No. 05-06-00941-CR
Opinion issued November 8, 2007. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 336th Judicial District Court Grayson County, Texas, Trial Court Cause No. 053516-336.
Before Justices RICHTER, FRANCIS, and LANG-MIERS.
OPINION
MARTIN RICHTER, Justice.
A jury convicted Dewon Leon Flemmings of delivery of cocaine in an amount less than one gram and assessed punishment at two years in a state jail and a $10,000 fine. In four points of error, Flemmings challenges the legal sufficiency of the evidence to support the conviction and asserts trial court error in the admission of and failure to instruct the jury to disregard certain evidence. We affirm.
Background
Flemmings was charged with the offense after delivering four-tenths of a gram of cocaine to a confidential informant (CI). The transaction, which was audio-and video recorded, was set up at a gas station at the direction of Denison police detective Joseph Rains. Rains testified at trial that he searched the CI and the CI's car prior to the transaction to ensure the CI had no drugs or money on him, "wired him up," gave him $100 for the purchase, tested the audio transmitter to ensure he could be heard, and followed him to the gas station. Rains parked "a couple of blocks away" and left the CI under the surveillance of sergeant Don Maury, who was operating the video camera. Rains testified he monitored the CI via the audio transmitter and subsequently viewed the videotape. Both recordings were admitted into evidence without objection. Rains testified, and the recording shows, that about fifteen minutes after the CI arrived at the gas station, a yellow car, later identified as belonging to Larry Mayberry, pulled into the station next to a phone booth. In the car were Mayberry and a passenger, whom the CI subsequently identified as Flemmings. While Mayberry stepped out to make a phone call, the CI entered the car, briefly talked to Flemmings, and then went back to his car. A few seconds later, Mayberry drove away. After waiting a few minutes to ensure Mayberry's car had left the area, Rains, followed by the CI, drove to a predetermined location where the CI handed Rains the cocaine. Rains again searched the CI and the CI's car and also obtained a written statement from the CI outlining the transaction. Although the statement was excluded from evidence following Flemmings's hearsay objection, the prosecutor questioned Rains about the substance of the statement. This testimony showed the statement was similar to earlier testimony of Rains and the depiction of the transaction on the tape. Rains then testified that about two days after the transaction, the CI identified Flemmings from a photographic line-up. When the prosecutor questioned Rains whether he recognized the line-up and whether Flemmings was in the line-up, Flemmings objected as to hearsay. The objection was overruled and after further questioning, cross-examination, and redirect, the line-up was admitted into evidence without objection. The CI's identification of Flemmings as the passenger in Mayberry's car was corroborated by Mayberry. The CI did not testify. Legal Sufficiency of the Evidence
In his fourth point of error, Flemmings asserts the evidence is legally insufficient to support the conviction. In arguing this point, Flemmings maintains the State's case rested solely on the CI's written statement and photographic identification, both of which were improperly admitted into evidence. Flemmings asserts that without this evidence, no evidence exists to support the conviction. Alternatively, Flemmings asserts the CI's "testimony" needed to be corroborated to support the conviction. See Tex. Code Crim. Proc. Ann. art. 38.141 (Vernon 2005) (providing that defendant may not be convicted on informant's testimony alone; informant's testimony must be corroborated by other evidence tending to connect defendant to offense). Arguing the State failed to present evidence other than the insufficient and improperly admitted statement and identification of the CI, Flemmings maintains his conviction should be reversed and an order of acquittal entered. Flemmings's argument that he should be acquitted because the only evidence to support the conviction was improperly admitted or in the alternative, because the CI's "testimony" was not corroborated is flawed, however. The CI did not testify and his written statement was not admitted into evidence. Thus, the applicability of the rule requiring an informant's "testimony" be corroborated is not at issue. Moreover, in reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict to determine if any rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense. Moff v. State, 131 S.W.3d 485, 488 (Tex.Crim.App. 2004). Under this standard, we consider all the evidence actually admitted at trial, even if a portion of the evidence was erroneously admitted. Id. This is so because that is what the jury had before it during its deliberations and our assessment of the jury's factual findings occurs from that perspective. Id. n. 11. Based on the indictment in this case, to establish Flemmings's guilt, the State had to prove beyond a reasonable doubt that Flemmings intentionally or knowingly delivered to the CI cocaine in an amount less than one gram. See Tex. Health Safety Code Ann. § 481.102(3)(D), 481.112(a),(b) (Vernon 2003 Supp. 2007). As proof, the State presented the testimony of Rains, who set up the transaction and monitored it via the audio transmitter, the audio-and video recordings of the transaction, and the testimony of Mayberry, who arrived at the gas station with Flemmings. This evidence showed the CI (1) had only $100 and no drugs on him or in his car prior to arriving at the gas station, (2) entered Mayberry's car, briefly spoke with Flemmings, and exited the car, (3) left the gas station and immediately met with Rains, (4) had no money on him or in his car after the transaction, and (5) delivered the cocaine to Rains. From this evidence, we conclude a rational jury could have found beyond a reasonable doubt that Flemmings committed the offense. Id.; Fletcher v. State, 39 S.W.3d 274, 278-90 (Tex.App.-Texarkana 2001, no pet.) (concluding evidence legally sufficient to support conviction for delivery of methamphetamine where record reflected officer searched informant prior to transaction, drove with informant to buy the methamphetamine, gave the informant cash for the purchase, saw the informant follow the defendant into his house, and then saw the informant emerge from the house with the methamphetamine). We overrule Flemmings's fourth point of error. Evidentiary Issues
Flemmings's first three points of error stem from the prosecutor's questioning of Rains concerning the CI's written statement and identification of Flemmings from the photographic line-up. Specifically, Flemmings asserts in his first point that the trial court erred in allowing the prosecutor to question Rains concerning the CI's written statement. In his second point, Flemmings asserts the court erred in failing to instruct the jury to disregard Rains's testimony concerning the statement after the statement was excluded from evidence. Finally, in his third point, Flemmings asserts the court erred in allowing the prosecutor to introduce the photographic line-up. We review rulings on the admissibility of evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). We will find a trial court's ruling on the admissibility of evidence to be reversible error when the court acts without reference to any guiding principles and appellant has been harmed. See Tex. R. App. P. 44.2; Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001); Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990). When evidence similar to the objected-to evidence is admitted without objection elsewhere at trial, we will conclude no reversible error occurred. Lane v. State, 151 S.W.3d 188, 193 (Tex.Crim.App. 2004). To preserve error in the admission of evidence, the defendant must object in a timely manner each time the objectionable evidence is introduced. Cruz v. State, 225 S.W.3d 546, 548 (Tex.Crim.App. 2007); Lane, 151 S.W.3d at 193. If the objection is sustained, the defendant must then request an instruction to disregard, and if the instruction to disregard seems insufficient, the defendant must move for a mistrial. Cruz, 225 S.W.3d at 548. Applying these rules to Flemmings's complaint that the court erred in allowing Rains to testify concerning the CI's written statement, we conclude any error was harmless because the record reflects the CI's statement was no different than the video recording and other testimony of Rains, neither of which was objected to by Flemmings. See Lane, 151 S.W.3d at 193. As to Flemmings's complaints that the court erred in failing to instruct the jury to disregard Rains's testimony concerning the CI's statement after it was excluded from evidence and erred in admitting the line-up into evidence, we conclude Flemmings failed to preserve error. Although he objected to the admission of the statement, Flemmings did not request an instruction to disregard Rains's testimony once his objection to the admission of the statement was sustained. See Cruz, 225 S.W.3d at 548. Similarly, although he objected to the prosecutor questioning Rains as to whether Rains recognized the line-up and whether Flemmings was in the line-up, Flemmings did not object when the line-up was actually offered into evidence. See id. We overrule Flemmings's first three points of error. We affirm the trial court's judgment.