Davis v. State

169 S.W.3d 673, 2005 Tex. App. LEXIS 4229, 2005 WL 1294587
CourtCourt of Appeals of Texas
DecidedJune 2, 2005
Docket02-04-064-CR
StatusPublished
Cited by30 cases

This text of 169 S.W.3d 673 (Davis v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. State, 169 S.W.3d 673, 2005 Tex. App. LEXIS 4229, 2005 WL 1294587 (Tex. Ct. App. 2005).

Opinions

MEMORANDUM OPINION1

BOB McCOY, Justice.

I. Introduction

Appellant Byron Davis appeals from his conviction for aggravated robbery with a deadly weapon. In one issue, Davis challenges the admissibility of testimony regarding anonymous tips received by police. Because we hold that the trial court did not abuse its discretion in admitting the objected-to testimony, we will affirm.

II. Background Facts and Procedural History

On December 17, 2002, Loi Quoc Tran was working at the family-owned Corma Food Store when he was robbed at gunpoint. At trial, Fort Worth police officer Linda Wennig testified about the investigation of the robbery. Officer Wennig testified that police had no suspects in the robbery so they released a video tape of the robbery to the local media in an effort to identify the individual responsible. Officer Wennig testified that police received [675]*675several anonymous tips identifying Davis as the perpetrator. She testified that after Davis was identified as a suspect in the robbery, she obtained a photo of Davis, prepared a photo spread, and showed the photo spread to Tran. Officer Wennig testified that Tran identified Davis as the perpetrator from the photo spread. Davis was charged with aggravated robbery with a deadly weapon, to which he pleaded not guilty. The jury found Davis guilty and the trial judge sentenced him to thirty years’ imprisonment. This appeal followed.

III. Hearsay

In his sole issue on appeal, Davis contends that the trial court erred in permitting testimony by Detective Wennig regarding the anonymous tips received by police identifying him as the perpetrator. Davis argues that Wennig’s testimony was hearsay and that the admission of her testimony violated the Texas Rules of Evidence and his Sixth Amendment right of confrontation. See U.S. Const, amend. VI; Tex.R. Evid. 802. The State responds that the testimony was properly admitted by the trial court because the testimony was offered to show why the investigation focused on Davis, not for the truth of the matter asserted, that is, that Davis was guilty of the robbery.

A. Standard of Review

We review the trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997); Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex.Crim.App.1990). 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 demonstrate such an abuse. Montgomery, 810 S.W.2d at 391. We will not reverse a trial court’s ruling on the admission of evidence as long as the ruling is within the zone of reasonable disagreement. Id.

B. Analysis

The Texas Rules of Evidence prohibit the admission of hearsay evidence except as provided by statute or other rules prescribed pursuant to statutory authority. See Tex.R. Evid. 802. “Hearsay” is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. Tex.R. Evid. 801(d). Thus, a statement not offered to prove the truth of the matter asserted is not hearsay. Dinkins v. State, 894 S.W.2d 330, 347-48 (Tex. Crim.App.), cert. denied, 516 U.S. 832, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995). In that regard, the Texas Court of Criminal Appeals has held that statements offered for the purpose of explaining how a defendant became a suspect and not for the truth of the matter asserted are not hearsay. See Jones v. State, 843 S.W.2d 487, 499 (Tex. Crim.App.1992) (holding testimony of officer explaining how officer came to suspect appellant was not objectionable as hearsay because it was “not offered to prove the truth of the matter asserted, but to show why the officer got an arrest warrant for and arrested appellant”), cert. denied, 507 U.S. 1035, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993); see also Dinkins, 894 S.W.2d at 347 (indicating appointment book and patient application form were not hearsay when “tendered ... to show how appellant became a suspect in the investigation,” not [676]*676for the truth of the matter asserted). Thus, a police officer may testify about anonymous tips received for the purpose of showing why the investigation focused on a particular defendant. Cano v. State, 3 S.W.3d 99, 110 (Tex.App.-Corpus Christi 1999, pet. ref'd); Levarlo v. State, 964 S.W.2d 290, 296 (Tex.App.-El Paso 1997, no pet.). This is because the testimony assists the jury’s understanding of the events by providing context for the police officer’s actions. See Cano, 3 S.W.3d at 110.

Davis initially argues that we should not allow the jury to hear testimony regarding anonymous tips for the purpose of putting the investigation into context. He argues that doing so allows unsworn out-of-court statements to come before the jury while denying the accused the opportunity to cross-examine the witness. Davis proposes that we limit testimony for this purpose to situations where the defendant challenges the investigation as being motivated by vendetta or grudge. We decline to do so. Testimony not offered for the truth of the matter asserted is not hearsay. See Tex.R. Evm 801(d); Dinkins, 894 S.W.2d at 347; Jones, 843 S.W.2d at 499; Cano, 3 S.W.3d at 110; Levario, 964 S.W.2d at 296.

Davis next argues that the disputed testimony was inadmissible because it was offered by the prosecutor for the purpose of proving that Davis committed the charged robbery, not just to put the investigation in context. Citing Schaffer v. State, Davis points out that the Texas Court of Criminal Appeals had held that “where there is an inescapable conclusion that a piece of evidence is being offered to prove statements made outside the courtroom, a party may not circumvent the hearsay prohibition through artful questioning designed to elicit hearsay indirectly.” See 777 S.W.2d 111, 114 (Tex.Crim. App.1989). In that regard, Davis argues that while it appears that the State’s question may have been to put the investigation in context, the “practical intent of the testimony” was to elicit testimony indicating that “several callers identified Mr.

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Bluebook (online)
169 S.W.3d 673, 2005 Tex. App. LEXIS 4229, 2005 WL 1294587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-state-texapp-2005.