Opinion
Nos. 05-09-00598-CR, 05-09-00599-CR, 05-09-00600-CR, 05-09-00601-CR
Opinion Filed June 24, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F05-56972-QN, F06-63809-TN, F06-63810-LN, F08-60814-YN.
Before Justices BRIDGES, FITZGERALD, and FILLMORE.
OPINION
Deon Lavell White appeals the revocation of his community supervision in three cases and the adjudication of guilt in one case. In one issue, White contends the trial court erred by refusing to admit into evidence an affidavit from an unavailable witness. We affirm the trial court's judgments. White pleaded guilty to possession of one gram or more but less than four grams of cocaine (F05-56972-QN), robbery (F06-63809-TN), and possession of less than one gram of cocaine (F06-63810-LN) and was placed on community supervision in each case. While he was on community supervision, White was indicted for possession with intent to deliver of four grams or more but less than 200 grams of cocaine (F08-60814-YN). The State moved to revoke White's community supervision in the three prior cases on the ground White committed a new offense during the period of community supervision. White waived his right to a jury and pleaded not guilty to the possession with intent to deliver charge. White also pleaded not true to the allegation he violated the terms of his community supervision by committing a new offense. The trial court tried the new offense and the motions to revoke together. It found White guilty of possession with intent to deliver of four grams or more but less than 200 grams of cocaine and assessed punishment of eight years' imprisonment and a $500 fine. The trial court also found the State's allegation that White violated the terms of his community supervision was true and revoked White's community supervision in the three prior cases. The trial court assessed punishment of (1) eight years' imprisonment in cause number F05-56972-QN, (2) eight years' imprisonment and a $2000 fine in cause number F06-63809-TN, and (3) 180 days' incarceration in a state jail in cause number F06-63810-LN. In one issue, White argues the trial court erred by excluding an affidavit from Allen Bethany who was unavailable to testify at trial. We review the admissibility of evidence for an abuse of discretion and will reverse only when the trial court's decision was so clearly wrong as to lie outside the zone of reasonable disagreement. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). White called David Murphy to testify for the defense. Murphy, who was arrested at the same time as White, testified that he "investigate[d] on why we was [sic] falsely arrested." White's counsel then questioned Murphy:
Q. Did you find out anything?
A. Yes.
Q. What did you find out?
A. I found out that the drugs belonged to Allen.
[Prosecutor]: Judge, I'm going to object to hearsay at this point.
The Court: Sustained unless you — exception.
[White's Counsel]: He made a statement, obviously a statement against penal interest, Judge, so we would ask it be admitted.
[Prosecutor]: That's not an exception under hearsay rules. Statement against penal interest, unless it's a defendant's statement, a statement against penal interest is not admissible on somebody who cannot be here and be examined, cross examined.
The Court: Mr. Belt
[White's Counsel]: Judge, he's not available because he's not available. It's not our fault he's not available.
The Court: I'll take it. I'm not sure it's admissible, but I'll take it. I may end up disregarding it. But I'll let the answer come in for the record, if nothing else.
Q. So you found out the drugs — you found out who the drugs belonged to?
A. Yes.
Q. And did you later have an opportunity to talk to — did you contact Allen Bethany?
A. Yes. Actually a friend of mines [sic] contacted him for me.
Q. And did you have an opportunity to meet with him?
A. We — we — we met up. He drove over to the house, and he apologized and said he was sorry that me and [White] was accused for [sic] his wrongdoings.
[White's Counsel]: May I approach the witness, Judge
The Court: Yeah.
Q. When he said he was sorry, is that — did you make a move to do anything else after you — he said he was sorry?
A. I just kind of hung around. I didn't want to scare him away or nothing. He say he was going to come take care — take care of it, so I just kind of was waiting it out.White's counsel then handed Murphy "an affidavit signed by Allen Bethany" that Bethany purportedly gave to Murphy. On voir dire, the prosecutor established Bethany did not sign the affidavit in Murphy's presence and objected to the affidavit as hearsay and "not proper evidence." The trial court sustained the hearsay objection. During closing argument, White's counsel again requested that the trial court admit Bethany's affidavit, asserting it was an "exception to the hearsay rule." The trial court again ruled the affidavit was hearsay. Relying on Murphy's testimony, White argues the affidavit was against Bethany's penal interest, and therefore not hearsay, because Bethany "told the sponsoring witness that the drugs found at the house belonged to him and that he would `take care of it.'" However, "[e]rror in the exclusion of evidence may not by urged unless the proponent perfected an offer of proof or a bill of exceptions." Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999); see also Tex. R. Evid. 103(a)(2). Unless the record shows what the excluded testimony would have been, or the proponent of the evidence offers a statement concerning what the excluded evidence would have shown, nothing is preserved for review. Id.; Hiatt v. State, No. 04-09-00270-CR, 2010 WL 1707729, at *10 (Tex. App.-San Antonio Apr. 28, 2010, no pet. h.). Here, the record does not reflect what the excluded evidence would have shown. White did not offer the affidavit for record purposes, describe the substance of the affidavit to the trial court, or represent to the trial court that the statements Bethany purportedly made in the affidavit were consistent with Murphy's testimony. Accordingly, any error in the exclusion of the affidavit was not preserved for our review. See Guidry, 9 S.W.3d at 153; Hiatt, 2010 WL 1707729, at *10. We overrule White's sole issue and affirm the trial court's judgments.
Because White has challenged neither the legal nor the factual sufficiency of the evidence to support the convictions, we recite only those facts necessary to address his issue on appeal.
Even if the affidavit was improperly excluded, any statement in the affidavit that the drugs belonged to Bethany would be cumulative of Murphy's testimony. The trial court's exclusion of cumulative evidence is harmless error. Lindsay v. State, 102 S.W.3d 223, 230 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd).