Gary Bernard Allen v. State

Affirmed and Memorandum Opinion filed July 22, 2014.
In The
Fourteenth Court of Appeals
NO. 14-12-01086-CR
GARY BERNARD ALLEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 434th Judicial District Court
Fort Bend County, Texas
Trial Court Cause No. 10-DCR-054820
MEMORANDUM OPINION
A jury heard evidence that appellant Gary Bernard Allen and the
complainant Shafin Lark got into a drunken fight in May 2010, and appellant
stabbed Lark to death. The jury found appellant guilty of murder, rejecting his
claim of self defense, and assessed punishment at twenty years’ confinement.
Appellant challenges his conviction in five issues, contending that the evidence is
legally insufficient to support the jury’s guilty verdict and that the trial court erred
by admitting and excluding certain evidence. We affirm.
I. SUFFICIENCY OF THE EVIDENCE
In his second issue, appellant contends the evidence is legally insufficient to
support his conviction for murder. In particular, he contends that a rational jury
could not have found that he acted intentionally or that he did not act in self
defense.
A. Standard of Review
“In determining whether the evidence is legally sufficient to support a
conviction, a reviewing court must consider all of the evidence in the light most
favorable to the verdict and determine whether, based on that evidence and
reasonable inferences therefrom, a rational fact finder could have found the
essential elements of the crime beyond a reasonable doubt.” Winfrey v. State, 393
S.W .3d 763, 768 (Tex. Crim. App. 2013) (quotation omitted). When an appellant
challenges the sufficiency of the evidence to support the jury’s rejection of a self-
defense claim, we similarly must determine whether “any rational trier of fact
would have found the essential elements of murder beyond a reasonable doubt and
also would have found against appellant on the self-defense issue beyond a
reasonable doubt.” Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).
The jury is the sole judge of the witnesses’ credibility and the weight to be
given their testimony. Winfrey, 393 S.W.3d at 768. “Circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor, and circumstantial
evidence alone can be sufficient to establish guilt.” Sorrells v. State, 343 S.W.3d
152, 155 (Tex. Crim. App. 2011) (quotation omitted). “[P]roof of a culpable
mental state generally relies on circumstantial evidence.” Dillon v. State, 574
2
S.W.2d 92, 94 (Tex. Crim. App. [Panel Op.] 1978). Intent may be determined
from a defendant's words, acts, and conduct. Smith v. State, 965 S.W.2d 509, 518
(Tex. Crim. App. 1998).
B. Trial Evidence
Appellant urges that there is no evidence that he acted intentionally rather
than in self defense where uncontroverted evidence establishes that appellant was
not the aggressor, that one witness at the scene feared for appellant’s life as the
altercation escalated, and that appellant was bleeding at the scene. We disagree.
The jury heard the following evidence from which it was entitled to conclude that
appellant was the aggressor and he did not act in self defense.
The jury heard evidence that appellant and his six-month-pregnant
girlfriend, Sequalla Hicks, attended a crawfish boil at appellant’s place of
employment during the evening of May 7, 2010. Although Hicks testified for
appellant, she stated that appellant has an “aggressive” personality and “always
gets the last word.” She testified that appellant had been drinking all day, and they
stayed at the crawfish boil until it ended. Appellant had “gotten into it” with a guy
at the crawfish boil, and the guy pushed appellant down. The “guy,” Jorge
Ledesma, also testified that appellant “got in my face” at the crawfish boil, so
Ledesma pushed appellant down. Appellant was upset and acting aggressive
because Ledesma threw out a drink that appellant had made for Ledesma with
appellant’s alcohol.
Hicks further testified that she and appellant left the crawfish boil at about
10:00 or 11:00 p.m. and went to the house of Hicks’s aunt and uncle, Angela
Rollins and Peter McCoy. Lark, the decedent, had been living with Rollins and
McCoy. Rollins, McCoy, Lark, Rollins’s adult daughter Tracy, Rollins’s neighbor
3
Richard Haynes, and others were at the house that night when Hicks and appellant
arrived. Lark and appellant were both drinking.
McCoy testified that appellant made a comment to Lark about Lark living at
the house and not paying bills. Another witness testified that appellant talked to
Lark about getting a job, and Lark was “not totally understanding,” so appellant
was “agitated.” Tracy testified that she could not hear the conversation, but it was
apparent that there was animosity, and appellant was the aggressor. Tracy testified
that Lark was “trying to defuse the situation by calming him down.” McCoy
testified that appellant got upset when McCoy suggested Hicks could bring the
baby to Rollins and McCoy to visit. McCoy told appellant to leave, and McCoy
and Lark went inside the house briefly.
When McCoy and Lark came back outside, Hicks was trying to get appellant
to leave with her. Appellant did not want to leave, and they were having “angry
words,” according to Rollins. Hicks tried to pull appellant toward the car, and
appellant pushed her. 1
When Lark saw the altercation, he stepped in and tried to separate the
couple. Tracy testified that Lark did not push appellant.2 She testified that Lark
asked appellant to stop pushing Hicks because Hicks was pregnant. Appellant
1
Tracy testified that appellant was “nudging” or “pushing” Hicks. McCoy testified that
appellant “pushe[d] her up against my truck.” Rollins testified that appellant “caught [Hicks]
around her neck.”
2
The testimony at trial on this point was conflicting. McCoy testified that Lark shoved
appellant. Hicks testified that Lark started a fight by hitting appellant in the face. Rollins
testified that Lark and appellant began “tussling.” Viewing the evidence in the light most
favorable to the jury’s verdict, we assume the jury found Tracy’s testimony to be credible; the
jury was free to believe her testimony over other witnesses’ testimony. See, e.g., Sharp v. State,
707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (“The jury, being the judges of the facts and the
credibility of the witnesses, could choose to believe or disbelieve the witnesses, or any portion of
their testimony.”).
4
became upset. McCoy testified that Lark never said anything antagonistic or
threatening to appellant; Lark wasn’t belligerent, mean, or angry.
McCoy testified that appellant then swung and hit Lark two or three times,
and Lark fell to the ground. 3 Hicks testified that by the end of the fight, appellant
was on top of Lark. Lark had been stabbed several times, and he died. Roger
Milton, an assistant medical examiner at the Harris County Institute of Forensic
Sciences, testified that the fatal wound was near Lark’s eye socket and was three
inches deep. It fractured his skull and perforated the membrane surrounding his
brain. There was another stab wound on Lark’s back.
No witness actually saw appellant stab Lark with a weapon, and the weapon
was never recovered. However, multiple witnesses, including Hicks, testified that
appellant regularly carried a knife. Shortly before the fight, Haynes saw appellant
with a knife.4 And Hicks acknowledged at trial that she told the police, “Once I
3
Rollins and Tracy testified that there were two separate altercations between Lark and
appellant: first Lark broke up appellant’s altercation with Hicks, and then Lark and McCoy went
into the house with Lark emerging soon afterward for the second altercation. Rollins agreed with
defense counsel that the second fight was “like mutual combat, two boys fighting,” and both of
them were punching each other. Although Rollins testified that Lark ran towards appellant,
Tracy testified that Lark merely walked up to appellant. Further, Tracy testified that Rollins had
been drinking that night, contrary to Rollins’s testimony that she had not been drinking. Rollins
also testified contrary to every other witness regarding the time of the events.
As recited above, however, McCoy testified that the first “altercation” was merely verbal
and the only fight occurred after Lark and McCoy had come out of the house together. Viewing
the evidence in the light most favorable to the jury’s verdict, we assume the jury found McCoy’s
testimony to be credible; the jury was free to believe all or some of any witness’s testimony.
See, e.g., Saxton, 707 S.W.2d at 614.
4
Appellant discounts Haynes’s testimony about the knife because Haynes was high on
PCP the night of the fight. However, a witness’s impairment does not necessarily negate their
testimony as a matter of law. See Jasso v. State, 112 S.W.3d 805, 809 (Tex. App.—Houston
[14th Dist.] 2003, pet. ref’d) (although witnesses consumed significant amounts of alcohol, “this
did not prevent them from remembering and recounting what transpired and it does not render
the evidence legally insufficient”); see also Vasquez v. State, 67 S.W.3d 229, 237 (Tex. Crim.
App. 2002) (even if a witness was under the influence of cocaine at the time of the assault, “that
would not render the evidence legally insufficient”). The ultimate weight to be given the
5
seen all the blood, I figured that [appellant] probably had stuck him with the
pocketknife.” Conversely, no witness saw Lark with a knife or knew him to carry
a knife.
Following the altercation, Hicks testified she drove appellant away from the
scene. Appellant’s hand had also been cut and was bleeding a lot inside and
outside of the car. Milton testified that appellant’s wound was consistent with a
knife slipping in his hand during a struggle. Milton also testified that Lark had no
injuries on his hands consistent with having been in a fist fight.
Hicks dropped off appellant at his mother’s house and went home, where the
police were waiting for her. Officers from the Houston Police Department (HPD)
took her statement and asked her to tell appellant to get in touch with them. On
May 8, the HPD issued a press release describing appellant as a person of interest.
The HPD believed appellant had left town. Hicks spoke with appellant on the
phone every day for about a month, and she told appellant that the police wanted to
talk with him. But she lied to the police and told them she had not spoken to him.
Eventually the HPD obtained a warrant for his arrest, and appellant turned himself
in on June 7.
At trial, appellant adduced evidence in support of his self-defense theory.
Specifically, Hicks testified that McCoy and Lark had threatened appellant with
McCoy’s dog before the fight; however, multiple witnesses refuted that story.
Further, Haynes, who had known appellant for about ten years, testified that he
heard McCoy say that McCoy was going inside to get a gun. Haynes testified that
he told appellant to leave because “[t]hey’re fixing to kill you,” and he specifically
told appellant about the gun. McCoy, however, denied ever saying anything about
evidence rests with the jury. See, e.g., Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App.
2013).
6
getting a gun, and he testified that he did not own a gun. Rather, he testified that
appellant was the one who said, “Don’t make me go to my car to get my gun.”
The jury rejected the self-defense theory, and we therefore presume that the jury
resolved this conflicting evidence against appellant. See Saxton, 804 S.W.2d at
914.
C. Analysis
Reviewing the evidence above, a rational fact finder could have found that
appellant intentionally caused Lark’s death or committed an act clearly dangerous
to human life intending to cause serious bodily injury to Lark. See Tex. Penal
Code Ann. 19.02(b)(1)–(2).5 Further, a fact finder could have rejected appellant’s
claim of self defense based on a lack of reasonable belief that deadly force was
immediately necessary to protect appellant against a use or attempted use of
unlawful deadly force by Lark. See id. § 9.32(a).
1. Legally Sufficient Evidence of Murder
A fact finder could have found that appellant had a motive and state of mind
to attack and kill Lark based on the acrimonious dialogue between Lark and
appellant and based on appellant’s aggressive attitude that evening. Cf. Ross v.
State, 133 S.W.3d 618, 621 (Tex. Crim. App. 2004) (legally and factually
sufficient evidence when the defendant threatened the complainant not long before
she was murdered). A fact finder could have found that appellant possessed and
used a knife capable of causing Lark’s injuries, and appellant stabbed Lark in the
head, thus evidencing appellant’s intent to cause death or serious bodily injury.
See Palomo v. State, 352 S.W.3d 87, 90 (Tex. App.—Houston [14th Dist.] 2011,
pet. ref’d) (legally sufficient evidence when the defendant was seen with a weapon
5
Appellant was indicted, and the jury was charged, under both theories of murder.
7
similar to the murder weapon); cf. Gutierrez v. State, 85 S.W.3d 446, 450–51 (Tex.
App.—Austin 2002, pet. ref’d) (factually sufficient evidence of intent to cause
serious bodily injury when the defendant stabbed the complainant in the chest).
And a fact finder could have found that appellant intended to avoid apprehension
by leaving town and evading the HPD’s attempts to contact him. See Clayton v.
State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007) (“[A] factfinder may draw an
inference of guilt from the circumstance of flight.”).
All of this evidence would have enabled a rational fact finder to find beyond
a reasonable doubt that appellant intentionally caused Lark’s death or committed
an act clearly dangerous to human life intending to cause serious bodily injury to
Lark.
2. Legally Sufficient Evidence to Reject Self Defense
The jury could have rejected appellant’s self-defense claim. The jury heard
evidence that no one saw Lark with a knife and that he was not known to carry a
knife, but the jury heard the opposite about appellant. Cf. Gutierrez, 85 S.W.3d at450–51 (factually sufficient evidence to reject self-defense claim when the
complainant was not in possession of a weapon). The jury heard evidence that
Lark never made any threats to appellant and that appellant was the aggressor. Cf.
id. (factually sufficient evidence to reject self-defense claim when the complainant
had not threatened the appellant with deadly force). Although some of Hicks’s and
Haynes’s testimony supported appellant’s claim of self defense, the jury was free
to disbelieve it and resolve conflicts in the evidence against him. See, e.g., Saxton,
804 S.W.2d at 914.
Accordingly, a rational fact finder could have found that appellant lacked a
reasonable belief that that deadly force was immediately necessary to protect him
8
against a use or attempted use of unlawful deadly force by Lark. The evidence is
legally sufficient to support appellant’s conviction.
Appellant’s second issue is overruled.
II. ADMISSION AND EXCLUSION OF EVIDENCE
In his first, third, fourth, and fifth issues, appellant contends the trial court
erred by admitting and excluding certain evidence. We review a trial court court’s
ruling to admit or exclude evidence for an abuse of discretion, and we will not
reverse the trial court’s decision if it is within the zone of reasonable disagreement.
Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). And we will not
reverse the trial court’s judgment unless the error affects a substantial right of the
appellant. See Tex. R. Evid. 103(a); Tex. R. App. P. 44.2(b); Walters v. State, 247
S.W.3d 204, 218–19 (Tex. Crim. App. 2007). “Substantial rights are affected
when the error has a substantial and injurious effect or influence in determining the
jury’s verdict.” Walters, 247 S.W.3d at 218 (quotation omitted).
With these principles in mind, we address each of appellant’s issues below.
A. Investigator’s Opinion Regarding a “Murder”
The State asked HPD Homicide Division Investigator Brian Evans if, during
the course of his investigation, he came up with “a theory of the case.” Appellant
objected to relevance, bolstering, and invading the province of the jury. Appellant
complained that Evans “is not an expert witness and he doesn’t have familiar
common knowledge that — of what happened.” When the trial court overruled the
objection, Evans testified, “There was an altercation that had taken place between
Mr. Allen, Shafin Lark, where Mr. Lark was assaulted with a weapon and
subsequently expired. And, basic — basically, meeting the parameters of a
9
homicide — murder.” Appellant then renewed his objection to “[i]nvading the
province of the jury, improper direct-examination.”
In his first issue on appeal, appellant contends the trial court abused its
discretion in allowing Evans “to give his opinion that appellant committed murder”
because Evans “had no personal knowledge upon which to base his opinion and the
investigator’s opinion supplanted the jury’s determination of guilt or innocence.”
Appellant contends that Evans gave lay witness opinion testimony not based on
personal knowledge, violating Rule 701 of the Texas Rules of Evidence.6
To preserve error for appellate review, a party must make an objection to the
trial court stating the grounds for the ruling sought with sufficient specificity to
make the trial court ware of the complaint unless the grounds were apparent from
the context, and the party’s objection in the trial court must comport with the
complaint on appeal. See, e.g., Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim.
App. 2012). Some courts have held that objections to relevance, bolstering, and
invading the province of the jury do not preserve error for an appellate complaint
based on Rule 701. 7
6
See Tex. R. Evid. 701 (“If a the witness is not testifying as an expert, the witness’
testimony in the form of opinions or inferences is limited to those opinions or inference which
are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding
of the witness’ testimony or the determination of a fact in issue.”).
7
See Hurst v. State, 406 S.W.3d 617, 621–23 (Tex. App.—Eastland 2013, no pet.)
(objection to “invading the province of the jury” with arguments regarding “the form of the
question, calling for a conclusion, and calling for an opinion” did not preserve error for an
appellate complaint based on Rule 701; noting that “‘invades the province of the jury’ is no
longer a valid objection to opinion testimony” in light of Rule 704, which permits opinion
testimony on ultimate issues of fact (quotation omitted)); Hawkins v. State, No. 08-07-00180-
CR, 2009 WL 783257, at *2 (Tex. App.—El Paso Mar. 26, 2009, no pet.) (mem. op., not
designated for publication) (objections to “invades the province of the jury and speculation” did
not preserve error for appellate complaint based on Rule 701); Boone v. State, No. 05-07-00814-
CR, 2008 WL 4926676, at *1 (Tex. App.—Dallas Nov. 19, 2008, no pet.) (mem. op., not
designated for publication) (same). But see Woods v. State, 13 S.W.3d 100, 104–05 (Tex.
App.—Texarkana 2000, pet. ref’d) (objections to bolstering and invading the province of the jury
10
To the extent that appellant’s objections, viewed in context of his statement
that Evans did not have “familiar common knowledge . . . of what happened,”
would have preserved error under Rule 701 concerning a witness’s opinion not
being “rationally based on the perception of the witness,” we nonetheless hold that
any error was harmless. The error did not have a substantial and injurious effect or
influence in determining the jury’s verdict because the jury heard all the evidence
upon which Evans based his lay opinion that a murder had been committed;
evidence admitted and unchallenged allowed the jury to make the decision to reject
appellant’s self-defense claim independent of Evans’s testimony. See Hurst, 406
S.W.3d at 623–24 (harmless to admit investigator’s opinion of the defendant’s
involvement in a murder when the jury “possessed the same information as the
witness and could draw the proper inferences”; the jury “had the information from
another source”); see also Woods, 13 S.W.3d at 105 (holding harmless the
admission of testimony from three police officers who watched a surveillance tape
of a burglary and testified that the defendant was the man in the tape because the
jury had before it other identification witnesses and the surveillance tape itself was
clear and strong evidence of identity); Anguiano v. State, 774 S.W.3d 344, 347
(Tex. App.—Houston [14th Dist.] 1989, no writ) (any error in allowing officer to
testify that he believed the defendants were “agreeing” to engage in prostitution
was rendered harmless in part because “there was other testimony properly in
evidence upon which the jury could reach its own determination whether
appellants committed prostitution”).
Appellant’s first issue is overruled.
probably preserved error for a Rule 701 complaint although the better objection would have been
that the evidence was not based on personal knowledge and was not helpful to the jury;
regardless, any error was harmless).
11
B. Ledesma’s Testimony About the Altercation at the Crawfish Boil
As discussed above in Part I.B of this opinion, Ledesma testified about an
altercation he had with appellant at the company crawfish boil on the evening that
appellant stabbed Lark. In appellant’s third issue on appeal, he contends the trial
court erred by admitting Ledesma’s testimony concerning an extraneous offense
because it was inadmissible and irrelevant, and the State did not provide proper
notice. In particular, appellant contends that (1) the notice was deficient because it
did not name the alleged victim; (2) the notice was deficient because it did not
identify the county in which the act occurred; (3) the evidence was inadmissible
because it was irrelevant under Rule 401; (4) the evidence was inadmissible under
Rule 404(b) of the Texas Rules of Evidence; and (5) the evidence was inadmissible
because it was unfairly prejudicial under Rule 403.
The State contends, and we agree, that appellant’s third issue is multifarious.
See Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010) (point of error is
multifarious if it is based on more than one legal theory). “We may disregard and
refuse to review multifarious points.” Nwosoucha v. State, 325 S.W.3d 816, 828
n.17 (Tex. App.—Houston [14th Dist.] 2010, pet. struck). But, in the interest of
justice, we will consider multifarious issues to the extent we are able to identify
appellant’s complaints with reasonable certainty. See id.; see also Davis, 329
S.W.3d at 803.
1. Appellate Complaints About Improper Notice Not Preserved
On appeal, appellant quotes from Article 37.07, Section 3(g), of the Code of
Criminal Procedure, which requires the State’s notice of extraneous crimes or bad
acts that have not resulted in final convictions to include “the date on which and
the county in which the alleged crime or bad act occurred and the name of the
alleged victim of the crime or bad act.” Tex. Code Crim. Proc. Ann. art. 37.07,
12
§ 3(g). Appellant contends, without citation to the clerk’s record, that the notice in
this case is deficient because it does not state the name of the alleged victim and
does not identify the County in which the bad act allegedly occurred.
However, appellant never made these complaints to the trial court.
Appellant’s complaints to the trial court concerned the fact that the notice allegedly
contained an incorrect date, and that it provided notice of an intent to introduce the
evidence only under Rule 404(b) but not Rule 404(a). Appellant’s complaints
about improper notice, therefore, were not preserved because his complaints on
appeal do not comport with his objections in the trial court. See, e.g., Clark, 365
S.W.3d at 339.
2. Ledesma’s Testimony Was Relevant Under Rule 401
Appellant contends that Ledesma’s testimony was irrelevant because it did
not tend to prove or disprove an element of the offense and only served to inflame
the jury. “‘Relevant evidence’ means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Tex. R. Evid.
401. This definition is necessarily broad. Montgomery v. State, 810 S.W.2d 372,
391 (Tex. Crim. App. 1990). Even evidence that is inadmissible character
evidence may be relevant. Id. at 386.
We cannot “say with confidence that by no reasonable perception of
common experience can it be concluded that [the] proffered evidence has a
tendency to make the existence of a fact of consequence more or less probable than
it would otherwise be.” Id. at 391. Nor is it clear to this court that the trial court’s
“common experience is really no more than the operation of a common prejudice,
not borne out in reason.” Id. Indeed, the fact that appellant was angry and agitated
earlier the same evening tends to prove his intent to commit an act clearly
13
dangerous to human life against Lark without a reasonable belief that deadly force
was necessary to protect himself. See, e.g., Robinson v. State, 844 S.W.2d 925,
929 (Tex. App.—Houston [1st Dist.] 1992, no pet.) (prior acts of aggression are
admissible against a defendant claiming self defense)
The trial court did not abuse its discretion by concluding that this evidence
was relevant under Rule 401.
3. Ledesma’s Testimony Was Admissible Under Rule 404
Appellant contends Ledesma’s testimony was inadmissible under Rule
404(b) because “it did nothing more than attempt to prove bad character and
conduct in conformity with that bad character.” Rule 404(b) states, “Evidence of
other crimes, wrongs or acts is not admissible to prove the character of a person in
order to show action in conformity therewith.” Tex. R. Evid. 404(b). However,
the evidence may be admissible for other purposes, such as to prove motive, intent,
or absence of mistake or accident. Id. Further, evidence is not inadmissible under
Rule 404(b) “when it is offered to rebut an affirmative defense or a defensive issue
that negates one of the elements of the crime.” Casey v. State, 215 S.W.3d 870,
879 (Tex. Crim. App. 2007).
Ledesma’s testimony was admissible to prove appellant’s motive or intent
and to rebut his theory of self defense. “When the accused claims self-defense or
accident, the State, in order to show the accused’s intent, may show other violent
acts where the defendant was an aggressor.” Robinson, 844 S.W.2d at 929; accord
Render v. State, 347 S.W.3d 905, 921 (Tex. App.—Eastland 2011, pet. ref’d);
Jones v. State, 241 S.W.3d 666, 669 (Tex. App.—Texarkana 2007, no pet.);
Yarbough v. State, 753 S.W.2d 489, 490–91 (Tex. App.—Beaumont 1988, no
pet.); see also Halliburton v. State, 528 S.W.2d 216, 218 (Tex. Crim. App. 1975)
(evidence that the defendant shot someone else some time after the complainant
14
was admissible to disprove her claim of self defense); Morrow v. State, 735
S.W.2d 907, 909 (Tex. App.—Houston [14th Dist.] 1987, pet. ref’d) (same).
Accordingly, the trial court did not abuse its discretion by concluding this
evidence was admissible under Rule 404.
4. Appellate Complaint About Rule 403 Balancing Waived
Although appellant quotes Rule 403 in his brief, he makes no attempt to
argue how Rule 403 should apply in this case, nor does he discuss how Rule 403
has been applied in any other cases. He merely states that the evidence was
“unfairly prejudicial.” We hold that appellant waived error by failing to
adequately brief this issue. See, e.g., Mauricio v. State, 104 S.W.3d 919, 920 n.1
(Tex. App.—Houston [14th Dist.] 2003) (holding that although the appellant
complained on appeal that the evidence should have been excluded under Rule 403
because the probative value was substantially outweighed by the danger of unfair
prejudice and misleading the jury, the appellant “waived error as to Rule 403
[because] his brief includes no argument or explanation why the [evidence] was
unfairly prejudicial or misleading”), aff’d, 153 S.W.3d 389 (Tex. Crim. App.
2005); see also Tex. R. App. P. 38.1(i); Murchison v. State, 93 S.W.3d 239, 251
(Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).
5. Appellant Was Not Harmed
Finally, the State responds to appellant’s multifarious issue by contending
that appellant was not harmed because similar evidence was admitted without
objection to prove the same facts of Ledesma’s testimony. See, e.g., Chapman v.
State, 150 S.W.3d 809, 814 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d)
(“[I]mproper admission of evidence is not reversible error if the same or similar
evidence is admitted without objection at another point in the trial.”). We agree.
15
Specifically, as discussed above in Part I.B of this opinion, Hicks testified
without objection that appellant had “gotten into it” with a guy at the crawfish boil,
and the guy pushed appellant down. She testified that appellant has an
“aggressive” personality. Given Hicks’s testimony, Ledesma’s testimony on the
same subject matter would not have influenced the jury or would have had but a
slight effect. See id. In this context, Ledesma’s testimony would not have had a
“substantial and injurious effect or influence in determining the jury’s verdict.”
See Walters, 247 S.W.3d at 218 (quotation omitted). Any error in admitting
Ledesma’s testimony would not require reversal. See Tex. R. App. 44.2(b).
Appellant’s third issue is overruled.
C. Evans’s Testimony About Appellant’s Conversation with Estes
In his fourth issue, appellant contends the trial court denied him his Due
Process rights to a fair trial and to present a complete defense when the trial court
refused to admit Evans’s testimony about a conversation he had with Steve Estes
regarding appellant’s contention that he acted in self defense. Appellant’s sole
authority on appeal is Wiley v. State, where the Court of Criminal Appeals held
that there is a constitutional violation when a trial court makes a “clearly erroneous
ruling excluding otherwise relevant, reliable evidence which forms such a vital
portion of the case that exclusion effectively precludes the defendant from
presenting a defense.” 74 S.W.3d 399, 405 (Tex. Crim. App. 2002) (quotation
omitted).
Wiley is of no assistance to appellant as appellant has not established that the
trial court clearly erred when it sustained the State’s hearsay objection to this
testimony. Generally, hearsay is inadmissible because it is inherently unreliable.
See Fischer v. State, 207 S.W.3d 846, 852 (Tex. App.—Houston [14th Dist.]
2006), aff’d, 252 S.W.3d 375 (Tex. Crim. App. 2008); see also Guidry v. State, 9
16
S.W.3d 133, 150 (Tex. Crim. App. 1999) (noting “the presumption that a hearsay
statement is not reliable”). Neither to the trial court nor to this court has appellant
argued that Evans’s testimony was not hearsay, or that it would have been reliable
despite it being hearsay. Because hearsay evidence is not reliable evidence, we
cannot conclude that the trial court made a “clearly erroneous ruling excluding
otherwise relevant, reliable evidence.” See Wiley, 74 S.W.3d at 405.
Appellant’s fourth issue is overruled.
D. Evans’s Testimony About Intoxication of Witnesses and Consistency of
Statements
In his fifth issue, appellant contends the trial court erred by allowing Evans
to “improperly bolster the credibility of two of the State’s witnesses.” In
particular, appellant complains about Evans’s testimony that McCoy and Rollins
did not appear intoxicated and that their statements were consistent with the
evidence on the scene. Citing Rule 608 of the Texas Rules of Evidence, appellant
contends that a witness may not testify that another witness is telling the truth. The
State contends appellant failed to preserve error.
Appellant did not object to Evans’s testimony that McCoy and Rollins did
not appear intoxicated. Thus, appellant failed to preserve any error about this
testimony. See Tex. R. App. P. 33.1.
Similarly, appellant’s only objections to Evans’s testimony regarding
McCoy’s and Rollins’s statements was based on hearsay—appellant did not
mention bolstering or Rule 608. Thus, his complaint on appeal does not comport
with his objection in the trial court, and he failed to preserve error. See Gregory v.
State, 56 S.W.3d 164, 184 (Tex. App.—Houston [14th Dist.] 2001, pet. dism’d)
(hearsay objection did not preserve bolstering issue); see also Matz v. State, 21
S.W.3d 911, 913 n.2 (Tex. App.—Fort Worth 2000, pet. ref’d) (same).
17
After Evans had testified about McCoy and Rollins, appellant eventually
objected to bolstering when the State asked Evans about the consistency of
Haynes’s statement. Appellant’s objection to bolstering was not timely with
regard to Evans’s testimony about McCoy and Rollins because appellant objected
well after Evans answered the State’s questions; therefore, appellant failed to
preserve error for our review. See, e.g., Dinkins v. State, 894 S.W.2d 330, 355
(Tex. Crim. App. 1995) (“If he fails to object until after an objectionable question
has been asked and answered, and he can show no legitimate reason to justify the
delay, his objection is untimely and error is waived.”).
Appellant’s fifth issue is overruled.
III. CONCLUSION
Having overruled each of appellant’s issues, we affirm the trial court’s
judgment. 8
/s/ Sharon McCally
Justice
Panel consists of Justices McCally, Busby, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).
8
The State has filed a motion with this court requesting supplementation of the clerk’s
record. We carried the motion with the case and we now deny it as moot because none of the
requested materials are necessary to dispose of the appeal. We note, however, the State did not
need to file a motion with this court to have the clerk’s record supplemented. The State should
have made its request to supplement the record directly to the trial court clerk. See Tex. R. App.
P. 34.5(c)(1).
18