Opinion
Nos. 05-03-01746-CR, 05-03-01747-CR
Opinion issued July 12, 2005. DO NOT PUBLISH. Tex.R.App.P. 47 031746f.u05.
On Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 199-81833-02 199-81834-02. Affirmed.
Before Justices MORRIS, LANG, and MAZZANT.
MEMORANDUM OPINION
Appellant Can Van Tran was indicted for the first-degree felony offense of aggravated sexual assault of his stepdaughter, A.L., in March and July 2000.See Tex. Pen. Code Ann. § 22.021(a)(1)(B), (a)(2)(B), (e) (Vernon Supp. 2004-05). He entered non-negotiated pleas of guilty to both charges. A jury assessed punishment at life imprisonment for each offense. In a single issue, appellant contends the trial court erred in overruling his objection to the admission of certain evidence. The background of the case and the evidence adduced at trial are well known to the parties. Accordingly, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We affirm. Appellant's single issue relates to the admission of a letter A.L. wrote, but did not send, to a program called "We Are Aware." The letter reads, in part:
I am a twelve year-old-girl that has a major problem. My step-dad is sexual [sic] abusing me I need help. (or he does). . . . I've lost my virginity cause [sic] of him. . . . You would have to be God to survive being sexual abused for your whole life. It started at age four if you look at my grades you can tell when he started having sex with me.The letter closes with a dramatic plea for help. A.L.'s mother testified that the letter was given to her in August 2002, by A.L.'s nanny, who found it in A.L.'s room. Appellant objected that the letter was hearsay. The State argued that the letter was admissible as outcry evidence and also admissible under rule of evidence 803(1), (2), and (3), that is, present sense impression, excited utterance, and a statement of A.L.'s then existing mental, emotional, or physical condition. The trial court overruled appellant's objection, and the letter was admitted. Appellant argues that none of the specified exceptions to the hearsay rule apply here. He argues he was harmed because the letter was "inflammatory," "referenced by the State in argument as justification for a lengthy sentence," and the jury assessed the maximum sentence even though appellant was eligible for probation. We conclude we need not address whether the letter qualified as an exception to the hearsay rule because, even assuming it did not qualify and the trial judge erred in overruling appellant's objection, the record fails to demonstrate that the alleged error requires reversal. Texas Rule of Appellate Procedure 44.2(b) provides that we "must disregard a non-constitutional error that does not affect a criminal defendant's `substantial rights.'" Garcia v. State, 126 S.W.3d 921, 927 (Tex.Crim.App. 2004); see Tex.R.App.P. 44.2(b). Under rule of appellate procedure 44.2(b), we may not reverse for non-constitutional error if, after examining the record as a whole, we have fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury's verdict. Garcia, 126 S.W.3d at 927 (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998) and King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997)); Bourque v. State, 156 S.W.3d 675, 677 (Tex.App.-Dallas 2005, pet. filed); Jones v. State, 111 S.W.3d 600, 604-05 (Tex.App.-Dallas 2003, pet. ref'd). After examining the entire record of appellant's trial, we have fair assurance that the error, if any, did not have a "substantial and injurious effect or influence in determining the jury's verdict at the punishment phase." See Garcia, 126 S.W.3d at 927. We base this conclusion on the undisputed evidence presented during trial that was substantially similar to the letter, specifically, A.L.'s explicit and detailed testimony of her stepfather's sexual abuse beginning when she was four and ending when she was twelve years old. A.L.'s mother testified that A.L.'s grades fell in the third grade. A nurse testified that A.L.'s hymen was completely torn, which was consistent with penetration. Because the improper admission of evidence is rendered harmless when other properly admitted evidence proves the same fact, we cannot conclude the record in this case demonstrates reversible error. See Brooks v. State, 990 S.W.2d 278, 287 (Tex.Crim.App. 1999) (holding any error in admitting complained-of evidence was harmless in light of other properly admitted evidence proving same fact); Bourque, 156 S.W.3d at 677 (same); Jones, 111 S.W.3d. at 604-05 (same). We decide appellant's sole issue against him. Having decided appellant's issue against him, we affirm the trial court's judgments.
Trial court cause number 199-81833-02; appellate court cause number 05-03-01746-CR.
Trial court cause number 199-81834-02; appellate court cause number 05-03-01747-CR.