COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-03-362-CR
ADALBERTO
PONCE-DURON APPELLANT
V.
THE
STATE OF TEXAS STATE
------------
FROM
THE 367TH DISTRICT COURT OF DENTON COUNTY
MEMORANDUM OPINION1
In
eight points, Appellant Adalberto Ponce-Duron appeals his capital murder
conviction, claiming that 1) the trial court improperly granted the State’s
motion to strike four potential jurors for cause, 2) the trial court erred in
failing to suppress his videotaped statements, 3) business record evidence was
improperly excluded, 4) the trial court improperly admitted extraneous evidence
of gang activity and hearsay evidence, and 5) there was jury charge error.
We affirm.
Factual and
Procedural Background
On
September 15, 2002, Stephanie Tacina and her boyfriend Jerry Jackson were at the
Mack Park Apartments in Denton watching a football game with friends. When
Jackson and several other men got into a friend’s car to go buy beer, Tacina
became angry and threw a beer bottle behind the car as they were leaving.
Jackson ran toward Tacina, swearing at her and shoving her into a brick wall,
causing her to hit her head. The men left to buy more beer and while they
were gone another tenant at the apartments called 911 after noticing that Tacina
was hurt. Police and an ambulance arrived about ten minutes later.
Jackson was detained at the scene along with two other individuals, but only
Jackson was arrested. Appellant was at the scene and became upset when
police arrested Jackson.
Ivan
Holbert, who was visiting his girlfriend at the same apartments, witnessed
Jackson’s arrest. Holbert testified that after Jackson’s arrest he saw five
people including Appellant get into a car; they told Holbert they were going to
look for Tacina. Holbert also said he overheard Appellant say that he was
going to kill Tacina when he found her.
Security
videotape obtained from the Denton Regional Medical Center, where Tacina had
been taken for her possible head injury, showed Appellant leaving the hospital
with a female wearing a green tube top. The female was later identified as
Tacina. Tasia Hoffman, who was acquainted with some of the individuals in
the car, testified that she saw the same people that Holbert testified about
around 11:30 p.m. that same evening. She also testified that Tacina was in
the backseat of the car and that she had bruises, burns, and bloody hair.
Hoffman stated that Appellant and the others in the car drove to her house in an
attempt to dump Tacina’s body there. Hoffman said that Appellant
appeared to be holding Tacina around the neck. The group eventually left
when Hoffman told them they could not leave the body at her house. The
following day, Amanda Doyle, one of the individuals who had been with Tacina in
the car the previous night, asked Hoffman to go with her to see if Tacina was
alive. After Hoffman returned home from going with Doyle to see if Tacina
was alive, she called her ex-boyfriend and told him where she had been. Hoffman
took her ex-boyfriend to where Tacina’s body had been left. After going
with Hoffman to see Tacina’s body, her ex-boyfriend called the police.
Appellant
was arrested on September 21, 2002 in Rockingham County, North Carolina.
He was interviewed twice regarding the death of Tacina. In the first videotaped
statement, he was questioned by North Carolina detectives and in the second
videotaped statement, he was questioned by Texas detectives. In both videotapes,
Appellant was read his Miranda rights, which he stated he understood. He
then proceeded to waive his right to remain silent and sign a waiver form.
In both videotaped statements, Appellant admits going to the hospital with four
other people to find Tacina; hitting her numerous times; choking her with his
belt; pulling her from the car by the belt around her neck; cutting her throat
with scissors; and stabbing her in the abdomen three or four times. He
claimed that others in the group continued to yell at him to do these acts and
that some of the individuals made threats against him and his family so he felt
he had no choice. Appellant also admitted to cleaning up the car that was
used in the crime and burning numerous blood-covered items in the grill behind
his house.
Conversely,
at trial Appellant admitted going to the hospital, being present when evidence
was destroyed the day after Tacina was killed, and confessing to the crime only
because he feared for his and his family’s safety. However, Appellant
disputes his videotaped statements and testified that he did not kill or assault
Tacina. The jury found Appellant guilty of capital murder and the court
assessed his sentence at life imprisonment.
Motion to
Strike Jurors for Cause
In
his first point, Appellant contends that the trial court denied him a jury of
his peers by allowing the State to ask improper commitment questions during voir
dire, and then granting the State’s motion to strike four potential jurors for
cause. Appellant complains that during the State’s voir dire, various
hypotheticals involving capital murder were discussed. Appellant objected
to one hypothetical used by the State on the grounds that it amounted to
improper commitment questions; failed to distinguish between murder and felony
murder under the law; and misstated the law by using the word “could”
instead of “should.”
To
preserve a complaint for our review, a party must have presented to the trial
court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion. Tex. R. App.
P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim.
App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).
Further, the trial court must have ruled on the request, objection, or motion,
either expressly or implicitly, or the complaining party must have objected to
the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez v.
State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).
Appellant
failed to timely object at the time when the State asked its questions, and only
objected after a considerable amount of time had elapsed. Appellant did
not preserve error for appellate review. We overrule Appellant’s first
point.
Motion to
Suppress
In
his second point, Appellant complains the trial court violated his right to
remain silent by failing to suppress his videotaped statements.
Specifically, he claims that the videotaped confessions were involuntarily given
because he had not slept much the night before, was fearful for his mother’s
life, and did not understand his rights due to a head injury he received as a
child. The determination of whether a statement is voluntary is a mixed
question of law and fact. Garcia v. State, 15 S.W.3d 533, 535 (Tex.
Crim. App. 2000). We review a trial court's ruling on a motion to suppress
under a bifurcated standard of review, giving almost total deference to the
trial court's determination of historical facts that turn on credibility and
demeanor and reviewing de novo the court's application of the law to the
facts. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App.
2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
Involuntary confessions offend due process when they flow from the improper
conduct of law enforcement officials. Colorado v. Connelly, 479
U.S. 157, 167, 107 S. Ct. 515, 522 (1986); Gomes v. State, 9 S.W.3d 373,
377 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). In determining
whether a given confession was the result of improper official conduct, we
review the totality of the circumstances, considering such factors as the length
of detention and interrogation, the presence or absence of physical brutality,
the location and hour of the questioning, and whether the defendant was
permitted access to his family or an attorney. Gallegos v. Colorado,
370 U.S. 49, 51-52, 82 S. Ct. 1209, 1212 (1962); Lane v. State, 933
S.W.2d 504, 512 (Tex. Crim. App. 1996).
The
record reflects Appellant took the stand during the suppression hearing and
testified that he could barely read and write. He also testified that he
did not read the waiver form before he signed it. Appellant testified that
he had a hard time comprehending things because he had not slept and had an old
head injury that made it difficult for him to understand. However, during
Appellant’s second videotaped statement, he indicated that he had eaten and
slept prior to giving his statement. Appellant indicated in his first
videotaped interview with North Carolina detectives that he understood each
right read to him and that he was willing to speak with the detectives. He
also stated that he did not want a lawyer “right now.” Later in his
second videotaped interview with Texas detectives, he indicated for the second
time that he understood his rights and was willing to speak to the
detectives. Furthermore, during the suppression hearing Appellant
testified that he spoke to the detectives voluntarily. Using the
appropriate standard of review, and based on the totality of the circumstances,
we conclude the trial court did not err in denying Appellant’s motion to
suppress. Appellant’s second point is overruled.
Evidentiary
Rulings
Appellant
complains in his sixth, seventh, and eighth points that the trial court erred
when it ruled on three different evidentiary issues. The standard of
review for a trial court’s ruling under the rules of evidence is abuse of
discretion. Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App.
2004). The test for abuse of discretion is not whether, in the opinion of
the reviewing court, the facts present an appropriate case for the trial
court’s action; rather, it is a question of whether the court acted without
reference to any guiding rules or principles, and the mere fact that a trial
court may decide a matter within its discretionary authority differently than an
appellate court does not warrant reversal of a trial court’s ruling on the
admission or exclusion of evidence as long as the ruling is within the zone of
reasonable disagreement. See Robbins v. State, 88 S.W.3d 256,
259-60 (Tex. Crim. App. 2002).
In
his sixth point, Appellant argues the trial court violated Rule 107 by excluding
portions of a business record. See Tex. R. Evid. 107. During the
State’s case, a document from the county jail regarding Appellant’s desire
to speak to a counselor was admitted for impeachment purposes. Appellant
argues that the entire document should have been admitted so that the jury was
not left with an improper impression. Appellant points out that the
partial admission of the document mistakenly infers that Appellant was seeking
assistance for his “problems” while in jail, and that those “problems”
were related to him being guilty. Furthermore, Appellant contends that the
trial court’s refusal to admit the entire document violated the evidentiary
rule of “optional completeness” and his constitutional right to offer
evidence in his own behalf.
“Rule
107 is one of admissibility and permits the introduction of otherwise
inadmissible evidence when that evidence is necessary to fully and fairly
explain a matter 'opened up' by the adverse party.” West v. State,
121 S.W.3d 95, 103 (Tex. App.—Fort Worth 2003, pet. ref'd). “The
so-called rule of optional completeness takes effect when other evidence has
already been introduced but is incomplete and misleading.” Jones v.
State, 963 S.W.2d 177, 182 (Tex. App.—Fort Worth 1998, pet. ref'd).
The
record reflects that the document from the jail was admitted for impeachment
purposes only and not for the contents of the writing. The State contends
that Appellant claimed that he could not read or write and this document
impeached his testimony. Furthermore, the trial judge instructed the jury
that the document was to be considered for the limited purpose of
impeachment. In light of the purpose for which the document was admitted,
and the court’s instruction to the jury, we hold that asking a question for
impeachment purposes does not render the entire document admissible under the
rule of “optional completeness.” See Sauceda, 129 S.W.3d at
117. We overrule Appellant’s sixth point.
In
his seventh point, Appellant claims the trial court improperly admitted
extraneous evidence of gang activity of Appellant and that the evidence was
inflammatory and should have been excluded under Rule 404(b). See Tex. R. Evid. 404(b). Holbert, a witness
who was present the night of Jackson’s arrest, was allowed to testify during
trial that he overheard Appellant state, “I’ve got this on my set, H.L.V.;
when I find her, I’m going to kill her.” The witness then testified
that H.L.V. meant high-life villain. The State points out that the word
gang was never used in the witness’ testimony, but does not dispute that the
jury could have inferred a gang association.
Evidence
is admissible under Rule 404(b) if it is relevant and not offered for the
purpose of proving action in conformity therewith on a particular occasion, but
is offered for other purposes such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.
Tex. R. Evid. 404(b). In
this case, the State argues that Appellant’s statement made on the night of
the incident conflicts with his defensive theory that the group members were
merely going to beat up the victim and not kill her, and is relevant because it
proves that he had intent and knowledge. Furthermore, the State argues it
was not hearsay since it was an admission by a party-opponent. See Tex. R. Evid. 801(e)(2)(A); Roy v.
State, 997 S.W.2d 863, 866 (Tex. App.—Fort Worth 1999, pet. ref’d).
We agree. Appellant’s seventh point is overruled.
In
his eighth point, Appellant argues that the trial court erred by allowing
inadmissible hearsay evidence, which violated Appellant’s constitutional right
to confrontation. Specifically, he complains about two statements made by
members of the group he was with on the night of Tacina’s murder.
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. Tex. R. Evid. 801(d). The
admission of hearsay evidence against a criminal defendant implicates the
Confrontation Clause of the Sixth Amendment because the defendant is not
afforded the opportunity to confront the out-of-court declarant. U.S. Const. amend. VI. The central
issue is whether the statements made by other members of the group are
admissible against the defendant. Therefore, the first issue we must
address is not whether the statements should have been admitted under the rules
of evidence but whether the admission of the statements violated Appellant’s
Sixth Amendment right to confrontation. In deciding this constitutional
issue, we review the trial court’s ruling de novo. See Muttoni v.
State, 25 S.W.3d 300, 304 (Tex. App.—Austin 2000, no pet.).
At
the time of Appellant’s trial, a Sixth Amendment challenge to the
admissibility of an out-of-court statement against the accused was governed by Ohio
v. Roberts. 448 U.S. 56, 66, 100 S. Ct. 2531, 2539 (1980), overruled
in part by Crawford v. Washington, 124 S. Ct. 1354, 1369 (2004). In Roberts,
to avoid a violation of the Confrontation Clause, hearsay must fall within a
firmly rooted hearsay exception or must contain particularized guarantees of
trustworthiness such that cross examination would probably add little, if
anything, to the reliability of the evidence. Id. This
standard was applied in several subsequent noteworthy decisions. See
Lilly v. Virginia, 527 U.S. 116, 119 S. Ct. 1887 (1999) (holding
co-defendant’s confession incriminating defendant was not within a firmly
rooted exception to the hearsay rule under Roberts standard); see also
Idaho v. Wright, 497 U.S. 805, 110 S. Ct. 3139 (1990) (holding evidence must
be “so trustworthy that adversarial testing would add little to its
reliability”). The Supreme Court overruled Roberts and set out a
new test prohibiting the admission of “testimonial” statements when the
witness is unavailable unless the defendant had the opportunity for
cross-examination. Crawford, 124 S. Ct. at 1369. Now,
different analyses apply to nontestimonial hearsay and testimonial
hearsay. See id. at 1374. The court held that
[w]here nontestimonial hearsay is at issue, it is wholly consistent with the
Framers’ design to afford the States flexibility in their development of
hearsay law—as does Roberts, and as would an approach that exempted
such statements from Confrontation Clause scrutiny altogether. Where
testimonial evidence is at issue, however, the Sixth Amendment demands what the
common law required: unavailability and a prior opportunity for
cross-examination.
Id.;
see Wilson v. State, No. 02-03-490-CR, 2004 WL 2484835, at *2 (Tex.
App.—Fort Worth Nov. 4, 2004, no pet. h.); see also Barela v. State,
No. 08-02-00492-CR, 2004 WL 2192604, at *6 (Tex. App.—El Paso Sept. 30, 2004,
no pet. h.) (not designated for publication). According to Crawford,
the use of the Roberts test has caused rationale of the Supreme Court’s
cases to depart from the original intent of the framers of the
Constitution. 124 S. Ct. at 1359-63. Crawford declares that
the Roberts test is too broad because it applies the same analysis
whether the out-of-court statement is testimonial or not and too narrow because
it admits ex parte testimonial statements “upon a mere finding of
reliability.” Id. at 1369. Crawford contends that
the Roberts test is inappropriate not only because its results were
unpredictable, but also because its application allowed testimony the
Confrontation Clause clearly meant to exclude. Id. at 1371-72.
The
threshold question imposed by Crawford is whether the proffered
out-of-court statement is “testimonial” in nature. Id. at
1364. Although the Supreme Court declined to define “testimonial,” it
identified certain categories that fall under the heading of testimonial
statements, specifically, “ex parte in-court testimony or its functional
equivalent, . . . extrajudicial statements contained in formalized testimonial
materials, . . . [and] statements that were made under circumstances which would
lead an objective witness reasonably to believe that the statement would be
available for use at a later trial.” Id. According to Crawford,
these types of statements bear the closest kinship to the abuses at which the
Confrontation Clause was directed. Id. If the out-of-court
statement is determined to be testimonial in nature, the Sixth Amendment
requires that the witness be unavailable and that the defendant had a prior
opportunity for cross-examination. Id. at 1374.
We
turn to the statements made by the members of the group on the night of the
incident and address whether those statements are testimonial in nature.
The first statement Appellant objected to was a witness’ testimony that
someone in Appellant’s group on the night of the murder said they were going
to the hospital. The witness did not identify the speaker, but testified
it was one of the five individuals who left in the car. Because the
witness could not identify the declarant of the statement and the defendant
could not cross-examine the individual, Crawford applies if the statement
is testimonial. See id. Therefore, the first issue to
determine is whether the statement is testimonial in nature. We conclude
that this statement is not testimonial and that Crawford does not apply.
A
number of factors support this determination. First, Appellant by his own
admission went to the hospital with the group of individuals who made this
statement. Second, the statement was not made in the context of any police
investigation or interrogation. Third, the statement was not made to any
police officer or court official, but instead was made in the course of
conversation. Considering these facts set out in the record, we conclude
the statement made by a group member on the night of the incident was not
testimonial in nature and therefore did not trigger the cross-examination
requirement of the Confrontation Clause as interpreted by the court in Crawford.
See id.
However,
because we conclude the statement is nontestimonial in nature, we must determine
if the statement falls within any hearsay exception. See Tex. R. Evid. 803(2). Appellant
contends that the trial court erred in allowing inadmissible hearsay.
Whether an out-of-court statement is admissible under an exception to the
general hearsay exclusion rule is a matter within the trial court’s
discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App.
2003). We review a trial court’s ruling admitting testimony under an
abuse of discretion standard. Salazar v. State, 38 S.W.3d 141,
153-54 (Tex. Crim. App.), cert. denied, 534 U.S. 855 (2001).
Therefore, we will reverse only if the trial judge’s decision was “so
clearly wrong as to lie outside the zone within which reasonable persons might
disagree.” See Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim.
App. 1992). The appellate court’s role is limited to determining whether
the record supports the trial court’s ruling. Coffin v. State,
885 S.W.2d 140, 149 (Tex. Crim. App. 1994).
The
Texas Rules of Evidence define hearsay 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). The rules of
evidence also provide categories not included as hearsay. Tex. R. Evid. 801(e). The State
argues that the statement cannot be classified as hearsay. According to Rule 801
a statement by a co-conspirator of a party during the course and in furtherance
of the conspiracy, is not hearsay. Tex. R. Evid. 801(e)(2)(E). The
co-conspirator exception to the hearsay rule is not limited to prosecutions for
conspiracy, but is a rule of evidence applicable to any offense. Roy v.
State, 608 S.W.2d 645, 651 (Tex. Crim. App. [Panel Op.] 1980). Also
under Rule 801, testimony classified as an adoptive admission is not
hearsay. See Paredes v. State, 129 S.W.3d 530, 534 (Tex. Crim. App.
2004) (statements made by co-conspirators in defendant’s presence were
admissible as adoptive admissions where defendant, by his actions and responses,
showed agreement with the statement). The statement Appellant complains of
was made in his presence and by one of the individuals in the group, all of whom
went to the hospital to locate Tacina. By Appellants own admission he went
to the hospital with the other members in the group in an attempt to find
Tacina. We hold that the challenged statement does not fall within the
parameters of hearsay.
The
second statement objected to was Holbert’s testimony that he told the group
that night “to leave Stephanie alone because it’s not her fault Jerry went
to jail.” When Appellant objected to the testimony the State responded
that the statement was not offered for the truth of the matter asserted, but
simply that it was said. Appellant’s objection was overruled and the
court gave the jury a limiting instruction regarding the statement. An
extrajudicial statement or writing that is offered to show what was said, rather
than for the truth of the matter stated, does not constitute hearsay. Dinkins
v. State, 894 S.W.2d 330, 347 (Tex. Crim. App.), cert. denied, 516
U.S. 832 (1995).
Therefore,
since the court recognized that the statement was not offered for the truth of
the matter asserted and gave a limiting instruction to the jury, the statement
is not hearsay within the definition of Rule 801. Furthermore, the Crawford
analysis applies to out-of-court testimonial statements by a declarant who is
not available at trial. Here the Confrontation Clause was not implicated
since the declarant of the statement was the witness who was testifying, and
Appellant was afforded the opportunity to confront the out-of-court declarant by
cross examination. See Carson v. Collins, 993 F.2d 461, 464 (5th
Cir.), cert. denied, 510 U.S. 897 (1993). We overrule Appellant’s
eighth point.
Jury
Instructions
In
his third point, Appellant argues the trial court erred by including a “law of
parties” instruction in the jury charge. At trial, Appellant timely
objected regarding the instruction and argued that no evidence or testimony was
presented at trial to support the inclusion of such an instruction. The
trial court overruled the objection.
An
instruction on the law of parties may be given whenever there is sufficient
evidence to support a jury verdict that the defendant is criminally responsible
under the law of parties. Ladd v. State, 3 S.W.3d 547, 564 (Tex.
Crim. App. 1999). A person is criminally responsible as a party to an
offense if the offense is committed by his own conduct, by the conduct of
another for which he is criminally responsible, or by both. Tex. Penal Code Ann. § 7.01(a) (Vernon
2003). Moreover, a person is criminally responsible for an offense
committed by the conduct of another if, acting with intent to promote or assist
the commission of the offense, he solicits, encourages, directs, aids, or
attempts to aid the other person to commit the offense. Id. §
7.02(a)(2). In determining whether a defendant was a party, the trial
court may look to events before, during, and after the commission of the
crime. Goff v. State, 931 S.W.2d 537, 545 (Tex. Crim. App. 1996), cert.
denied, 520 U.S. 1171 (1997). Furthermore, if the evidence clearly
supports the defendant’s guilt as a principal, error, if any, is
harmless. Ladd, 3 S.W.3d at 564-65.
In
the present case, the evidence was sufficient to support a jury verdict that
Appellant was criminally responsible under the law of parties. Appellant
admitted that he went to the hospital with the other group members and he went
there with the intent to lure Tacina into the car. Holbert testified at
trial that on the night Tacina was killed, Appellant said he was going to kill
Tacina when he found her. Finally, Hoffman testified that she saw
Appellant in a car with the victim and he appeared to be restraining her.
The jury could infer from this evidence that Appellant acted with the intent to
promote or assist the commission of the murder, and solicited, encouraged,
directed, aided, or attempted to aid the members of the group in killing
Tacina. See Tex. Penal Code
Ann. § 7.02(a)(2). Additionally, in view of the trial testimony
and Appellant’s videotaped confessions, there was sufficient evidence for the
jury to find Appellant guilty as a principal. We overrule Appellant’s
third point.
In
his fourth point, Appellant complains the trial court erred when it failed to
instruct the jury on renunciation as an affirmative defense. At trial,
Appellant requested an instruction under section 15.04(b),2
which allows an affirmative defense to prosecution under section 15.02.3 Section 15.02 deals with the crime of criminal
conspiracy. During the trial Appellant objected to the jury instruction by
stating, “If the court is going to allow the State an application paragraph on
conspiracy that is not in the indictment or that he’s been charged with, then
we’re going to request an instruction under Section 15.04(b), as an
affirmative defense to conspiracy, the renunciation defense.”
A
review of the record finds that the jury charge does not contain any of the
conspiracy language contained in section 7.02(b),4
which Appellant complains of, but instead includes the language of section
7.02(a),5 which is unrelated to the conspiracy
objection Appellant made at trial.
Appellant’s
point on appeal is not consistent with his trial objection. Appellant
complains that he was entitled to a jury charge of renunciation under 15.04(a),6 which allows an affirmative defense under section 15.01,7 criminal attempt. Neither the indictment nor the
jury charge reference the crime of criminal attempt under this section. In
fact, Appellant is charged in the indictment with capital murder. See id.
§ 19.03(a)(2) (Vernon Supp. 2004-05). Therefore, Appellant’s point has
not been preserved for review. We overrule Appellant’s fourth point.
In
his fifth point, Appellant contends that the trial court erred by giving a
definition of reasonable doubt in the jury instruction. Appellant
specifically complains of the following portion of the trial court’s jury
instruction: “It is not required that the prosecution prove guilt beyond all
possible doubt; it is required that the prosecution’s proof excludes all
‘reasonable doubt’ concerning the defendant’s guilt.” Appellant
argues that this instruction violates Paulson v. State, which states it
is better practice not to provide a definition of reasonable doubt. 28
S.W.3d 570, 573 (Tex. Crim. App. 2000).
This
court has reviewed this identical issue several times, in Vosberg v. State
and its progeny, and ruled against Appellant’s position. 80 S.W.3d 320,
324 (Tex. App.—Fort Worth 2002, pet. ref’d); see Best v. State, 118
S.W.3d 857, 865 (Tex. App.—Fort Worth 2003, no pet.) (no error where same
language included over objection); see also Blackburn v. State, No.
2-02-158-CR, 2003 WL 22311253, at *1 (Tex. App.—Fort Worth Oct. 9, 2003, pet.
ref’d) (not designated for publication) (same); Minor v. State, 91
S.W.3d 824, 827-29 (Tex. App.—Fort Worth 2002, pet. ref’d) (same). We
reaffirm our decision in Vosberg. Point five is overruled.
Conclusion
Having
overruled Appellant’s eight points on appeal, we affirm the trial court’s
judgment.
DIXON
W. HOLMAN
JUSTICE
PANEL
F: HOLMAN, WALKER, and MCCOY, JJ.
WALKER,
J. concurs without opinion.
DO
NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED:
November 12, 2004
NOTES
1.
See Tex. R. App. P. 47.4.
2.
Tex. Penal Code Ann. § 15.04(b)
(Vernon 2003).
3.
Id. § 15.02.
4.
Id. § 7.02(b).
5.
Id. § 7.02(a).
6.
Id. § 15.04(a).
7.
Id. § 15.01.