Garza, Juan Raul v. The State of Texas--Appeal from 230th District Court of Harris County

Affirmed and Opinion filed October 17, 2002.

In The

Fourteenth Court of Appeals

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NOS. 14-01-00572-CR and

14-01-00573-CR

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JUAN RAUL GARZA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause Nos. 856,321 and 856,133

O P I N I O N

Appellant entered a plea of not guilty to the offenses of possession of cocaine and possession of marijuana. He was convicted and the jury assessed punishment at twenty years in the Texas Department of Criminal Justice for possession of cocaine and ten years for possession of marijuana. In seven points of error, appellant claims the trial court erred in denying his motion to suppress and in allowing hearsay testimony. We affirm.

Through a confidential informant, an undercover Houston police officer sought to buy five kilograms of cocaine. The informant, Denzil Carter, contacted Gilbert Ynfante to obtain the cocaine. Ynfante obtained the cocaine from appellant, negotiated a price, and set up a meeting with Carter and the undercover police officer to purchase the cocaine. The cocaine was located at 6422 Loma Linda, an automobile body shop. Once Carter confirmed the location of the cocaine, the undercover officer called the raid team.

Officer T. R. Walker, a member of the raid team, testified that as he approached the garage, appellant began walking rapidly away from the garage removing items from his pockets and throwing them underneath a truck. Walker commanded appellant to stop and appellant complied. After securing appellant with a uniformed officer, Walker recovered five kilograms of cocaine from the garage. Walker then approached appellant, read him his Miranda rights and asked if the officers could search his property including the apartment above the garage. After appellant consented, Walker walked to his truck to retrieve a consent form. When Walker returned with the consent form, he noticed appellant was in physical distress and appeared to be having a heart attack. Walker called paramedics who transported appellant to Ben Taub Hospital. When he searched the garage apartment, Walker found approximately seven pounds of marijuana and four grams of cocaine. Later that day, appellant was released from the hospital and arrested for possession of cocaine and marijuana.

In his first six points of error, appellant complains of the trial court=s failure to suppress the five kilograms of cocaine found in his garage and the seven pounds of marijuana and four grams of cocaine found in the apartment. Although appellant vigorously pursued a pretrial motion to suppress those items, he failed to object to the evidence when it was introduced at trial. When the State introduced the cocaine and marijuana into evidence, appellant=s counsel responded, ANo objection, Judge.@

When a pretrial motion to suppress evidence is overruled, the defendant need not subsequently object at trial to the same evidence to preserve error on appeal. Livingston v. State, 739 S.W.2d 311, 334 (Tex. Crim. App. 1987). However, when the defendant affirmatively asserts during trial that he has Ano objection@ to the admission of the complained of evidence, he waives any error in the admission of the evidence despite the pretrial ruling. Id. Appellant=s response of Ano objection@ waived his claim to inadmissibility of the challenged evidence. See Moody v. State, 827 S.W.2d 875, 889 (Tex. Crim. App. 1992). Appellant=s first six points of error are overruled.

In his seventh point of error, appellant contends the trial court erred in allowing the State=s rebuttal witness, Officer Walker, to testify to hearsay statements allegedly made by Ynfante that appellant was the source of the cocaine. During the State=s case in chief, Ynfante testified, without objection, that he asked appellant to obtain five kilograms of cocaine and that he and appellant negotiated a per kilo price for the cocaine. Ynfante also testified as follows:

Q. And when you were arrested did you talk to Officer Walker, the big, tall officer?

A. Yes, ma=am.

Q. And did he ask you any questions as to where you had gotten the cocaine?

A. I don=t remember.

Q. You don=t remember. Do you remember him asking you B do you remember telling him that Mr. Garza was the one who gave you the cocaine?

A. Very faint.

On cross-examination, appellant=s counsel challenged Ynfante=s testimony alleging Ynfante did not identify appellant as his source until he was convicted in another case. On rebuttal, the State asked Officer Walker, AAnd when you asked Mr. Ynfante on September 20th of 2000 who his supplier was, who his source was, what did he say to you?@ Appellant objected to hearsay and the trial court overruled the objection. Walker then testified that Ynfante told him he had obtained the five kilograms of cocaine from appellant.

The State contends Officer Walker=s testimony was admissible as proof of a prior inconsistent statement. Texas Rule of Evidence 613 allows into evidence for impeachment purposes proof of a witness=s prior inconsistent statements provided the proper predicate is established. Willover v. State, 70 S.W.3d 841, 846 (Tex. Crim. App. 2002). The proper predicate for impeachment requires that the witness, on cross-examination, must first be asked whether he made the alleged contradicting statement at a certain place, to a certain person, at a certain time. When the predicate has been established and the witness either denies or states that he does not remember having made the prior inconsistent statement, then impeachment may proceed. Miller v. State, 666 S.W.2d 269, 274 (Tex. App.CDallas 1984, pet. ref=d). If the witness admits the prior inconsistent statement, the prior statement is not admissible. McGary v. State, 750 S.W.2d 782, 786 (Tex. Crim. App. 1988).

Here, Ynfante admitted he Afaintly@ remembered, on the day of his arrest, telling Officer Walker that appellant was the source of the cocaine. Although Ynfante initially stated he did not remember his statement to Officer Walker, when the prosecutor clarified his question, Ynfante stated he faintly remembered the statement. Because Ynfante did not deny or state he could not remember making the statement, the trial court erred in permitting Officer Walker=s testimony. See Miller, 666 S.W.2d at 274. However, in light of the fact that the same evidence was introduced without objection during the State=s case in chief, appellant was not harmed by the improper admission. Overruling an objection to evidence will not result in a reversal when other such evidence was introduced without objection. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). Therefore, the error is harmless. See Tex. R. App. P. 44.2(b). Appellant=s seventh point of error is overruled.

The judgment of the trial court is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Opinion filed October 17, 2002.

Panel consists of Justices Edelman, Seymore, and Guzman. (Edelman, J. concurs in result only.)

Do Not Publish C Tex. R. App. P. 47.3(b).