Daniel Hernandez v. The State of Texas--Appeal from Crim Dist Ct 5 of Dallas Co of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-95-168-CR

DANIEL HERNANDEZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the Criminal District Court No. 5

Dallas County, Texas

Trial Court # F93-60355-L

O P I N I O N

Appellant Hernandez appeals from his conviction for conspiracy to possess cocaine, 400 grams or more, for which he was sentenced to 16 years in the Texas Department of Criminal Justice, Institutional Division, and a $5,000 fine.

A confidential informant told Detective Gibson, an undercover drug officer, that Appellant and Guadalupe Manzano wanted to purchase a half-kilo of cocaine. Arrangements were made for Gibson to bring the cocaine to JoJo's parking lot and for Appellant and Manzano to bring $9,000 cash to make the purchase. When Gibson arrived at the parking lot, Manzano was in the driver's seat of his Blazer, Appellant was in the front passenger seat, and the confidential informant was in the back seat. Gibson got out of his car, went over to the Blazer and asked Appellant and Manzano if they had the $9,000. Both stated they had it. When Gibson asked to see the money, Appellant reached behind the seat, took a sack from the floorboard and gave it to Gibson. Manzano told Gibson to count it if he wanted to do so.

Gibson looked through the money, asked if it was all there, and Appellant said that it was. Gibson then said he would get the cocaine from his car, and Manzano followed him. Officers on the arrest team then arrested Gibson, Manzano, Appellant and the confidential informant.

Outside the presence of the jury, a hearing was held regarding a statement made after the arrests had occurred. Manzano was standing handcuffed and as Gibson, also handcuffed, was being led toward Manzano, Manzano called Gibson a "snitch." It was not in response to any police questioning or interrogation. It was not in response to anything that Gibson had said; no one was talking but Manzano. Neither Appellant nor Manzano had been told why they had been placed under arrest prior to the statement. Defense counsel objected to the statement of Manzano, a co-conspirator, as not admissible because the conspiracy had ended. The prosecutor responded that the statement went to the state of mind and the conspirator's intentions for being at the parking lot; and further that Manzano's statement was a res gestae statement not in response to any police interrogation made immediately following the arrest and was in the cause and furtherance of the conspiracy that had just occurred. The trial court admitted the testimony as to Manzano's statement.

The jury found Appellant guilty of conspiracy to possess cocaine and Appellant elected to have the judge assess punishment. The judge sentenced Appellant to 16 years in prison and a $5,000 fine.

Appellant appeals on one point of error: "The District Court erred in overruling Appellant's objection to the admission of hearsay testimony and thereby deprived Appellant of a fair trial."

Appellant contends the trial court erred when it admitted the comment of Manzano saying to Gibson, "you snitch," asserting the comment was inadmissible hearsay.

Rule 801(d), Texas Rules of Criminal Evidence, states "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.

Gibson's testimony was as follows:

Q. Did either defendant say anything to you?

A. Yes.

Q. Which one?

A. Manzano.

Q. What did he say?

A. You snitch.

Testimony was not offered to prove the truth of the statement, i.e., that Gibson was a snitch and, thus, was not inadmissible hearsay. The trial court did not err in admitting the testimony.

Appellant's point is overruled.

And, in any event, if error, the admission of Manzano's comment before the jury was harmless. Tex. R. App. P. 81(b)(2).

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 February 28, 1996

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