Elton Paul Colomb, Jr. v. The State of Texas--Appeal from 66th District Court of Hill County

IN THE

TENTH COURT OF APPEALS

No. 10-99-141-CR

ELTON PAUL COLOMB, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 66th District Court

Hill County, Texas

Trial Court # 30,953

O P I N I O N

A jury found Elton Paul Colomb, Jr. guilty of burglary of a habitation. The trial court sentenced him to 25 years in prison. Colomb argues in a single issue that the trial erred by admitting his written statement because it contained evidence of an extraneous offense and was offered to prove conformity of character in violation of Texas Rules of Evidence 404(b). Because the same facts were in evidence through a witness s testimony, no error can be attributed to the admission of the written statement. We affirm the judgment of the trial court.

Background

On July 26, 1997, the home of Dewey Seagroves was burglarized and a television set was stolen. Colomb was arrested on July 27, 1997 and charged with commission of the offense. He was initially indicted on August 27, 1997, and then re-indicted on August 28, 1997. The subsequent indictment included two enhancement paragraphs regarding final felony convictions. Colomb entered a plea of not guilty to the charge of burglary. He was convicted by a jury and elected to have the Court assess his punishment. He entered a plea of true to each of the two enhancement paragraphs and the Court sentenced him to 25 years in prison.

During the guilt/innocence phase of trial, the State attempted to introduce Colomb s written statement describing the offense in its entirety. He objected to the admission of the entire statement on the grounds that certain parts of the statement, which described other offenses committed the same day as the charged offense, were highly prejudicial and not relevant to the State s case burglary of a habitation. The State argued that the part of the statement concerning the purpose for which the money for the television was received corroborated the rest of Colomb s statement.

The court, after hearing the argument of both parties, sustained Colomb s objection in part and overruled it in part. The court ordered the redaction of all but the first seven sentences and the last sentence of the statement. The seventh sentence of the statement reads as follows:

After I sold the T.V. to Byron I drove to Ann s house (don t know her last name) on Sycamore St. in Hillsboro and baught [sic] a twenty dollar rock of cocaine.

Prior to its ruling on the admissibility of the statement, the Court stated that it had performed a balancing test under Rule 403 and it was the Court s opinion that the statement was relevant and could be used by the State to prove any of the other permissible grounds pursuant to Rule 404(b).

No Error

Colomb argues that the trial court abused its discretion in admitting his statement because it contained evidence of other crimes, wrongs, or acts in violation of 404(b). Tex. R. Evid. 404(b) (Vernon Supp. 2000). On appeal, a trial court s evidentiary ruling is reviewed for abuse of discretion. See Angleton v. State, 971 S.W.2d 65, 67 (Tex. Crim. App. 1998). In addressing this argument, we need not decide if the trial court s ruling was erroneous. Although Colomb s extraneous offense objection was sufficient to raise his argument under Rule 404(b), there is no error because he failed to object earlier in the trial when similar evidence was admitted. The evidence contained in the written statement to which appellant objected had already been presented during prior testimony, which was not objected to by the appellant.

It is well established under the doctrine of curative admissibility that the improper admission of evidence does not constitute reversible error if the same facts are shown by other evidence which is not challenged. Jordan v. State, 667 S.W.2d 547, 548-549 (Tex. App. Waco 1983, pet. ref'd). Overruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).

Here, evidence on the same subject matter came in without objection during the State s case-in-chief. Officer Hundley, who investigated the case, testified that after being advised of his Miranda rights, Colomb told him that he had taken the TV the day before and sold it for $20.00 so he could purchase crack cocaine, and that he had at that time a fairly bad crack problem and that he needed help. The unobjected-to evidence contained in Hundley s testimony was the same evidence as that objected-to in the seventh sentence in Colomb s written statement. Thus, we conclude that the trial court s action in admitting the statement was not error because of the admission of similar evidence without objection. This issue is overruled.

Conclusion

Having overruled Colomb s sole issue on appeal, we affirm the judgment of the trial court.

TOM GRAY

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed December 13, 2000

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