Sterling David Kubecka v. The State of Texas--Appeal from 230th District Court of Harris County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00064-CR

______________________________

STERLING DAVID KUBECKA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th Judicial District Court

Harris County, Texas

Trial Court No. 921131

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

In late April 2002, Sterling David Kubecka generated an overdraft on his Republic Bank account by depositing insufficient funds checks to the account and then making withdrawals from it. // He was prosecuted for theft. At trial, Kubecka's counsel tendered testimony from Martin Tellez, Kubecka's friend and business associate, to the effect that, in late June 2002, Kubecka had asked Tellez to pay the bank money he owed Kubecka and thereby satisfy Kubecka's overdraft. On the State's relevance and hearsay objections, the trial court ruled the testimony was inadmissible hearsay and excluded it. From his conviction and sentence of twenty months' confinement and a $6,445.00 fine, Kubecka appeals, asserting only that the testimony should not have been excluded. Though we find the testimony was not hearsay, we find its exclusion was within the trial court's discretion because of lack of relevance. Therefore, we affirm the trial court's judgment.

Excluded Testimony Was Not Hearsay

Kubecka's offer of proof contained Tellez' testimony that Kubecka directed him to pay directly to the bank for payment of Kubecka's obligation there the sum of $7,000.00, which Tellez had available to pay toward an indebtedness he owed Kubecka. We conclude that testimony was not hearsay.

Hearsay "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tex. R. Evid. 801(d). The admissibility of hearsay evidence is a question for the trial court, reviewable under an abuse of discretion standard. See Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994).

The proffered testimony was not hearsay. Kubecka's statement to Tellez was not offered to show the truth of anything in Kubecka's utterance, but to show the directive to pay the bank rather than Kubecka. It was not primarily an assertion of a fact, but a directive or request of Tellez, offered to show that Kubecka made an effort to pay the bank and thereby show that he did not intend to deprive the bank of the $6,444.38 outstanding from the overdraft of his account. See Norton v. State, 564 S.W.2d 714, 717 (Tex. Crim. App. 1978) (operative facts or verbal acts offered to prove communication made, not to prove its truth, not hearsay); Burchfield v. State, 475 S.W.2d 275, 277 (Tex. Crim. App. 1972) (statement reported to show statement made, not truth of statement, not hearsay); Franklin v. State, 992 S.W.2d 698, 704 (Tex. App. Texarkana 1999, pet. ref'd) (operative fact where words created agency, not hearsay); see also Ash v. Hack Branch Distrib. Co., 54 S.W.3d 401, 411 (Tex. App. Waco 2001, pet. denied); Wal-Mart Stores, Inc. v. McKenzie, 22 S.W.3d 566, 572 (Tex. App. Eastland 2000, pet. denied) (in employment discrimination suit, "We got rid of that [racial slur]." not hearsay, but operative fact); $445.00 in United States Currency v. State, 856 S.W.2d 852, 853 (Tex. App. Fort Worth 1993, no pet.) ("dope notes" in vehicle not hearsay, as not offered to prove contents, but to prove their presence in vehicle).

Exclusion Was Proper for Lack of Relevance

While we conclude the testimony was not hearsay, we find the evidence was properly excluded since it was irrelevant and the State had also objected on the basis of irrelevance. If a trial court's ruling is correct under any theory of law, but the court so ruled for the wrong reason, the ruling will stand, especially if the ruling admitted or excluded evidence. Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002).

Even relevant evidence can be excluded if "its probative value is substantially outweighed by the danger of . . . confusion of the issues, or misleading the jury . . . ." Tex. R. Evid. 403.

We review a trial court's exclusion of evidence for abuse of discretion. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Penry v. State, 903 S.W.2d 715, 762 (Tex. Crim. App. 1995). A trial court abuses its discretion if it acts without reference to guiding rules and principles; that is, arbitrarily or unreasonably, Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993), or, in other words, outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g).

While the issue of Kubecka's intent to deprive the bank of the funds was central to this case, his intent was to be determined as of the latter part of April 2002, when the overdraft was created. By contrast, the excluded testimony recounted a conversation occurring in late June 2002, about two months later. While testimony about Kubecka's intent in late June might be argued to be somewhat probative of his intent in April, the connection is very attenuated. During the intervening time period, the record reveals, there were numerous bank collection efforts. We also cannot know from the record before us what other attenuating events may have occurred during that time. Because of the two-month gap and the collection efforts during that time, and because possible other intervening events further attenuated the two events, we cannot say the trial court would have been outside the zone of reasonable disagreement if it had excluded the evidence based on relevance. Therefore, it would have been within the trial court's discretion to have excluded the testimony based on relevancy. //

Because we find the trial court did not abuse its discretion, we affirm the judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: July 12, 2004

Date Decided: July 27, 2004

Do Not Publish