Esteban Rogelio Garcia v. State ( 1997 )

Garcia, Ex parte

IN THE

TENTH COURT OF APPEALS

No. 10-96-185-CR

     ESTEBAN ROGELIO GARCIA,

                                                                                   Appellant

     v.

     THE STATE OF TEXAS,

                                                                                   Appellee

From the 85th District Court

Brazos County, Texas

Trial Court # 42,357-85

MEMORANDUM OPINION

      On July 3, 1996, Esteban Garcia filed a pro se petition for a writ of habeas corpus, complaining that the sheriff of Brazos County, Bobby Riggs, was unlawfully confining him in the county jail because Garcia was allegedly suffering from several serious physical ailments. The trial court on July 16 conducted a hearing in response to Garcia's petition. On August 14, the trial court signed an order denying Garcia's petition. Garcia filed a notice of appeal on July 18, which became effective on the date of the trial court's signed order. See Tex. R. App. P. 58(a).

      Although the transcript and supplemental transcript were filed on August 22, no statement of facts followed. Consequently, on January 8, 1997, we abated the cause to the trial court for a hearing on why a statement of facts had not been filed, whether Garcia wished to proceed with his appeal, and whether he had made arrangements for the filing of an appellate brief.

      Without holding a hearing, the trial court filed findings in this court on January 21 that Garcia was, after being unconditionally released, no longer confined in the Brazos County Jail and that this appeal was therefore moot. We agree with the trial court that an appeal from the denial of petition for a writ of habeas corpus is rendered moot once the complaining party is no longer suffering confinement or any other applicable restriction. See State ex rel. Millsap v. Lozano, 692 S.W.2d 470, 480 (Tex. Crim. App. 1985); Ex parte Spaulding, 687 S.W.2d 741, 743 (Tex. Crim. App. 1985).

      The cause is reinstated; our January 8, 1997, abatement order is withdrawn; and the appeal is dismissed as moot. See Ex parte McKenzie, 909 S.W.2d 502 (Tex. 1995).

                                                                                     PER CURIAM

Before Chief Justice Davis,

            Justice Cummings, and

            Justice Vance

Appeal dismissed as moot

Order issued and filed January 29, 1997

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Exhibit 22 as argument to defendant's guilt but argued defendant's confession to establish his guilt. The admission of Exhibit 22, if error and if error was preserved, was harmless beyond a reasonable doubt. Tex. R. App. P. 81(b)(2). Point one is overruled.

      Point two asserts "the trial court denied Appellant due process of law when it permitted the jury to consider hearsay statements made to the police over Appellant's objection."

      Police Officer Zaragosa, who was an investigator, testified that Herman Larrate, a passenger in the car occupied by Appellant when the shots were fired at the deceased, said that Appellant shot the deceased and that he saw Appellant shoot the deceased.

      Defense counsel had questioned Officer Zaragosa about how many persons his investigation showed were in the car and had him identify each and where each was sitting. Defense counsel further asked Zaragosa about alcohol consumption by the occupants of the car and he answered all these questions by relating what the occupants of the car had told him. Defense counsel opened the door by eliciting hearsay statements of the occupants of the car to make it appear that all occupants of car were suspects.

      Tex. R. Crim. Evid. 107. Rule of Optional Completeness provides:

Where part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other . . . when a detailed act, declaration, conversation . . . is given in evidence any other act, declaration . . . which is necessary to make it fully understood or to explain the same may also be given in evidence . . . .

      It was not error to admit hearsay evidence when it served to clarify other hearsay evidence elicited by the opposition. Martinez v. State, (Tex. App.—San Antonio) 749 S.W.2d 556, 559-60; Jackson v. State, (Tex. Crim. App.) 423 S.W.2d 322, 323.

      As noted, the evidence of defendant's guilt was overwhelming, including his confession. The admission of Officer Zaragosa's statement, if error, could not beyond a reasonable doubt made any contribution to the conviction or to the punishment of Appellant. Tex. R. App. P. 81(b)(2). Point two is overruled.

      The judgment is affirmed.

                                                                               FRANK G. McDONALD

                                                                               Chief Justice (Retired)

Before Chief Justice Thomas,

      Justice Vance, and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed June 22, 1994

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