Opinion
No. 05-03-01372-CR
Opinion filed August 2, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F01-76181-MJ. Affirm.
Before Justices FITZGERALD, RICHTER, and LANG.
OPINION
Marcine Montrel Jones appeals his conviction for aggravated robbery. Appellant waived a jury trial and pleaded not guilty. The trial court found appellant guilty and assessed punishment at fifteen years' imprisonment. In a single issue, appellant contends that the trial court erred in overruling his objections to inadmissible hearsay evidence. We affirm the trial court's judgment.
FACTUAL BACKGROUND
On November 13, 2001, two men robbed the complainant and stole his car. The car was discovered parked across from Garland High School later that day. Responding to a stolen vehicle report, Officer Hawkins and his partner set up surveillance on the vehicle and spoke to a witness in the neighborhood to get a description of the people who had parked the car. After no one returned to the car, the officers had the car towed. The officers remained in the general area. As they were driving through the neighborhood, the witness they had spoken to earlier flagged them down and told them that the suspect had returned to the location where the car had been parked. The officers returned to the high school where they saw a man matching the witness' description walking toward the area where the car had been parked. The man fled when the officers attempted to make contact with him. Appellant was apprehended and identified by complainant as the man who had held a gun to his head during the robbery. At trial, complainant testified about the offense and about the condition of his car when it was returned to him. While testifying about the cost to repair his car, he reviewed a receipt from the mechanic in order to refresh his memory. The State offered the receipt as evidence. Over appellant's hearsay objection, the trial court admitted the receipt for record purposes only. During Officer Hawkins' testimony, appellant again objected on hearsay grounds when Officer Hawkins testified as to what a witness had told him when he was searching for appellant near the high school. The State responded that the statement was not being offered for the truth of the matter asserted and the trial court overruled appellant's objection.POLICE OFFICER TESTIMONY
Appellant complains that the trial court erred in overruling his objections to hearsay testimony. The State responds by arguing the testimony was not hearsay because it was not offered for the truth of the matter asserted. Even if it were hearsay, the State argues that the testimony was admissible to explain the course of the police investigation. A. Standard of Review We review the trial court's ruling regarding the admission or exclusion of evidence under an abuse of discretion standard. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh'g); Gurka v. State, 82 S.W.3d 416, 420 (Tex. App.-Austin 2002, pet. ref'd). We will not disturb the ruling on appeal if it is within the zone of reasonable disagreement. See Weatherred, 15 S.W.3d at 542; Montgomery, 810 S.W.2d at 391. B. Applicable Law Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Police officers have been allowed to testify to information that might otherwise be considered hearsay in order to explain the course of an investigation or their presence at a crime scene. Dinkins v. State, 894 S.W.2d 330, 347 (Tex.Crim.App. 1995); Jones v. State, 843 S.W.2d 487, 499 (Tex.Crim.App. 1992) overruled on other grounds, Maxwell v. State, 48 S.W.3d 196, 200 (Tex.Crim.App. 2001). "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." Thornton v. State, 994 S.W.2d 845, 853 (Tex. App.-Fort Worth 1999, pet. ref'd). C. Application of Law to Facts Appellant complains that at the trial before the court, Officer Hawkins was allowed to testify to his conversation with a witness who did not testify at trial. Appellant complains of the following testimony:Q: Okay. After you had the car towed, then what happened?
A: We stayed in the area and we happened to drive back by the witness's house that had earlier called us about the stolen vehicle back there. She flagged us down and said that the people that —
MR. LYONS: Object to hearsay, Your Honor.
THE COURT: If what he says is hearsay, I won't consider it.
MR. LYONS: Well, Judge — Well, I'll let him testify to it, Your Honor.
THE COURT: It's hard to tell. If she says, I would like some ice cream, then it's not going to be hearsay. It's not the truth of the matter asserted, so —
STATE: We are not offering it for the truth of the matter asserted. It's going to go to the officer's state of mind as to what happened next.
MR. LYONS: Judge, hearsay has nothing to do with his state of mind.
THE COURT: Well, like I said, if it's hearsay, I'll sustain your objection; if it's not, I'll overrule it. I don't know now.
MR. LYONS: Well, he's already testified to what she said.
THE COURT: I didn't hear what he said she said.
MR. LYONS: Well, anything she says, and she is not here, Your Honor, for cross-examination purposes, and it's a statement other than his statement, we would object as to hearsay, Your Honor.
THE COURT: I'll overrule that objection.
MR. LYONS: Thank you, Your Honor.
Q: All right. You were flagged down.
A: We were flagged back down. We were advised that the earlier suspect who she had observed getting out of the vehicle had returned to that area.
MR. LYONS: Excuse me, sir. We will object to that statement as hearsay.
THE COURT: Well, I can sustain at this time, but he's already said it before.
MR. LYONS: I objected to it before also, Your Honor.
THE COURT: Okay. I tell you what, I overrule your hearsay objections unless it's specific. An out of court statement made by somebody else is not in and of itself hearsay, so I'm going to overrule that.
MR. LYONS: Judge, we would, for the record, we would object to any statements made by this witness as to what anybody else would say with respect to these allegations.
THE COURT: Overruled.
MR. LYONS: Thank you. Judge, we would ask, for the record, for the purpose by which the State is offering the hearsay statements in terms of an exception, for record purposes, Your Honor, where we can make a proper objection.
THE COURT: Okay. Well, once he tells me what the statement is, then we will go from there.
MR. LYONS: Thank you, Your Honor.
THE COURT: I know what she said before you got there. You were at the point, we got there and she said, and that's all I want to hear right now.
A: We were then advised that one of the subjects who had been observed getting out of the vehicle —
MR. LYONS: Excuse me, sir. Excuse me, sir.
THE COURT: No, no, no. You keep talking. Keep talking. He's got to finish his statement.
MR. LYONS: Okay. Well, Judge, I just want to object to anything he was advised. I want him to testify to personal knowledge. He's using those key words, you know, I have to object to. When he said he was advised, it's things other than his testimony.
THE COURT: That I understand
MR. LYONS: Thank you, Your Honor.
THE COURT: Keep going.
A: So, we were advised that the suspect had returned to the location and had headed back towards Garland High School. We then went back to Garland High School and attempted to locate the subject. We didn't find him.
As we were exiting out of the parking lot, we observed a subject matching the description walking back towards where the vehicle was. We —
Q: Where the vehicle was parked —
A: Right.
Q: — before it was towed.
A: Where the vehicle had been parked before we had it towed.The State argues Officer Hawkins' testimony was permissible as showing how the police investigation progressed, particularly regarding why the officers decided to return to Garland High School during their search of the area. "An officer's testimony is not hearsay when it is admitted, not for truth, but to establish the course of events and circumstances leading to the arrest." Thornton, 994 S.W.2d at 853; see also Lee v. State, 29 S.W.3d 570, 577 (Tex. App.-Dallas 2000, no pet.). The record reveals that Officer Hawkins testified that he was acting in response to information received. He testified that he and his partner returned to the high school because the witness alerted the officers that appellant was seen in that area. Because Officer Hawkins' testimony was not offered for the truth of the matter asserted, but to explain the sequence of events leading to appellant's arrest, it was admissible. See Dinkins, 894 S.W.2d at 347; Thornton, 994 S.W.2d at 853.
Even if this testimony was hearsay, we find any error was harmless. See Tex.R.App.P. 44.2(b). As this Court has previously stated:
A violation of the evidentiary rules that results in the erroneous admission of evidence is non-constitutional error. See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). It is well-established that the improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence. See Brooks v. State, 990 S.W.2d 278, 287 (Tex.Crim.App. 1999).
Jones v. State, 111 S.W.3d 600, 604-05 (Tex. App.-Dallas 2003, pet. ref'd). Here, appellant admitted in his own testimony that he was at the high school, near where the stolen car had been parked, before he encountered the police. Therefore, we conclude the error, if any, could not have influence the fact finder. See Schutz v. State, 63 S.W.3d 442, 444 (Tex.Crim.App. 2001).
WRITING USED TO REFRESH MEMORY
Appellant contends that the trial court erred in overruling his hearsay objection regarding the admission of State's exhibit 1 into evidence. The State responds by arguing that appellant's argument is without merit because State's exhibit 1 was admitted for record purposes only, not as evidence to be considered by the trier of fact.We agree with the State. An exhibit admitted for record purposes is not evidence that is considered by the trier of fact. See Tex. Code Crim. Proc. Ann. art. 36.25 (Vernon 1981); Aldridge v. State, 732 S.W.2d 395, 398 (Tex. App.-Dallas 1987, pet. ref'd). State's exhibit 1 is a mechanic's receipt showing the costs complainant incurred to repair the damage that occurred when his car was stolen. During complainant's testimony, he viewed State's exhibit 1 in order to refresh his memory regarding the cost of the repairs. The record shows that the trial court admitted State's exhibit 1 for the limited purpose of inclusion in the record. The trial judge stated, ". . . I'm allowing it [State's exhibit 1] in for record purposes so that anybody can see that's what it was that did refresh his [complainant's] memory." He also stated that he would not consider State's exhibit 1 for any other purpose than that it was the document that refreshed complainant's memory. The record is clear that the trial court did not allow State's exhibit 1 into evidence to be considered by the trier of fact. Thus, appellant's hearsay argument is without merit. Even if we were to conclude the trial court erred in admitting State's exhibit 1 for record purposes, we cannot reverse without a showing of harm. See Tex.R.App.P. 44.2(b). A violation of the evidentiary rules that results in the erroneous admission of evidence is non-constitutional error. Jones, 111 S.W.3d at 604. When a non-constitutional error is made during the course of a trial, it will be disregarded as a harmless error if the error did not affect the substantial rights of the appellant. See King, 953 S.W.2d at 271. A substantial right is affected when the error had a substantial and injurious effect or influence in determining the fact finder's verdict. Id. In assessing the likelihood that the jury's decision was adversely affected by the error, the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the fact finder's consideration, the nature of the evidence supporting the verdict, the character of the alleged error, and how it might be considered in connection with other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355-56 (Tex.Crim. App. 2002). Here, complainant identified appellant as the man who had held a gun to his head while stealing complainant's car. Appellant was apprehended with the stolen car's keys in his pocket while walking toward an area where the car had been parked. Appellant admitted being present at the robbery, knowing where the stolen car had been parked, and knowing the keys he possessed belonged to the stolen car. State's exhibit 1, on the other hand, is a mechanic's receipt giving a brief description of repairs completed on complainant's car and the cost of parts and labor. Having reviewed the entire record, we conclude the error, if any, did not result in a substantial and injurious effect or influence in determining the fact finder's verdict. Accordingly, we resolve appellant's sole issue adversely to him.