Opinion
No. 04-09-00218-CR
Delivered and Filed: April 14, 2010. DO NOT PUBLISH.
Appealed from the 175th Judicial District Court, Bexar County, Texas, Trial Court No. 2008-CR-5795, Honorable Mary D. Román, Judge Presiding. Affirmed.
Sitting: CATHERINE STONE, Chief Justice, PHYLIS J. SPEEDLIN, Justice, MARIALYN BARNARD, Justice.
MEMORANDUM OPINION
A jury found appellant Edward Pruitt guilty of aggravated robbery with a deadly weapon. After the jury found an enhancement allegation based on a prior robbery true, appellant was sentenced to twenty-five years confinement in the Texas Department of Criminal Justice-Institutional Division. On appeal, appellant complains the trial court erred in failing to sustain a hearsay objection, and the evidence is factually insufficient to support his conviction. We affirm the trial court's judgment.
BACKGROUND
On September 26, 2006, Rose Mary Macias was working as a manager at a Dollar General store. Macias testified that during the lunch hour she noticed a man standing at a closed register. She asked the man to move to the open register. Macias stated that after she rang up the man's items, he leaned over the counter and told Macias to give him the money from the register or he would kill her. The man emphasized his threat by lifting his shirt and showing Macias a handgun that was tucked into his shorts. Macias testified she was scared, and gave the man all the money from the register, which was approximately two hundred dollars. Macias said that after the man left, she called 911. Bexar County Sheriff Deputy Jason Tibbs was the first law enforcement officer to arrive at the store. Macias gave him a description of the robber. Although Macias was the only witness to the robbery, there was someone in the parking lot who surmised that a robbery had taken place. That person, Tony Duran, followed the suspect, calling police and giving them the license plate number of the suspect's vehicle. After he lost sight of the suspect's car, Duran, at the request of police, returned to the Dollar General to give a statement. At trial, Deputy Tibbs and Investigator Aaron von Muldau testified Duran gave a description of the suspect, the suspect's car, as well as the license plate number. However, Duran insisted he needed to leave and return to work. According to officers, Duran also expressed that he wanted no involvement in the case. Duran gave officers his address; however, it was later discovered Duran no longer lived at the address he had given, and authorities were unable to locate him for trial. Police conducted an investigation at the store, which included attempting to lift fingerprints from a cooler and taking prints from the cash register area. However, none of the prints lifted could be linked to Pruitt. They also searched for the license plate number provided by Duran. The license plate was traced to Derata A. Thompson. One of the officers recognized the name, and he remembered that an associate of Thompson's, Pruitt, fit the description of the robber provided by Macias. Accordingly, an officer prepared a photo array that included Pruitt's photograph. The photo array was shown to Macias, and she identified Pruitt as the robber. She later identified him at trial. After Macias's initial identification, officers looked for Pruitt. He was ultimately found in California and extradited back to Texas to stand trial.ANALYSIS
Pruitt raises two points of error on appeal. First, he contends the trial court erred in failing to sustain his hearsay objection regarding testimony given by Investigator Muldau about Duran's statements to police. Within this first point of error, Pruitt also contends his Sixth Amendment rights were violated because he was unable to cross-examine Duran. Second, he claims the evidence was factually insufficient to support his conviction, pointing to the absence of any physical evidence linking him to the robbery.Hearsay
A trial court's decision to admit or exclude evidence is reviewed under an abuse of discretion standard. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). If the trial court's decision falls within the "zone of reasonable disagreement," it has not abused its discretion, and the ruling must be upheld. Id. Conversely, if the ruling "is so clearly wrong as to lie outside that zone within which reasonable persons might disagree," the ruling is erroneous. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). At trial, the State offered the testimony of Investigator von Muldau. The following exchange between the prosecutor and von Muldau prompted a hearsay objection, and forms the basis for Pruitt's appellate complaint:Q [Prosecutor]: When it came time to ask Mr. Duran to come down and give a witness statement, how did that go?
A [von Muldau]: Badly.
Q [Prosecutor]: What do you mean by that?
A [von Muldau]: He said that he —
[Pruitt's attorney]: Objection, Your Honor. Once again, hearsay response. He can tell us what happened without going into the conversation.
The Court: This is part of his investigation, and so the objection is overruled.
[Pruitt's attorney]: Thank you, Your Honor.
Q [Prosecutor]: Go ahead.
A [von Muldau]: Mr. Duran would have spoken to Deputy Tibbs, gave him all the information concerning what he observed. Deputy Tibbs identified Mr. Duran, gave information to me. When I approached Mr. Duran, he was very adamant that he needed to go; his job apparently was on the line. His boss would be very upset that he was coming back from work, or from lunch late. He said that he would talk to me later, but he felt that he did not want to get any further involved. He did his deed by giving us the information that he did give us.
Q [Prosecutor]: And the information that he provided to Deputy Tibbs, was that the license plate number?
A [von Muldau]: He provided the license plate number and the description of the man running from the place.Pruitt complains that portions of the investigator's testimony, those portions relating to what Duran had told law enforcement about the suspect and his license plate number, should not have been admitted because it was hearsay. When summed up, the testimony from Investigator von Muldau's testimony that forms the basis of Pruitt's hearsay challenge is that Duran was helpful because he gave authorities a description of the suspect and the suspect's license plate number. However, this very same testimony was admitted earlier in the trial without objection. Deputy Tibbs testified about the information provided by Duran as follows:
Q [Prosecutor]: Okay. Was he [Duran] able to provide you with some information?
A [Tibbs]: Yes. He was.
Q [Prosecutor]: Without going into the exact information, what was the type of information that he provided to you?
A [Tibbs]: Okay. He gave me a description of the suspect and a description of the vehicle and license plate number for the vehicle.A comparison of the testimony establishes that Deputy Tibbs testified to the exact same information provided by Investigator von Muldau, but Pruitt failed to object to Deputy Tibbs's testimony. And, this is the very testimony that forms the basis of Pruitt's first point of error. To preserve error regarding the admission of evidence, a party must make a proper objection and get a ruling on that objection. TEX. R. APP. P. 33.1; Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). Additionally, a party must object each time the allegedly inadmissible evidence is offered or obtain a running objection. Valle, 109 S.W.3d at 509. When the evidence complained of is admitted without objection elsewhere, error as to the admission of the evidence is waived. Id. Here, the evidence about which Pruitt complains, i.e, Investigator von Muldau's statements about the information provided by Duran, was admitted through Deputy Tibbs without objection. Accordingly, Pruitt waived any error with regard to the admission of this evidence. Moreover, even if Pruitt had preserved this complaint for appellate review, it is without merit. Hearsay is a statement, other than one made by the declarant while testifying, offered into evidence to prove the truth of the matter asserted. TEX. R. EVID. 801(d). Investigator von Muldau's testimony, as well as that of Deputy Tibbs, was that Duran provided a description of the suspect and a license plate number. This testimony explained how Pruitt became a suspect-the license plate number yielded the name of a woman, and Deputy Tibbs recognized the woman's name and recalled she had an associate fitting Pruitt's description. Police officers may testify to explain how the investigation began and how the defendant became a suspect. Lee v. State, 29 S.W.3d 570, 577-78 (Tex. App.-Dallas 2000, no pet.) (citing Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995)). The trial court could have concluded, and obviously did based on its statement that "[t]his is part of his investigation," that von Muldau's testimony did not lead to the inescapable conclusion that Duran was testifying through Muldau, but was merely advising the jury how Pruitt became a suspect. Accordingly, the complained of testimony was not hearsay, and the trial court did not err in overruling Pruitt's objection. See id. In addition to arguing von Muldau's testimony should not have been admitted because it violated the prohibition against admission of hearsay evidence, Pruitt also complains that his Sixth Amendment right to confrontation was violated because he was unable to cross-examine Duran. However, Pruitt did not raise a Sixth Amendment or confrontation objection, but merely objected on grounds of "hearsay," and the Sixth Amendment grounds were not apparent from the context of his objections. See TEX. R. APP. P. 33.1(a). Even constitutional errors, including Sixth Amendment complaints, may be waived if they are not voiced at trial. See Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004) (holding that hearsay objection failed to preserve error on Sixth Amendment grounds); Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000) (holding Sixth Amendment claim waived by failing to object on that basis at trial). In Paredes, the defendant objected to the admission of certain evidence based on hearsay. 129 S.W.3d at 535. On appeal, he claimed the admission of the evidence violated his rights to confront the witnesses against him under the Sixth Amendment. Id. The court of criminal appeals held the defendant failed to preserve any Sixth Amendment error. Id. In this case, just as in Paredes, Pruitt objected only on hearsay grounds, failing to raise any Sixth Amendment claim. We therefore hold he has waived any complaint based on the Sixth Amendment. Based on the foregoing, we find appellant's point of error waived. If not waived, it is without merit, and is overruled.