Jason Jones v. State ( 2001 )

NUMBER 13-00-087-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

JASON JONES

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 24th District Court of Jackson County, Texas.

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O P I N I O N

Before Chief Justice Valdez and Justices Dorsey and Rodriguez

Opinion by Justice Dorsey

A jury convicted appellant of injury to a child and assessed his punishment at ninety-nine years in prison. We affirm.

Leah McMahan and her two children Desiree and Dylan lived with appellant. Dylan was nineteen months old. Leah testified that she took Dylan out of his playpen and put him on the couch in the living room. She returned to the bedroom. Dylan was crying, and appellant went to check on him while Leah stayed in the bedroom. Dylan continued to cry so Leah went to check on him. She saw that appellant and Dylan were in the living room and that Dylan was on the "time-out chair." Leah went to make some coffee, and when she returned to the living room, appellant unzipped Dylan's pajamas and showed her Dylan's leg, which was red and swollen.

Dr. Rudolf Pena, an orthopedic surgeon, treated Dylan. He said that Dylan sustained a fracture and displacement of the femur or thigh bone.

Vicki Kaelin, a case worker for the Texas Department of Protective & Regulatory Services (TDPRS), conducted the investigation and took a case history from Leah. When the State asked her to tell the jury what Leah said about what had happened defense counsel objected on the basis of hearsay. The State replied that the testimony was not being offered for the truth of the matter asserted; rather, it was offered to show what action the TDPRS took. The trial court overruled the objection. Kaelin testified as follows:

[Leah] said that Dylan had woke up that morning about 8:00 or 8:30. She said she picked him up out of his playpen, which was next to their bed, to her bed, it's a playpen. She picked him up and she sent him into the living room where his sister, Desiree, had been sleeping on the couch. She went into the living room, she pick [sic] him up, put him on the couch, and gave him some cookies. At that point she went back into the bedroom to start getting dressed. She said that she laid down on the bed for a few minutes and she heard Dylan cry. She said it was like a temper cry, that someone maybe had made him mad or took something away from him. And at that point Jason [appellant] went into the living room. She said that a few minutes went by, she went into the living room and Dylan was sitting in the time-out chair, which was right next to the couch, and she said that he was crying and he was saying "owie," like grabbing at his leg. And Jason undone his sleeper that he was sleeping in and his leg was red and swollen. . . .

In his written statement, which was admitted in evidence, appellant stated that "I gave him [Dylan] a pop on the leg with my opened palm hand while he was sitting on the couch. . . . In my mind, I know that when I popped Dylan, it caused his injury."

By one point of error appellant argues that the trial court erred by admitting the hearsay testimony of Leah McMahan through Vicki Kaelin. Appellant argues that Leah's statements were inadmissible hearsay used to bolster the State's case and were elicited for the truth of the matter asserted.

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). In Schaffer v. State, 777 S.W.2d 111 (Tex. Crim. App. 1989) the court addressed a similar argument in the context of a police investigation. The court stated that a police officer should not be permitted to relate historical aspects of the case, replete with hearsay statements in the form of complaints and reports on grounds that the officer was entitled to tell the jury the information upon which he acted. Id. at 114-15. An exception to this rule occurs when an officer's actions are made an issue before the jury. Id. at 115 n.4. When this happens it may be necessary for the officer to testify not only how he happened upon the scene, but also the specific information received so that the jury may resolve any issues regarding an officer's actions. Id.

In the instant case appellant did not make Kaelin's investigation an issue before the jury. Therefore the trial court abused its discretion in admitting Kaelin's hearsay testimony. Nevertheless a review of the entire record leads us to conclude that the error did not affect a substantial right of appellant. See Tex. R. App. P. 44.2(b). When conducting a harm analysis under Rule 44.2(b), "an appellate court need only determine whether or not the error affected a substantial right of the defendant. To make this determination appellate courts must decide whether the error had a substantial or injurious affect on the jury verdict. The very process of reaching this decision, is the performance of a Rule 44.2(b) harm analysis." Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). See Llamas v. State, 12 S.W.3d 469, 471 & n.2 (Tex. Crim. App. 2000).

The admission of Kaelin's testimony is harmless for three reasons. First her testimony is similar to McMahan's testimony regarding the events surrounding Dylan's injury and does not implicate appellant in the offense. Second the State did not emphasize the complained-of testimony in closing argument at the guilt-innocence phase of trial. And third appellant confessed to injuring Dylan. Accordingly the admission of this evidence was not substantial or injurious.

Appellant's argument that Kaelin's testimony bolstered Leah McMahan's testimony is not preserved because he did not object on that basis. Tex. R. App. P. 33.1(a). We overrule the point of error.

We affirm the judgment.

______________________________

J. BONNER DORSEY,

Justice

Do not publish

.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 29th day of March, 2001.