Opinion
No. 13-05-408-CR
Memorandum Opinion delivered and filed June 28, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On appeal from the 107th District Court of Cameron County, Texas.
Before Chief Justice Valdez and Justices Rodriguez and Garza.
MEMORANDUM OPINION
Appellant, Rene Garcia, Jr., appeals from the trial court's revocation of his community supervision. By three issues, appellant contends (1) the trial court abused its discretion in admitting hearsay testimony at the revocation hearing, (2) he was deprived of his Sixth Amendment right to confront and to cross-examine declarants of hearsay statements admitted at the hearing, and (3) the evidence is insufficient to support the trial court's revocation of his community supervision. We affirm.
I. Background
Appellant was charged by indictment with one count of possession with intent to deliver a controlled substance, namely cocaine, in an amount of 200 grams or more but less than 400 grams, and one count of possession of marihuana in an amount of five pounds or less but more than four ounces. See Tex. Health Safety Code Ann. §§ 481.115(e), 481.121(b)(3) (Vernon 2003). In a bench trial, appellant entered a plea of guilty to both counts. The trial court found appellant guilty on both counts and sentenced appellant to ten years' confinement in the Texas Department of Criminal Justice-Institutional Division, suspended for ten years' community supervision. Subsequently, the State filed a motion to revoke appellant's community supervision alleging, among other things, that appellant committed a subsequent offense by murdering Juan Ramon Hernandez. Appellant pled not true to the allegations in the State's motion. Following a hearing, the trial court found the allegations to be true, revoked appellant's probation, and sentenced appellant to ten years' confinement in the Texas Department of Criminal Justice-Institutional Division. This appeal ensued.II. Hearsay
By his first issue, appellant asserts the trial court abused its discretion in admitting hearsay testimony at the hearing on the State's motion to revoke his community supervision.A. Standard of Review and Applicable Law
We review a trial court's ruling on the admissibility of evidence for an abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000) (citing Prystash v. State, 3 S.W.3d 522, 527 (Tex.Crim.App. 1999)). An abuse of discretion occurs when a trial court's decision lies outside the zone of reasonable disagreement. Id. (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990)). Rule 802 of the Texas Rules of Evidence prohibits the admission of hearsay evidence except as provided by statute or by other rules prescribed pursuant to statutory authority. Tex. R. Evid. 802. Hearsay is a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted. Id. at rule 801(d). A police officer's testimony is not hearsay when it is offered for the purpose of explaining how a defendant became a suspect rather than for the truth of the matter asserted. Dinkins v. State, 894 S.W.2d 330, 347 (Tex.Crim.App. 1995). In addition, an officer's testimony is not hearsay when it is admitted, not for the truth, but to establish the course of events and circumstances leading to a defendant's arrest. Thornton v. State, 994 S.W.2d 845, 854 (Tex.App.-Fort Worth 1999, pet. ref'd) (citing Reed v. State, 794 S.W.2d 806, 809 (Tex.App.-Houston [14th Dist.] 1990, pet. ref'd)). "The critical question is whether there is an inescapable conclusion that a piece of evidence is being offered to prove statements made outside the courtroom." Id. (quoting Schaffer v. State, 777 S.W.2d 111, 114 (Tex.Crim.App. 1989)). The improper admission of hearsay is nonconstitutional error and will be considered harmless if, after examining the record as a whole, an appellate court has fair assurance that the error did not influence the fact finder or had but a slight effect. See Garcia v. State, 126 S.W.3d 921, 927 (Tex.Crim.App. 2004); Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998) (citing Tex. R. App. P. 44.2(b); King v. State, 953 S.W.2d 266 (Tex.Crim.App. 1997)). Moreover, the improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence. See Perez v. State, 113 S.W.3d 819, 831 (Tex.App.-Austin 2003, pet. ref'd) (citing Brooks v. State, 990 S.W.2d 278, 287 (Tex.Crim.App. 1999) (holding that any error in the admission of hearsay testimony was harmless in light of other properly admitted evidence proving same fact)).B. Analysis
By his first issue, appellant contends the trial court abused its discretion in admitting thirty-one instances of hearsay testimony at the probation revocation hearing by the following six witnesses: Detective Ramiro Rodriguez, Officer Eric Vasquez, Detective Wilfredo Guerra, Ralph Morales, II, Pamela Cavazos, and Cynthia Leal.1. Detective Rodriguez's Testimony
With respect to Detective Rodriguez, appellant complains of fourteen such instances. However, we conclude that appellant's contention with respect to Detective Rodriguez is without merit. During the revocation hearing, appellant objected on hearsay grounds to questions regarding (1) whether Leal had informed him as to how she and her friends had gotten to Club NCO, (2) whether the investigation revealed how Alex Villarreal and Hernandez had gotten to Club NCO, (3) whether Detective Rodriguez knew where Hernandez's car was parked at the club, and (4) whether Detective Rodriguez had learned where Ectoria Maldonado's truck was parked at the club. However, these questions did not call for hearsay testimony on the part of Detective Rodriguez. Moreover, Detective Rodriguez's answers to these questions did not relay out-of-court statements. Therefore, Detective Rodriguez's answers to these questions did not constitute hearsay. See Tex. R. Evid. 801(d). Accordingly, the trial court properly admitted his testimony in response to these questions. In addition, appellant objected on hearsay grounds to Detective Rodriguez's response to the following question: "And when you say [Villarreal] was a witness, he was a witness to what?" Detective Rodriguez answered as follows: "He was a witness to Rene Garcia killing — ." Assuming, without deciding, that Detective Rodriguez's testimony relayed an out-of-court statement, we nonetheless conclude that his testimony did not constitute hearsay. We cannot inescapably conclude that Detective Rodriguez's testimony in this instance was offered to prove statements made outside the courtroom. See Thornton, 994 S.W.2d at 854 (citing Schaffer, 777 S.W.2d at 114). Instead, we conclude that Detective Rodriguez's testimony was admitted to explain how appellant became a suspect in the investigation and to establish the course of events and circumstances leading to appellant's arrest for the murder of Hernandez. See Dinkins, 894 S.W.2d at 347; see also Thornton, 994 S.W.2d at 854 (citing Reed, 794 S.W.2d at 809). Therefore, the trial court properly admitted this testimony. Appellant further objected on hearsay grounds to questions asking (1) who the suspect was based on information obtained from Villarreal, (2) whom Villarreal rode with the evening in question, (3) whether appellant was still a suspect after Villarreal spoke with the special prosecutor, (4) where Leal was the evening in question, (5) Detective Rodriguez to write the names of the individuals who were at the club with Leal, (6) how Leal and her friends had gotten to the club the evening in question, (7) how Villarreal and Hernandez had gotten to the club the evening in question, (8) what vehicle authorities were looking for in connection with the investigation of Hernandez's death, and (9) what Valerie Longoria had informed him regarding appellant's alleged presence at Club NCO the evening in question. Assuming, without deciding, that these questions called for Detective Rodriguez to testify to out-of-court statements made by different declarants, we nonetheless conclude that his responses to these questions did not constitute hearsay. We cannot inescapably conclude that Detective Rodriguez's responses to these questions were offered to prove statements made outside the courtroom. See Thornton, 994 S.W.2d at 854 (citing Schaffer, 777 S.W.2d at 114). Instead, we conclude that Detective Rodriguez's testimony was admitted to explain how appellant became a suspect in the investigation and to establish the course of events and circumstances leading to appellant's arrest for the murder of Hernandez. See Dinkins, 894 S.W.2d at 347; see also Thornton, 994 S.W.2d at 854 (citing Reed, 794 S.W.2d at 809). Therefore, the trial court properly admitted Detective Rodriguez's testimony in response to these questions.2. Officer Vasquez's Testimony
With respect to Officer Vasquez, appellant complains of one instance of hearsay testimony. Specifically, appellant objected on hearsay grounds to a question asking Officer Vasquez what two witnesses had informed him at the crime scene. Officer Vasquez testified that the witnesses had informed him that they had "seen a green Ford Focus leaving the parking lot just as the shooting — just after the shooting occurred." Assuming, without deciding, that Officer Vasquez's testimony was hearsay and the trial court abused its discretion in admitting such testimony, we nonetheless conclude that the admission of this testimony was harmless. Prior to Officer Vasquez's testimony, Morales testified that appellant had borrowed his green Ford Focus the evening in question. Morales also testified that appellant had acknowledged that his car "was there." In addition, Detective Rodriguez testified that based on the investigation, officers were looking for a green Ford Focus in connection with Hernandez's murder. Thus, in light of this properly admitted evidence and viewing the record as a whole, we have a fair assurance that any purported error in relation to the admission of this testimony neither influenced the fact finder nor had more than a slight effect. See Garcia, 126 S.W.3d at 927; Johnson, 967 S.W.2d at 417 (citing Tex. R. App. P. 44.2(b); King, 953 S.W.2d at 271); see also Perez, 113 S.W.3d at 831 (citing Brooks, 990 S.W.2d at 287).3. Detective Guerra's Testimony
With respect to Detective Guerra, appellant complains of five instances of hearsay testimony. Appellant objected on hearsay grounds to testimony regarding (1) whether Noe Zavala was a person of interest in the investigation of Hernandez's murder, and (2) appellant's wife receiving a phone call after giving her statement to the police. However, Detective Guerra did not relay out-of-court statements during this complained of testimony; therefore, this testimony did not constitute hearsay. See Tex. R. Evid. 801(d). Accordingly, the trial court properly admitted this testimony. In addition, appellant objected on hearsay grounds to questions relating to (1) what kind of relationship Hernandez had with Eva Ramirez, appellant's wife, and (2) where Hernandez was when he was shot. Assuming, without deciding, that these questions called for Detective Guerra to testify to out-of-court statements made by different declarants, we nevertheless conclude that his responses to these questions did not constitute hearsay. We cannot inescapably conclude that Detective Guerra's responses to these questions were offered to prove statements made outside the courtroom. See Thornton, 994 S.W.2d at 854 (citing Schaffer, 777 S.W.2d at 114). Rather, we conclude that Detective Guerra's testimony was admitted to explain how appellant became a suspect in the investigation and to establish the course of events and circumstances leading to appellant's arrest for the murder of Hernandez. See Dinkins, 894 S.W.2d at 347; see also Thornton, 994 S.W.2d at 854 (citing Reed, 794 S.W.2d at 809). Therefore, the trial court properly admitted Detective Guerra's testimony in response to these questions. Appellant further complains of the following excerpt of testimony offered by Detective Guerra:Q. Okay. And the statement was that Rene Garcia was the shooter?
A. That Rene Garcia was the shooter —Defense Counsel: Hearsay, Your Honor.
A. — and he could not believe that —
The Court: Overruled.
A. — that Rene Garcia would have done that.
Q. Alex Villarreal told you in no uncertain terms that he witnessed Rene Garcia shoot Pandi; is that correct?
Defense Counsel: Objection. Leading and hearsay, Your Honor.
The Court: Overruled.
Q. Is that correct?
A. Yes, sir.Assuming, without deciding, that this testimony by Detective Guerra was hearsay and the trial court abused its discretion in admitting such testimony, we nonetheless conclude that the admission of this testimony was harmless. Prior to this testimony, Detective Guerra had stated that Villarreal had identified appellant as the "subject." Leal testified that the person running away from Hernandez's car after the shots were fired resembled appellant. Detective Rodriguez testified that Longoria had informed him that she had seen appellant at Club NCO the evening in question. In addition, Morales testified that he had loaned his car to appellant the evening in question and that appellant had acknowledged that the car "was there." Morales also testified that appellant told him he should "stay out of Harlingen" and that "if [Morales] got pulled in by the police, that [appellant] would have his attorney take care of everything." Thus, in light of this properly admitted evidence and viewing the record as a whole, we have a fair assurance that any purported error in relation to the admission of Detective Guerra's testimony neither influenced the fact finder nor had more than a slight effect. See Garcia, 126 S.W.3d at 927; Johnson, 967 S.W.2d at 417 (citing Tex. R. App. P. 44.2(b); King, 953 S.W.2d at 271); see also Perez, 113 S.W.3d at 831 (citing Brooks, 990 S.W.2d at 287).
4. Ralph Morales's Testimony
As to Ralph Morales, II, appellant complains of two instances of alleged hearsay testimony. Specifically, appellant objected on hearsay grounds to testimony by Morales regarding what he decided to do after seeing on the news that someone had been killed at Club NCO in the City of Harlingen the evening in question. However, Morales did not relay out-of-court statements in the complained of testimony. Therefore, the complained of testimony did not constitute hearsay. See Tex. R. Evid. 801(d). Accordingly, the trial court properly admitted this testimony.5. Pamela Cavazos's Testimony
In relation to Pamela Cavazos, appellant complains of four instances of hearsay testimony. Appellant objected on hearsay grounds to questions regarding (1) how Cavazos would describe the relationship between Hernandez and appellant, and (2) whether there were any problems between Hernandez and appellant. The questions, however, did not call for hearsay testimony from Cavazos. Additionally, Cavazos's answers to these questions did not relay out-of-court statements, and therefore, did not constitute hearsay. See id. Thus, the trial court properly admitted her testimony regarding these questions. Appellant further complains of the following two excerpts of testimony provided by Cavazos:Q. And who was Juan Hernandez going out with?
Defense Counsel: Hearsay, Your Honor.
The Court: Overruled.
A. He was seeing Eva [Ramirez], [appellant's] wife.
. . . .
Q. And how did you find that out?
A. Pandi told me.
Defense Counsel: Hearsay, Your Honor.
The Court: Overruled.
Q. Pandi being Juan Hernandez?
A. Yes, Juan Hernandez.
Q. What did he tell you?
Defense Counsel: Hearsay, Judge.
The Court: Overruled.
A. That he was having like a fling, I guess you would say, with her.
Q. And did you come to find out whether the defendant knew about it?
Defense Counsel: Hearsay, Judge.
The Court: Overruled.
A. Pandi had told me that [appellant] confronted him about it.
Q. Confronted him about it?
A. Yes.
Q. Do you know when this confrontation would have taken place?
Defense Counsel: Hearsay, Judge.
The Court: Overruled.
A. I believe it was about three weeks before the shooting.We conclude that the foregoing testimony offered by Cavazos regarding (1) whom Hernandez was going out with, (2) Hernandez having "like a fling" with appellant's wife, and (3) appellant confronting Hernandez about his relationship with appellant's wife is hearsay. This testimony by Cavazos relays out-of-court statements made by Hernandez that were offered for the truth of the matters asserted therein, and therefore, constituted hearsay. See Tex. R. Evid. 801(d). Accordingly, we conclude the trial court abused its discretion in admitting this testimony over appellant's objections. See id. at rule 802. Nevertheless, we conclude that the admission of this testimony was harmless. Detective Guerra testified regarding the relationship between Ramirez and Hernandez; specifically, Detective Guerra testified that Ramirez had stated that she was seeing Hernandez. In addition, Detective Rodriguez testified that when he spoke to appellant about Ramirez's affair with Hernandez, appellant "got up, walked around, had his fists clinched, just looked at me and asked me, you know, how did I know about the affair." Thus, in light of this properly admitted evidence and viewing the record as a whole, we have a fair assurance that any purported error in relation to the admission of Cavazos's testimony neither influenced the fact finder nor had more than a slight effect. See Garcia, 126 S.W.3d at 927; Johnson, 967 S.W.2d at 417 (citing Tex. R. App. P. 44.2(b); King, 953 S.W.2d at 271); see also Perez, 113 S.W.3d at 831 (citing Brooks, 990 S.W.2d at 287).
6. Cynthia Leal's Testimony
As to Cynthia Leal, appellant complains of three instances of hearsay testimony. Leal testified that she, Cavazos, Maldonado, Hernandez, and Villarreal had met at Cavazos's apartment before meeting at Club NCO. Appellant objected, on hearsay grounds, to a question regarding whether Leal knew why Hernandez and Villarreal were the first to leave Cavazos's apartment. This question, however, did not call for hearsay testimony from Leal. Moreover, Leal's answer to the question did not relay an out-of-court statement; therefore, her answer did not constitute hearsay. See Tex. R. Evid. 801(d). Accordingly, the trial court properly admitted her testimony in response to this question. Appellant further complains of the following two excerpts of testimony provided by Leal:Q: Okay. And do you know if Pandi met with Eva [Ramirez]?
Defense Counsel: Your Honor, that's hearsay, Your Honor.
The Court: Overruled.
A. No. I just — well, he just — they just said they were going over there, but I don't know. Personally, no, I don't.
. . . .
Q. All right. Did you and Pandi have a conversation earlier during the week about the defendant?
A. Yes.
Q. And what was the conversation about?
Defense Counsel: Your Honor, if she's going to make reference to what was told to her, it's hearsay.
The Court: Overruled.
Q. What were you and Pandi talking about?
A. He had told me —
Q. Can you speak up a little? I can't hear you, ma'am.A. He had told me that they had gotten into it because, I guess, he was sleeping with his wife, and that Rene had told him — well, he found out about it; and he had told him that he was going to — that if he didn't kill him, he was going to kill him first, or something like that. We conclude that the foregoing testimony offered by Leal regarding (1) whether she knew if Hernandez had met with appellant's wife before going to the club, and (2) the context of a conversation she had with Hernandez relating to appellant during the week of Hernandez's murder is hearsay. This testimony by Leal relays out-of-court statements made by other declarants that were offered for the truth of the matters asserted therein, and therefore, constituted hearsay. See Tex. R. Evid. 801(d). Accordingly, the trial court abused its discretion in admitting this testimony over appellant's objections. See id. at rule 802. Nevertheless, we conclude that the admission of this testimony was harmless. Detective Guerra testified that Ramirez had stated that she was seeing Hernandez. In addition, when asked on recross-examination to clarify her testimony "that if he didn't kill him, he was going to kill him first, or something like that," Leal agreed that Hernandez did not specify whether he was talking about someone wanting to kill him regarding drugs or whether he was referring to appellant wanting to kill him. Therefore, in light of this properly admitted evidence and viewing the record as a whole, we have a fair assurance that any purported error in relation to the admission of Leal's testimony neither influenced the fact finder nor had more than a slight effect. See Garcia, 126 S.W.3d at 927; Johnson, 967 S.W.2d at 417 (citing Tex. R. App. P. 44.2(b); King, 953 S.W.2d at 271); see also Perez, 113 S.W.3d at 831 (citing Brooks, 990 S.W.2d at 287). Having determined that any error in the admission of hearsay testimony at the revocation hearing was harmless, we overrule appellant's first issue.