Jose Augustin Arango v. The State of Texas--Appeal from 18th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-06-00020-CR

Jose Augustin Arango,

Appellant

v.

The State of Texas,

Appellee

From the 18th District Court

Johnson County, Texas

Trial Court No. F38423

MEMORANDUM Opinion

A jury convicted Jose Augustin Arango of murder and assessed punishment at 60 years imprisonment and a fine of $10,000. Arango claims the trial court erred by excluding letters written by the victim. We will affirm.

Arango was convicted of stabbing to death his wife, Maria Adriana Enriquez. He claimed he acted in self-defense, and in furtherance of that theory, he attempted to illustrate his wife s jealous nature with three letters written by Enriquez to him. The court sustained the state s objection that the letters were hearsay.

Arango advanced the single theory that the letters fall within the hearsay exception for statements expressing the declarant s then existing state of mind. Tex. R. Evid. 803(3). Assuming without deciding the letters were admissible, such error was not harmful.

The exclusion of evidence is non-constitutional error governed by Rule of Appellate Procedure 44.2(b). Fowler v. State, 958 S.W.2d 853, 865 (Tex. App. Waco 1997), aff d, 991 S.W.2d 258 (Tex. Crim. App. 1999). Under Rule 44.2(b), an appellate court must disregard an error when no substantial rights of the defendant are affected because the error did not influence the jury, or had but a slight effect. Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003). Here, the letters are cumulative of other evidence of Enriquez s jealous nature. Witnesses testified that Enriquez often cursed at Arango, hit him in anger, and threatened to kill Arango and the other women if she found him having an affair. The exclusion of three love letters, which were from three years before when Arango and Enriquez were living in separate counties, would have had only slight, if any, influence on the jury. We overrule Arango s sole issue and affirm the conviction.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed June 27, 2007

Do not publish

[CRPM]