JOSE LUIS SANCHEZ v. THE STATE OF TEXAS--Appeal from 377th District Court of Victoria County

   NUMBER 13-03-510-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

JOSE LUIS SANCHEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 377th District Court

of Victoria County, Texas.

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

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

   Opinion by Chief Justice Valdez

This is an appeal of a conviction of murder by appellant, Jose Luis Sanchez. In one issue, appellant asserts that the trial court=s decision to admit the dying declaration of the victim was improper hearsay causing reversible error and was not an exception under the Texas Rule of Evidence 804(b)(2). We affirm.

I. STANDARD OF REVIEW

Appellant=s only issue asserts that the trial court abused its discretion by admitting the testimony of two police officers regarding statements made by the decedent after he was shot.

The standard of review for the admission and exclusion of evidence is abuse of discretion. Head v. State, 4 S.W.3d 258, 262 (Tex. Crim. App. 1999). As long as a trial court's evidentiary ruling could be a subject of reasonable disagreement, the appellate court will not set it aside. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991). In other words, absent an abuse of discretion, a trial court's ruling to a hearsay objection will be upheld. Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994).

II. ANALYSIS

While hearsay is generally inadmissable evidence, an exception to the hearsay rule exists if the declarant is unavailable at the time of trial, and the statement is "a statement made by declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death." Tex. R. Evid. 804(b)(2); see also Wilks v. State, 983 S.W.2d 863, 866 (Tex. App.BCorpus Christi 1998, no pet.). A declarant's belief that death was imminent may be inferred from circumstances of the case, such as the nature of the injury or the declarant's conduct. Martinez v. State, 17 S.W.3d 677, 689 (Tex. Crim. App. 2000).

Appellant contends that the decedent=s fear of imminent death was quelled by the reassurance that he would live by the two officers at the scene, and also that appellant was improperly identified by decedent. It is uncontested that the decedent was unavailable at the time of trial.

The two officers at the scene, Richard Plexico and Alton Johnston, Jr., both testified to the severe nature of the injuries sustained by the decedent, and that he at many points made statements indicating awareness of his condition and his wish not to die. Such statements were made even after the paramedics were allowed on the scene to treat him. Officer Johnston testified that the decedent had a Alook of despair@during this period. Neither officer believed that the reassurance given to comfort the decedent actually resulted in alleviating the fear of death. There is nothing in the record to support the contention that the decedent=s belief of imminent death was altered by the statements made to comfort him.

We conclude that there was no abuse of discretion on the part of the trial judge. Evidence exists that supports the evidentiary ruling, and no recorded evidence supports the view that the decedent actually was relieved of his fear of death. In the light of the abuse of discretion standard, we must defer to the judgment of the trial court in this issue. See Coffin, 885 S.W.2d at 149.

In addition to the contention that the decedent=s belief of imminent death was relieved, appellant also contends that in Officer Plexico=s testimony, the decedent indicated that appellant was the assailant, stating that >Loney=had shot him; >Loney=is appellant=s nickname. According to Officer Johnston=s testimony, the decedent said >Looney,=not >Loney,=was the assailant.

Questions relating to appellant=s identification hinged upon the admission of the statements made by the decedent. Since these statements were admitted without error, the weight and credibility of the differing testimony became an issue for the fact finder, and not for this court. See Muniz v. State, 851 S.W.2d 238, 252 (Tex. Crim. App. 1993).

Accordingly, we overrule appellant=s single issue.

  III. CONCLUSION

We affirm the judgment of the trial court.

Rogelio Valdez,

Chief Justice

Do not Publish.

Tex. R. App. P. 47.2 (b)

Memorandum Opinion delivered and filed

this 30th day of June, 2005.