Jose Manuel Patino v. The State of Texas--Appeal from 209th District Court of Harris County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JOSE MANUEL PATINO,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-04-00264-CR

Appeal from the

209th District Court

of Harris County, Texas

(TC# 930773)

O P I N I O N

This is an appeal from a jury conviction for the offense of aggravated robbery--enhanced by the allegation of a prior felony conviction. The jury assessed punishment at life imprisonment in the Institutional Division of the Texas Department of Criminal Justice. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

In the evening of August 27, 2002, the complainant, Anthony Baker, and his aunt, Deborah Durham, were at home and both had retired for the night. Appellant and two other men kicked down the front door the residence. Baker and Durham were beaten repeatedly while the intruders demanded to know the location of any money and other valuables. Appellant then dragged the two to the bathroom and threatened to kill them. Appellant continued to threaten and beat Baker and Durham. Then Appellant shot Baker in the head and all three intruders fled from the house. After blacking out, Baker regained consciousness and the two were able to crawl through a window and obtain help. Baker and Durham identified Appellant and an individual named Marcus Ray as two of the men involved in the home invasion.

Baker stated that he had identified Marcus Ray from a line-up as being one of the men involved in the robbery. The State called Ray to the stand as a State s witness. Ray was dressed in an orange jumpsuit and the prosecutor established that the witness was incarcerated for the same crime for which Appellant was on trial. A bench conference was held at Appellant s request regarding potential problems with the witness s testimony. The prosecutor objected to having a hearing and the court inquired if the prosecutor had been surprised by Ray s potential testimony. The prosecutor answered that she believed Ray was going to tell the truth pursuant to a conversation she had with him minutes prior to his being called to the stand. The court asked if Ray wanted to testify, and he responded negatively. The prosecutor stated that she intended to compel his testimony and she had a tape recording of a prior statement by Ray with which she could impeach him; although she hoped he would testify truthfully. Over Appellant s objection, the court stated that it would see how the testimony went, and the court would conduct a balancing test prior to the use of the impeachment tape.

In his testimony before the jury, Ray was asked about the robbery and he insisted on not incriminating himself or anyone else. The prosecutor asked if he had given a prior videotaped statement regarding the case, the witness stated that he did not remember being given legal warnings prior to his being questioned. The prosecutor then asked about the specific admissions he made in his recorded statement. At a result of Appellant s objection, the court held a hearing outside the presence of the jury.

During the hearing with his counsel present, Ray testified that he was involved in the robbery, but Appellant was not involved, notwithstanding the fact that Ray had previously implicated Appellant. When the prosecutor asked Ray about a conversation she had with him the day before trial, he stated that he never implicated Appellant, despite the prosecutor s assertions to the contrary. During cross-examination at the hearing, Ray testified that Appellant had no involvement in the robbery. Both attorneys chose not to call Ray to the stand again in the presence of the jury, and neither side mentioned his testimony in closing arguments or at any other point or during the trial.

II. DISCUSSION

In Appellant s sole issue on appeal, he asserts that the questioning of Marcus Ray concerning Appellant s involvement in the aggravated robbery was improper questioning which was calculated to inflame the minds of the jury members. Specifically, Appellant maintains that the questions were designed to inflame the minds of the jurors and that there was no good faith basis for the questions.

Appellant cites Cavender v. State, 547 S.W.2d 601 (Tex. Crim. App. 1977), and Ladd v. State, 629 S.W.2d 139 (Tex. App.--Dallas 1982, pet. ref d) in support of his contentions on appeal. In Cavender, a murder case, the State s case was heavily dependent upon circumstantial evidence. The court in Cavender found the harm to the defendant to be incurable where the prosecutor s questions to the defendant about his allegedly telling his mother that he stabbed and raped his aunt, followed by the assertion your mother has told your uncle Paul that; isn t that the reason [he is so angry], were improper since they were bottomed on hearsay several times removed, and the harmfulness of the questions, clearly calculated to inflame the minds of the jury, was compounded by the prosecutor s statement, in response to an objection by defense counsel, I have all the real evidence in the file that Counsel needs, if he wants it. Cavender, 547 S.W.2d at 603.

In Ladd, another circumstantial murder case, the court found incurable error occurred when the prosecutor and a police witness presented testimony before the jury of the defendant s previously undisclosed oral admission that he killed the victim, in apparent violation of the trial court s pretrial ruling on the statements. Ladd, 629 S.W.2d at 141.

In both of the above instances, there was either obvious or strongly implied intent on the part of the State to produce highly prejudicial statements before their respective juries. We have no such inflammatory circumstances in the instant case. From the record before us it appears that the prosecutor thought that Marcus Ray would testify in a manner consistent with what he had indicated in another interview. We see no intent on the part of the prosecutor to produce highly prejudicial statements before the jury.

However, even if the court erred in allowing the testimony, we must conduct a harm analysis. A violation of the evidentiary rules resulting in the erroneous admission of evidence is non-constitutional error. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998) (applying Rule 44.2(b) harm analysis to the erroneous admission of hearsay evidence); Couchman v. State, 3 S.W.3d 155, 160 (Tex. App.--Fort Worth 1999, pet. ref d); see also Elder v. State, 132 S.W.3d 20, 27 (Tex. App.--Fort Worth 2004, pet. ref d) (indicating that the admission of inadmissible hearsay is non-constitutional error).

Because we determine that the error is not constitutional, Rule 44.2(b) is applicable. Therefore, we are to disregard the error unless it affected Appellant s substantial rights. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence on the jury s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253, 90 L. Ed. 1557 (1946)); Coggeshall v. State, 961 S.W.2d 639, 643 (Tex. App.--Fort Worth 1998, pet. ref d). In making this determination, we review the record as a whole. Kotteakos, 328 U.S. at 764-65, 66 S. Ct. at 1248. Where a fact to which evidence relates is sufficiently proved by other competent and unobjected-to evidence, the admission of the evidence is properly deemed harmless and does not constitute reversible error. Couchman, 3 S.W.3d at 160-61; see Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986).

In the present case, the State s case was strong. Two witnesses definitively identified the Appellant as one of the robbers. Anthony Baker stated, without objection, that he had identified Marcus Ray as also being one of the individuals involved. Furthermore, after both sides decided not to recall Marcus Ray to the stand, no further mention was made of him for the rest of the trial either during the State s case-in-chief or during argument. Under these circumstances, we find that the error, if any, was harmless. Appellant s sole issue on appeal is overruled.

Having overruled Appellant s sole issue on review, we affirm the judgment of the trial court.

RICHARD BARAJAS, Chief Justice

August 31, 2005

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

(Do Not Publish)