Opinion
01-18-00897-CR
11-09-2021
JAMAILE BURNETT JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 178th District Court Harris County, Texas Trial Court Case No. 1532340
Panel consists of Justices Goodman, Landau, and Countiss.
MEMORANDUM OPINION ON REMAND
Julie Countiss Justice
A jury found appellant, Jamaile Burnett Johnson, guilty of the felony offense of theft of property with a value of more than $2,500 but less than $30,000. After finding true the allegations in two enhancement paragraphs that appellant had twice been previously convicted of felony offenses, the jury assessed his punishment at confinement for eleven years. On original submission, in three issues, appellant contended that the evidence was legally insufficient to support his conviction, his trial counsel provided him with ineffective assistance of counsel, and the trial court erred in excluding the testimony of a certain witness.
See Tex. Penal Code Ann. § 31.03(a), (e)(4).
The Court previously held that the evidence was legally sufficient to support appellant's conviction for the felony offense of theft, but that appellant's trial counsel provided him with ineffective assistance of counsel during the guilt phase of trial. See Johnson v. State, 606 S.W.3d 386, 392-403 (Tex. App.-Houston [1st Dist] 2020) (Johnson I), rev'd, 624 S.W.3d 579 (Tex. Crim. App. 2021) (Johnson II); but see Johnson I, 606 S.W.3d at 407-13 (Goodman, J., dissenting). Having so held, the Court reversed the trial court's judgment and remanded the case to the trial court for a new trial. Johnson I, 606 S.W.3d at 403. The Court did not address appellant's second issue: whether the trial court erred in excluding the testimony of a certain witness. Id.
The State then filed a petition for review with the Texas Court of Criminal Appeals, which the court granted. The Texas Court of Criminal Appeals concluded, as to appellant's ineffective-assistance-of-counsel complaint, that appellant had not shown, based on the record, that his trial counsel's performance fell below an objective standard of reasonableness "[b]ecause th[e] record d[id] not disclose [trial] counsel's reasons for his conduct[] and a legitimate trial strategy [was] a possibility." Johnson II, 624 S.W.3d at 588. It, thus, reversed our judgment and remanded the case to this Court to address appellant's second issue. Id. at 582.
See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984) (to prove claim of ineffective assistance of counsel, defendant must show (1) his trial counsel's performance fell below objective standard of reasonableness and (2) there is reasonable probability that, but for his counsel's unprofessional errors, result of proceeding would have been different); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).
We affirm.
Portions of the background section are taken verbatim from this Court's previous opinion.
Veronica Lopez, the complainant, testified that on November 28, 2016, she, along with her husband, Jorge Gonzalez, went to a tire store. Gonzalez drove a brown Chevrolet truck with a stripe and darkened windows. The truck was a family car in Gonzalez's name.
Upon arrival at the tire store, Gonzalez parked the truck in the back of the store's parking lot and got out. The complainant remained inside the truck in the front passenger seat with the truck's engine still running. As the complainant sat in the truck looking at her cellular telephone, she saw appellant riding toward the truck on a bicycle. Appellant opened the unlocked door of the truck and got inside. He had a screwdriver in his hand, but he did not point it directly at the complainant, and the complainant did not see the screwdriver when appellant first entered the truck. Appellant did not hit the complainant with the screwdriver, stab her with the screwdriver, or point it at her face. Instead, the complainant saw the screwdriver in appellant's hand when his hand was on the gearshift.
The complainant asked appellant if he worked at the tire store, and he told her that he did not. He then asked her if she wanted to go for a ride or if she was "ready for a ride." The complainant felt scared and feared for her life. She yelled and got out of the truck by opening her door and hanging onto it, while appellant accelerated the truck backward and forward. The complainant landed on her feet and was not harmed. According to the complainant, it would have been apparent to appellant that she was upset.
After the complainant exited the truck, the complainant's husband, Gonzalez, threw a wrench at it, which broke the truck's windshield. He also called for emergency assistance. And appellant drove out of the tire store's parking lot. The truck was returned to the complainant later the same day. Several weeks later, the complainant and Gonzalez found a screwdriver in the truck, which they threw away.
Gonzalez testified that he is married to the complainant, and on November 28, 2016, he drove his truck, with the complainant, to a Truck Zone store where he had left his "dumper" for its tires to be replaced. Upon arrival, Gonzalez got out of the truck and went inside the store for about four or five minutes while the complainant remained in the truck. At the time, the truck was still running. While Gonzalez was inside the store, "[t]he tire man yelled . . . that something was happening outside because [the complainant] was screaming." Gonzalez went back to his truck and saw an unknown person driving his truck backward and forward, while the complainant hung onto the door of the truck. Gonzalez grabbed "a piece of iron" and threw it at the windshield. The complainant got out of the truck, and the person driving the truck drove off in a hurry. Gonzalez got the truck back later that day.
Gonzalez stated that his truck was a 2002 Chevrolet 1500 "[c]ab and a half" and it was used by his family. Gonzalez did not get a clear look at the person driving his truck, and he did not see the screwdriver while at the Truck Zone store. He later found a screwdriver in the truck and threw it away.
Galena Park Police Department ("GPPD") Officer J. Torres testified that on November 28, 2016, he was on patrol when he was dispatched to a Truck Zone store in Harris County, Texas. Upon his arrival, the complainant ran toward him screaming that "she had been the victim of a robbery" and her truck had been taken. The complainant told Torres that the truck was a brown Chevrolet truck with a stripe. Torres gave the dispatch operator a description of the truck and the direction in which it was traveling. Other law enforcement officers located the truck and stopped it. There was only one person in the truck, and he was arrested by the officers.
Torres noted that the truck, before being taken, was parked "all the way in the back" of the Truck Zone store's parking lot behind a gate. He could not identify the person who took the truck.
The trial court admitted into evidence a surveillance videotaped recording from the Truck Zone store on November 28, 2016. On the recording, a person can be seen riding a bicycle on the street in front of the Truck Zone store. After passing the Truck Zone store, the person turns the bicycle around and rides into the Truck Zone store's parking lot toward the back. About a minute later, a tan truck with a stripe drives out of the Truck Zone store's parking lot.
Former GPPD Officer P. Orea testified that on November 28, 2016, while on patrol, he went to assist Officer Torres following a call for emergency assistance about a stolen truck at a Truck Zone store in Harris County. Orea did not go to the Truck Zone store, but instead went to look for the truck with other law enforcement officers. GPPD Officer Martin, another law enforcement officer assisting in the search, ultimately found the truck on a nearby road. As Martin approached the truck, appellant drove off. After that, Orea followed behind Martin's patrol car as they drove behind the truck, which Orea described as a tan or beige pickup truck with a stripe. Orea and Martin pursued the truck for about forty-five minutes until appellant pulled over and stopped.
Eventually, Officer Martin got appellant out of the truck, and Officer Orea helped arrest him. Appellant was the only person found inside the truck, and no weapon was found by law enforcement officers. When asked whether he knew that appellant lived in the neighborhood where the truck had stopped during the chase, Orea responded that he did not.
The trial court admitted into evidence a videotaped recording from Officer Orea's body camera taken on November 28, 2016. The recording shows Orea following behind a tan truck with a stripe. Eventually, the truck is stopped, and a man is removed from the driver's seat of the truck. Orea testified, while viewing the videotaped recording at trial, that appellant was the man who was found driving the truck and he was arrested.
Lewis Armstead, appellant's step-father, testified that on November 28, 2016, Armstead went to his mother's house in Galena Park, Texas near the Truck Zone store. When he arrived, appellant was at the home of Armstead's mother, and Armstead spoke with appellant, who initially seemed "like a normal person at the time." At some point, while Armstead was at his mother's house, appellant went outside. Armstead later found appellant sitting in front of the house near a dead-end sign on the street. Appellant was "pulling up grass" and "rubbing it all on him." Armstead went to get his mother, who called to appellant, but appellant "looked like he was not there." Appellant would not answer Armstead's mother; he just looked at her. Armstead went back inside the house. Later, he came outside again and found that appellant had "got[ten] up and walked across the ditch in the mud and water, went on the railroad track, laid down on the track and started throwing rocks." Armstead kept calling appellant's name and asking if he was okay, but appellant did not respond and continued to look like he was not there. Armstead stated, "that's how . . . he's been"; and while growing up, appellant had "schizophrenia or something." According to Armstead, he and his mother called for emergency assistance that day because of appellant's behavior, but law enforcement officers did not take appellant to the hospital.
Armstead further testified that after the law enforcement officers had left Armstead's mother's house and after appellant had told Armstead that he was going to get his truck, appellant left. Appellant was gone for about twenty or twenty-five minutes and came back driving a truck. Armstead noted that while appellant did own a truck, he had originally ridden his bicycle to Armstead's mother's house and the truck that he returned in was not appellant's truck.
According to Armstead, after appellant arrived back at Armstead's mother's house, appellant wanted Armstead to leave with him, but Armstead chose not to leave because Armstead "knew" that appellant had not seen Armstead's truck, which had been stolen. Armstead then asked appellant to leave the house. Armstead testified that appellant "was not himself" or in his right mind with "what he was doing" that day.
Kenyon Johnson, appellant's brother, testified that he was present when appellant was arrested and that appellant appeared spacey, normal, calm, and non-combative. Kenyon also stated that appellant's truck was a Dodge extended cab.
Gwendolyn Johnson, appellant's mother, testified that appellant owned a truck, which appellant had in the Beaumont, Texas area at some point. She knew this because a law enforcement officer from the Anahuac Police Department had called her after he found appellant on the highway "licking the guardrail." Gwendolyn did not know how appellant got from the Beaumont area to Houston, Texas, but when she saw him, appellant appeared aggravated, which was not his normal demeanor. He was not clean, was not walking normally, and could not have a normal conversation with her. Gwendolyn told appellant that she did not have his truck, his brother did not have his truck, and his truck was not in Houston; but it appeared to Gwendolyn that appellant either did not understand her or he believed that what she was saying was not true. After speaking with appellant, Gwendolyn was concerned for his well-being, but she was unable to get any sort of assistance based on her concerns.
Appellant testified that in November 2016 he was homeless. On November 20, 2016, while driving his truck, a 1997 Dodge 1500 extended cab, he ran out of gas on the Trinity River bridge late at night. At some point, appellant locked his truck with his keys still in the ignition. Eventually, law enforcement officers arrived and a tow truck towed appellant's truck off the bridge. The officers took appellant to Spindletop Medical Center in Beaumont for a psychological evaluation.
Appellant spent a few hours at Spindletop Medical Center and was told that he was discharged. He remained on the property, however, and was arrested for trespassing. Following his release from jail, appellant began walking and hitchhiking around Beaumont to look for his truck. He did not succeed in finding it. Appellant then walked and hitchhiked back to Houston. After arriving in Houston, appellant spent the night with his cousin. He also realized that he needed some money because his truck was missing and it could have been impounded. On November 28, 2016, appellant went to Armstead's mother's house because he planned to ride around on a bicycle to look for his truck and he believed that he knew where it was located.
While looking for his truck, appellant stopped at several places, and as he rode his bicycle to his mother's work, he passed by the Truck Zone store. Appellant then "ca[ught] a glance at [a] truck" "way in the back" of the Truck Zone store's parking lot sitting sideways. According to appellant, his "mind told [him]" that it was his truck. Appellant explained that the truck that he saw in the Truck Zone store's parking lot was similar to and resembled his missing truck. The truck was similar in brand and body style, it had two doors, and it was an extended cab.
Appellant noted that he did not see anyone else around because he was only focused on riding his bicycle to get his truck. Although the truck in the Truck Zone store's parking lot had tinted windows, and appellant's truck did not, appellant stated at trial that he believed at the time that his truck had been stolen or was missing and "when someone acquire[s] someone[] [else's] property, they are going to alter it a little bit."
Appellant had a "multipurpose tool" with him while he was looking for his truck because he did not have the keys to his truck. And he did not see anyone inside the truck in the Truck Zone store's parking lot because of its tinted windows. Thus, he thought he would have to use the multipurpose tool to unlock the truck.
Appellant first tried to use the multipurpose tool, but he discovered that the truck was unlocked already. When appellant got into the truck, the multipurpose tool was in his pocket. He saw a woman inside his truck. Appellant also saw that the keys were in the truck's ignition, and he noticed that the truck's engine was running. Appellant held the multipurpose tool in his hand while he began shifting gears, but he did not point it at the woman or threaten her. The woman inside the truck smiled at appellant, and he asked if she wanted a ride because he did not know if the woman wanted a ride or not. As appellant explained: "She's in the truck, she's in my truck. I asked her: Do you want to ride because I'm fixing to leave in my truck." Because the woman did not respond to his question, appellant "moved the truck." But once the woman opened her truck door, appellant hit the brake so that she could get out and stand up because he did not want her to be hurt. When asked at trial, "[D]id you want to give [the complainant] an opportunity to get out?," appellant responded, "Yes." But appellant agreed that if the complainant had wanted a ride to some place, he would have given her one.
After the woman got out of the truck, appellant saw three men approaching the truck quickly, so he put the truck in drive. Someone then threw something long and solid at the truck's windshield. Appellant drove to Armstead's mother's house because Armstead was there and appellant knew that Armstead, his step-father, had been looking for his missing truck as well. When appellant arrived at the house, he told Armstead that he had seen Armstead's truck and asked Armstead if he wanted a ride to go look for his truck. When Armstead declined, appellant left. At some point after driving around for a bit, appellant saw law enforcement officers driving behind him, but he did not think that they were looking for him. Eventually, appellant stopped the truck when he saw a law enforcement officer outside his patrol car with a firearm pointed at the truck. Appellant took the keys out of the truck's ignition, put them on the dashboard, rolled the window down, and put his hands outside the window so that law enforcement officers could see that he did not have a weapon. Law enforcement officers got appellant out of the truck.
On cross-examination, appellant testified that the truck he saw at the Truck Zone store resembled his truck, although his truck was "kind of like gray" and did not have a stripe on it and the truck at the Truck Zone store was tan with a stripe. Appellant also acknowledged that Armstead had testified that the truck from the Truck Zone store did not look like appellant's truck.
Appellant further testified that initially he did not see a woman in the truck because the windows were tinted. He also did not see a woman when he first opened the door to the truck. He finally noticed the woman after he sat down in the driver's seat and looked at the ignition. Appellant stated that he did not know the woman in the truck and he was surprised to see her inside his truck. The woman did not scream when appellant got in the truck. She started screaming when she was outside the truck.
As for the law enforcement officers who were following him as he drove the truck, appellant reiterated that he did not think that they were after him and the officers might have simply been driving in the same direction he was driving. Appellant stopped the truck because he came upon a red light and he noticed that a law enforcement officer was pointing a firearm at his truck.
Appellant also stated that he had the multipurpose tool with him because he did not have the keys to his truck and he might need the tool to start its ignition. And at multiple times during cross-examination, appellant stated that the truck from the Truck Zone store was his truck and that he thought that the truck was his own truck. He testified that he did not know where his truck had been taken after he was in Beaumont. Although, at the time, he thought that it could have been impounded, he was unsure. He testified that he did not tell law enforcement officers that the truck from the Truck Zone store was his truck because no one asked him that question.
Standard of Review
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Tarley v. State, 420 S.W.3d 204, 206 (Tex. App.-Houston [1st Dist.] 2013, pet. ref'd). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). When considering a trial court's decision to admit or exclude evidence, we will not reverse the trial court's ruling unless it falls outside the "zone of reasonable disagreement." Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996) (internal quotations omitted). A trial court does not abuse its discretion if some evidence supports its decision. See Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002); Tarley, 420 S.W.3d at 206. We will uphold a trial court's evidentiary ruling if it is correct on any theory of law applicable to the case. See De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009); Tarley, 420 S.W.3d at 206. This is true even if the trial court failed to give any reason or used the wrong reason for its ruling. Prystash v. State, 3 S.W.3d 522, 527 (Tex. Crim. App. 1999).
Exclusion of Testimony
In his second issue, appellant argues that the trial court erred in "restricting the testimony" of Armstead by sustaining the State's hearsay objections to certain portions of Armstead's testimony because "the testimony of Armstead . . . did not fall within the definition of hearsay" and should have been admitted under the "[s]tate of [m]ind [e]xception" and the "[p]resent [s]ense [i]mpression [e]xception." See Tex. R. Evid. 801(d), 802, 803.
At trial, Armstead testified that on November 28, 2016, he went to his mother's house in Galena Park near the Truck Zone store. When he arrived, appellant was at the home of Armstead's mother, and Armstead spoke with appellant, who initially seemed "like a normal person at the time." At some point, while Armstead was at his mother's house, appellant went outside. Armstead later found appellant sitting in front of the house near a dead-end sign on the street. Appellant was "pulling up grass" and "rubbing it all on him." Armstead went to get his mother, who called to appellant, but appellant "looked like he was not there." Appellant would not answer Armstead's mother; he just looked at her. Armstead went back inside the house. Later, he came outside again and found that appellant had "got[ten] up and walked across the ditch in the mud and water, went on the railroad track, laid down on the track and started throwing rocks." Armstead kept calling appellant's name and asking if he was okay, but appellant did not respond and continued to look like he was not there. Armstead stated, "that's how . . . he's been"; and while growing up, appellant had "schizophrenia or something."
During Armstead's testimony, the following exchange then occurred:
Armstead: . . . [W]hen I got there, he [was] okay, because after the laws had came and the laws had came to talk to him[, ] . . . he c[ould] answer their question[s]. They would not take him because I was telling them what he was doing[] . . . . I told them what he was doing, but [they] would not take him to the hospital, yeah. And after they left -- after they left, he took off.
Appellant's counsel: [D]id you know where he was going?
Armstead: Said he was going to get his truck.
State's counsel: Objection to hearsay.
Trial court: Is there an exception to the hearsay rule?
Appellant's counsel: . . . [I]t's a statement from defendant.
Also, it is a present sense impression.
Trial court: The [c]ourt sustains the hearsay objection.
Appellant's counsel: So after he told you he was going to get his truck, did he leave?
Armstead: Yeah.
Appellant's counsel: Okay. So how long was he gone?
Armstead: . . . I would say about maybe 20, 25 minutes. Something like that maybe.
Appellant's counsel: . . . Do you know if he ha[d] a truck?
Armstead: He came back in one.
Appellant's counsel: . . . [H]ave you ever seen him driving a truck before?
Armstead: He had one, yeah.
Armstead: I can't remember exactly what type, but he had a truck, though. But I know when he came back that one was not his.
Appellant's counsel: When he came back, were you outside or were you inside the house?
Armstead: I was inside. And we saw him coming down the road to the house, and I walked outside . . . .
Appellant's counsel: So what happens when he stops the truck?
Armstead: Well, he told me to get in that he knew where my truck was stolen because my truck was stolen also.
State's counsel: Objection, hearsay.
Appellant's counsel: . . . [T]his is for 803 -- 803.3, then existing mental, emotional or physical condition.
Appellant's counsel: . . . My exception . . . was . . . then existing mental, emotional, physical condition and also effect on the listener.
Trial court: I'm sustaining the objection. Rephrase your question.
"Hearsay" is an out-of-court statement offered in evidence to prove the truth of the matter asserted in the statement. Tex. R. Evid. 801(d) (internal quotations omitted). Hearsay is generally not admissible unless allowed by statute or rule. Tex. R. Evid. 802. Appellant asserts that the trial court erroneously sustained the State's hearsay objections to Armstead's testimony that appellant told Armstead that "he was going to get his truck" and that "he knew where Armstead's stolen truck was located."
Even were we to presume, for purposes of this opinion, that the trial court erred in sustaining the State's hearsay objections, the erroneous exclusion of evidence does not result in reversible error unless the exclusion affects a substantial right of the defendant. See Tex. R. App. P. 44.2(b); Smith v. State, 355 S.W.3d 138, 152-53 (Tex. App.-Houston [1st Dist.] 2011, pet. ref'd); see also Barshaw v. State, 342 S.W.3d 91, 93-94 (Tex. Crim. App. 2011) (non-constitutional error requires reversal only if it affects substantial rights of accused); Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008) (error in the admission of evidence is non-constitutional error and is subject to harmless error analysis); Jackson v. State, No. 01-17-00416-CR, 2018 WL 3848783, at *5-6 (Tex. App.-Houston [1st Dist.] Aug. 14, 2018, no pet.) (mem. op., not designated for publication) (defendant's complaint that testimony of "fact witness was improperly curtailed by the trial court" was non-constitutional error subject to harmless-error analysis). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). We will not overturn a criminal conviction for non-constitutional error if, after examining the record, we have fair assurance that the error did not influence the jury or had but a slight effect. Barshaw, 342 S.W.3d at 93-94.
The standard governing our harm analysis is determined by whether the trial court's error was constitutional or non-constitutional error. See Tex. R. App. P. 44.2. Although appellant asserts in his briefing that "the exclusion of evidence may rise to the level of a constitutional violation if a trial court's clearly erroneous ruling [excludes] otherwise relevant, reliable evidence which forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense," such circumstances are not presented here. (Alteration in original.) (Internal quotations omitted.) Cf. Campbell v. State, 551 S.W.3d 371, 381 (Tex. App.-Houston [14th Dist.] 2018, no pet.) ("An erroneous evidentiary ruling amounts to constitutional error only if the correct ruling was constitutionally required. For example, the erroneous exclusion of evidence is constitutional error if the evidence forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense." (internal citation omitted)). "Erroneous evidentiary rulings rarely rise to the level of denying fundamental constitutional rights to present a meaningful defense." Potier v. State, 68 S.W.3d 657, 663 (Tex. Crim. App. 2002); see also Harper v. State, 540 S.W.3d 223, 234 (Tex. App.-Houston [1st Dist.] 2018, pet. ref'd). The fact that a defendant was unable to present his case to the extent and in the form he desired does not rise to constitutional error if he was not prevented from presenting the substance of his defense to the jury. Potier, 68 S.W.3d at 666; see also Harris v. State, 152 S.W.3d 786, 794 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd) ("A defendant's right to present relevant evidence is not unlimited, but rather subject to reasonable restrictions." (internal quotations omitted)).
Generally, no harm results when a witness answers a question and the trial court thereafter sustains an objection but does not instruct the jury to disregard the witness's answer because the answer remains "before the jury" to be freely considered. Estrada v. State, 313 S.W.3d 274, 313 (Tex. Crim. App. 2010) (trial court sustained State's hearsay objections, but because witness answered question before objections were sustained and trial court did not instruct jury to disregard testimony, testimony at issue was before jury "and [it was] free to consider" it); Smith, 355 S.W.3d at 152-53; see also Lumsden v. State, 564 S.W.3d 858, 897 (Tex. App.-Fort Worth 2018, pet. ref'd); Rodriguez v. State, 903 S.W.2d 405, 409-10 (Tex. App.-Texarkana 1995, pet. ref'd) ("Where a[] [hearsay] objection is made and sustained, but no motion is made to strike the answer or to instruct the jury not to consider, the testimony is before the jury for whatever it is worth. Because th[e] portion of the evidence was not excluded from the jury's consideration, [defendant] was not damaged by the court's ruling." (internal footnote omitted)). Here, Armstead, in response to questions by appellant's counsel, testified that appellant "[s]aid he was going to get his truck" and appellant told him "to get in that he knew where [Armstead's] truck was stolen because [Armstead's] truck was stolen also." Only after Armstead fully answered appellant's counsel's questions did the State object to Armstead's responses as hearsay. Although the trial court sustained the State's hearsay objections, the State did not move to strike Armstead's answers or request that the trial court instruct the jury not to consider the testimony. See Rodriguez, 903 S.W.2d at 409-10 (although trial court sustained State's hearsay objection, State did not move to strike witness's answer and trial court did not instruct jury not to consider that portion of witness's testimony); see also Smith, 355 S.W.3d at 152-53. Armstead's testimony was thus before the jury, and appellant was not harmed by the trial court's ruling. Smith, 355 S.W.3d at 152-53; see also Lumsden, 564 S.W.3d at 897 ("Because the trial court did not instruct the jury to disregard [witness's] answers, the answers became part of the general evidence.
Thus, because the jury could have considered [witness's] answers despite the trial court's sustaining the State's . . . objections, we cannot conclude that the record establishes harm under 44.2(b).").
Additionally, we note that the Texas Court of Criminal Appeals has repeatedly held that any error in the exclusion of evidence is harmless where the same or similar evidence was admitted without objection. See Womble v. State, 618 S.W.2d 59, 62 (Tex. Crim. App. [Panel Op.] 1981); see also Davis v. State, No. AP-77, 031, 2016 WL 6520209, at *34, *36 (Tex. Crim. App. Nov. 2, 2016) (not designated for publication); Mosley v. State, 983 S.W.2d 249, 258 (Tex. Crim. App. 1998); Semere v. State, No. 01-11-00482-CR, 2012 WL 1956415, at *3 (Tex. App.-Houston [1st Dist.] May 31, 2012, no pet.) (mem. op., not designated for publication) ("Generally, any harm in the improper exclusion of evidence is cured by admission of the same or similar evidence elsewhere during trial.").
Here, during other portions of his testimony, Armstead stated, without objection, that after law enforcement officers left Armstead's mother's house and after appellant had told Armstead that he was going to get his truck, appellant left. Appellant was gone for about twenty or twenty-five minutes and came back driving a truck. According to Armstead, after appellant arrived back at Armstead's mother's house, appellant wanted Armstead to leave with him, but Armstead chose not to leave because Armstead "knew" that appellant had not seen Armstead's stolen truck.
And appellant testified, without objection that, on November 28, 2016, he went to Armstead's mother's house because he planned to ride around on a bicycle to look for his truck and he believed that he knew where it was located. At the time, he believed his truck had been stolen or was missing, and he went looking for his truck. While looking for his truck, appellant stopped at several places. Later, appellant went back to Armstead's mother's house in a truck because he knew Armstead was there and appellant knew that Armstead had been looking for his own missing truck. When appellant arrived at the house, he told Armstead that he had seen Armstead's truck and asked Armstead if he wanted a ride to go look for his truck. When Armstead declined, appellant left.
We hold that any error by the trial court in sustaining the State's hearsay objections to certain portions of Armstead's testimony was harmless.
We overrule appellant's second issue.
Conclusion
We affirm the judgment of the trial court.