Carlos Daniel Gutierrez-Espinosa v. the State of Texas

Opinion issued November 25, 2025.

In the

Court of Appeals
for the

First District of Texas
————————————
NO. 01-23-00832-CR
———————————
CARLOS DANIEL GUTIERREZ-ESPINOSA, Appellant
v.
THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 3
Harris County, Texas
Trial Court Case No. 2425676

MEMORANDUM OPINION

A jury convicted appellant Carlos Daniel Gutierrez-Espinosa of assault of a

family member. See TEX. PENAL CODE § 22.01. The trial court assessed

punishment at one year in county jail, suspended his sentence of confinement, and

placed him on community supervision for two years. In his sole issue, appellant
complains that the trial court erred in admitting the audio recording of a 9-1-1 call

based on a business records affidavit that, he contends, did not adequately identify

the recording because it did not distinguish between two 9-1-1 calls produced by

the State. Because we hold that any error in the admission of the audio recording

was harmless, we affirm.

Background

Complainant is appellant’s wife. Complainant testified that, on September

25, 2022, appellant struck her 20 to 25 times with his hand at their residence.

According to complainant, after appellant took out a mop to clean up the blood

from complainant’s resulting wounds, appellant hit complainant seven to 10 times

with the mop. Complainant testified that appellant’s mother, Katia Gutierrez

(Gutierrez), and complainant’s three children (the youngest two of whom are also

appellant’s biological children) witnessed appellant strike her in the face with his

closed fist before Gutierrez took appellant’s two biological children to another

room. Shortly after the assault, complainant called 9-1-1 with the help of the

11-year-old daughter (M.A.,1 appellant’s stepdaughter), who remained with her.

Complainant was taken to a hospital. Complainant’s injuries included a facial

contusion and a scalp laceration, for which she received six skin staples.

1
We use a pseudonym to refer to complainant’s minor child. See TEX. R. APP. P.
9.10(a)(3), (b) (providing that court filings in criminal cases must not contain
sensitive data, including names of minors).
2
Appellant told the first responder who arrived first at the scene that he had

had not hit complainant, had only pushed her, and that she had inadvertently hit a

door hinge. At trial, appellant testified that he had seen complainant physically

harming M.A., intervened to protect the child, and in the process of doing so

pushed complainant in the hip. Appellant stated that complainant then slipped, lost

her balance, and fell by the door.

1. State’s production of audio recordings of 9-1-1 calls

In advance of appellant’s trial, the State produced documents and other

items to defense counsel via item-specific links in an electronic discovery portal.

Among the items produced by the State were audio recordings of two 9-1-1 calls,

one of which was the call made by complainant minutes after the assault. The other

9-1-1 call was a later call made by a different person—likely Gutierrez. Both audio

recordings were timely produced via the electronic portal on the same date, along

with a business records affidavit. In the discovery portal, the produced items were

listed, with links, in the order in which they were produced:

1. The recording of complainant’s 9-1-1 call,

2. The business records affidavit, and

3. The recording of the second 9-1-1 call.

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2. Introduction of complainant’s 9-1-1 call at trial

Only the audio recording of complainant’s 9-1-1 call was offered by the

State into evidence at trial. At the time the State sought to introduce that recording,

State Exhibit No. 16, defense counsel objected to its admission on hearsay

grounds. Defense counsel stated that the business records affidavit, which was

produced on the same day as the two audio recordings, related to only one audio

recording and did not identify which one. Defense counsel argued that the affidavit

was “materially defective because it [did not] establish with any level of

particularity which 911 call in order to authenticate and provide a basis for,” and

that the State should not be permitted to “cherry pick which [9-1-1 call recording]

they want to admit.” The prosecutor responded that the business records affidavit

made the recording self-authenticating, and that any business record affidavit

related to the second 9-1-1 call would have appeared in the discovery portal as a

link below the link to the recording of the second 9-1-1 call. The trial court

admitted State Exhibit No. 16 over appellant’s hearsay objection.

3. Content of complainant’s 9-1-1 call

The audio recording of complainant’s 9-1-1 call is roughly 12 minutes long.

Complainant is crying throughout the call and at times seemingly struggles or is

unable to speak. She states that she needs help. In response to questions she is

asked by the Emergency Medical Services (EMS) operator whom the 9-1-1

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operator adds to the call, complainant states that her husband hit her, that she is

bleeding from the head, and that there is blood “everywhere.” In response to

continued questioning, complainant states that she is 31 years old, that the injury

has just occurred, that her husband is still nearby, and that no weapon was

involved. Complainant confirms that there is “serious bleeding.” Complainant says

that she is not having trouble breathing, but is having trouble staying awake. In

response to instructions from the EMS operator regarding getting a towel or

something similar to help stop the bleeding, complainant states that she is in the

foyer with nothing around her and cannot get up from the floor. When asked if

there is anyone else “there with you guys,” complainant says “yeah, but they’re not

going to help me.” Complainant says that she can taste blood in her mouth. When

asked what was happening before appellant hit complainant in the head,

complainant says that they were arguing, and that appellant refused to call 9-1-1,

was beating her, and had taken her phone. When asked who is in the house “with

you all,” complainant says “his mother” and “my kids.” At this point, an

unidentified man and woman can be heard speaking in the background. When the

EMS operator asks if one of complainant’s children can bring her a towel,

complainant calls out asking M.A. to bring her a towel. The unidentified man can

then be heard saying “fuck you.” Complainant then calls out “somebody!”—and

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then seems to ask someone in particular to bring her a towel, saying “it’s not your

fault.”

Soon thereafter, complainant tells the EMS operator that she has a towel on

her head, but that she thinks her ears are bleeding. When the 9-1-1 operator asks

where complainant’s husband is, complainant responds that he went upstairs and

that his mother is there. Complainant then says something partially intelligible

about “trying to get my phone back so I can call 9-1-1.” Complainant says that she

needs help. In response to a question from the 9-1-1 operator, complainant says

that her husband is Hispanic. Complainant does not respond to questions about

how tall her husband is and what he is wearing. The EMS operator asks if someone

else at the house is calling 9-1-1 and complainant answers yes. The EMS operator

tells complainant that the other person can hang up because they already have help

on the way. Complainant seems to struggle to respond, saying she is having trouble

breathing, and then repeats “I need help” several times. An unidentified woman

can be heard speaking in the background, and then multiple people. The 9-1-1

operator asks if there are any weapons in the house and complainant’s response is

unintelligible. Complainant repeatedly asks for help and states that she needs help.

M.A. can then be heard saying: “Breathe with me, breathe with me. Mom, breathe

with me. Breathe!” The unidentified woman who could be heard previously

speaking in the background continues to speak in the background. M.A. says:

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“You’re not going to die on me. You promise me you’re not going to die on me. I

need you!”

There is a knock on the front door of the residence, near where complainant

is lying, then the sound of multiple people speaking and emoting at once, including

the voice of the first responder who arrived first on the scene, Sheriff’s Deputy

Matthew McComas. Deputy McComas can be heard saying “keep pressure on it”

as multiple people continue speaking and emoting at once. The EMS operator asks:

“Who’s there with you guys?” Deputy McComas says: “Law enforcement is on the

scene.” When the EMS operator asks if he knows that complainant’s husband is

upstairs, Deputy McComas responds that he has the husband detained. The EMS

operator says “thank you,” and Deputy McComas says “no problem,” before the

call ends.

Business Records Affidavit

In his only issue, appellant contends that the trial court abused its discretion

by admitting State Exhibit 16 into evidence because the business records affidavit

on which the State relied to make the exhibit self-authenticating did not specify

that it concerned State Exhibit 16 rather than the other 9-1-1 recording produced on

the same day as State Exhibit 16. The State responds that the trial court did not err

in admitting State Exhibit 16 and, in the alternative, that any error was harmless.

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A. Standard of Review and Applicable Law

We review the trial court's decision to admit the evidence for an abuse of

discretion. Valadez v. State, 663 S.W.3d 133, 143 (Tex. Crim. App. 2022) (“A trial

court’s decision to admit or exclude evidence is reviewed under an abuse of

discretion standard.”). A trial court abuses its discretion if its evidentiary ruling lies

outside the zone of reasonable disagreement. Id. If the trial court’s evidentiary

ruling falls within the zone of reasonable disagreement under any applicable legal

theory, we will not intervene. De la Paz v. State, 279 S.W.3d 336, 343-44 (Tex.

Crim. App. 2009).

If the trial court abused its discretion in admitting evidence, the error does

not warrant reversal unless it affected appellant’s substantial rights. TEX. R. APP. P.

44.2(b); Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018) (stating

erroneous admission of evidence is non-constitutional error that requires reversal

only if it affected appellant’s substantial rights). An error affects appellant’s

substantial rights only when the error has “a substantial and injurious effect or

influence in determining the jury’s verdict.” Cook v. State, 665 S.W.3d 595, 599

(Tex. Crim. App. 2023). After examining the record as a whole, if we have a fair

assurance that the error did not influence the jury—or had but a slight effect—we

will not reverse appellant’s conviction. Gonzalez, 544 S.W.3d at 373. In reaching

that conclusion, we consider: (1) the character of the alleged error and how it might

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be considered in connection with other evidence, (2) the nature of the evidence

supporting the verdict, (3) the existence and degree of additional evidence

indicating guilt, and (4) whether the State emphasized the complained of error. Id.

Error in the admission of evidence may be rendered harmless when substantially

the same evidence is admitted elsewhere at trial without objection. Leday v. State,

983 S.W.2d 713, 717-18 (Tex. Crim. App. 1998).

B. Analysis

We do not reach the question of whether the trial court erred in admitting the

recording of complainant’s 9-1-1 call because we conclude that any error in the

admission of the evidence was harmless. Appellant argues that the 9-1-1 call

“introduced extremely aggravating evidence showing Complainant’s statements

and demeanor at the time this offense was alleged to have occurred” that “was of

such a character that it served to overwhelm the jury’s emotions in favor of the

State.” Specifically, appellant argues that the State “spent a considerable amount of

time parsing through the 9-1-1 call” during its direct examination of complainant,

during which testimony complainant testified “about what Appellant and

Appellant’s mother were doing while she was on the floor on the 9-1-1 call.”

Appellant argues that complainant testified about her efforts during the call to

staunch the flow of blood from her head and that appellant and Gutierrez were

taunting complainant in the background during the call. Appellant argues that such

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testimony, “along with the 9-1-1, was of a very aggravating character,” had a

tendency to inflame the minds of jurors, and prevented them from fully considering

his defense that he had used force against complainant to stop an assault of another

person.

1. 9-1-1 call recording as evidence of complainant’s injuries and
appellant’s actions in response

Complainant’s demeanor and comments on the 9-1-1 audio recording

suggest that complainant suffered an injury to her head severe enough to cause her

immediate physical and emotional trauma. Complainant was crying and in an

emotional state throughout most of the call, at times seemed to struggle to breathe

and speak, and referenced profuse bleeding from her head and possibly ears, her

inability to move from her prone position on the floor, and trouble breathing and

staying awake. The recording also captures some comments from M.A., the

preteen daughter who assisted complainant during the call, who appeared

concerned about her mother’s breathing and to fear that her mother may die.

While an unidentified man and woman, presumably appellant and his

mother, Gutierrez, can be heard in the background during parts of the call, their

comments are largely unintelligible with the exception of the man’s stating “fuck

you” at one point. That comment is not clearly a comment by appellant directed at

complainant. Complainant states on the call that her husband and Gutierrez are in

the house and will not help her. There is no evidence on the call that either the man

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or the woman—who are close enough to complainant during parts of the call to be

heard talking—attempted to or did help complainant during the time she was on

the call.

2. Other evidence of complainant’s injuries and appellant’s actions
in response

The State introduced other evidence of the severity of complainant’s injuries

during her 9-1-1 call and appellant and Gutierrez’s reactions to those injuries.

Jurors were shown, without objection, video with partial audio from Deputy

McComas’ body camera. That video and audio overlaps with the 9-1-1 call audio

from the point Deputy McComas knocks on the front door and continues at length

from the end of that call.2 On the video, appellant tells Deputy McComas outside

the house that he got in a fight with his wife, “she started hitting the kids” and he

“pushed her onto the door,” and she now “needs EMS.” Inside the house, the video

shows M.A., who is kneeling next to her mother on the floor, cry out for Deputy

McComas’ help, saying that her mother’s “head is . . . bleeding a lot.” When

Deputy McComas responds that EMS is coming and M.A. should “keep pressure

on it,” M.A. asks if her mother is going to die. Complainant can be heard and seen

crying, with what appears to be blood in her hair and on her face, on her hands and

2
Some portions of the audio for the video were muted by the State, and two small
portions of the video were not played to the jury based on objections by appellant.
The portions of the video the jury did see and hear were admitted without
objection.
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lower and upper arms, on her legs and feet, and in spots on the floor around her

head. Gutierrez is first shown opening the door for Deputy McComas, with a

phone to her ear. Gutierrez does not appear to try to assist complainant. As Deputy

McComas works to calm down complainant and M.A., who remain upset,

Gutierrez continues talking on her phone. The phone on which complainant has

been speaking to the 9-1-1 and EMS operators is shown on the floor, next to

complainant’s head. Deputy McComas picks it up, and says into it that “law

enforcement is on the scene.” Immediately after Deputy McComas states that he

has detained appellant, Gutierrez is seen exiting the house and then returning

through the front door.

Soon after that, Deputy McComas is shown telling another first responder

that complainant is “bleeding pretty bad” from a cut on her head, but that the

wound is not life-threatening. Some of his first comments to other first responders

are that a Spanish speaker is needed because Gutierrez does not speak English, that

Gutierrez cleaned up “the scene” and “all the blood,” and that Gutierrez was

apparently trying to stop complainant from calling 9-1-1. Deputy McComas later

says that complainant has said that appellant hit her with a broom “after the fact.”

Deputy McComas also gave trial testimony consistent with his body camera

video. He noted that, when he entered the residence, complainant’s “whole head

was covered in blood” and resting on a towel that was “completely soaked in

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blood.” Deputy McComas noted dried blood on complainant’s arms, face, neck,

chest, shoulders, and legs; blood spots on the floor; and that complainant was in

pain and “obviously in a state of shock” During Deputy McComas’ testimony, the

jury was also shown photos of the crime scene, without objection.

Another first responder, Sheriff’s Deputy Christina Haggard, testified that,

upon her arrival, complainant was “very upset,” “crying,” and “had fear in her

voice,” which was “trembling.” When asked if complainant looked as if she could

get up and walk around, Deputy Haggard responded “no.” M.A. was “chaotic with

her because she was so scared,” and “very upset, very concerned about her mom

and the events she had seen.” From the state of complainant, the floor, and the

mop, Deputy Haggard believed blood had been cleaned up. During Deputy

Haggard’s testimony, the jury was shown photographs of complainant’s injuries,

without objection. Deputy Haggard pointed out places in the photographs showing

that complainant’s face was starting to swell and bruise, and testified that what she

saw in the photographs was consistent with someone who has been struck in the

face.

Complainant testified at trial. According to complainant: Appellant struck

her in the face, with his fist, in front of Gutierrez. Gutierrez then took

complainant’s two younger children, complainant’s purse, and complainant’s

phone to another room, leaving M.A. with her mother in the foyer. Appellant then

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began “hitting [complainant] nonstop,” while cursing and calling her names.

Appellant struck complainant 20 to 25 times. When complainant told appellant he

was hurting her, appellant responded that he did not care. Complainant felt “a lot”

of blood coming from her head and also felt dizzy. She began shaking and fell on

the floor. Appellant grabbed a mop, began cleaning up complainant’s blood, and

struck complainant with the mop seven to 10 times. At no point did appellant try to

help complainant. Complainant was unable to get up from the floor, and asked

M.A. to try and get complainant’s phone. At that point, appellant and Gutierrez

were in the same room with complainant, “discussing what they want to do with”

complainant. M.A. was able to get complainant’s phone, dialed 9-1-1, and put the

phone on speaker next to complainant. When EMS put complainant on a stretcher,

the pain was a 10 on a scale from 1 to 10, “with nausea.”

Although complainant’s 9-1-1 call was played for the jury during

complainant’s testimony, and complainant was asked some questions on the stand

at points when the recording was paused, complainant did not testify that appellant

and Gutierrez were “taunting her” while she was on the call. Complainant testified

that, at one point during the call, appellant was cleaning blood around her and

Gutierrez was calling 9-1-1. Complainant testified that, when appellant can be

14
heard saying “fuck you,” he was saying it to her.3 She was asked if she knew what

appellant was doing when he went upstairs, and she said she did not.

During complainant’s testimony, her medical records were admitted without

objection. The medical records noted complainant reported being punched and

being “kicked and stomped” while on the floor. The records show the six skin

staples required for her head wound, and document abdominal pain, a facial

contusion, pain in her left hand, and an “abundance of abrasions and bruises.”

In her testimony, Gutierrez admitted to not having assisted complainant

while complainant was lying injured on the floor—other than, Gutierrez claimed,

handing complainant’s phone to complainant—and to mopping up complainant’s

blood “[a] little” while complainant was speaking to 9-1-1, and before Gutierrez

herself called 9-1-1.

3. Additional evidence of appellant’s guilt

Beyond that already discussed, additional record evidence independent of

the 9-1-1 call supported the jury’s guilty verdict. Appellant’s defense was that he

intervened while complainant was beating M.A., in defense of M.A., and

inadvertently pushed complainant into a door hinge. However, there was no

evidence of any injury to M.A., and Deputy McComas found no blood on the door

hinge. The State presented evidence of injuries to complainant that went beyond

3
During his cross-examination of appellant, the State’s counsel called attention
multiple times to appellant’s “fuck you” comment to complainant.
15
her head laceration, including Deputy Haggard’s testimony that the photographs of

complainant showed injuries consistent with her having been struck in the face.

Moreover, independent of the 9-1-1 call, the jury heard evidence that it could

reasonably have interpreted as evidence that appellant and Gutierrez tampered with

evidence and otherwise sought to impede a police investigation of the incident. The

jury heard evidence that Gutierrez had attempted to prevent complainant from

calling 9-1-1, that Gutierrez and appellant had “cleaned up” blood in the area

where complainant fell, and that appellant had gone upstairs during the 9-1-1 call

to shower.

The complained-of portions and elements of the 9-1-1 call and

complainant’s testimony about the call were duplicative of other evidence

presented to the jury, without objection. That evidence included, as noted, footage

from Deputy McComas’ body camera, Deputy McComas’ testimony, crime scene

photos, Deputy Haggard’s testimony, photos of complainant’s injuries,

complainant’s other testimony, complainant’s medical records, and Gutierrez’s

testimony. In addition, the state of the evidence independent of the 9-1-1 call

provided solid support for the jury’s guilty verdict, undermining appellant’s

argument that it was the 9-1-1 call that led the jury to reject his defense that he had

used force against complainant to stop her from harming M.A.

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Based on the record as a whole, we thus conclude that any error in the

admission of the 9-1-1 call recording was harmless (1) given the introduction of

evidence that substantially duplicated the complained-of portions and elements of

the 9-1-1 call and complainant’s testimony about the call, see Leday, 983 S.W.2d

at 713 (error in admission of evidence may be rendered harmless if substantially

same evidence is admitted elsewhere without objection); see also Cochran v. State,

No. 02-23-00034-CR, 2023 WL 7037625, at *2 (Tex. App.—Fort Worth Oct. 26,

2023, no pet.) (mem. op., not designated for publication) (holding that any error in

admission of 9-1-1 call recording was harmless because call was cumulative of

other properly admitted evidence, including testimony and body-camera footage);

and (2) because the admission of the recording of the 9-1-1 call did not have a

substantial and injurious effect or influence in determining the jury’s verdict, see

Cook, 665 S.W.3d at 599 (stating that error in admission of evidence affects

appellant’s substantial rights only if it has a substantial and injurious effect or

influence in determining jury’s verdict); see also Rodriguez v. State, 491 S.W.3d

18, 35 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (holding that any error in

admission of recording of 9-1-1 call was harmless because appellant had not

shown how admission of call had substantial and injurious effect or influence in

determining jury’s verdict).

We overrule appellant’s only issue.

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Conclusion

We affirm the judgment of the trial court.

Amparo “Amy” Guerra
Justice

Panel consists of Justices Guerra, Guiney, and Johnson.

Do not publish. TEX. R. APP. P. 47.2(b).

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