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Ruben Hernandez v. State ( 2008 )


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  • Affirmed and Memorandum Opinion filed May 29, 2008

    Affirmed and Memorandum Opinion filed May 29, 2008.

     

    In The

     

    Fourteenth Court of Appeals

    ____________

     

    NO. 14-07-00124-CR

    ____________

     

    RUBEN HERNANDEZ, Appellant

     

    V.

     

    THE STATE OF TEXAS, Appellee

     

      

     

    On Appeal from the 337th District Court

    Harris County, Texas

    Trial Court Cause No. 1072824

     

      

     

    M E M O R A N D U M   O P I N I O N

    A jury convicted appellant, Ruben Hernandez, of capital murder, and he was automatically sentenced to life imprisonment in the Institutional Division, Texas Department of Criminal Justice.  On appeal, he asserts the following grounds for reversal of his conviction:  (a) the trial court erred in admitting his recorded video statements, (b) he was denied the opportunity to question one of the State=s expert witnesses, (c) the trial court erroneously denied his requested instruction on the lesser-included offense of theft, (d) he was denied his right to effective assistance of counsel, and (e) the trial court improperly permitted the State to present extraneous-offense evidence for the purpose of showing bad character.  We affirm.

    I.  Factual and Procedural Background

    Appellant has not challenged the sufficiency of the evidence.  We therefore discuss the facts only briefly here and throughout the opinion as necessary to address appellant=s issues. 

    On June 9, 2006, appellant met with the decedent, Demond Washington, a known drug dealer, in the parking lot of a grocery store in the Houston area.  Appellant shot the decedent in the left side of the back of his head as the decedent sat in the driver=s seat of the decedent=s car.  The decedent died instantly from the gunshot wound.  Appellant took cash from the decedent, moved his body from the driver=s seat to the front passenger seat of the car, and drove away.  Appellant used some of the money he took from the decedent to buy beer and chips and to fill up the decedent=s car with gas in case of a high-speed police chase.  Either before or after driving around for some time, appellant dumped the decedent=s body in a church parking lot and later abandoned the decedent=s car in the parking lot of a near-by abandoned convenience store. 


    The next morning a church member discovered the decedent=s body and notified the Houston Police Department (AHPD@).  On arriving at the scene, HPD officers determined that the shooting had taken place elsewhere.  At about the same time, officers received a call regarding a suspicious vehicle parked by the convenience store.  The responding officer saw blood on the driver=s and passenger=s seats, as well as blood in the back seat.  Documents in the vehicle indicated that Ricky Washington owned the vehicle, and officers discovered that Washington had loaned the car to his nephew, the decedent.  The homicide officer investigating the decedent=s death, HPD Sergeant John Belk, was advised that a vehicle possibly related to the homicide had been discovered; after driving to the vehicle=s location, Belk discovered a wallet in the trunk of the car and identified the decedent by the photograph on the driver=s license.  A witness found the keys to the decedent=s vehicle in a nearby ditch and turned them in to the officers. 

    A few days later, an informant told Belk that he believed appellant was involved in the decedent=s death.  On June 13, 2006, appellant was arrested for an unrelated offense and transported to HPD headquarters, where Belk initiated contact with appellant regarding the other offense.  At the beginning of the unrecorded portion of the interview, Belk read appellant his Miranda rights, and appellant waived these rights.[1] Once the discussion turned to the decedent=s murder, Belk began video recording the interview, and again read appellant his rights, which appellant waived.  The recorded portion of this interview lasted for about an hour.  Near the beginning of the videotaped interview, appellant stated, AI=m not going to say anything.  I=m just going to terminate this interview. Go ahead and take me back to county, because I don=t have a lawyer.@  After Belk questioned appellant to determine whether he wanted to terminate the interview, the interview continued.  Subsequently, appellant provided a written statement in which he indicated he had witnessed the murder of the decedent. 


    Throughout the day, appellant=s story continued to evolve; he was interviewed several different times by Belk and his partner, HPD Officer Michael Miller.[2] Between the first and second interviews, officers transported appellant to several locations where he indicated that some evidence related to the offense was hidden, but no evidence was recovered.  While at one of these locations, appellant seemingly was overcome by the heat and was taken to a hospital by ambulance.  He escaped from police custody when he was at the hospital, but was discovered hiding nearby and was returned to the hospital and then transported back to HPD headquarters.  During later interviews, appellant admitted to killing the decedent, although he stated that the gun Ajust went off@ while he and the decedent were struggling over it during an alleged drug deal gone wrong.  He also provided details to police regarding locations where some physical evidence could be found.

    Appellant was indicted on August 24, 2006 for the offense of capital murder.  Before his trial started on February 1, 2007, the trial court conducted a hearing on appellant=s motion to suppress his videotaped statements.  After viewing the videotapes and hearing testimony, the trial court denied appellant=s motion to suppress, and redacted versions of appellant=s videotaped statements were played for the jury at his trial.[3] Despite appellant=s claim of accident or self-defense in the shooting, the jury convicted appellant of capital murder on February 8, 2007. Appellant was automatically sentenced to life imprisonment in the Institutional Division, Texas Department of Criminal Justice.  This appeal timely followed.

    II.  Issues Presented

    In his first issue, appellant contends that the trial court erred by denying his motion to suppress his first videotaped statement, and all subsequent statements, because appellant invoked his right to counsel.  In issues two and three, appellant contends the trial court erroneously permitted HPD officer John Belk to testify as a blood spatter expert and denied him the opportunity to contest the reliability of Belk=s theories.  In his fourth issue, appellant complains that the trial court erred in denying his requested lesser-included offense instruction.  Appellant argues that he was denied the effective assistance of counsel in his fifth issue.  Finally, appellant contends in his sixth issue that the trial court erred in admitting extraneous offense evidence for the purpose of showing bad character.

    III.  Analysis

    A.      Motion to Suppress

    In his first issue, appellant contends the trial court erred in admitting his first recorded video statement, and all subsequent statements, because he invoked his right to counsel and that invocation was not honored by investigating officers.  Appellant, however, has not preserved this issue for our review.

    Generally, when a pretrial motion to suppress evidence is overruled, the defendant need not subsequently object at trial to the same evidence to preserve error.  See Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986); Mikel v. State, 167 S.W.3d 556, 558 (Tex. App.CHouston [14th Dist.] 2005, no pet.).  But when the defendant affirmatively asserts during trial that he has Ano objection@ to the admission of evidence at issue, he waives any error in its admission, despite the pretrial ruling. See Dean v. State, 749 S.W.2d 80, 83 (Tex. Crim. App. 1988) (en banc); Moraguez, 701 S.W.2d at 904; Mikel, 167 S.W.3d at 558.

    In this case, appellant initially preserved error through the trial court=s ruling on the pretrial motion to suppress.  But when the State offered the videotaped recording of appellant=s statements, his counsel expressly stated that he had no objections.  Because appellant=s counsel specifically stated that the defense had no objections to the admission of the videotaped statements, he has waived any error in their admission. 


    Further, even if this issue were preserved, appellant has not established the trial court erred in denying his motion to suppress.  We ordinarily review a trial court=s ruling on a motion to suppress for abuse of discretion.  Dyar v. State, 125 S.W.3d 460, 462 (Tex. Crim. App. 2003); see also Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996) (en banc). At a suppression hearing, the trial court is the sole judge of the credibility of the witnesses and of the weight to be given to their testimony.   Wiede v. State, 214 S.W.3d 17, 24B25 (Tex. Crim. App. 2007); Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991) (en banc).  As long as they are supported by the record, we afford almost total deference to a trial court=s findings of historical fact. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc). Further, we defer to a trial court=s application of law to fact rulings if they turn on an evaluation of credibility and demeanor. Id. 

    A suspect must invoke his right to counsel Asufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.@  Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 2355 (1994); cf. Marshall v. State, 210 S.W.3d 618, 628 (Tex. Crim. App. 2006) (applying Davis in context of right to remain silent).  When a suspect makes an ambiguous request for counsel, police may, but are not required to, clarify whether he actually wants an attorney.  Davis, 512 U.S. at 461B62, 114 S. Ct. 2356B57  (AUnless the suspect actually requests an attorney, questioning may continue.@).  Finally, under both the Fifth and Sixth Amendments, once a defendant invokes the right to counsel, he can waive this protection by reinitiating further communication with the police and then knowingly and voluntarily waiving his right to counsel.  See Cross v. State, 144 S.W.3d 521, 526B27 (Tex. Crim. App. 2004) (citing Oregon v. Bradshaw, 462 U.S. 1039, 1045B46, 103 S. Ct. 2830, 2834B35 (1983)); Hunter v. State, 148 S.W.3d 526, 529, 533 (Tex.App.CHouston [14th Dist.] 2004, pet. ref=d).

    The trial court found that appellant=s statement regarding terminating the interview and taking him back to Acounty@ because he did not have a lawyer was ambiguous.  The trial court determined that when Belk attempted to clarify and determine appellant=s intent, appellant re-initiated contact and began talking to Belk.  These findings are supported by the record, as demonstrated by the following. 


    Belk initially began interviewing appellant regarding another offense unrelated to this case.  Once the conversation turned to the murder investigation, however, Belk began recording the interview.  At the beginning of the first videotaped interview of appellant, Belk read appellant his Miranda warnings and appellant acknowledged that he understood them.  Appellant then made the statement that he was going to Aterminate the interview@ and that he did not Ahave a lawyer.@  Belk responded that he Awanted to get [appellant=s] side of the story.@  Belk then stated, AI can=t question you without you fully acknowledging your rights and . . . waiv[ing] those rights and talk[ing] to me.@  Appellant replied, AIt=s not right for me to hold something like that back.@  Appellant continued to reinitiate the conversation with Belk.  Appellant then asked for pen and paper so he could write a statement.  After he finished writing his statement, appellant spoke to Belk again.  Belk re-read appellant his legal warnings; appellant acknowledged that he understood the warnings.  Appellant then acknowledged that he was willing to waive his rights and continue talking to Belk about the decedent=s murder.  At the start of each subsequent interview, officers read appellant his legal warnings, and appellant waived his legal rights and agreed to talk with the officers.

    Under these circumstances, we cannot say that the trial court abused its discretion in denying appellant=s motion to suppress.  Furthermore, appellant affirmatively waived any complaint regarding the denial of his motion to suppress.  Accordingly, we overrule appellant=s first issue.

    B.      Expert Testimony

    In his second and third issues, appellant contends the trial court erred in (a) failing to follow the proper procedure before permitting Sergeant Belk to testify as a blood-spatter expert and (b) refusing to allow appellant an opportunity to contest the reliability of Belk=s theory before allowing Belk to testify based on that theory.  The State responds that appellant failed to preserve these complaints because his objections at trial do not comport with his complaints on appeal.  We agree.

    During Belk=s direct examination, appellant lodged the following objections:

    Judge, I=m going to object under 7.02[[4]] [sic] that this individual, Officer Belk, has already testified that he=s not an expert in this field and we=re asking him to give an expert opinion.

    . . .

    Judge, I=m going to object under 7.02 again because of this highly specialized field, Your Honor; and also the officer B with all due respect to the officer B he doesn=t even understand the terminology of it=s blood Aspatter@ and not blood Asplatter.@  So, if in fact, the Court would overrule my objection, I would ask to take the witness on voir dire outside the presence of the jury.

    . . .

    Your Honor B I=m sorry, Officer.  I would like to object under 7.02 and take the witness on voir dire outside the presence of the jury.

    . . .

    Judge, I=m going to object under 7.02, once again, with regards to blood spatter actually getting on a firearm.  That=s another specialized conclusion that he=s asking the officer to make, Your Honor.

    To preserve error, the complaint on appeal must comport with the objections lodged in the trial court.  See Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004).  As is apparent from the above objections, appellant asserted Texas Rule of Evidence 702 as the basis for excluding Belk=s testimony.  On appeal, however, appellant asserts that he was denied the opportunity to voir dire appellant under Texas Rule of Evidence 705, which provides, as is relevant here, APrior to the expert giving the expert=s opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case shall . . . be permitted to conduct a voir dire examination [outside the jury=s presence] directed to the underlying facts or data upon which the opinion is based.@  Tex. R. Evid. 705. 


    But a Arequest to take [a witness] on voir dire outside the presence of the jury to >prove up= his qualifications is not a request for a Rule 705(b) hearing to explore the >underlying facts or data= of the expert=s opinion.@  Jenkins v. State, 912 S.W.2d 793, 814 (Tex. Crim. App. 1993) (en banc) (op. on reh=g).  Therefore, appellant failed to preserve his Rule 705(b) claim for appeal.  See id; see also Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002) (A[U]nder Rule 33.1, the issue is not whether . . . the trial court=s ruling is legally >correct= in every sense, but whether the complaining party on appeal brought to the trial court=s attention the very complaint that party is now making on appeal.@).

    Moreover, even if the trial court erred in denying appellant a Rule 705(b) hearing, we must still determine whether the court=s Aerror was so harmful as to require a reversal.@  Alba v. State, 905 S.W.2d 581, 588 (Tex. Crim. App. 1995) (en banc).  Here, any error in the trial court=s noncompliance with this rule was rendered harmless because virtually the same evidence was admitted elsewhere without objection.  See Ramon v. State, 159 S.W.3d 927, 931 (Tex. Crim. App. 2004) (en banc) (AIt is a well‑accepted principle that the admission of improper evidence will not require reversal if the same facts are proved by >other and proper= testimony.@); Lane v. State, 151 S.W.3d 188, 192B93 (Tex. Crim. App. 2004).  The State=s identified expert, Sergeant Norman Keiswetter, an HPD crime scene investigator and a certified blood-spatter expert, testified extensively regarding the blood-spatter evidence he discovered in this case, without any challenges by appellant to his qualifications as an expert.  Like Belk, Keiswetter testified that the blood pattern in the vehicle was consistent with that expected when a person sitting in the driver=s seat facing forward is shot in the back left side of the head.  As did Belk, Keiswetter stated that there was blood on the inside of the pillar between the front and back driver=s side doors of the vehicle, indicating that the back left door was open when the decedent was shot. Keiswetter also agreed with Belk=s opinion that the blood in the passenger seat was consistent with someone Ashoving or leaning@ a bloody person into that seat. Additionally, Harris County Assistant Medical Examiner Dr. Morna Gonsoulin testified to essentially the same evidence as that provided by Belk.  For example, Dr. Gonsoulin described the position of the entrance wound in the decedent=s head and the angle of the bullet=s path.  She agreed that the path of the bullet was consistent with the decedent being shot in the head as he sat in the driver=s seat, with the gun about ten inches away from the back of his head coming from the backseat driver=s side area.

    Thus, not only did appellant fail to preserve error on his Rule 705(b) complaint, he cannot establish harm from any error in the admission of Belk=s testimony because virtually the same facts were proved by other and proper testimony elsewhere. Under these circumstances, we overrule appellant=s second and third issues.

    C.        Lesser-Included Offense Instruction

    In issue four, appellant contends the trial court erred by denying his requested jury charge on theft as a lesser‑included offense.  We employ a two‑part test to determine whether a charge on a lesser‑included offense was required.  Feldman v. State, 71 S.W.3d 738, 750 (Tex. Crim. App. 2002). First, we must decide whether the offense is actually a lesser‑included offense of the offense charged.  Id.  Second, we must conclude there is some evidence in the record that would permit a rational jury to find the defendant guilty only of the lesser offense.  Id.  A lesser‑included offense instruction is not required solely because Athe jury may disbelieve crucial evidence pertaining to the greater offense, but rather, there must be some evidence directly germane to the lesser‑included offense for the finder of fact to consider before an instruction on a lesser‑included offense is warranted.@  Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003) (en banc) (citing Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997)).

    The State does not challenge appellant=s contention that theft is a lesser-included offense of capital murder in this case.  Thus, the issue  here is whether there is evidence to raise the lesser-included offense of theft.  We conclude there is not. 


    To be entitled to a jury instruction on the lesser-included offense of theft, the record must contain evidence that appellant committed a theft of the victim=s property but did not injure or threaten him and did not make him fearful of imminent physical injury.  See Tex. Penal Code Ann. ' 31.03(a) (Vernon Supp. 2006); see also Matthews v. State, No. 74936, 2006 WL 1752169, at *6 (Tex. Crim. App. June 28, 2006) (not designated for publication).  Here, appellant admitted in his videotaped statement that he shot the decedent and took his car and money.  Thus, there was no evidence from which a rational juror could acquit appellant of murder in the course of robbery, while convicting him of theft.[5] The trial court did not err in refusing to instruct the jury on the lesser-included offense of theft.  Accordingly, we overrule appellant=s fourth issue.

    D.      Ineffective Assistance of Counsel

    In his fifth issue, appellant asserts that he was denied the effective assistance of counsel based on his trial counsel=s failure to (a) preserve error on his pre-trial motion to suppress; (b) prevent admission of appellant=s otherwise inadmissible prior convictions; and (c) object to various witness testimony. 


    We review claims of ineffective assistance of counsel under the standard set forth in Strickland v. Washington.  466 U.S. 668, 104 S. Ct. 2052 (1984).  Under the Strickland test, an appellant must prove (i) his trial counsel=s representation was deficient, and (ii) the deficient performance was so serious that it deprived the appellant of a fair trial.  Id. at 687, 104 S. Ct. at 2064.  To establish both prongs, the appellant must prove by a preponderance of the evidence that counsel=s representation fell below the objective standard of prevailing professional norms, and there is a reasonable probability that, but for counsel=s deficiency, the result of the proceeding would have been different.  Id. at 690B94, 104 S. Ct. at 2066B68. An appellant=s failure to satisfy one prong makes it unnecessary for a court to consider the other prong.  Id. at 697, 104 S. Ct. at 2069. This test is applied to claims arising under the Texas Constitution as well as those arising under the United States Constitution.  Hernandez v. State, 726 S.W.2d 53, 56B57 (Tex. Crim. App. 1986) (en banc).

    Our review of defense counsel=s performance is highly deferential, beginning with the strong presumption that the attorney=s actions were reasonably professional and were motivated by sound trial strategy.  Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc). When the record is silent as to trial counsel=s strategy,[6] we will not conclude that defense counsel=s assistance was ineffective unless the challenged conduct was A>so outrageous that no competent attorney would have engaged in it.=@  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

    1.       Failure to Preserve Error on Motion to Suppress

    First, appellant complains that his counsel was ineffective because he affirmatively waived any appellate complaint regarding the trial court=s denial of appellant=s motion to suppress.  As discussed above, however, the trial court did not abuse its discretion by denying appellant=s motion to suppress.  Thus, appellant cannot establish there is a reasonable probability that, but for counsel=s deficiency, the result of the proceeding would have been different. See Strickland, 466 U.S. at 690B94, 104 S. Ct. at 2066B68; see also Lemon v. State, 135 S.W.3d 878, 883B84 (Tex. App.CHouston [1st Dist.] 2004, no pet.).   His failure to satisfy this prong makes it unnecessary for this court to consider the other prong of the Strickland test.

    2.       Discussion of Appellant=s Prior Convictions

    Appellant next asserts that his trial counsel was ineffective by stating to the jury, during opening argument, that appellant had a Acheckered past@ and had been Ain and out of the system.@  But the record is silent regarding his counsel=s strategy, and we cannot say that counsel=s conduct is so outrageous that no competent attorney would have engaged in it.[7] See, e.g., Knight v. State, 91 S.W.3d 418, 424 (Tex. App.CWaco 2002, no pet.) (concluding, in drug possession trial, that counsel=s failure to object to evidence of prostitution and other unadjudicated extraneous offenses did not constitute ineffective assistance without any indication in record regarding counsel=s action or inaction); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.CHouston [1st Dist.] 1996, no pet.) (ADue to lack of evidence in the record concerning trial counsel=s reasons for . . . not objecting to certain testimony and argument, we are unable to conclude that trial counsel=s performance was deficient.).  This argument therefore provides no basis for relief.

    3.       Failure to Object

    Appellant additionally argues that trial counsel was ineffective for failing to object to various witness testimony.  Specifically, he complains of the following alleged failures to object:

    1. A witness testified that he knew appellant had been in jail before because other people and appellant had told him;[8]         

    2. A witness testified that he knew appellant from being incarcerated with him;[9]

    3. A witness testified that his grandfather saw someone get out of the decedent=s vehicle, park it, and walk away;[10]

    4. A witness testified that he suspected appellant because a store owner saw him in the area;[11]

    5. A witness testified as to what his girlfriend and others in the neighborhood thought regarding the murder;[12]

    6. A police officer testified as to what a witness told him;[13]

    7. A police officer testified that those on whom appellant cast blame for the murder were able to verify their whereabouts;[14]

    8. A police officer testified regarding appellant=s escape from the hospital, relying on what others had told him;[15]

    9. A police officer testified that a witness told him he saw the Ashooter after the shooting@;[16]

    10. A police officer testified that everything appellant said about another person committing the crime was false;[17]

    11. A police officer testified as to which parts of appellant=s statements he believed were false;[18] and

    12. A police officer testified that appellant=s statements that he was in fear for his life were false.[19]

    As to appellant=s complaints 1 and 6, as noted above, these statements are arguably not hearsay. Thus, appellant has not established that the trial court would have erred in overruling an objection regarding this testimony had his trial counsel objected.  See Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002) (noting that to establish ineffective assistance based on a failure to object, an appellant must show that the trial court would have erred in overruling these objections).   Regarding appellant=s complaints 3, 4, and 5, the record reflects that appellant=s trial counsel made hearsay objections to these statements, which were sustained by the trial court.  Thus, his counsel was not ineffective for failing to object to these statements.  As noted above, complaints 2 and 9 are not supported by the record.  Finally, appellant=s trial counsel could have refrained from objecting to the officers= statements that they did not believe appellant=s initial statements for strategic reasons: appellant=s own statements in his later interviews established that his earlier statements were untruthful.  Thus, his trial counsel may have refrained from objecting to these statements in an effort to downplay appellant=s initial untruthfulness with the officers.  Moreover, notwithstanding any alleged error in failing to object to these statements, we cannot say that a reasonable probability exists that the result of appellant=s trial would have been different had his counsel objected to them.


    In sum, the record does not support many of appellant=s complaints regarding his trial counsel=s failure to object.  Further, appellant has not established that several of the allegedly objectionable statements were hearsay; thus, we cannot say the trial court would have erred in overruling objections to these statements.  And, even if his trial counsel were deficient by failing to object to some of these statements, he has not established that but for this deficiency, the outcome of the proceeding would have been different.  We therefore overrule appellant=s fifth issue.

    E.        Extraneous-Offense Evidence

    In his sixth and final issue, appellant argues that the trial court erred in permitting the State to present extraneous offense evidence for the purpose of showing appellant=s bad character.  First, appellant points to his pre-trial motion in limine as preserving error on this issue.  But a motion in limine does not preserve error; an appellant must still object to the evidence when it is introduced at trial.  Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003).  Appellant states in his brief, AThen the prior acts started coming in, without objection, from the witnesses in this case.@ (emphasis added).  Thus, all but one of appellant=s complaints regarding extraneous offenses have not been preserved for our review.[20] 

    Appellant complains of the following exchange between the State and one of the State=s witnesses:

    Q.        So, [appellant] is somebody that you would see on a somewhat regular basis?

    A.        Yes, sir.

    Q.        How often would you say that you would run into him?

    A.        Whenever he would come approach me to buy something from him or, you know, he B

    [Trial Counsel]:         Judge, I=m going to object under 4.04(a) and (b) and 4.03, Judge, to that testimony.

    [The Court]:               Overruled as to that question.

    Contrary to appellant=s assertion in his briefing, when appellant made his Texas Rules of Evidence 403 and 404 objections to this witness=s testimony, the witness had not yet indicated that appellant purchased drugs from him.  The fact that appellant had bought Asomething@ from this witness does not constitute evidence of a bad act or extraneous offense.  There is no reference to drugs or drug dealing in the foregoing exchange.  In fact, this witness did not testify that appellant purchased drugs from him until later in the record, when the following exchange occurred:

    Q.        Okay.  And how do you know Ruben Hernandez?  Has he bought drugs from you?

    A.        Yes, sir.

    [Trial Counsel]:         Judge, I=m going to object to the improper character impeachment.

    [The Court]:               It=s overruled.

    Q.        Has he bought drugs from you?

    A.        Yes, sir.

    As to this colloquy, this objection appears to relate to Texas Rule of Evidence 609, dealing with impeachment of witnesses by evidence of convictions of other crimes.   See Tex. R. Evid. 609(a). On appeal, however, appellant relies on Texas Rule of Evidence 404(b), providing that A[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith.@  Thus, appellant has not preserved error on this issue.  See Tex. R. App. P. 33.1(a). 


    Even if his impeachment objection were sufficient to put the trial court on notice of his extraneous-offense complaint, however, appellant cannot establish that this error caused harm.  See Tex. R. App. P. 44.2(b) (AAny other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.@).   Appellant repeatedly admitted in his statements that he is a drug user.  In fact, his trial strategy involved the theory that the shooting occurred during a drug deal gone bad.  Finally, appellant did not object to other testimony regarding his purchase of drugs. Thus, the error, if any, was rendered harmless because the same facts were established by other unobjected-to evidence.  Willis v. State, 785 S.W.2d 378, 383 (Tex. Crim. App. 1989) (applying the rule that inadmissible evidence may be rendered harmless if other similar evidence proving the same fact is admitted without objection).  We therefore overrule appellant=s sixth issue.

    IV.  Conclusion

    Having overruled each of appellant=s six issues, we affirm the judgment of the trial court.

     

     

    /s/      Eva M. Guzman

    Justice

     

     

    Judgment rendered and Memorandum Opinion filed May 29, 2008.

    Panel consists of Chief Justice Hedges and Justices Anderson and Guzman.

    Do Not Publish C Tex. R. App. P. 47.2(b).


    [1]  Belk testified that appellant was read his rights and waived them before the interview began.  Belk further testified that, at the beginning of each recorded interview with a suspect, it is HPD procedure to inform the suspect of his or her rights.

    [2]  The record contains four videotaped interviews of appellant.

    [3]  Statements regarding the other offense in which appellant allegedly was involved were redacted from the videotapes admitted and played for  the jury.

    [4]  Tex. R. Evid. 702.  This rule provides, AIf scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.@  Id.

    [5]  See Hampton, 109 S.W.3d at 441; see also Matthews, 2006 WL 1752169, at *6 (concluding that a capital murder defendant was not entitled to a lesser-included theft instruction where he gave police two statements, changed his story multiple times, and ultimately admitted he was present at the scene of the shooting, shot at the victim in self-defense, and left the scene in the victim=s car); Maxwell v. State, No. 74309, 2004 WL 3094649, at *14 (Tex. Crim. App. Nov. 17, 2004) (not designated for publication) (determining a capital murder defendant was not entitled to jury instruction on lesser-included offenses of robbery and theft when defendant admitted to officers that he had killed victim, as this admission prevented jury from rationally acquitting him of capital murder while convicting him of robbery or theft).

    [6]  Here, appellant filed a motion for new trial, but did not challenge his trial counsel=s effectiveness.  No hearing was conducted on the motion, and it was overruled by operation of law.

    [7]  In fact, appellant admits in his briefing that A[o]bviously there was a trial strategy for telling the jury that [a]ppellant was a dope addict . . . .@  The robbery and murder in this case arose out of a drug transaction; appellant=s defense was that he was involved in a drug transaction that went wrong.  We presume  appellant=s counsel had a legitimate trial strategy for referring to appellant=s prior convictions.

    [8]  The following exchange occurred relevant to this complaint:

    Q.         What do you know of Ruben Hernandez?

    A.         Not a whole lot.  I knew he was in jail before that and --

    Q.         Well, let me stop you there.  Do you know whether or not he did drugs?

    A.         Yes.

    Q.         How do you know that?

    A.         People had talked, and he had told me he was in jail for that.

    First, because this witness testified that appellant told him he had been in jail, this statement is arguably not hearsay.  See Tex. R. Evid. 801(e)(2) (admission by party-opponent). In addition, as discussed above, appellant=s defensive theory was that he killed the decedent during a drug transaction gone wrong.  Thus, his trial counsel=s decision to forego objecting to this statement on any other evidentiary basis was presumably based on sound trial strategy.

    [9]  The record actually reflects that this witness testified he knew the decedent, not appellant, in this manner:

    Q.         Okay.  Now, let=s talk about the victim, Demond Washington.  How do you know him, and how long have you known him?

    A.         I=ve known him since elementary, first grade all the way to high school.

    Q.         And how often would you see him?

    A.         Based on us being out from incarceration, you know, daily through the neighborhood, parties.

    [10]  The record reflects that a hearsay objection to this testimony was sustained.

    [11]  Appellant=s trial counsel objected to this testimony, and his objection was sustained.

    [12]  Likewise, a hearsay objection was sustained regarding this testimony.

    [13]  This officer stated that a witness gave him Ahis thoughts on what might have happened and also provided the name of the defendant.@ Because this statement was not offered for its truth, it does not appear to be hearsay.  See Tex. R. Evid. 801(d) (defining hearsay as out-of-court statement offered for its truth).  Appellant has not explained whether or how it constitutes Ahearsay by inference@ or Abackdoor hearsay.@  See, e.g., Deary v. State, 681 S.W.2d 784, 788 (Tex. App.CHouston [14th Dist.] 1984, pet. ref=d) (concluding that testimony of police officer that person involved with offense had been asked the names of others also involved, resulting in the officer=s location of a photograph of appellant, which the officer further testified had been identified by another witness as the individual involved in the offense, was inadmissible hearsay by inference because the officer would not have been permitted to testify that the person had named appellant as his accomplice).

    [14]  Appellant ultimately confessed to killing the decedent and acknowledged that his earlier statements regarding others who were allegedly involved in the offense were false. 

    [15]  The officer from whom appellant escaped also testified, describing appellant=s escape and subsequent re-capture.  Thus, this testimony was merely cumulative of other admissible testimony.  The failure to object to such cumulative evidence is harmless and does not support a claim of ineffective assistance.  Darby v. State, 922 S.W.2d 614, 624 (Tex. App.CFort Worth 1996, pet. ref=d).

    [16]  At the cited location in the record (Reporter=s Record Vol. 5, pp. 45-46), there is no such testimony. 

    [17]  See note 14, supra.

    [18]  See note 14, supra.

    [19]  The record reflects that, before playing State=s Exhibit 2-A, which contains appellant=s second through fourth videotaped statements, for the jury, the following exchange occurred between the State and HPD Officer Miller:

    Q.         What did you perceive as [appellant=s] reasoning for being scared for both himself and his sister=s life?

    A.         At the time of his interview, he was indicating to us that he had information as far as a murder that happened; and then he was expressing his interest as a witness, that his sister=s life would be in danger.

    Q.         But you found out about two hours later that wasn=t true, correct?

    A.         Correct.

    [Trial Counsel]: I object to counsel testifying, Your Honor.

    [The Court]:      Sustained.

    Q.         Did you find out whether the statement you were about to hear was true or false, Officer?

    A.         I found out that this one was false, correct.

    [20]  In fact, appellant refers to several of the same complaints in this issue as he does in his previous ineffective assistance of counsel issue regarding his counsel=s failure to object.