CROSSOVER: Excited-Utterance Approval in Poolside Assault Case Offers a Family-Violence Evidence Blueprint

Porter v. State, 08-24-00393-CR, June 05, 2026.

On appeal from 227th District Court, Bexar County, Texas

Synopsis

A party attacking the validity of a waiver must bring forward a record that affirmatively demonstrates error. Where the appellate record omits the relevant hearing, a signed written waiver and judgment recitations are enough to trigger the presumption of regularity, and the challenge fails on a silent or incomplete record.

Relevance to Family Law

Although Porter is a criminal appeal, its appellate logic matters directly in Texas family litigation because family-law appeals regularly rise or fall on record preservation. In divorce, SAPCR, protective-order, and enforcement proceedings, counsel often argues that a waiver, stipulation, agreement, or evidentiary ruling was defective, coerced, or insufficiently supported; Porter underscores that those complaints are fragile unless the appellant secures a complete reporter’s record of the operative hearing. The case also has a second, more practical crossover: its approval of excited-utterance testimony in a violent poolside assault offers a useful evidentiary model for admitting near-contemporaneous family-violence statements through officers, relatives, or first responders when the complainant’s memory is limited, incomplete, or strategically softened by the time of trial.

Case Summary

Fact Summary

The prosecution arose from a violent assault at an apartment-complex pool in Bexar County. The complainant, Gina Anaya, testified that she had been socializing and drinking with Porter and another witness, Jay Gonzalez, when Porter became angry and, according to the State’s theory, attacked her as she was leaving the pool area. Anaya remembered being struck, waking up in pain, and finding herself surrounded by blood. She was transported to the hospital, remained there for several days, and described significant facial injuries, including a broken nose, a shattered orbital plate replaced with metal hardware, extensive stitches, numbness, and peripheral-vision problems.

The State supported its case through responding officers, body-camera evidence, a relative, and a detective. One officer’s body-cam captured Anaya identifying Porter as the assailant shortly after the event. Another officer testified, over hearsay objection, to statements from an eyewitness who said she saw Porter kick, punch, and slam Anaya’s head against the ground; the trial court admitted that account under the excited-utterance exception. The detective also described surveillance footage showing Porter angrily confronting Anaya and running toward her as she exited the pool, although the actual impact occurred outside the camera’s field of view.

On appeal, however, the headline issue identified here was not the assault proof itself but Porter’s challenge to the validity of his jury-trial waiver. He argued the record did not show a knowing, intelligent, and voluntary waiver under article 1.13 of the Code of Criminal Procedure. The appellate court was faced with an incomplete record that did not include the relevant pretrial hearing, but did include a signed written waiver and judgment recitations reflecting a waiver.

Issues Decided

• Whether the absence of a reporter’s record from the pretrial hearing defeats a claim that the State failed to prove a knowing, intelligent, and voluntary waiver of jury trial under Texas Code of Criminal Procedure article 1.13.
• Whether a signed written waiver and recitations in the judgment support a valid jury-trial waiver when the appellate record is incomplete or silent as to the waiver colloquy.
• In the underlying criminal appeal more generally, the court also addressed evidentiary and sufficiency questions, including admission of eyewitness statements under the excited-utterance exception and whether the evidence supported aggravated assault causing serious bodily injury.

Rules Applied

The court’s waiver analysis rested on several familiar appellate principles.

• Under Texas Code of Criminal Procedure article 1.13, a defendant may waive trial by jury in a non-capital felony case if the waiver is made in person in writing in open court with the consent and approval of the court and the attorney representing the State.
• Appellate courts apply a presumption of regularity to trial-court proceedings.
• The burden is on the appellant to present a record showing reversible error.
• When the record is silent or materially incomplete on the event being challenged, appellate courts ordinarily presume the omitted proceedings support the trial court’s ruling rather than undermine it.
• A signed written waiver and recitations in the judgment are affirmative indicators supporting regularity absent a contrary record.

As to the evidentiary crossover point that matters for family lawyers, the opinion also reflects application of Texas Rule of Evidence 803(2), the excited-utterance exception, permitting admission of a statement relating to a startling event made while the declarant remains under the stress of that event.

Application

The court treated the jury-waiver issue as a record problem before it treated it as a merits problem. Porter argued that the existing appellate record did not affirmatively demonstrate a knowing, intelligent, and voluntary waiver. But that framing did not carry the day, because the governing burden ran the other direction: it was Porter’s obligation to present a record affirmatively showing noncompliance with article 1.13. Once the appellate court saw that the relevant pretrial hearing was absent from the reporter’s record, the challenge lost force unless some other part of the record affirmatively showed defect.

Instead, the available record pointed toward regularity. The written waiver was signed, and the judgment recited a valid waiver. In that procedural posture, the court declined to infer invalidity from the mere absence of a transcript. Put differently, the lack of a reporter’s record did not create a vacuum into which appellate speculation could flow; it triggered the ordinary presumption that the missing proceeding supported the judgment. The court therefore rejected the notion that an incomplete record itself proves the waiver was unknowing or involuntary.

The excited-utterance portion of the opinion is also worth a strategist’s attention. The trial court allowed the officer to recount an eyewitness’s description of the attack after reviewing body-camera footage and determining the statement fell within Rule 803(2). That ruling reflects a practical evidentiary pathway in violence cases: when a witness reports what she just saw while the scene is still active and emotions remain elevated, the statement may come in through the officer even if the witness is unavailable, reluctant, or softened later.

Holding

The court held that a defendant challenging the validity of a jury-trial waiver must present an appellate record that affirmatively shows noncompliance with article 1.13. A signed written waiver, coupled with recitations in the judgment, supports the presumption that the waiver was proper when the record does not contain the hearing at which the waiver occurred.

The court further held that on a silent or incomplete record, a claim that the waiver was not knowing, intelligent, and voluntary fails. The absence of the reporter’s record from the relevant hearing did not shift the burden to the State to disprove error; instead, it left the presumption of regularity intact.

The opinion also reflects approval of the trial court’s use of the excited-utterance exception for an eyewitness’s near-immediate account of the assault. For litigators handling family-violence facts in civil court, that portion of the decision is the more useful doctrinal blueprint.

Practical Application

For family lawyers, Porter teaches two tactical lessons.

First, preserve the record as if the appeal is already underway. If your opponent waives a jury in a divorce involving substantial characterization disputes, waives live testimony in a final SAPCR hearing, agrees to proceed by proffer, or enters a Rule 11 or mediated settlement under circumstances you believe are defective, you must ensure the hearing is transcribed and the objection is explicit. An appeal built on “the record does not show enough” is often dead on arrival if the operative hearing is missing.

Second, on the evidence side, Porter shows how to build admissibility around early violence disclosures. In custody litigation, protective-order proceedings, and conservatorship modification suits, near-immediate statements to patrol officers, EMTs, neighbors, relatives, or apartment staff may be admissible as excited utterances if counsel can establish temporal proximity, ongoing stress, and a clear relationship to the startling event. That becomes especially important when the victim later minimizes, forgets, recants, or claims impaired memory.

In concrete family-law settings, the case has force in at least these scenarios:

• Divorce with family-violence allegations: use officer testimony, body-cam timestamps, photographs, and witness sequencing to support admission of early statements describing the assault.
• SAPCR and modification cases: frame near-contemporaneous child or parent statements as stress-driven reports tied to a startling event, especially when later testimony becomes less reliable.
• Protective-order hearings: anticipate hearsay objections by developing the foundation for 803(2) through the responding witness.
• Appeals from bench trials: if challenging waiver, stipulation, consent, or procedure, order every relevant transcript and do not assume clerk’s-record recitations alone will help the appellant.
• Enforcement and contempt-adjacent proceedings: where a party claims coercion or lack of understanding, make the trial court create a robust oral record at the time of the waiver or agreement.

Checklists

Preserving a Waiver Challenge for Appeal

• Order the reporter’s record for every hearing where a jury waiver, stipulation, settlement, or procedural election occurred.
• Confirm that the clerk’s record contains the signed waiver, any written consents, and docket notations.
• Object on the record if the waiver is not made in open court or appears incomplete.
• Request the trial court to question the party on the record regarding understanding and voluntariness.
• If the record is missing after notice of appeal, promptly seek supplementation or reconstruction if available.
• Do not frame the appellate complaint as mere absence of proof when the missing material is your burden to provide.

Laying an Excited-Utterance Foundation in Family-Violence Litigation

• Establish the startling event with precision: assault, threat, forced entry, child exposure to violence, or weapon display.
• Pin down timing between the event and the statement.
• Develop evidence that the declarant remained under stress, pain, fear, shock, or agitation.
• Show the statement related directly to the event rather than reflective narration after calm deliberation.
• Use body-cam footage, 911 calls, dispatch logs, EMS notes, photographs, and scene descriptions to corroborate stress and timing.
• Elicit testimony about demeanor: crying, shaking, bleeding, gasping, frantic speech, disorientation, or visible panic.

Building Family-Violence Proof When the Victim’s Memory Is Limited

• Secure responding-officer testimony early.
• Obtain and authenticate body-camera and surveillance footage.
• Identify relatives, neighbors, apartment staff, or bystanders who heard or saw the immediate aftermath.
• Gather injury photographs and treatment records even if no physician will testify live.
• Preserve statements made to EMS, hospital staff, or family members close in time to the event.
• Anticipate recantation or minimization and prepare corroborative evidence that does not depend solely on the complainant.

Avoiding the Appellant’s Problem on an Incomplete Record

• Audit the appellate record before briefing.
• Compare the clerk’s index against all hearing dates reflected in the docket sheet.
• Move to supplement immediately if a critical transcript is omitted.
• Avoid asserting that the trial court “failed to prove” something when the appellant bears the burden to show error.
• Address the presumption of regularity directly in the brief rather than ignoring it.
• If the record truly cannot be completed, evaluate whether the issue is still viable before centering the appeal on it.

Using Porter in Divorce and Custody Hearings

• Cite it for the proposition that appellate courts will not infer reversible error from a silent or incomplete record.
• Use it to defend bench-trial procedures supported by written waivers and judgment recitations.
• Use its evidentiary reasoning to support admission of immediate post-incident violence statements.
• Pair it with family-code best-interest and safety arguments to show why early statements are often the most reliable.
• Emphasize corroboration through objective evidence, not just testimonial repetition.

Citation

Porter v. State, No. 08-24-00393-CR, 2026 Tex. App. LEXIS ___ (Tex. App.—El Paso June 5, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion here

Family Law Crossover

This case can be weaponized in Texas family litigation in two distinct ways. Offensively, if you represent a parent or spouse alleging violence, Porter supplies a disciplined roadmap for getting crucial early statements before the court through responding officers or other immediate listeners under the excited-utterance exception, particularly when the victim later hedges, forgets details, or becomes aligned with the accused. Defensively, if you are protecting a favorable bench-trial judgment in a divorce or custody case, Porter is a strong answer to appellate complaints built on an incomplete record: when the appellant failed to bring forward the hearing transcript, the court should presume regularity and reject arguments that a waiver, agreement, or procedure was invalid simply because the record does not affirmatively memorialize every step.

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