Kendrick Earl Edwards v. The State of Texas--Appeal from 400th District Court of Ft. Bend County

Opinion issued April 10, 2008

Opinion issued April 10, 2008

 

In The

Court of Appeals

For The

First District of Texas

 

NOS. 01-05-00928-CR & 01-05-00929-CR

 

 

KENDRICK EARL EDWARDS, Appellant

V.

STATE OF TEXAS, Appellee

 

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause Nos. 39701 & 39702

 

 MEMORANDUM OPINION

 

After finding appellant Kendrick Earl Edwards guilty as charged of robbery and kidnapping, the jury assessed sentences of twenty years imprisonment for the robbery charge and ten years imprisonment for the kidnapping charge. See Tex. Penal Code Ann. 20.03, 29.02 (Vernon 2003). In this appeal, Edwards contends that the trial court erred in: (1) allowing testimony regarding a hearsay statement by Edwards s accomplice; and (2) admitting a hearsay statement written on a photo array. Finding no error in connection with Edwards s first issue and waiver of his second, we affirm.

Background

Kasi Coleman met Edwards in December 2003 through a free social networking website she had joined with the hope of making new friends. Coleman chatted with Edwards online for about a month before deciding to meet him in person. This meeting took place in January 2004. Edwards met Coleman at her house and drove down to Galveston while they conversed about topics such as family and work.

Coleman and Edwards continued to become acquainted and grew friendlier with each other through telephone conversations. Once, when Edwards called Coleman while she was out having dinner with a friend, Coleman gave Edwards an impromptu invitation to meet them at the restaurant. Edwards drove to the restaurant and visited for a little while with Coleman and her friend.

By that time, Coleman felt that Edwards had become a trustworthy friend, and decided to invite him to her home for a visit. She and Edwards watched a movie and made small talk. When Edwards tried to hug Coleman, she asked him not to touch her. Edwards later poked her in a playful way. She asked him again not to touch her, and he stopped. The rest of the evening was uneventful, and Coleman felt that Edwards had respected her request.

Edwards called Coleman several times during the following week. Edwards made these calls from a telephone with a blocked number. When Coleman asked him why, Edwards explained that he was using his uncle s business phone, which could not receive incoming calls. Edwards told Coleman that he had a Valentine s gift for her, and they made arrangements to meet again.

Edwards and Coleman made arrangements to meet for lunch at Edwards s home a few days later. Edwards then gave Coleman his address.

When Coleman tried to download a map and directions to the home, she discovered that the address Edwards had given her was invalid. Late in the morning on the day they planned to have lunch, Edwards called Coleman at home. Coleman told Edwards that the address he gave her was not correct, and, while she had some familiarity with the area, she told him she would not come unless he gave her his telephone number so that she could contact him if she were to become lost. Edwards called Coleman back with a number, and she set out to find the home.

As Coleman approached the area, she called Edwards for directions to the home. Coleman testified that the directions were twisted and that she felt Edwards was trying to confuse her. Coleman nevertheless located the home, where she was greeted by Edwards. By the time Coleman arrived, her senses were alerted by the difference between the actual address of the home and the one Edwards first gave her, and the presence of a car she did not recognize in front of the home, while the car she knew Edwards to drive was nowhere in sight. Once inside, Coleman also noticed pictures of Caucasian people on display and children s shoes lined up near the door, even though Edwards was African-American and had never mentioned having any children. After about half an hour, these and other inconsistencies made Coleman so uncomfortable that she decided to leave. As she rose to leave, Edwards asked her for help moving a water case in the garage. When Coleman entered the garage, Edwards grabbed the back of her neck and sprayed her face with a mace-like irritant.

The spray temporarily made Coleman unable to see or breathe freely. When she began to question Edwards s actions, he ordered her to shut the f up and get the f--- down. Coleman suddenly heard a female voice parroting Edwards s order and accusing Coleman of messing with her man.

Edwards then demanded $600 from Coleman. When Coleman said that she did not have the money, Edwards and his accomplice, later identified as Jamie Rogers, discovered a debit card in Coleman s purse and decided to take Coleman to an ATM. Rogers backed Coleman s car into the garage. Edwards pulled the hood of Coleman s sweatshirt over her eyes and made Coleman sit with him in the back seat, warning her to keep her eyes closed or he would shoot her.

Rogers stopped the car at one ATM, but Edwards did not get out because too many people were present. They drove to another ATM location, and Edwards tried but was unable to make a withdrawal. Edwards returned to the car with the denial of funds slip and accused Coleman of lying to him. They drove around for some time, until Rogers said that she needed to be somewhere. After they stopped to drop her off, Edwards continued to drive around with Coleman in the backseat. Some time later, Edwards stopped on the side of the road. He had Coleman lie down on the backseat and collected the contents of Coleman s purse. Then, Edwards placed the car keys outside the driver s side door. Before departing, he said, give me five to seven minutes, then you can leave, and threatened that he would come after her and her family if she went to the police.

The following morning, Coleman filed a police report. Over the next few days, Coleman noticed several fraudulent attempts to withdraw money from her checking account, and later discovered that one of the checks stolen from her purse had been used to buy automotive accessories.

After filing the police report, Coleman continued to cooperate with the investigation into the crime. When Officer Hargrave, who was assigned to investigate the crime, asked Coleman to review a photo lineup, Coleman immediately identified the individual in the first photo as Edwards. After Hargrave instructed Coleman to write down what she knew about Edwards, she wrote in the photo s margin, [t]his person know [sic] to be Kendrick violated me.

The police investigation ultimately resulted in Edwards s apprehension. Following trial, conviction, and sentencing, Edwards appeals.

Discussion

Edwards s complaints both relate to the trial court s decisions to admit evidence. First, he contends that the trial court erred in allowing Coleman to recount Rogers s statement to the jury. Second, he asserts that the trial court erred in admitting into evidence the photo array that contained Coleman s handwritten note concerning Edwards.

A. Standard of review

We review the trial court s decisions on the admissibility of evidence for an abuse of discretion. See McGee v. State, 233 S.W.3d 315, 318 (Tex. Crim. App. 2007). An abuse of discretion occurs when a trial court s decision lies outside the zone of reasonable disagreement. Id. In determining whether an abuse of discretion occurred, we consider whether the court acted arbitrarily, unreasonably or without reference to guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 42 (Tex. 1985)).

B. Admission of testimony recounting Rogers s statements

In his first issue, Edwards complains that the trial court abused its discretion by allowing Coleman to testify that, after Edwards sprayed her in the face, she heard a female voice yelling tell that bitch to shut the f--- up, messing with my man. Edwards contends that this testimony constitutes inadmissible hearsay. We disagree.

The State elicited this testimony by asking Coleman, How loud did the female what was her voice like when she told you what she said? In response to the defense s hearsay objection, the State responded that the statement was offered to show Coleman s state of mind, not to prove the truth of the matter asserted. The trial court overruled the objection and allowed Coleman to answer.

Hearsay is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d); see Jones v. State, 843 S.W.2d 487, 499 (Tex. Crim. App. 1992), overruled on other grounds by Maxwell v. State, 48 S.W.3d 196 (Tex. Crim. App. 2001); Martinez v. State, 186 S.W.3d 59, 66 (Tex. App. Houston [1st Dist.] 2005, pet. ref d). Hearsay evidence is not admissible except as provided by statute or the rules of evidence. See Tex. R. Evid. 802. Conversely, out-of-court statements that are offered for a purpose other than to prove the truth of the matter asserted are not hearsay and may be admissible. Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995); Smith v. State, 236 S.W.3d 282, 297 (Tex. App. Houston [1st Dist.] 2007, pet. ref d).

For the robbery case, the State was required to prove beyond a reasonable doubt that Edwards intentionally or knowingly threatened or placed the victim in fear of imminent bodily injury or death. Tex. Penal Code 29.02(a)(2). Here, the record reflects that the State was asking about Rogers s statements to elicit testimony concerning their effect on Coleman, not to show that Rogers actually wanted Coleman to be quiet or stop messing with [her] man. Because the statement, as used, does not constitute hearsay, the trial court did not abuse its discretion in admitting that testimony.

C. Admission of Statement Written on Photo Array

In his second issue, Edwards complains that the trial court abused its discretion by admitting into evidence the photo array containing Coleman s handwritten statement, which, Edwards contends, constitutes inadmissible hearsay. Edwards, however, waived any error resulting from the admission of that evidence.

To preserve error for appellate review, a party must make a timely and specific objection and obtain a ruling on that objection. Haley v. State, 173 S.W.3d 510, 516 (Tex. Crim. App. 2005); Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); see Tex. R. App. P. 33.1(a). To satisfy the timeliness requirement, a party complaining on appeal about a trial court s admission, exclusion, or suppression of evidence must, at the earliest opportunity, have done everything necessary to bring to the judge s attention the evidence rule in question and its precise and proper application to the evidence in question. Alfaro v. State, 224 S.W.3d 426, 433 (Tex. App. Houston [1st Dist.] 2006, no pet.) (quoting Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005)).

During its direct examination of Coleman, the State had her identify and testify about the photo array and read her handwritten statement to the jury. Later, in examining Hargrave, the State delved further into the circumstances surrounding his preparation of the array, Coleman s identification of Edwards, and how Coleman came to make a handwritten notation on the array. After authenticating the photo array through Hargrave, the State proffered it as an exhibit. Not until then did defense counsel object to admission of the handwritten statement. That objection came too late because both Coleman and Hargrave had already testified to the array and the statement s contents. See Goldberg v. State, 95 S.W.3d 345, 368 (Tex. App. Houston [1st Dist.] 2002, pet ref d).

Moreover, defense counsel objected to the handwritten statement on the grounds that it was irrelevant and unfairly prejudicial, not because it was hearsay. An objection must comport with the issue raised on appeal. Fuller v. State, 827 S.W.2d 919, 928 (Tex. Crim. App. 1992); Smith, 236 S.W.3d at 291. If an objection made in the trial court differs from the complaint raised on appeal, the defendant has not preserved any error for review. Butler v. State, 872 S.W.2d 227, 236 (Tex. Crim. App. 1994); Smith, 236 S.W.3d at 291. Thus, Edwards failed to preserve this issue for appeal.

Conclusion

Edwards failed to show that the trial court abused its discretion in his first evidentiary challenge, and he waived his second challenge. Accordingly, we affirm the judgment of the trial court.

Jane Bland

Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

Do not publish. See Tex. R. App. P. 47.2(b).