HERSCHEL LARUNIS SMITH II, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion issued October 24, 2006
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-00503-CR
............................
HERSCHEL LARUNIS SMITH II, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause No. F03-20487-IH
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OPINION
Before Justices Morris, Whittington, and Lang
Opinion By Justice Whittington
        Herschel Larunis Smith II appeals his conviction for aggravated robbery with a deadly weapon. After finding appellant guilty of the charged offense, the jury assessed punishment at fifty years' confinement and a $6,950 fine. In three issues, appellant contends the evidence is factually insufficient to support his conviction and the trial judge erred in admitting certain evidence. We affirm the trial court's judgment.
Factual Sufficiency of the Evidence
        In his first issue, appellant claims the evidence is factually insufficient to support his conviction. Under this issue, appellant argues the “defense testimony was strong enough that the beyond a reasonable doubt standard was not met by the State.” After reviewing the record, we disagree.
        In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, No. PD-469-05, 2006 WL 2956272, at *7 (Tex. Crim. App. Oct. 18, 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of evidence contradicts the jury's verdict. Watson, 2006 WL 2956272, at *8. We cannot conclude a conviction is “clearly wrong” or “manifestly unjust” simply because we would have voted to acquit. Watson, 2006 WL 2956272, at *8. In examining a factual sufficiency challenge, we defer to the factfinder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003).
        A person commits the offense of aggravated robbery if, in the course of committing theft and with the intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death and uses or exhibits a deadly weapon. Tex. Pen. Code Ann. §§ 29.02(a)(2), 29.03(a)(2) (Vernon 2003). A person commits the offense of theft if he unlawfully appropriates property with intent to deprive the owner of property. Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp. 2006). Appropriation is unlawful if it is without the owner's effective consent. Tex. Pen. Code Ann. § 31.03(b)(1) (Vernon Supp. 2006).
        A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Tex. Pen. Code Ann. § 7.01 (Vernon 2003). A person is criminally responsible for an offense committed by the conduct of another if:
 
        (1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense, or
 
 
 
        (2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.
 
Tex. Pen. Code Ann. § 7.02 (Vernon 2003).
        At trial, sixty-five-year old Nancy Barber testified she had lived alone at 1441 Marlene in DeSoto for approximately twenty-five years. She drove a 2003 silver-gray Cadillac Deville and banked in DeSoto. At some time during the first week of October 2003, she took $1000 in cash out of her bank account in anticipation of a trip to Las Vegas. Around 9:15 p.m. on the evening of October 10, 2003, she was watching a television show when she heard a noise like “somebody jump[ing] in on my tile floor with rubber sole shoes.” Two black males, one of which was holding a gun, had entered Barber's house.
        The men told Barber to lie down on the floor and demanded her ATM card and PIN number. Barber tried to run into a bathroom but the taller man caught her and slammed her into the door frame, cutting the top of her head. He threw a towel over her head and told her to lie down. He then tied her hands and feet with zip ties. Barber begged the man not to rape or kill her and told him she had some money in the car. The shorter man held the gun on Barber while the taller man went to the car. When he returned, he was carrying Barber's red alligator wallet. He pulled out a Target credit card and demanded the PIN. Barber told him it wasn't an ATM card. She then told him the American Express and Diner's Club cards had no charge limits.
        They then asked her about her jewelry. When she told them she kept her jewelry in the closet in the bedroom, the taller man left the room. The shorter man told Barber she was talking too loud and that if she did not be quiet, he would shoot her. The tall man returned, and Barber told him she could write him a check. He brought her purse in from the car and untied her hands. She wrote a check for $6000. He then instructed her to write four more checks, each for $1000, but Barber told him she did not have that much money in the account. The taller man threw the checkbook across the floor and told her they were going for a ride.
        The men retied Barber's feet and hands using an extension cord and put her in the trunk of her Cadillac. Once the trunk closed and the car pulled out of Barber's garage, she began to untie her hands and feet. The car stopped, and Barber could see bright lights. She believed the car was at an intersection so she pulled the bar that opens the trunk and, as the car accelerated, she jumped out. She rolled to the side and saw her car go around the corner, followed by a little black car. A motorist subsequently stopped and helped her. The police were called, and Barber was transported to Methodist Hospital where she was admitted around 10:30 p.m. Barber remained in the hospital for three and one-half days.
        Brandon Jerrard Burdette   See Footnote 1  testified he had known appellant for about two years. Burdette looked up to appellant and wanted to be like him. Burdette testified he and appellant committed the aggravated robbery of Barber on October 10, 2003. According to Burdette, appellant first talked about robbing Barber about two weeks before they did. Appellant had a friend named Jerald Wilson who lived near Barber. Appellant had seen Barber while he was at Wilson's house and told Burdette they “could make some money.” On the night of the offense, Burdette was home asleep when appellant came by Burdette's apartment. Appellant chastised Burdette for not being ready, so Burdette dressed quickly. Although he had a nine millimeter gun, he could not find it that night. According to Burdette, it did not matter because appellant had a .40 caliber gun with him. According to Burdette, appellant's cousin, Jamal Smith, was going with them. When they arrived at Smith's house, appellant handed Burdette the gun. Smith did not appear.
        Appellant and Burdette drove in appellant's small black car to Barber's neighborhood and parked in front of Wilson's house. Burdette testified that he knew they were going to rob Barber when they got out of appellant's car. At that time, Burdette was carrying the gun and some zip ties; appellant had a can of mace. Both men used hooded sweatshirts to cover the top of their heads and t-shirts to cover their lower faces, leaving their eyes uncovered. They walked to Barber's yard and looked through her windows into the house. Barber was watching television and talking on the phone. The men tried the windows, but they were locked. Burdette tried one door which was unlocked, and the men entered the house. Initially, they looked through drawers for jewelry but eventually they moved to the room where Barber was sitting. When she saw them, Barber stood up and told them to get out of her house. Appellant walked up, grabbed her, and sprayed mace in her face. Barber tried to get away but appellant grabbed her as she ran. He threw her into the side of a door and then onto the floor. Burdette walked up to Barber and saw blood coming out of her head. Appellant asked Barber where the money was and threw a towel over her head. She told him it was in her purse in the car. Burdette held the gun on Barber while appellant got the purse from Barber's car. He took the money and the credit cards from her wallet and put them in his pocket. He then told her to write a $6000 check which he also put in his pocket. Appellant left the room and reappeared shortly thereafter with an extension cord. He informed Barber they were “fixing to go on a little ride.” Appellant used the cord to tie her up. He carried her to the car and put her in the trunk. Appellant told Burdette to drive her car, and that he would drive his car. Burdette pulled the car out of the garage and drove down the alley to the street, following appellant's car. A short time later, appellant stopped at a red light. As he approached the intersection, Burdette noticed the hood of the trunk was open. He pulled up next to appellant and told him to look at the trunk. Appellant told him, “Go, go, go,” so Burdette accelerated and drove around the corner. Appellant followed him. Burdette pulled the car over to close the trunk. Appellant drove up and told Burdette to get in the car. The two men left Barber's car on the side of the road and drove away.
        The two men drove back to appellant's house and parked in the vacant garage of the house next door. Appellant counted out the money, giving Burdette $400 and keeping $450. He then asked if Burdette wanted him to keep the $400 for him, and Burdette agreed. Appellant kept the wallet and the credit cards. Burdette gave the gun back to appellant. They drove back towards Burdette's home. Because his hooded sweatshirt had blood on it, appellant gave it to Burdette and told him to throw it in the outdoor dumpster at the apartment complex. Burdette threw away the sweatshirt along with the red wallet. Appellant then gave him the mace and the check to “hold” for him.
        Burdette went inside his apartment, showered, and changed clothes. He left and was walking down a street when his friend, Desmon Atkins, pulled up and asked if Burdette wanted to go to Addison with appellant and Atkins. Burdette agreed and got in the car. Burdette testified that before he and appellant went to Barber's house, they had talked about having an alibi and specifically talked about going to a girl's house in Addison later that night. Burdette and Atkins met up with appellant, and the three men went to Addison sometime before midnight. They stayed there for about three hours. The following day, appellant got tint and new speakers for his car. In the weeks that followed, Burdette saw appellant two to three times a week. During that time, appellant told him “they” were looking for him and that “he got a lawyer.” On December 3, 2003, the police arrested Burdette and searched his home, recovering the mace, the $6000 check, and a gun.
        At the conclusion of his testimony, the State read Burdette's December 3, 2003 statement to police about what happened the night of October 10, 2003. Although the statement omitted a number of details, the content was substantially similar to Burdette's testimony at trial.
        Richard Jamal Smith testified he is appellant's cousin. According to Smith, appellant tried to recruit him to commit “a lick with a whole bunch of money into it.” Smith explained that a “lick” was the street name for a robbery. Smith could not remember where or when it happened, but appellant told Smith that “he had a lick to do” and then he asked Smith if he was “down for it.” When Smith asked for details, appellant told Smith the “lick” was going to be in DeSoto and the victim would be an “old white lady” with a Cadillac and no husband. According to appellant, Smith's role would be to hold the gun on the woman. They would use zip ties to bind her, then would put her in the trunk of the car and leave her in the garage. When Smith asked what if she died, appellant said, “Don't have sympathy for that bitch.” Smith initially agreed to go with appellant but later said no. Smith could not decide whether to go with appellant or not. Smith asked another cousin, Jason Sessions, whether he should “do a crime” with appellant; Sessions told him not to get involved. Smith also told his step-brother, Edwin McGowan, about the robbery.
        On the day of the robbery, Smith was high and intoxicated. Burdette called and asked if he was still ready. Smith asked his mother if he could leave the house to go to a basketball game with appellant, but his mother did not allow him to leave. Smith walked outside and saw a car that looked like appellant's car, moving quickly down the street. Later, when Smith heard about the robbery on the news, he thought appellant had committed the robbery.
        The following day, Smith was at Sessions's house when appellant arrived. Smith and appellant went outside where appellant asked Smith how many people in the family knew what appellant had done. Smith replied that Smith's mother and Smith's brothers and sisters knew. Appellant then told Smith to get his “end of it straight,”that he did not want “the whole family to know what he had done” and to “get that cleared up where nobody done know what he done did.” Smith agreed to do so.
        Smith admitted that he used marijuana and drank. Shortly after the Barber robbery, Smith and McGowan committed a robbery. Smith conceded he did not cooperate with detectives or tell them about his relationship to appellant or any information he had about the Barber robbery until the State agreed to a deal regarding the robbery Smith committed with McGowan.
        Tiara Smith, Smith's sister, testified she listened in on two phone conversations her brother had with appellant. During the first conversation, her brother was on the phone in the upstairs portion of the house, and Tiara listened in on the phone downstairs. Appellant told Smith they were going to rob a lady. Smith hung up the phone and asked his mother if he could go to a basketball game with appellant. When his mother said no, he called appellant back and told him he could not go. A few days later, Smith told Tiara about a robbery on the news, saying he did not do it and that appellant did. The second phone conversation took place after the story had been on the news. Appellant and Smith were on the phone, and Tiara again listened in on a second phone. During that conversation, appellant said he “broke[] into the house, beat the lady and took her credit cards and a check.” Appellant mentioned “something about going over a bridge, then getting out of the lady's car and getting into another car.” When Smith asked where he was going with the lady in the car, appellant got mad, said he did not do it, and hung up the phone.
        Edwin McGowan testified he is Smith's half-brother. On Friday, October 10, Smith had a phone call. According to McGowan, Smith asked his mother if he could leave, but she refused to let him go out. The following day, Sessions drove by the house and picked up Smith and McGowan. The three went to Sessions's house where they smoked marijuana and fell asleep. McGowan woke up and heard appellant yelling at Smith. McGowan went outside where appellant was standing with Smith. Appellant asked McGowan if he knew. McGowan understood appellant to be talking about the Barber robbery and answered that he knew. Appellant then asked who else knew, and McGowan said his mother knew. Sessions told appellant it was wrong that he did it and asked how much money he got. Appellant said he made the lady write him a check and that he had $1300. Sessions told appellant to leave and said that he had better get out of Dallas because the “white lady wanted her justice.”
        Darrell Doty, a detective with the Dallas County Sheriff's Department, testified he was called to the location where Barber's car was found. He processed the car for fingerprints and discovered one print that matched Burdette's. Although there were numerous prints visible on the outside of the car, he was unable to lift prints because the car had become damp from the dew. Doty also was called to Barber's house to check for latent prints but was unable to detect any usable prints. He explained that a number of the surfaces tested were not conducive to accepting latent prints and, of the surfaces that were, the prints were smudged.
        In contrast to the State's evidence, appellant's mother, Brenda Smith, testified she worked October 10, 2003, arriving home around 7:00 in the evening. According to Mrs. Smith, appellant was playing basketball with a friend and arrived home around 9:00 p.m. He then took a nap, leaving the house “real late” and returning sometime after 2:00 a.m. Brandi Williams, appellant's girlfriend, testified she spoke with appellant by phone at 10:50 p.m. on the night of October 10, 2003. She testified he called her twice to tell her he was at a party. Kerstin Toliver testified she had a party in Addison on the night of October 10, 2003. Toliver estimated that appellant, Atkins, and Burdette showed up at the party around 9:30 or 10:00 that night and did not leave until after 3:00 a.m.
        Appellant testified that on October 10, 2003, he played basketball with a friend, Brian Williams, from 7:00 p.m. until a little after 8:00 p.m. According to appellant, he then went home and took a nap. When he woke up, he ate, showered, and got ready for the party he and Kerstin had planned in Addison. Appellant had invited Atkins to go to the party and when he drove to Atkins's house to pick him up, Burdette was there. The three men went to the party in Addison where they stayed until close to 3:00 a.m. The following day, appellant's cousin, Smith, called and told him “about a lick he had hit.” When appellant said he was going to tell Smith's grandmother, Smith said he would implicate appellant in the robbery. Appellant denied any involvement in the Barber robbery. He denied planning the robbery or trying to recruit Smith or Burdette to assist him. He denied going to Sesssions's home on October 11, 2003, or talking to Smith, Sessions, or McGowan that day.
        On cross-examination, appellant testified he had a bad memory so he wrote notes on the events of that day. When asked about the location of the notes, appellant said his prison cell had flooded, and the notes were destroyed. Appellant claimed he left his house for the party in Addison “before 12:00” He later testified he left his house “after 9:00. . . [a]fter 9:30.” He testified he called his girlfriend, Brandi, before going to the party.
        Sessions testified he picked up Smith and McGowan on October 11, 2003, but denied that they smoked marijuana. He denied that appellant came by the house that day. According to Sessions, Smith admitted to Sessions that he and Burdette committed the Barber robbery. Sessions told Smith he did not want to hear anything about it. Sessions was surprised when appellant's name came up as a suspect in the case. Sessions testified he had not spoken to anyone about that day since the incident.
        Our review of a factual sufficiency challenge must be appropriately deferential so as to avoid intruding upon the jury's role as sole judge of the weight and credibility of the witnesses' testimony. The evidence here shows several witnesses testified appellant planned, solicited help, and committed the Barber robbery with Burdette's help. Other witnesses placed appellant at a party in Addison at the time of or shortly after the robbery. Appellant denied having committed the robbery. In this case, the jury chose to believe the testimony that appellant committed the Barber robbery and to disbelieve other testimony, including appellant's. See Vasquez v. State, 67 S.W.3d 229, 237-39 (Tex. Crim. App. 2002) (jury was free to accept witnesses' testimony over alibi witness's testimony). Giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we cannot conclude, after reviewing all the evidence in this case, that the great weight and preponderance of evidence contradicts the jury's verdict. Watson, 2006 WL 2956272, at *8. Because the jury was rationally justified in finding guilt beyond a reasonable doubt, we conclude the evidence is factually sufficient to support appellant's conviction. See Watson, 2006 WL 2956272, at *8. We overrule appellant's first issue.
Admission of Evidence
        In his second and third issues, appellant complains of the admission of certain evidence. In his second issue, he claims the trial judge abused her discretion in allowing the State to introduce Exhibit 185, a DVD edited version of an in-car videotape, and Exhibit 186, a CD audio-only edited version of the in-car videotape. Under this ground, appellant argues the evidence was not relevant and that, even if it were relevant, its prejudicial effect mandated exclusion of the evidence. We disagree with both contentions.
        We review a decision admitting or excluding evidence under an abuse of discretion standard; absent an abuse of discretion, we will not reverse a trial judge's decision. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002). If evidence exists supporting the decision to admit evidence, there is no abuse, and we must defer to that decision. Osbourn, 92 S.W.3d at 537; Fairow v. State, 943 S.W.2d 895, 901 (Tex. Crim. App. 1997). Whether extraneous offense evidence has relevance apart from character conformity is a question for the trial judge, and an appellate court owes “no less deference to the trial judge in making this decision than it affords him in making any other relevancy determination.” Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). When a trial judge decides not to exclude certain evidence, finding that the probative value of the evidence is not outweighed by the danger of unfair prejudice, this decision too shall be given deference. Moses, 105 S.W.3d at 627; see Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). Thus, we may not substitute our own decision for that of the trial judge. Moses, 105 S.W.3d at 627.
        Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” See Tex. R. Evid. 401. Rule 403 provides that
 
        [a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.
 
Tex. R. Evid. 403. Thus, if we conclude the evidence is relevant, we then examine the trial judge's decision that the probative value substantially outweighed the prejudicial effect. See Moses, 105 S.W.3d at 626. In examining a claim under rule 403, courts should consider the following factors: (i) the strength of the extraneous offense evidence to make a fact of consequence more or less probable; (ii) the potential of the extraneous offense to impress the jury in some irrational but indelible way; (iii) the time during trial that the State requires to develop evidence of the extraneous misconduct; and (iv) the need by the State for the extraneous evidence. Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002); Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996).
        At a hearing outside the jury's presence, the State offered a videotape with audio, a DVD edited version of the videotape, and an audio-only enhanced version of the videotape. The video and audio footage was taken on December 30, 2002 when appellant and Burdette were in the back seat of a police car. On that night, Cedar Hill police, responding to a suspicious person call at a Kentucky Fried Chicken restaurant, stopped a car in which appellant and Burdette were passengers and a juvenile was driving. When police discovered a gun in the car, all three were placed in handcuffs. Appellant and Burdette were placed in the back seat of a police car that had an in-car video camera with audio. A permanent microphone was mounted on top of the roll cage between the front and rear compartments of the car. During the time that appellant and Burdette were in the back seat, the videotape recorded their conversation. The State sought to offer the videotape evidence to show motive, intent, preparation, plan, identity, and control. The State noted that Burdette testified he looked up to appellant and wanted to be like appellant, that appellant had influence over him, and appellant had planned the Barber robbery. The State argued the tape showed appellant had control over Burdette because appellant convinced Burdette to claim the gun found in the car under Burdette's seat. Over appellant's objections, the trial judge allowed certain portions of the videotape for the purposes of showing motive, intent, preparation, plan, identity, and the relationship of the parties.
        In the presence of the jury, the State offered the redacted DVD and CD, and the trial judge instructed the jury it could consider the evidence for the purposes of showing motive, intent, preparation, plan, identity, and the relationship of the parties only. Detective Jimmy Boatman was the sponsoring witness and testified about the events of December 30, 2002. When the gun was found in the vehicle, appellant, Burdette, and the juvenile were handcuffed; appellant and Burdette were placed in Officer Boatman's squad car. The videotape recorded their conversations which were played for the jury. During one conversation, appellant tells Burdette he needs to claim the gun. Appellant tells Burdette he will get taken to jail but that appellant will get him out because he always takes care of Burdette. When an officer returns to the squad car, Burdette claims the gun is his. Appellant is later removed from the car and questioned. When he returns to the car, he says he told the officers that Burdette wanted to rob the Kentucky Fried Chicken but that he talked Burdette out of doing it. Appellant is again removed from the car, but not before urging Burdette to take all the responsibility. Burdette later repeats the same story to the officers.   See Footnote 2 
        Because this evidence has a tendency to show appellant's and Burdette's relationship as well as appellant's influence or control over Burdette, we conclude it was relevant. See Fletcher v. State, 852 S.W.2d 271, 276-77 (Tex. App.-Dallas 1993, pet. ref'd) (if any reasonable logical nexus exists, evidence will pass relevancy test). Having concluded the evidence was relevant, we must examine the trial judge's decision that the probative value substantially outweighed the prejudicial effect. See Tex. R. Evid. 403.
        At trial, Burdette testified appellant was the one who decided to rob Barber. Appellant decided when and how the robbery would occur and told Burdette and Smith details of what they would do. According to both Burdette's and Smith's testimony, appellant was the dominant player in the plan. The evidence offered in the DVD and CD shows appellant previously convinced Burdette to take responsibility for owning the gun and that, as a result, Burdette was arrested and transported to jail. Appellant told Burdette he would take care of his friend, i.e., he would get him out of jail. Appellant repeated the story he told officers to Burdette and, in a short time, convinced Burdette to repeat the same story back to the officers. This shows appellant had a significant effect on Burdette and supports Burdette's and Smith's testimony that appellant planned the Barber robbery. Because appellant's participation in the robbery was hotly contested at trial, this evidence was important to the State's case. Although the presentation of the evidence required a hearing outside the presence of the jury, the time spent introducing the evidence and developing the link was not substantial, taking approximately fifty pages of a twelve-hundred sixty-six page record on guilt/innocence. While there was some potential for the details of the Kentucky Fried Chicken incident to impress the jury, the entire videotape was redacted and the portion shown at trial was kept to a minimum to show the interaction and relationship between appellant and Burdette. Furthermore, the jury was informed that appellant was released and not charged for any crime related to that incident. Finally, the State needed to show the relationship between the two men and to show that appellant had influence over Burdette. Under these circumstances, we conclude the trial judge's decision that the probative value of the evidence substantially outweighed the prejudicial effect was within the “zone of disagreement.” See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g) (as long as trial court's ruling was at least within zone of reasonable disagreement, appellate court will not intercede). Accordingly, the trial judge did not err in allowing the evidence. We overrule appellant's second issue.
        In his third issue, appellant complains the trial judge erred in overruling his objections to Detective Boatman's testimony of what was being said on the DVD and CD. Under this issue, appellant claims the officer “interpreted” several statements and such testimony constituted speculative lay opinion.
        Assuming the trial judge erred in allowing the officer's testimony, we nevertheless conclude that any error was harmless. See Tex. R. App. P. 44.2(b). When appellant objected, the trial judge overruled the objection, stating that what is said on the tape is a “fact question for the jury. . . It will be up to the jury to determine whether they want to believe [Detective Boatman's] testimony.” The judge stated she would allow the officer to repeat what was said on the DVD and CD but not to interpret. When appellant again objected, the trial judge stated, “[T]he jury will have an opportunity to listen to this. And you certainly can cross examine the officer on these tapes as many times as you want to.”         During Detective Boatman's testimony, appellant objected to three instances in which he contended the officer was “interpreting” the comments on the tape. After reviewing both the DVD and the CD, we conclude the officer's testimony was substantially the same as what the DVD and CD reflect. Because the statements were substantially the same, we cannot conclude appellant was harmed. Furthermore, when the State concluded its questioning of Detective Boatman, appellant declined to cross-examine the officer. By not cross-examining Detective Boatman, appellant failed to establish which, if any, of the detective's statements differed from those made on the DVD and CD. Under these circumstances, we conclude the error, if any, in allowing the sponsoring witness to repeat appellant's and Burdette's statements as captured on the DVD and CD was harmless. We overrule appellant's final issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          MARK WHITTINGTON
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
050503F.U05
 
Footnote 1 The jury was instructed that Burdette was an accomplice as a matter of law.
Footnote 2 When Burdette was arrested for the Barber robbery, he told officers he had taken the blame for appellant during the Kentucky Fried Chicken incident.