Opinion
No. 14-07-00374-CR
Opinion filed July 24, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 208th District Court, Harris County, Texas, Trial Court Cause No. 1102276.
Panel consists of Justices YATES, GUZMAN, and BROWN.
MEMORANDUM OPINION
Appellant Risaya Thompson appeals from his conviction for capital murder. In his sole issue, appellant claims his Sixth Amendment right to confrontation was violated when the trial court admitted into evidence a videotape containing testimonial hearsay. We affirm. Appellant, along with Deaundre "Dre" Randall, Deandre "House" Humphry, and two other males, lured Alex Mitchell, the complainant, into an abandoned house. After beating Mitchell with bats and sticks and taking Mitchell's wallet and cell phone, appellant and the other males put Mitchell into the trunk of Mitchell's car. The group drove the car to a wooded area, poured gasoline on the car, and set it on fire with Mitchell still in the trunk. Mitchell died from a combination of smoke inhalation and blunt head trauma. Police began an investigation after finding the burning vehicle and Mitchell's body. Several days after the incident, appellant voluntarily talked to the police. Initially, appellant denied any involvement in the crime, but after being told that Dre, who had been taken into custody at that point, and House had implicated appellant, appellant voluntarily gave a statement regarding his participation in the crime. This statement was videotaped and later played into evidence at appellant's trial. A jury convicted appellant of capital murder and sentenced him to life in prison. In a single issue on appeal, appellant complains the trial court erred by overruling appellant's objection and admitting hearsay testimony in the videotape because it violated his Sixth Amendment right to confrontation. The Sixth Amendment to the United States Constitution provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. CONST. amend. VI. Under the Confrontation Clause, a "testimonial" hearsay statement may not be admitted in evidence against an accused unless the declarant is unavailable and the accused had a prior opportunity to cross-examine him. Crawford v. Washington, 541 U.S. 36, 68 (2004). A violation of the Confrontation Clause is subject to harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). This court should reverse a trial court's judgment only if it determines beyond a reasonable doubt that the error contributed to the conviction or punishment. TEX. R. APP. P. 44.2(a); Clay v. State, 240 S.W.3d 895, 904 (Tex.Crim.App. 2007). In our assessment of the likelihood that, absent the trial court's error, the jury verdict as to appellant's conviction would have been the same, we must consider the entire record. Neder v. United States, 527 U.S. 1, 15-16 (1999). Among the factors, as revealed by the record, that we must consider are (1) the importance of the hearsay evidence to the State's case, (2) whether the hearsay evidence was cumulative of other evidence, (3) the presence or absence of other evidence corroborating or contradicting the hearsay evidence on material points, and (4) the overall strength of the State's case. Davis v. State, 203 S.W.3d 845, 852 (Tex.Crim.App. 2006). Appellant specifically complains about hearsay statements in the videotaped interview, made by the police officer interviewing appellant, that Dre and House had implicated appellant as having participated in the entire crime. Appellant claims that because Dre and House did not testify at trial, he was unable to confront the witnesses against him, and thus the trial court should have excluded the portion of the video containing these statements. The State argues that regardless of whether the trial court erred in admitting the statements, the error was harmless. We agree. Setting aside the interviewing officer's statements regarding what Dre and House allegedly said, the State presented compelling evidence regarding appellant's involvement in the murder. The videotaped interview, during which appellant confessed in detail to his part in committing the murder, was played for the jury. Appellant told the interviewing officer that he helped beat the complainant with a stick, drove around with Dre and House to obtain the gas, and was there when the gas was poured on the car and the car was set on fire with the complainant in the trunk. The State also submitted into evidence letters appellant wrote family members while in jail, admitting that he beat the complainant in the ribs and head with a stick, poured gasoline on the car, and set the car on fire with the complainant in the trunk. Finally, Shabrina Hall, a fourteen year old girl who was mutual friends with some of appellant's friends, testified that the day after the murder she heard appellant say, "We just got through killing this nigga named AJ, Alex," and "We burned him in the trunk of his car." From this evidence, it is clear that the hearsay statements established little, if anything, negative about appellant that was not also well established by properly admitted evidence. Viewing the record in its entirety, we are persuaded beyond a reasonable doubt that the admission of the complained of statements did not contribute to the conviction or punishment. See Davis, 203 S.W.3d at 852-56 (concluding that erroneous admission of testimonial hearsay was harmless because properly admitted evidence still proved elements of offense charged); Dixon v. State, 244 S.W.3d 472, 487 (Tex.App.-Houston [14th Dist.] 2007, pet. ref'd) (holding that in light of compelling evidence properly before jury, no reasonable probability existed that testimonial statements moved jury from state of non-persuasion to one of persuasion regarding appellant's punishment). We overrule appellant's sole issue and affirm the trial court's judgment.
Appellant claims that alternatively, the trial court erred by not giving a limiting instruction to the jury prior to playing the video. However, because appellant failed to request a contemporaneous limiting instruction at trial, he has not preserved error with respect to this argument. See TEX. R. APP. P. 33.1. Therefore, we address only his argument regarding the overruling of his Confrontation Clause objection.