Raymond Garcia, III v. The State of Texas--Appeal from 183rd District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-93-102-CR

RAYMOND GARCIA, III,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 183rd District Court

Harris County, Texas

Trial Court # 638,597

O P I N I O N

The court found Raymond Garcia, III guilty of attempted murder and assessed punishment of twenty-five years imprisonment. See Tex. Penal Code Ann. 15.01 (Vernon Supp. 1994), 19.02 (Vernon 1989). In his sole point of error, Garcia contends the evidence is insufficient to establish he committed the offense. We will affirm.

In resolving the sufficiency-of-the-evidence issue, we view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the offense charged beyond a reasonable doubt. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988); Mattias v. State, 731 S.W.2d 936, 939-40 (Tex. Crim. App. 1987), cert. denied, 488 U.S. 831, 109 S. Ct. 86, 102 L. Ed. 2d 62 (1988). The court is entitled to reject the defensive evidence and credit the State's witnesses' version of the events. See Lackey v. State, 819 S.W.2d 111, 116 (Tex. Crim. App. 1989). "[T]he evidence is not rendered insufficient simply because [Garcia] presented a different version of the events." See Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).

Garcia's wife was attacked and viciously beaten inside their Houston apartment. After the attack she spent six weeks in the hospital and is expected to be totally blind for life. Viewed in the light most favorable to the verdict, the testimony at the trial established that Garcia was with her inside their apartment at the time of the assault. When he emerged from their apartment, he told a neighbor to call 9-1-1 because his wife was "feeling bad." He then left the apartment complex with his infant son, delivered the baby to Garcia's mother, and did not return to the apartment. Within three days of the assault, Garcia left Houston for several weeks. Additionally, the State introduced evidence from two witnesses that his wife told both of them Garcia was her assailant. His wife repudiated those statements at the trial and testified that all she saw was a "big husky shadow" that was not Garcia.

Garcia argues that the hearsay statements of his wife testified to by third-party witnesses at his trial lost their probative value when his wife repudiated them; thus, there is no evidence to establish that he assaulted his wife. The Court of Criminal Appeals has squarely rejected this theory. See Fernandez v. State, 805 S.W.2d 451, 455-56 (Tex. Crim. App. 1991). Hearsay admitted without objection can "be considered by the trier of fact as probative evidence, to be assessed and weighed along with, and equal to, the other evidence admitted at trial." Id.

Although Garcia objected to the evidence, his objection was untimely. See Johnson v. State, 803 S.W.2d 272, 291 (Tex. Crim. App. 1990), cert. denied, ___ U.S. ___, 111 S. Ct. 2914, 115 L. Ed. 2d 1078 (1991), overruled on other grounds, Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991). In each instance, the witness was asked a question which clearly required a hearsay response, yet no objection was lodged prior to the witnesses' answers. Thus, the objections that were raised several questions later did not prevent the court from considering the hearsay. See Wills v. State, 867 S.W.2d 852, 855 (Tex. App. Houston [14th Dist.] 1993, no pet.). The court was entitled to credit the statements attributed to the victim over her in-court testimony. See Fernandez, 805 S.W.2d at 456. Based on the victim's out-of-court identification of Garcia as her assailant, the evidence is sufficient to support the court's conclusion that he was the individual responsible for the brutal attack. Thus, the point of error is overruled.

The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice James (Retired)

Affirmed

Opinion delivered and filed August 31, 1994

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