Shaun Kervett Dean v. The State of Texas--Appeal from Crim Dist Ct 4 of Dallas Co of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-95-144-CR

SHAUN KERVETT DEAN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Criminal District Court No. 4

Dallas County, Texas

Trial Court # F95-00312-K

O P I N I O N

Appellant Dean appeals his conviction for aggravated robbery for which he was sentenced to 25 years in the Texas Department of Criminal Justice, Institutional Division, and a $4,000 fine.

On October 23, 1994, at about 10:00 p.m., complainant Barry Skrepnek, an attorney, pulled into the parking lot of the apartment complex where he lived in Dallas. As he was walking toward his apartment he felt a tap on his shoulder, and when he turned around he saw a man, later identified as Appellant, pointing a gun in his face. Appellant stated, "your keys and your money." Complainant started to reach in his pocket for his car key. Then, as Appellant moved the gun away from complainant's face, complainant grabbed for Appellant's gun. The two men struggled and Appellant finally pulled his hand free and ran away. When the police arrived, complainant described his assailant as a black male with short hair, 5'8" in height and weighing 170 pounds.

Two days later Officer Haney responded to a wreck call. Appellant was the driver of a car which collided with a truck. Office Haney thought Appellant was acting nervous and that he had a weapon. Appellant threw a pistol on the ground, and Officer Haney arrested him for unlawfully carrying a weapon.

Because Appellant matched complainant's description of his assailant, Detective Adkins placed Appellant's picture in a photographic lineup and showed it to complainant. Complainant picked Appellant's picture out of the photographic lineup as the person who robbed him, and also identified Appellant in court as the man who robbed him at gunpoint.

Appellant was found guilty of aggravated robbery and sentenced to 25 years in prison and a fine. He appeals his conviction on one point of error: "The trial court erred in allowing the victim to reply to a question seeking his opinion on the concept of `beyond a reasonable doubt,' said reply being an inadmissible `legal conclusion.'"

Specifically, Appellant complains that on redirect examination of the complainant by the State, the following occurred:

Q. Would you have picked out the defendant's picture out of the photo lineup if you were not sure beyond a reasonable doubt that that was the man who robbed you?

A. No.

[DEFENSE COUNSEL]: Objection, Your Honor. That calls for a legal conclusion.

THE COURT: Overruled.

Appellant did not object until after the victim had already responded "No" to the prosecutor's question, and therefore failed to preserve error. Hollins v. State, 805 S.W.2d 475, 476 (Tex. Crim. App. 1991). Moreover, prior to the complained of question and answer, the victim had already testified that he understood the concept of reasonable doubt and he had no doubt that Appellant was the man who robbed him at gunpoint. When the same evidence is introduced from another source, without objection, the defendant may not complain on appeal. Stoker v. State, 788 S.W.2d 1, 12 (Tex. Crim. App. 1989). Thus Appellant waived an error because the same evidence had already been introduced without objection.

Finally, the complainant had already identified Appellant in court as the person who robbed him at gunpoint. If his later complained of testimony was error, it was harmless. Tex. R. App. P. 81(b)(2).

Appellant's point is overruled. The judgment is affirmed

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed March 13, 1996

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