Gerardo Ballantine v. The State of Texas--Appeal from 243rd District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

GERARDO BALLANTINE, )

) No. 08-03-00222-CR

Appellant, )

) Appeal from the

v. )

) 243rd District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20020D04583)

)

O P I N I O N

This is an appeal of a jury conviction for two counts of aggravated sexual assault of a child. Appellant was sentenced to 50 years= imprisonment. The sole issue presented on appeal is whether Appellant=s constitutional right to confront his accusers was denied. We affirm.

The fifteen-year-old victim, R.M., left a quincea era party with some friends and several men including the Appellant. The group went to an abandoned trailer home. R.M. was amorous with one of the men, Oscar Ramos, and after a time they went to the back room of the trailer. Appellant followed them. As she was kissing and holding Mr. Ramos, Appellant removed her pants and underwear. They then positioned her on the floor, where Appellant forcibly had vaginal and then anal intercourse with her. At the same time, Mr. Ramos fondled her breasts, attempted to have her perform oral sex on him, and simultaneously digitally penetrated her anus as Appellant had vaginal intercourse with her. A number of other men including Luis Rivera watched the assault.

At trial, Sheriff=s Detective Jaime Terrazas provided testimony regarding his investigation. He first testified that he interrogated Luis Rivera. From that interrogation, he learned that Oscar Ramos who was known as ABoxer,@ was involved in the assault. After interviewing the victim again, the officer arrested Oscar Ramos. Mr. Ramos gave a written confession that implicated the Appellant, whose nickname is ACholo.@

On appeal, Appellant complains that he was Adeprived of his Right to Confront his accusers through the State=s use of hearsay testimony.@ The State points out that the only objections made at trial were limited to hearsay. Appellant never objected on Confrontation Clause grounds. Thus, he failed to preserve error on Confrontation Clause grounds at trial. See Paredes v. State, 129 S.W.3d 530, 535 (Tex.Crim.App. 2004), citing Tex.R.App.P. 33.1.

But even if a Confrontation Clause objection had been properly made, we also find nothing in the record to suggest that either Mr. Rivera=s or Mr. Ramos= written statements were ever introduced into evidence as alleged by Appellant. Moreover, we find that the trial court very ably excluded almost all of the hearsay statements attributed to Mr. Rivera or Mr. Ramos in the detective=s testimony and sustained hearsay objections in two instances and instructed the jury to disregard those statements.

What remains in the testimony of Detective Terrazas, that was heard by the jury, was simply not hearsay. That is to say, hearsay is an out of court statement offered as evidence to prove the truth of the matter asserted by the statement, and almost none of the detective=s testimony was offered to prove the truth of the matter asserted, rather he was simply explaining how his investigation led to the Appellant. Finally, his testimony that Mr. Ramos had implicated Appellant in his confession is admissible because of the co-conspirator exclusion. Tex.R.Evid. 801(e)(2)(E).

Accordingly, we overrule Appellant=s single issue and affirm the trial court=s judgment.

August 20, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

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