Opinion
No. 05-05-00474-CR
Opinion issued February 21, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-74304-JM. Affirmed.
Before Justices WHITTINGTON, BRIDGES, and LANG-MIERS.
OPINION
Rafael Cardenas appeals his conviction for aggravated sexual assault of C.G., a child under the age of fourteen years. After finding appellant guilty, the jury assessed punishment at forty years' confinement. In two issues, appellant contends the trial judge erred in allowing inadmissible hearsay evidence. We affirm the trial court's judgment. In his first issue, appellant claims the trial judge erred in overruling his running objection to hearsay testimony. Under this argument, appellant contends the testimony of Melissa Bailey, a licensed professional counselor and contract therapist for the Dallas Children's Advocacy Center, was not admissible as a hearsay exception under evidentiary rule 803(4). See Tex. R. Evid. 803(4). Appellant argues the admission of this testimony was error, "clearly affected [appellant's] substantial rights," and that we should therefore reverse his conviction. We conclude we need not address whether Bailey's testimony qualified as an exception to the hearsay rule because, even assuming it did not and the trial judge erred in overruling appellant's objection, the record fails to demonstrate that this error requires reversal. See Bourque v. State, 156 S.W.3d 675, 676-77 (Tex.App.-Dallas 2005, pet. ref'd). Texas Rule of Appellate Procedure 44.2(b) provides that we "must disregard a non-constitutional error that does not affect a criminal defendant's `substantial rights.'" Garcia v. State, 126 S.W.3d 921, 927 (Tex.Crim.App. 2004); Bourque, 156 S.W.3d at 677; see Tex.R.App.P. 44.2(b) ("Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded."). Under rule 44.2(b), an appellate court may not reverse for nonconstitutional error if, after examining the record as a whole, we have fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury's verdict. Garcia, 126 S.W.3d at 927 (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998) and King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997)); Bourque, 156 S.W.3d at 677; Jones v. State, 111 S.W.3d 600, 604-05 (Tex.App.-Dallas 2003, pet. ref'd). After examining the entire record of appellant's trial, we have fair assurance that the error, if any, did not have a "substantial and injurious effect or influence in determining the jury's verdict at the punishment phase." See Garcia, 126 S.W.3d at 927. We base this conclusion on the considerable amount of evidence presented during trial that was substantially similar to Bailey's testimony, in particular, C.G.'s testimony straightforward and detailed testimony of appellant's sexual abuse and the testimony of Tracy Harmon, a forensic interviewer at the Dallas Children's Advocacy Center. Because the improper admission of evidence is rendered harmless when other properly admitted evidence proves the same fact, we cannot conclude the record in this case demonstrates reversible error. See Brooks v. State, 990 S.W.2d 278, 287 (Tex.Crim.App. 1999) (holding any error in admitting complained-of evidence was harmless in light of other properly admitted evidence proving same fact); Jones, 111 S.W.3d. at 604-05 (same); Bourque, 156 S.W.3d at 677. We overrule appellant's first issue on appeal. In his second issue, appellant complains that the trial judge erred in allowing C.G.'s mother to testify about what C.G.'s godmother told her. Appellant claims the testimony was hearsay and "clearly inadmissible." For the reasons that follow, we conclude appellant waived this issue. To preserve a complaint for appellate review, a party must make a timely, specific objection in the trial court. Tex.R.App.P. 33.1(a)(1); Saldano v. State, 70 S.W.3d 873, 886-67 (Tex. Crim App. 2002); King v. State, 953 S.W.2d 266, 268 (Tex.Crim.App. 1997); Langford v. State, 129 S.W.3d 138, 139 (Tex.App.-Dallas 2003, no pet.). The failure to object can waive even an error involving constitutional rights. Muniz v. State, 851 S.W.2d 238, 255 (Tex.Crim.App. 1993); see Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991) (on appeal, when appellant claims trial judge erred in admitting evidence, purported error must have been preserved by proper objection and ruling on that objection). As a general rule, "the law in Texas requires a party to continue to object each time inadmissible evidence is offered." Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App. 2003). On redirect, C.G.'s mother was asked whether C.G.'s godmother had agreed to testify in this case. After she indicated the godmother had agreed to do so, the prosecutor asked "But what was her concern?" At that point, appellant objected "as to hearsay." The objection was overruled, and C.G.'s mother answered, "That if [the godmother] came here, then she would have no kind of rights for her youngest kids." Several questions later, the prosecutor asked, "And [the godmother] was told if she came up here and actually testified as to what [C.G.] told her, she wouldn't get to see her younger children?" C.G.'s mother answered, "Yes." Appellant did not object to this question or the answer, yet he assigns its admission as error. Because appellant did not object, we conclude he failed to preserve this issue for review. We overrule appellant's second issue. We affirm the trial court's judgment.