Opinion
No. 05-10-01256-CR
Opinion issued June 17, 2011. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 422nd Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 27626-422.
Before Justices MURPHY, FILLMORE, and MYERS.
OPINION
Appellant, Marlon Briscoe, was convicted of aggravated robbery and sentenced to fifty years in prison. In only one point of error, he argues the trial court abused its discretion by overruling his hearsay objections. We affirm.
Discussion
Appellant's point of error is based on the court's decisions at trial overruling four separate hearsay objections. The first hearsay objection occurred during the testimony of Ermisha Sorrell, an employee of the EZ Money store that was allegedly robbed by appellant and another individual on January 2, 2009. According to the record, Sorrell had already testified that the robbers made Novella Barron, who also was in the store at the time of the robbery, walk around the counter and sit down next to Sorrell. The relevant portion of the record reads as follows:Q. [PROSECUTOR]: At any point during the — well, let me take it step by step. Okay, so after Novella's brought around to sit next to you behind the counter, what happens next?
A. [ERMISHA SORRELL]: At that point they were pacing back and forth; and then she, she said she had made a comment that she needed some water. She was feeling like she was going to faint.
Q. Who?
A. Novella.
Q. Okay.Sorrell added that Katrina Rinkus Glenn, who also worked at the EZ Money store and witnessed the robbery, "asked if one of them could reach in the icebox to get one of our bottles of water. So the one in the blue hoodie, he proceeded to reach in." At this point, defense counsel objected to "unresponsive hearsay." The trial judge asked the prosecutor to repeat the question, and the prosecutor said that he asked the witness "what happened next." The trial judge asked defense counsel "what portion of that are you objecting to?" Defense counsel said, "Whatever somebody else said." The trial judge asked the prosecutor if he was offering "it for the truth of what was said or just what was said?" The prosecutor said that he was offering the statement "[j]ust for what was said," and the trial judge overruled the objection. The second hearsay objection was made during the testimony of Officer Jimmy Young of the Balch Springs Police Department. Young testified that, on January 2, 2009, he was on patrol in a marked police vehicle when he received a call from dispatch at approximately 5:30 p.m. When the prosecutor asked the officer, "What was the dispatch regarding?," defense counsel lodged a hearsay objection. The prosecutor told the trial court the statement was "not offered for the truth of the matter asserted . . . but how [the officer] went about his investigation," and the trial court overruled the objection. After the objection was overruled, the officer testified that the dispatch directed him and another officer to an apartment complex in Balch Springs, and they were asked "to attempt to locate a black Mitubishi that was bearing the license plate of David Young Clay 311, [and] that it had just been involved in an armed robbery." The third hearsay objection occurred during subsequent testimony from Young regarding the fact that he was directed to a specific apartment at the Balch Springs apartment complex by a "black male juvenile" that approached him. The record reads in part as follows:
Q. [PROSECUTOR]: Did you ever locate — were you ever able to locate where the suspects had gone?
A. [YOUNG]: Yes, we did.
Q. And how were you able to do that?
A. It was a black male juvenile that approached me.
[DEFENSE COUNSEL]: Objection, your Honors [sic]. It's going to call for hearsay.
THE COURT: I'll sustain it.
[PROSECUTOR]: Your Honor, it wasn't offered for the truth of the matter but to show Officer Young's next steps in the investigation.
[DEFENSE COUNSEL]: Judge, it goes directly to the truth of the matter.
THE COURT: Well, if it is by way of explanation of how he proceeded with his investigation, I'll overrule it. You may answer.
A. Okay. We were approached by a black male juvenile that [sic] he asked me are you looking for where those guys ran to.Appellant's fourth and final hearsay objection was made during testimony from Officer John Craker of the Balch Springs Police Department that he first became involved in this case when he received a call that Young needed assistance regarding a robbery in Terrell. The relevant portion of the record reads as follows:
Q. [PROSECUTOR]: And at some point that afternoon did you receive a call regarding Officer Young and the fact that he needed assistance?
A. [CRAKER]: Yes.
Q. And what was your understanding of why he needed assistance?
A. My understanding is there was a robbery that took place in Terrell, Texas.
[DEFENSE COUNSEL]: Your Honor, I'll object to hearsay on this.
THE COURT: If it is offered for the purpose of explaining the investigation of the officer, then I will overrule the objection. Is that the purpose for which it's offered?
[PROSECUTOR]: Yes, it is, your Honor.
THE COURT: Then I'll overrule the objection.
[DEFENSE COUNSEL]: Judge, if he gets a call saying that he's in [sic] route to assist, that's fine; but any further detail than that would be hearsay.
THE COURT: I think he can say that he received a call indicating there had been a robbery, and he was going to the scene to assist an officer. I'll overrule the objection.
Q. Officer Craker, you can move that microphone closer or up and down as needed.
A. Okay.
Q. So what was your understanding of why Officer Young needed assistance?
A. There was a bank robbery that took place in Terrell, Texas, which they had the license plate which came back to Balch Springs off of an apartment complex, 4317 Shepherd Lane.Before addressing the merits of these complaints, we note the State argues that appellant's first and fourth hearsay objections failed to preserve error because, according to the State, the record shows defense counsel did not object until after the questions were asked and answered, and there was no justification for the delay. In order to be considered timely, an objection must be made as soon as the ground for the objection becomes apparent. See Tex. R. App. P. 33.1(a); Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997); Polk v. State, 729 S.W.2d 749, 753 (Tex. Crim. App. 1987); Guzman v. State, 521 S.W.2d 267, 269 (Tex. Crim. App. 1975); see also Tex. R. Evid. 103(a)(1). In this case, appellant objected immediately after the witnesses answered the prosecutor's questions. This was the point at which alleged grounds for an objection became apparent since neither question was phrased in such a way as to elicit a hearsay response. As a result, the objections were timely. Turning to appellant's arguments, we review decisions admitting or excluding evidence under an abuse of discretion standard; absent an abuse of discretion, we will not reverse a trial judge's decision. Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002). If evidence exists supporting the decision to admit evidence, there is no abuse and we must defer to that decision. Osbourn, 92 S.W.3d at 538; Fairow v. State, 943 S.W.2d 895, 901 (Tex. Crim. App. 1997). Hearsay is a statement, other than one made by the declarant while testifying at the trial, which is offered to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay is generally not admissible. Id. at 802. A "matter asserted" includes any matter explicitly asserted, and any matter implied by a statement, if the probative value of the statement flows from the declarant's belief as to the matter. Id. at 801(c). When information is offered for a reason other than to prove the truth of the matter asserted, the evidence may be admissible. Martinez v. State, 22 S.W.3d 504, 508 (Tex. Crim. App. 2000); Lopez v. State, 200 S.W.3d 246, 254 (Tex. App.-Houston [14th Dist.] 2006, pet. ref'd). "Police officers may testify to explain how the investigation began and how the defendant became a suspect." Lee v. State, 29 S.W.3d 570, 577-78 (Tex. App.-Dallas 2000, no pet.) (officer testified investigation of appellant resulted from interview with victim); see also Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995) (victim's appointment book listing defendant's name and patient application listing name similar to defendant's not hearsay because they were submitted only to show how defendant became a suspect); Short v. State, 995 S.W.2d 948, 954 (Tex. App.-Fort Worth 1999, pet. ref'd) (complained-of testimony explained why police officer began his investigation); Thornton v. State, 994 S.W.2d 845, 854 (Tex. App.-Fort Worth 1999, pet. ref'd). "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 the arrest." Thornton, 994 S.W.2d at 854. 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. See Schaffer v. State, 777 S.W.2d 111, 114 (Tex. Crim. App. 1989). We conclude that the trial court did not abuse its discretion by overruling appellant's hearsay objections because the statements at issue are not hearsay. Beginning with the first statement, the trial court could have concluded that Sorrell's testimony was offered to show what was said to her and what she did with the information, in addition to the circumstances leading to appellant's arrest. As such, it was not hearsay. See Guidry v. State, 9 S.W.3d 133, 152 (Tex. Crim. App. 1999) (out-of-court statement not offered to prove the truth of the matter asserted, and offered for some other reason, is not hearsay) (citing Dinkins, 894 S.W.2d at 347). We also note that Barron later testified without objection that, during the robbery, she said that she "felt like I was gonna have a heart attack," and that Glenn "suggested they [the robbers] get me some water." It is well-known that improper admission of evidence is not reversible error if the same or similar evidence is admitted without objection at another point in the trial. See Tex. R. App. P. 44.2(b); Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991); Nino v. State, 223 S.W.3d 749, 754 (Tex. App.-Houston [14th Dist.] 2007, no pet.). Therefore, any error was harmless because the challenged testimony was cumulative of the testimony of other witnesses. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) ("any error in admitting [hearsay] evidence was harmless in light of other properly admitted evidence proving the same fact"). Turning to the second statement, it is not hearsay because the challenged testimony amounts to an explanation from the officer regarding the origin of his investigation and how appellant became a suspect in this case, and the question prompting this response was not designed to elicit hearsay testimony. See Dinkins, 894 S.W.2d at 347; Lee, 29 S.W.3d at 577-78. Furthermore, any error in admitting the testimony was harmless because it was cumulative of the testimony of other witnesses. See Brooks, 990 S.W.2d at 287. Kenya Shaw, who worked at an EZ Pawn that was next door to the EZ Money store, testified that she went to her car to make a telephone call, she saw the robbers drive away in a black four-door vehicle, and she memorized the vehicle's license plate number and gave it to Terrell police officers. Terrell police officer Christopher Lee testified that he obtained the vehicle's license plate number and description from Shaw and provided that information to the police dispatcher, who performed a "computer check" and found that the vehicle was registered to an address at the Balch Springs apartment complex. Lee testified that Balch Springs police officers were dispatched to that address to search for the vehicle. Lee also went to the apartment complex and found "[t]hat the vehicle description and vehicle license plate that I had given earlier had been found." The third challenged statement is not hearsay because it was not offered to show the juvenile was being truthful about where the suspects had gone, but only the officers' course of action and why they went to the apartment where appellant and the co-defendant were eventually apprehended. See Dinkins, 894 S.W.2d at 347; Lee, 29 S.W.3d at 577-78. In addition, other testimony showed that the officers saw the suspect vehicle pull into a parking space at the Balch Springs apartment complex, after which two black males got out of the car and fled on foot. Other officers had already located the apartment in question through a search of the suspect vehicle's license plate number and registration. Appellant and his co-defendant, Keontee Smith, were found hiding in that apartment with proceeds of the robbery. Smith testified that he and appellant ran from the car to apartment number 5206, which belonged to Smith's acquaintance, Glynnis Burch. Accordingly, any error in the court's ruling was harmless because the evidence in question was cumulative of the testimony of other witnesses. See Brooks, 990 S.W.2d at 287. The fourth statement is not hearsay because the officer merely recounted the particulars of his investigation into the incident and how appellant became a suspect. See Dinkins, 894 S.W.2d at 347; Lee, 29 S.W.3d at 577-78. We also conclude that any error was harmless because, as noted previously in this opinion, the testimony in question was cumulative of testimony from other witnesses. See Brooks, 990 S.W.2d at 287. We overrule appellant's point of error. We affirm the trial court's judgment.