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Armstrong v. State

Court of Appeals of Texas, Fifth District, Dallas
Aug 15, 2011
No. 05-10-00958-CR (Tex. App. Aug. 15, 2011)

Opinion

No. 05-10-00958-CR

Opinion issued August 15, 2011. DO NOT PUBLISH. Tex. R. App. P. 47

On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause No. F08-55520-TY.

Before Justices O'NEILL, FITZGERALD, and LANG.


MEMORANDUM OPINION


A jury found appellant David Edward Armstrong guilty of possession of a controlled substance with intent to deliver. The trial court assessed appellant's punishment at eight years' confinement. Appellant raises a single issue on appeal, contending the trial court erroneously admitted harmful hearsay evidence against him. The procedural history, pleadings, and evidence are known to the parties, so we do not recite the facts in detail. We issue this memorandum opinion because the law to be applied is well settled. See Tex. R. App. P. 47.4. We affirm the trial court's judgment. Dallas police officers testified at trial that they approached a certain Dallas address after receiving information that drugs were being sold from that house. As two of the officers reached the front door, they met appellant, who was exiting the house through that door. Appellant stepped back inside, stated "I don't live here," and threw down a plastic bag containing pink capsules. One officer went immediately to retrieve the bag; the second officer subdued and detained appellant. Both testified they were certain that it was appellant who had thrown the bag down. The capsules in the bag were later tested by a chemist; he testified the capsules contained heroin. A third officer testified he searched appellant subsequent to his arrest and discovered another plastic bag containing empty pink capsules in appellant's pocket. Appellant testified and acknowledged being in the raided house with a number of other people. But he denied having any drugs that day. He specifically denied throwing down the bag of capsules the officers had identified. And he further denied that any officer had ever searched him after he was arrested. Appellant's complaint in this Court centers on State's Exhibit 1, the bag containing heroin-filled capsules, which the police officers testified appellant had possessed and thrown down during the raid. In a pre-trial hearing, appellant objected to the admission of the drugs as they were packaged:

[Defense Counsel]: Your Honor, the defense objects to the exhibit[] going into evidence as it is in this heat-sealed bag. We object to the extraneous hearsay written on the front, the name Armstrong, David Edward on the front and that label as hearsay. We object to the hearsay contained on the back of the bag and the —
The Court: What's on the back?
[Defense Counsel]: Labeling information on the back of the bag. Computer-generated labeling. Looks like —
And also, Judge, inside the bag there is, looks like, eight — and — a — half — by 11 sheet of paper. We object to that being introduced as it also contains extraneous hearsay.
The trial court overruled the objection for purposes of the hearing, stating the material was not being introduced "for what's printed on the paper." When the exhibit was reintroduced and offered at trial, appellant repeated the above objection; the trial court overruled it again. On appeal, appellant has limited his argument to the court's admission of the exhibit with appellant's name written on the outside of the bag. He contends this writing attributed the drugs to him. He further contends the evidence linking him to the drugs was limited, so the bag's attribution of the contents to him was harmful. We disagree. Hearsay is defined by our rules of evidence as "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." Tex. R. Evid. 801(d). In this case, labeling of the evidence bag with appellant's name merely served the purpose of identifying the contents for inventory purposes. No statement was asserted as an evidentiary matter by labeling the bag. Thus, the trial court correctly overruled appellant's hearsay objection on this point. However, even if the exhibit did contain hearsay in the form of appellant's name-or in the contents of any of the unidentified material on the labeling or the sheet of paper within the evidence bag-we conclude any error in admitting the exhibit was harmless. Appellant is incorrect when he contends the evidence linking him to the bag of drugs was limited. Two officers testified with certainty that they saw appellant throw the bag on the floor when he saw them at the door of the house. A third officer testified he searched the defendant and retrieved similar capsules in appellant's pocket. Moreover, any information concerning the drugs themselves that was contained within the exhibit was repeated in the testimony of the chemist who tested the drugs and in his report, which was admitted without objection as State's Exhibit 2. The admission of evidence will not result in reversal when the same evidence is received subsequently without objection. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). We overrule appellant's single issue and affirm the judgment of the trial court.

Although appellant narrows his argument here to this writing of his name on the bag, he does repeat his trial objection in its entirety. We note, therefore, that appellant's counsel referred to "computer-generated labeling" on the back of the envelope and to an unidentified sheet of paper in the evidence bag. Neither of these references identified any statement made in these writings. We conclude these portions of appellant's objections preserved nothing for our review. See Whitaker v. State, 286 S.W.3d 355, 369 (Tex. Crim. App. 2009) (objections to audiotapes insufficient to preserve error when objections failed to point out portions of audiotapes objected to as inadmissible).


Summaries of

Armstrong v. State

Court of Appeals of Texas, Fifth District, Dallas
Aug 15, 2011
No. 05-10-00958-CR (Tex. App. Aug. 15, 2011)
Case details for

Armstrong v. State

Case Details

Full title:DAVID EDWARD ARMSTRONG, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Aug 15, 2011

Citations

No. 05-10-00958-CR (Tex. App. Aug. 15, 2011)