Eric Omar Hercules v. The State of Texas--Appeal from 178th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-93-099-CR

ERIC OMAR HERCULES,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 178th District Court

Harris County, Texas

Trial Court # 654,100

O P I N I O N

This is an appeal by Appellant Hercules from his conviction for murder, for which he was assessed "life" in the Institutional Division of the Texas Department of Criminal Justice and a $10,000 fine.

Appellant and four other members of the LaRazo Gang decided to ride around on the night of January 12, 1993. Appellant carried a .25-automatic pistol in case the group ran into any members of the Southwest Cholos Gang with whom LaRazo was at war. They drove around awhile looking for the Southwest Cholos members but did not find any of them. They stopped at a corner and saw a man standing there. Appellant pointed the pistol at the man and then pulled the trigger of the gun twice. The man fell to the ground where he was pronounced dead.

Appellant was indicted for murder, tried, found guilty by a jury, and assessed punishment at confinement for life plus a $10,000 fine.

Appellant appeals on two points.

Point one asserts "the trial court erred when, over defense counsel's objection, it allowed extraneous evidence before the jury in the guilt-innocence phase of the trial."

Appellant's specific complaint is the admission of State's Exhibit 22, a photograph of knives inside the vehicle from which the victim was shot.

The record reflects that when Exhibits 14 through 22 were offered, counsel for Appellant stated he had no objection to the admission of those photographs. Thereafter, counsel stated he objected to Exhibit 2 through 6, the pictures of the deceased, because the probative value was outweighed by the danger of prejudice. That objection was overruled. The trial court then admitted Exhibits 2 through 22. Defense counsel then objected to Exhibit 22.

The record shows the trial court had already admitted Exhibit 22 before counsel made his objection. Appellant has failed to preserve his complaint for appeal. Tex. R. App. P. 52(a).

No error is presented in admitting the photographs of the knives found in the back seat of the car where Appellant was sitting when he shot the deceased. Defendant has not shown that the knives were illegal.

The State provided overwhelming evidence of Appellant's guilt including defendant's confession. The State did not rely on 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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