their money; and that Asma had changed a lot after marrying Zafar by liking whatever he liked in order to please him.
2. Law on Admitting Previous Relationship Evidence
The Texas Court of Criminal Appeals in Garcia v. State set forth guidelines for the admissibility of evidence of the previous relationship between the accused and the deceased in murder cases:
Article 38.36(a) states that, "In all prosecutions for murder, the [S]tate or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense." The nature of the relationship—such as whether the victim and the accused were friends, were co-workers, were married, estranged, separated, or divorcing—is clearly admissible under this [a]rticle. However, in some situations, prior acts of violence between the victim and the accused may be offered to illustrate the nature of the relationship. These specific acts of violence must meet the requirements of the [Texas] Rules of Evidence in order to be admissible.201 S.W.3d 695, 702-03 (Tex. Crim. App. 2006), cert. denied, 549 U.S. 1224 (2007).
3. Admissibility of Asma's Statements through Rahman's Testimony
The testimony from Rahman regarding what Asma had told him illustrates the nature of the previous relationship existing between Zafar and Asma. The previous relationship testimony provided by Rahman thus meets the requirements of article 38.36(a). See Tex. Code Crim. Proc. Ann. art. 38.36(a) (West 2018); Garcia, 201 S.W.3d at 703-04.
Having held that the previous relationship evidence meets the requirements of article 38.36(a), we now determine whether the previous relationship evidence "meet[s] the requirements of the [Texas] Rules of Evidence." See Garcia, 201 S.W.3d at 703-04. Zafar challenges the admission of the previous relationship evidence based on hearsay (rules 801(d) and 802), relevancy (rules 401 and 402), and the probative value being substantially outweighed by the danger of unfair prejudice (rule 403).
Zafar argues that Asma's statements, which were admitted through Rahman, constitute inadmissible hearsay because Asma did not make the statements to Rahman while she was still under the stress of excitement caused by a startling event or condition. See Tex. R. Evid. 803(2) (providing that a statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused, constitutes an excited utterance and is an exception to the rule against hearsay); Menefee v. State, 211 S.W.3d 893, 904-05 n.13 (Tex. App.—Texarkana 2006, pet. ref'd) (stating that article 38.36 "in no way broadens or otherwise affects the rules of evidence [that] apply" and thus the State had the burden to show that statements qualified under an exception to the hearsay rule). With regard to Rahman's testimony relaying what Asma had told him, he testified that every time Asma called him, she cried on the phone, and her voice shook because she was scared and upset, including when she called to tell him that Zafar had held a gun against her head. Asma's statements that were admitted through Rahman's testimony qualify as excited utterances and thus are an exception to the hearsay rule. See Tex. R. Evid. 803(2); Avant v. State, 499 S.W.3d 123, 128 (Tex. App.—San Antonio 2016, no pet.) (holding victim's statements in phone call, which was made immediately after defendant yelled at her and pushed her into a wall, constituted excited utterances because victim "was still dominated by the emotions, excitement, fear, or pain of the event").
Zafar's rule 401 and 402 relevancy arguments are based solely on his inadmissible hearsay argument. Because we have held that Asma's statements to Rahman do not constitute inadmissible hearsay and because such statements are relevant to show intent and the nature of the relationship between Zafar and Asma, we cannot conclude that the statements should have been excluded on relevancy grounds. See Smith v. State, 314 S.W.3d 576, 592 (Tex. App.—Texarkana 2010, no pet.) (holding evidence of appellant's prior assault and interactions with victim were relevant to show intent).
Although Zafar does not challenge on appeal the admission of Asma's statements to Rahman under rule 404(b), we note that the challenged testimony does not run afoul of rule 404(b) for purposes of admission under Garcia because the challenged testimony is admissible for another purpose—to show intent, motive, and lack of accident. See Tex. R. Evid. 404(b)(2) (listing permitted uses of prior bad acts); Smith, 314 S.W.3d at 592.
Regarding Zafar's rule 403 arguments, we cannot conclude that the probative value of Rahman's testimony was substantially outweighed by the danger of unfair prejudice because the nature of Zafar's abusive and controlling relationship with Asma prior to her death was inherently probative of the circumstances surrounding her death; Rahman's testimony was needed to demonstrate Zafar's relationship with Asma; there is no reason to believe that the relationship testimony, which revealed ongoing abuse substantially less serious than the murder at issue, gave rise to any tendency to suggest a decision on an improper basis or to confuse or distract the jury from the main issues; and Zafar does not argue, and the record does not show, that presentation of this relationship evidence consumed an inordinate amount of time or merely repeated other evidence. Rahman's testimony thus meets the admissibility requirements of rule 403. See Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006) (setting forth rule 403 balancing test); Garcia, 201 S.W.3d at 704 (holding that evidence of car dumping incident "was probative of the relationship between Appellant and [victim] and was necessary to tie together the events beginning with their first separation, including the subject matter of their counseling sessions, which ultimately explained why [victim had] filed for divorce"); Carr v. State, Nos. 03-14-00234-CR, 03-14-00235-CR, 2016 WL 465192, at *7-8 (Tex. App.—Austin Feb. 5, 2016, pet. ref'd) (mem. op., not designated for publication) (holding testimony—that appellant would not let decedent do anything or go anywhere and would scream and throw things at her—was probative of the nature of appellant's relationship with decedent, and such probative value was not substantially outweighed by risk of unfair prejudice); Sanders v. State, No. 05-09-01337-CR, 2011 WL 1843508, at *12 (Tex. App.—Dallas May 16, 2011, pet. ref'd) (not designated for publication) (holding testimony—that the night before the murder, appellant took decedent's phone from her and "pushed her up against the truck and grabbed her arm"—was probative of appellant's relationship with decedent and did not suggest decision on an improper basis); Chavez v. State, 399 S.W.3d 168, 173 (Tex. App.—San Antonio 2009, no pet.) (holding evidence—that appellant had beaten victim in the past—was no more inflammatory or prejudicial than the evidence that appellant beat victim on the night of the murder, and nothing in the record suggested that the jury convicted appellant based on prior beating).
Accordingly, Asma's statements to Rahman about her relationship with Zafar were admissible under article 38.36(a) and the rules of evidence. See Garcia, 201 S.W.3d at 704-05; Bush v. State, 958 S.W.2d 503, 505-06 (Tex. App.—Fort Worth 1997, no pet.) (holding prior instances of violence toward murder victim were admissible under article 38.36(a) and did not run afoul of the rules of evidence).
4. Admissibility of Asma's Statements through Mehreen's Testimony
Similar to Rahman's testimony, the testimony from Mehreen regarding what Asma had told her about her relationship with Zafar illustrates the nature of the previous relationship existing between Zafar and Asma, thus meeting the requirements of article 38.36(a). See Tex. Code Crim. Proc. Ann. art. 38.36(a); Garcia, 201 S.W.3d at 703-04. But unlike Rahman's testimony, the record demonstrates that Asma had taken the opportunity to cool down before she spoke with Mehreen about the abuse Zafar had inflicted on her. The complained-of statements from Asma to Mehreen thus do not qualify as excited utterances, and the trial court abused its discretion by admitting them.
Because we conclude that the complained-of statements from Asma to Mehreen constitute inadmissible hearsay, we need not address Zafar's rule 401, 402, or 403 arguments and instead proceed to address whether such error is harmless. See Tex. R. App. P. 44.2(b); Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002) (requiring court that performs harmless error analysis to review the record as a whole, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, and the character of the alleged error and how it might be considered in connection with other evidence in the case). The record—which includes the recording of Zafar's interview with Detective Griesbach in which Zafar states that he retrieved a gun during an argument with Asma, testimony that police found a gun in Zafar's vehicle, DNA evidence showing that the major profile from the gun slide found in Zafar's vehicle matched his DNA profile, and testimony that the bullet recovered from Asma's autopsy came from the gun found in Zafar's vehicle—when reviewed as a whole demonstrates that any such error in admitting Asma's statements to Mehreen about her relationship with Zafar did not have a substantial or injurious effect on the jury's decision to find Zafar guilty of murder, did not affect his substantial rights, and was therefore harmless. See Tex. R. App. P. 44.2(b); Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001) ("Under the circumstances, we have fair assurance that the evidence in question did not influence the jury or had but slight effect."). Thus, we disregard any error in the admission of the complained-of testimony by Mehreen. See Tex. R. App. P. 44.2(b); Solomon, 49 S.W.3d at 365.
5. Confrontation Clause Challenges
Zafar also argues that the admission of Asma's statements through Rahman's testimony and Mehreen's testimony violated his right to confrontation because he had no prior opportunity to cross-examine Asma. The right to confrontation attaches only to statements that are testimonial in nature. Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004). Asma's out-of-court statements to her brother and to her best friend were not "prior testimony at a preliminary hearing, before a grand jury, or at a former trial," nor did they involve "police interrogations." See id., 124 S. Ct. at 1374; see also Giles v. California, 554 U.S. 353, 376, 128 S. Ct. 2678, 2692-93 (2008) ("Statements to friends and neighbors about abuse and intimidation . . . would be excluded, if at all, only by hearsay rules," not by the Confrontation Clause); Woods v. State, 152 S.W.3d 105, 114 n.34 (Tex. Crim. App. 2004) (citing United States v. Manfre, 368 F.3d 832, 838 n.1 (8th Cir. 2004), and noting that comments made to loved ones or acquaintances are not the kind of memorialized, judicial-process-created evidence of which Crawford speaks), cert. denied, 544 U.S. 1050 (2005). Moreover, there was nothing in the circumstances surrounding Asma's statements to her brother and to her best friend that "would lead an objective witness reasonably to believe that the statement[s] would be available for use at a later trial." See Crawford, 541 U.S. at 52, 124 S. Ct. at 1364. Asma's statements to Rahman and to Mehreen about her relationship with Zafar are nontestimonial in nature; thus, Crawford was not applicable, and Zafar's right to confrontation was not violated. See Woods, 152 S.W.3d at 114 (holding that casual remarks made to acquaintances were nontestimonial in nature, and thus Crawford was not applicable).
Because we hold that Asma's statements to Rahman and to Mehreen are nontestimonial, we need not address Zafar's alternative Confrontation Clause arguments based on the forfeiture-by-wrongdoing statute. See Tex. R. App. P. 47.1 (requiring appellate court to address only issues necessary to disposition of appeal); see also Woods v. State, No. 08-07-00203-CR, 2009 WL 3790013, at *5 (Tex. App.—El Paso Nov. 12, 2009, pet. ref'd) (not designated for publication) (stating that the forfeiture-by-wrongdoing doctrine applies to an objection based on a Confrontation Clause violation and that it is not an exception to the hearsay rule).
6. Disposition of Issues Challenging Asma's Statements
Having held that Asma's statements to Rahman were admissible and were nontestimonial, we overrule Zafar's fourth issue. Having held that Zafar was not harmed by the admission of Mehreen's testimony relating Asma's statements, which were nontestimonial, we overrule Zafar's first and second issues.
C. Mehreen's Testimony in English about what Zafar
Told her in the Urdu Language
After Zafar bonded out of jail, he called Mehreen and communicated with her using the Urdu language. Zafar initially told Mehreen that Asma had shot herself. When Mehreen told him that she knew his fingerprints were on the gun, Zafar said that he had shot Asma because she had allegedly told him that she did not want to live anymore. This conversation was not recorded.
In his third issue, Zafar argues that the trial court reversibly erred by allowing Mehreen to testify in English about what he had told her in the Urdu language without showing that Mehreen understood Urdu sufficiently enough to translate Urdu into English. Zafar challenges whether Mehreen was qualified to interpret what Zafar told her on the phone and the probative value of the translated testimony.
An individual who participated in a conversation in a foreign language is not required to have specific qualifications or training in interpreting or translating; instead, what is required is "sufficient skill in translating and familiarity with the use of slang." See Chavez v. State, No. 07-17-00016-CR, 2017 WL 3298489, at *1-2 (Tex. App.—Amarillo Aug. 1, 2017, pet. ref'd) (mem. op., not designated for publication) (applying law from this court and stating, "The officer [who had a phone conversation in Spanish with appellant who also spoke Spanish] need not have been a certified court interpreter as a condition to having her testimony of the unrecorded conversation admitted"); Rodriguez v. State, No. 02-05-00398-CR, 2007 WL 174684, at *2-3 (Tex. App.—Fort Worth Jan. 25, 2007, pet. ref'd) (mem. op., not designated for publication) (rejecting appellant's argument that every bilingual police officer must be a certified interpreter in order to testify to a suspect's incriminating statements or to record every conversation with a non-English speaking suspect); cf. Castrejon v. State, 428 S.W.3d 179, 188 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (explaining skills that are necessary for a person to act as an interpreter upon a motion for appointment of an interpreter).
Prior to Mehreen's testimony, a hearing was held outside the presence of the jury during which she explained that although she is not an expert in Urdu, she knows Hindi, which is similar because Urdu is Hindi mixed with another language. See Williams v. State, No. 03-08-00633-CR, 2009 WL 2059092, at *5 (Tex. App.—Austin July 17, 2009, no pet.) (mem. op., not designated for publication) (referring to the Urdu language as "a Hindi dialect"). Mehreen explained that she had learned the language from her mother, who was from Pakistan, and from watching Hindi movies. Zafar does not argue on appeal that Mehreen did not understand him, nor does he point to any inconsistencies in her translation of their conversation. Moreover, he had the opportunity to cross-examine her at trial. To the extent Zafar challenges the credibility of Mehreen's testimony regarding the phone conversation, that was an issue for the jury to weigh. Because the trial court reasonably could have determined that Mehreen had sufficient skill in translating Urdu, possessed adequate interpreting skills for the particular situation, and was familiar with the use of slang in Urdu such that she could render an accurate English translation of her phone conversation with Zafar, we hold that the trial court did not abuse its discretion by implicitly determining that Mehreen was qualified to translate her phone conversation with Zafar. See Castrejon, 428 S.W.3d at 188 (holding that trial court did not abuse its discretion by determining that officer who spoke "street Spanish" was qualified to translate the Spanish part of the recording in which the officer participated); see also Kuhlman v. Medlinka, 29 Tex. 385, 392 (Tex. 1867) (holding that defendant was not deprived of any legal right by the witness translating and reading letter, which he had written in German).
Moreover, the probative value of Mehreen's testimony translating Zafar's phone conversation with her is not substantially outweighed by undue prejudice. Although the probative value of the testimony was considerable because it showed that Zafar had shot Asma with the intent to kill her and although the State's need for the testimony was also considerable because Zafar had provided contradictory information about whether he had shot Asma in self-defense or whether it was all an accident, Mehreen's testimony translating Zafar's phone conversation with her did not have a tendency to suggest a decision on an improper basis, did not have a tendency to confuse or distract the jury from the main issue in the case, and did not consume an inordinate amount of time. See Gigliobianco, 210 S.W.3d at 641-42; Reyes v. State, No. 14-96-01189-CR, 1998 WL 733681, at *4 (Tex. App.—Houston [14th Dist.] Oct. 22, 1998, pet. ref'd) (not designated for publication) (holding that probative value of English translations of letters threatening complainant and her family was not substantially outweighed by the danger of unfair prejudice).
Accordingly, we hold that the trial court did not abuse its discretion by allowing Mehreen to testify in English as to Zafar's phone call with her in the Urdu language. We overrule Zafar's third issue.
D. Detective Griesbach's Testimony Regarding Zafar's Demeanor
During the First Interview
In his fifth issue, Zafar argues that the trial court reversibly erred by allowing Detective Griesbach to testify regarding his opinion of Zafar's demeanor during the first interview. Zafar contends that Detective Griesbach's opinion testimony—that Zafar "came across to me as very cold. No emotion at all through the entire interview"—constitutes inadmissible hearsay and invaded the province of the jury.
Texas Rule of Evidence 701 allows opinion testimony if it is rationally based on the witness's perception and is helpful to clearly understanding the witness's testimony or to determining a fact in issue. Tex. R. Evid. 701. Here, Detective Griesbach's opinion was rationally based on events that he had perceived while conducting the interview and was helpful to the determination of a fact in issue in the case—whether Zafar manifested the intent to kill Asma. Although the DVD of Zafar's first interview was played for the jury, that does not bar the admission of Detective Griesbach's lay opinion testimony. See Sifuentes v. State, 494 S.W.3d 806, 813 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (holding admissible officer's testimony—that he did not believe appellant was being truthful regarding the use of a gun after interviewing him—even though video of the interview was played for the jury). Because Detective Griesbach's opinion testimony met the requirements of rule 701, the trial court did not abuse its discretion by allowing Detective Griesbach to testify regarding his opinion of Zafar's demeanor during the first interview. See Tex. R. Evid. 701; Sifuentes, 494 S.W.3d at 813; Gonzales v. State, No. 03-01-00524-CR, 2002 WL 1987616, at *6-7 (Tex. App.—Austin Aug. 30, 2002, pet. ref'd) (not designated for publication) (holding that officer's testimony about appellant's angry reaction during police interrogations constituted admissible lay opinion testimony under rule 701 because officer personally observed appellant's reaction and because appellant's intent was at issue). We overrule Zafar's fifth issue.
E. Testimony from SafeHaven Employee
In his seventh issue, Zafar argues that the trial court reversibly erred by allowing Tiffany Flores, who performed Zafar's intake assessment at SafeHaven, to testify in rebuttal over his objection that the State did not list her as a witness or provide reasonable notice of the acts to which she would testify. Zafar acknowledges that the Texas Court of Criminal Appeals has noted that common law has favored limiting rule 404(b)'s notice requirement to evidence introduced in the State's case in chief, but he contends that Flores was not a "true 'rebuttal' witness" because the State had intended to call her during its case in chief. See Jaubert v. State, 74 S.W.3d 1, 3 (Tex. Crim. App.), cert. denied, 537 U.S. 1005 (2002); Hoagland v. State, 494 S.W.2d 186, 189 (Tex. Crim. App. 1973) ("To require the State to anticipate any possible defense of an accused and to furnish names of all possible witnesses and have the court refuse to permit them to testify if their names were not listed would be to require an impractical and undue burden."); see also Dabney v. State, 492 S.W.3d 309, 318 (Tex. Crim. App. 2016) ("Rebuttal evidence that was raised by the State only after the defense opened the door to such evidence in opening statements is not subject to the [r]ule 404(b) notice requirement[.]").
The record reflects that the State believed it had disclosed Flores in a document entitled "State's Fourth Supplemental Witness List." A diligent search of the trial court's file revealed that no such document was on file and that defense counsel did not receive notice of the witness. The trial court therefore barred Flores from testifying during the State's case in chief.
Here, Zafar was not entitled to notice under rule 404(b) that the State would call Flores as a witness during rebuttal because her testimony regarding Zafar's intake form was related to the underlying offense and thus did not constitute extraneous offense evidence. See Tex. R. Evid. 404(b)(2) (stating that on timely request by a defendant in a criminal case, the prosecutor must provide reasonable notice that it intends to introduce evidence of a crime, wrong, or other act other than that arising in the same transaction); see also Velasquez v. State, No. 05-16-00333-CR, 2018 WL 416494, at *9 n.3 (Tex. App.—Dallas Jan. 16, 2018, no pet.) (mem. op., not designated for publication) ("[V]ague statements [that] do not connect the defendant to a specific offense or criminal conduct do not constitute inadmissible extraneous offense evidence."). Alternatively, even assuming that Flores's testimony constitutes extraneous offense evidence, the trial court found that Flores was "in fact, a rebuttal witness, and therefore, notice was not necessary." In making this finding, the trial court stated, "I don't think anybody could have anticipated either that [Zafar] would testify or that he would deny that he was the one that did the intake report with SafeHaven." Because Flores testified only as a rebuttal witness to rebut Zafar's defensive theory that he did not make the incriminating marks on the attitude inventory included in his intake assessment, Zafar was not entitled to advance notice that the State would call Flores to testify. See Jaubert, 74 S.W.3d at 4 ("The extraneous offense evidence in this case was introduced during cross-examination and rebuttal testimony, not in the State's case-in-chief. Therefore, appellant was not entitled to notice of the extraneous offenses."); Martinez v. State, 527 S.W.3d 310, 325-26 (Tex. App.—Corpus Christi 2017, pet. ref'd) (holding that State was not required to give notice of rebuttal witness).
The trial court thus did not abuse its discretion by allowing Flores to testify as a rebuttal witness. We overrule Zafar's seventh issue.
F. State's Exhibit No. 130 — the SafeHaven Intake Information Packet
In his sixth issue, Zafar argues that the trial court reversibly erred by admitting into evidence over his objection State's Exhibit No. 130, which consisted of the intake information packet for SafeHaven's Battering Intervention & Prevention Program. Zafar contends that the exhibit was not fully authenticated and thus contained hearsay, that he was not given reasonable notice before trial of the State's intent to introduce the exhibit into evidence, and that the exhibit was more prejudicial than probative.
The SafeHaven intake information packet consists of twenty-three pages and includes forms with various questions. The "Partner Information" section, which defines partner as the "person involved in the incident that brought you here," asks, "How soon after you met your partner did the violence begin?" Zafar wrote the following answer: "Expired. Dead." In the section labeled "Other Information About You," it asks what the consequences were for using physical force against an intimate partner, and Zafar wrote the following answer: "she started - everything. (and.) I am in trouble." One of the questions on the form asks, "What do you think you can do to stop being violent towards your partner and/or your children?" Zafar wrote in, "I am not the violen[t] person but everything looks bad." The packet contains an attitude inventory with check marks in the column reflecting whether Zafar agreed with various statements, including the following: "Wives try to get abused by their husbands in order to get sympathy from others," to which he checked "Agree"; "Wives could avoid being abused by their husbands if they knew when to stop talking," to which he checked "Slightly Agree"; "Abused wives try to get their partners to abuse them as a way to get attention from them," to which he checked "Agree"; and "Abused wives are responsible for their abuse because they intended it to happen," to which he checked "Agree." Zafar identified the writing on the forms as his writing, though he did not recall making the check marks on the attitude inventory.
Here, it makes no difference whether Zafar filled out the entire form himself or whether someone else made the check marks for him. The factfinder was free to believe that Zafar had forgotten making the check marks or that Flores had made the check marks for him as he responded to the questions. Either way, the exhibit represents admissions made by Zafar (a party-opponent), which are not hearsay. See Tex. R. Evid. 801(e)(2)(A); Moore v. State, 999 S.W.2d 385, 401 (Tex. Crim. App. 1999) ("By signing Detective Holguin's transcription of the oral statement, appellant manifested an adoption or belief in its truth."), cert. denied, 530 U.S. 1216 (2000); Stevenson v. State, 304 S.W.3d 603, 616-17 (Tex. App.—Fort Worth 2010, no pet.) (holding that trial court did not abuse its discretion by admitting into evidence pro se motion for writ of habeas corpus for bail reduction that was allegedly authored by an inmate other than appellant because the statements in the motion were admissible as statements by a party-opponent). Because the exhibit—which reflected Zafar's explanation of the events that formed the same transaction for which he was on trial—was not evidence of an extraneous offense under rule 404(b), we need not reach his separate contention that there was a lack of notice under rule 404(b). See Tex. R. Evid. 404(b)(2) (stating that on timely request by a defendant in a criminal case, the prosecutor must provide reasonable notice that he intends to introduce evidence of a crime, wrong, or other act other than that arising in the same transaction); Haynes v. State, No. 11-11-00197-CR, 2013 WL 3089373, at *2 (Tex. App.—Eastland June 13, 2013, pet. ref'd) (mem. op., not designated for publication) (holding rule 404(b) inapplicable to same-transaction evidence); Darnell v. State, No. 02-10-00203-CR, 2011 WL 5515470, at *9 (Tex. App.—Fort Worth Nov. 10, 2011, pet. ref'd) (mem. op., not designated for publication) (same). Moreover, the exhibit is not substantially more prejudicial than probative; Zafar admitted that he had written in his answers to the intake questions and his signature appears on the document, his counsel was able to cross-examine Flores about the packet, and the packet contained probative information and was more likely to assist the jury on the issues rather than confuse or inflame it. See Tex. R. Evid. 403; Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (op. on reh'g) (stating that there is a presumption that relevant evidence is more probative than prejudicial); Darnell, 2011 WL 5515470, at *8 (holding that form filled out by appellant in his own handwriting was not substantially more prejudicial than probative because it contained information likely to assist the jury and defense counsel had the opportunity to cross-examine witness regarding form's content).
Accordingly, we hold that the trial court did not abuse its discretion by admitting into evidence State's Exhibit No. 130, and we overrule Zafar's sixth issue.
IV. CUMULATIVE ERROR
In his eighth issue, Zafar argues that "[i]f this Court finds that the trial court did err as argued in Issues(s) One[,] Two, Three, Four, Five, Six[,] and/or Seven and that each error was harmless per se, then the errors warrant reversal of the trial court's judgment when considered cumulatively." Because we have held that error occurred only in the admission of Asma's statements to Mehreen about her previous relationship with Zafar and that the error was harmless, there is no harm to accumulate. See Murphy v. State, 112 S.W.3d 592, 607 (Tex. Crim. App. 2003) ("Because we have found little or no error in the above-alleged points, there is no harm or not enough harm to accumulate."), cert. denied, 541 U.S. 940 (2004). We therefore overrule Zafar's eighth issue.
V. CONCLUSION
Having overruled each of Zafar's eight issues, we affirm the trial court's judgment.
/s/ Sue Walker
SUE WALKER
JUSTICE PANEL: WALKER, KERR, and BIRDWELL, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: May 17, 2018