Jermaine Dewitt Chaney v. State

• Court: Court of Appeals of Texas
• Decided: April 23, 2009
• Docket: 01-08-00204-CR
• Status: Published

Opinion

Opinion issued April 23, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00204-CR

JERMAINE DEWITT CHANEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 1113820

MEMORANDUM OPINION

A jury convicted appellant, Jermaine Dewitt Chaney, of murder, ⁽¹⁾ and assessed his punishment at confinement for 60 years. Appellant presents six issues on appeal, complaining that the trial court erred in admitting hearsay through the testimony of two witnesses, the evidence supporting his conviction was legally and factually insufficient, and he received ineffective assistance of counsel. We affirm.

Background Facts

On March 8, 2007, Daniel Santan King, Garrett Thomas, and the complainant, Anthony White, were together at the home where Thomas resided. King had just purchased some crack cocaine when he left the room briefly to answer the front door. When he returned, he discovered that some of his cocaine was missing, and he suspected that the complainant had taken it. He left Thomas's home and went to the house next door. According to Thomas, King then asked Thomas to meet with him, and, at this meeting, King asked Thomas to kill the complainant for taking the cocaine. Thomas refused to do so and left the house.

Several hours later, early in the morning of March 9, 2007, the complainant arrived at the home of Thelma Leifester. Eventually, the complainant called King and asked him for a ride home and then went to Leifester's bedroom to wait for his ride. After hearing a knock on the door, Leifester opened it. She asked the man at the door if he were King, and the man replied that he was looking for the complainant. Leifester told the man that the complainant was in the bedroom and pointed the way. The man walked back to the bedroom, Leifester heard a gun shot and a thud, then the man walked back to the front of her house, asked to be let out, and left.

Leifester then ran to her bedroom and discovered the complainant lying face down on the floor. Another resident at the home, Rebecca McAdams, had been in her own bedroom when she heard, but did not see, a man enter the house and the sound of a gunshot. McAdams left her room to find out what had happened. She saw the complainant lying on the bedroom floor and called the police. Paramedics took the complainant to a local hospital where he died the next day of a gunshot wound to the head.

Leifester viewed several photo spreads during the police investigation of the shooting. She finally identified appellant as the shooter. Antoinette Miller, King's wife, also provided information to police regarding the involvement of her husband and appellant.

At trial, Garrett Thomas testified about the events of March 8, 2007 leading up to the shooting, including King's suspicion that the complainant had stolen cocaine from him and King's attempts to get Thomas to kill the complainant. Leifester testified regarding the events that occurred in her home on the morning of March 9, 2007, and she identified appellant in court as the man who came to the door looking for the complainant, walked back to the bedroom where the complainant was waiting and was subsequently shot, and then left. Leifester also testified about her involvement in the police investigation, including her having viewed several photo spreads and identifying appellant in one of them.

Makeba Thomas, a former cell-mate of appellant, testified that appellant told him about the details of the shooting. Makeba Thomas stated that appellant told him that King thought the complainant had stolen some cocaine from him. When King found out that the complainant was at Leifester's house, he sent appellant there to kill the complainant. Makeba Thomas testified that appellant told him that he knocked on the door, walked back to the bedroom where the complainant was waiting and shot him, then left the house running. On cross-examination, Makeba Thomas testified that appellant spoke to him regarding the details of his case because appellant was seeking unofficial legal counsel from Makeba.

Antoinette Miller, King's wife, also testified at appellant's trial. She testified that King told her that the complainant had stolen cocaine from him and that he sent appellant to kill him. Miller further testified that she shared this information with police after she had an altercation with King.

Appellant testified on his own behalf. He testified that he never told Makeba Thomas that he killed the complainant; rather, he gave Makeba Thomas the details of the case against him based on the police offense report in order to seek unofficial legal advice. He also testified that he had never seen Leifester or McAdams before the trial began and that he did not know the complainant at all.

Admission of Hearsay

In his third and fourth issues, appellant contends that the trial court erred by admitting various hearsay statements.

A. Standard of Review

We review rulings admitting evidence claimed to be hearsay for abuse of discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). A trial court abuses its discretion when it so deviates from applicable guidelines and principles that the decision is considered outside the zone of reasonable disagreement. See id. "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). Hearsay is inadmissible except as provided by statute or rules prescribed pursuant to statutory authority. Tex. R. Evid. 802.

B. Testimony of Antoinette Miller

In his third issue, appellant argues that the trial court erred in admitting as a statement against appellant's penal interest Antoinette Miller's testimony that her husband told her that he sent appellant to kill the complainant. See Tex. R. Evid. 803(24). Specifically, appellant argues that the State failed to offer appropriate corroborating evidence as required by Rule of Evidence 803(24). See id.

A hearsay statement against a person's interest may be properly admitted, by exception, if the statement

was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability . . . or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant's position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Tex. R. Evid. 803(24).

The first inquiry required by rule 803(24) is whether the statement tended to expose the declarant to criminal liability. Davis v. State, 872 S.W.2d 743, 747 (Tex. Crim. App. 1994). The second inquiry asks whether corroborating circumstances clearly indicated the trustworthiness of the statement. See Tex. R. Evid. 803(24); Woods v. State, 152 S.W.3d 105, 112 (Tex. Crim. App. 2004). A hearsay statement is admissible under rule 803(24) if it satisfies both inquiries. Id.

There is no definitive test by which to assess corroborating circumstances for purposes of rule 803(24), but the burden to produce evidence that clearly indicates trustworthiness is on the party who seeks to admit the statement, in this case, the State. See Davis, 872 S.W.2d at 749. A number of factors can guide the trial court in deciding whether the circumstances show that a statement is trustworthy, including the following: (1) whether the guilt of the declarant is inconsistent with the guilt of the defendant, (2) whether the declarant was so situated that he or she might have committed the crime, (3) the timing of the declaration, (4) the spontaneity of the declaration, (5) the relationship between the declarant and the party to whom the statement was made, and (6) the existence of independent corroborating facts. Woods, 152 S.W.3d at 113; Dewberry v. State, 4 S.W.3d 735, 751 (Tex. Crim. App. 1999).

We do not apply the first two factors in this case because the statement was not one by which appellant sought to escape culpability, but one on which the State relied. See Woods, 152 S.W.3d at 113 ("The first two factors . . . logically apply only when the defendant is the proponent of the statement against interest that tends to exculpate the defendant."). As to the remaining factors, the record shows that King spontaneously made the statements to Miller, his wife, on the day after the murder. Thus, the timing, spontaneity, and relationship between the declarant and the party to whom the statement was made tend to establish the reliability of the statements. The State also presented evidence of independent corroborative facts verifying the reliability of King's statements in the form of Leifester's testimony that appellant entered her house and shot the complainant and appellant's statements to Makeba Thomas that he killed the complainant at King's request. Therefore, the trial court did not abuse its discretion in admitting Miller's testimony.

We overrule appellant's third issue.

C. Testimony of Garrett Thomas

In his fourth issue, appellant contends that the trial court erred in admitting Garrett Thomas's testimony that King asked him to kill the complainant for taking some of King's cocaine as a statement in furtherance of a conspiracy. See Tex. R. Evid. 801(e)(2)(E).

At trial, Garrett Thomas testified that between 15 and 20 minutes after King discovered that some of his cocaine had been stolen, King called him to come meet him next door. The State asked Thomas what King said to him at that point, and, before Thomas could answer, appellant's trial counsel objected based on hearsay. The State explained that it anticipated Thomas would testify that King asked him to go kill the complainant and that he later saw King with an individual other witnesses had placed at the scene of the murder. The State argued that these statements should be admitted as statements made "in furtherance of the conspiracy." After more discussion, appellant's trial counsel argued that she did not believe a conspiracy existed, but the trial court overruled appellant's objection as to the two specific statements the State proffered and allowed Thomas to continue testifying about his conversation with King.

On appeal, appellant specifically complains of Thomas's testimony that King tried to convince him to go kill the complainant by reminding him of his own past disagreements with the complainant and by providing a handgun and drugs. ⁽²⁾ Appellant argues that the State did not meet the requirements of admission as a statement of a coconspirator because "appellant was not involved in a conspiracy when [King] allegedly was recruiting Thomas as a shooter" and because "there was no conspiracy at [the time King asked Thomas to kill the complainant] and . . . the alleged conversation did not advance the object[ives] of the alleged conspiracy as Garrett Thomas did not join up."

Coconspirator statements are not hearsay and are not subject to the exclusionary rule. See Tex. R. Evid. 801(e)(2)(E); see also Tex. R. Evid. 402 (stating general rule that "[a]ll relevant evidence is admissible"). An out-of-court statement offered to prove the truth of the matter asserted is not hearsay if it is offered against a party and is a statement made by a coconspirator during the course of, and in furtherance of, the conspiracy. Tex. R. Evid. 801(e)(2)(E); Crum v. State, 946 S.W.2d 349, 363 (Tex. App.--Houston [14th Dist.] 1997, pet. ref'd). To satisfy the coconspirator rule, the State must show that when the statements were made, the alleged coconspirator was participating in a conspiracy in which the defendant also participated or later joined and that the statement was made in furtherance of the conspiracy. Peoples v. State, 928 S.W.2d 112, 116 (Tex. App.--Houston [1st Dist.] 1996, pet. ref'd). A conspiracy exists when two or more persons as shown by words or deed agree to do an unlawful act. Crum, 946 S.W.2d at 363.

The dispositive inquiry in this case is whether King made these statements to Thomas "during the course . . . of the conspiracy." ⁽³⁾ See Tex. R. Evid. 801(e)(2)(E). The record does not contain any evidence that "two or more persons" had agreed to do an unlawful act when King made these statements to Thomas. See Crum, 946 S.W.2d at 363. Rather, the record shows that King, acting on his own, had not yet found anyone who agreed to participate with him in the murder of the complainant. Any conspiracy that King might have entered into with appellant did not exist until after the statements were made. Because the statements were not made during the conspiracy, the statements were not admissible under Rule 801(e)(2)(E).

As the State contends, however, the statements were admissible as statements against King's penal interest under Rule of Evidence 803(24). See Tex. R. Evid. 803(24). We uphold a trial court's ruling if it is reasonably supported by the record and correct under any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). Statements against interest "must be self-inculpatory with corroborating circumstances to indicate the trustworthiness of the statement[s]" to be admissible under Rule 803(24). Woods, 152 S.W.3d at 112.

Here, King's statements to Thomas would tend to expose him criminal liability because he solicited Thomas to commit a murder. ⁽⁴⁾ Furthermore, the trustworthiness of the statements is corroborated by Miller's testimony that King later convinced appellant to kill the complainant, by Makeba Thomas's testimony that appellant claimed to have committed the murder at King's request, and by Leifester's testimony that appellant entered her home and shot the complainant. Because the statements were admissible under Rule 803(24), the trial court did not abuse its discretion by admitting Garrett Thomas's testimony. See Zuliani, 97 S.W.3d at 595; Willover, 70 S.W.3d at 845.

We overrule appellant's fourth issue.

Sufficiency of the Evidence

In his first two issues, appellant contends that the evidence was legally and factually insufficient to support his conviction for murder.

A. Legal Sufficiency

In his first issue, appellant challenges the legal sufficiency of the evidence. In reviewing this challenge, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005).  The standard is the same for direct and circumstantial evidence cases.  King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).

In reviewing for legal sufficiency, we do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this is the function of the trier of fact.  See Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991).  Instead, our duty is to determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict.  See Adelman, 828 S.W.2d at 422. In conducting our review, we resolve any inconsistencies in the evidence in favor of the verdict.  Matson, 819 S.W.2d at 843. Because the jury is in the best position to determine reliability of available testimony and evidence, we must defer to assessments by the jury that depend on credibility determinations. See Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997).

Under the law applicable to this case, a person commits the offense of murder if he intentionally or knowingly causes the death of another. Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003). Leifester identified appellant as the man who arrived at her door and asked to see the complainant. Leifester testified that appellant walked back to the bedroom where the complainant was waiting alone, that she heard a gunshot, and that appellant then came back to the front door and asked to be let out. Leifester then ran to the bedroom where she found appellant lying face down. The medical examiner testified that appellant died as the result of the gunshot wound to his head. Other witnesses, including Rebecca McAdams, Garrett Thomas, Makeba Thomas, and Antoinette Miller, gave testimony corroborating Leifester's account of events. This evidence was legally sufficient to support the jury's finding that appellant intentionally or knowingly caused the complainant's death. Accordingly, we overrule appellant's first issue.

B. Factual Sufficiency

In his second issue, appellant contends that the evidence was factually insufficient to support his conviction for murder. When conducting a factual-sufficiency review, we view all of the evidence in a neutral light.  See Cain, 958 S.W.2d at 408. We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or (2) the verdict is against the great weight and preponderance of the evidence.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  Under the first prong of Johnson, we cannot say that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury.  Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).  Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict.  Id.  Before finding that the evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict.  Id. 

The fact-finder alone determines what weight to place on conflicting testimony because that determination depends on the fact-finder's evaluation of witnesses' credibility and demeanor. Cain, 958 S.W.2d at 408-09.  As the sole determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented.  See id. at 407 n.5.

In conducting a factual-sufficiency review, we must also discuss the evidence that the appellant contends most undermines the jury's verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Appellant argues that the evidence against him was factually insufficient to support his conviction because there was no eyewitness to the shooting itself. However, circumstantial evidence alone is sufficient to establish guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). It is not necessary that every fact point directly and independently to the defendant's guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).

Here, the jury's conclusion that appellant was guilty of the complainant's murder is supported by the "combined and cumulative force" of all of the evidence. See id. Leifester testified that appellant was the one who entered her home and went to the bedroom where the complainant was waiting alone, that she heard a gunshot, and that immediately after appellant left the room she found the complainant lying face-down on the bedroom floor. Her account was corroborated by McAdams's testimony that she heard a man enter the home, heard a gunshot, and then found the complainant lying in the floor of the bedroom suffering from a gunshot wound. Appellant's conviction was also supported by Miller's testimony that King told her he had sent appellant to kill the complainant and by Makeba Thomas's testimony that appellant told him while they shared a jail cell that he had shot the complainant.

Appellant's own testimony contradicted the testimony of these witnesses. He testified that he never told Makeba Thomas that he committed the shooting--he only told Thomas the details that he had learned from the police offense report. He also testified that he had never seen Leifester or McAdams before the trial began and that he did not know the complainant at all. Appellant argues that the testimony of the other witnesses lacked credibility. However, the jury alone determines what weight to place on contradictory testimonial evidence because that determination depends on its evaluation of credibility and demeanor. See Cain, 958 S.W.2d at 408-09.

In light of all of the evidence, there is no objective basis in the record from which we may conclude that the evidence supporting the jury's finding that appellant knowingly or intentionally caused the death of the complainant was so weak as to render the jury's verdict clearly wrong and manifestly unjust or that it was against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 11. We therefore hold that the evidence is factually sufficient to support appellant's conviction, and we overrule appellant's second issue.

Motion for Mistrial

In his fifth issue, appellant contends that the trial court erred by denying his motion for mistrial based on the following exchange in which Officer P. Guerrero was describing how he developed suspects and assembled photos to create the various photo spreads that were shown to Leifester and McAdams:

[the State]: And what did you do with those photographs?

[Guerrero]: Well, the first photograph was from the Harris County Sheriff's Office for Mr. Chaney.

[appellant]: Your Honor, may we approach, Your Honor?

[trial court]: You may.

(At the bench, on the record)

. . . .

[appellant]: I move for a mistrial, Your Honor.

[trial court]: I'm going to deny that. But there is no reason--if you want to say that a photograph was placed in, you can put in a photograph; but from where that came, you will not get into that.

[trial court]: I'll ask--if you want me to instruct the jury to disregard that last statement, I'll instruct them to disregard it. Is that what you are asking?

[appellant]: Yes.

(Open court)

[trial court]: Ladies and gentlemen, you're instructed to disregard the last question and response from this witness. Not to consider it for any purpose.

Appellant argues that the exchange that preceded the bench conference implied that he had a prior criminal record and that the mistrial should have been granted.

We review the denial of a motion for mistrial under an abuse of discretion standard. See Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004). We must uphold the trial court's ruling as long as the ruling was within the zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim App. 2004). A mistrial is appropriate "to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile." Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). This occurs only in "a narrow class of highly prejudicial and incurable errors." Id.

When, as here, the trial court sustains an objection and instructs the jury to disregard, but denies a defendant's motion for a mistrial, the dispositive issue is whether the trial court abused its discretion by denying a mistrial. Hawkins, 135 S.W.3d at 77. In determining whether the trial court abused its discretion in denying the mistrial, we balance three factors: (1) the severity of the misconduct, or prejudicial effect, (2) the curative measures taken by the trial court, and (3) the certainty of conviction absent the misconduct. Id. at 75. Only in extreme circumstances, when the prejudice is incurable or the comment is so prejudicial that "expenditure of further time and expense would be wasteful and futile," will a mistrial be required. Id. at 77.

Here, the improper statement was not severely prejudicial, but rather, a non-responsive answer to the State's question, "And what did you do with those photographs?" Further, the response did no more than imply that appellant had prior dealings with the Sheriff's Office and fell short of revealing any specific details about appellant's prior criminal history. The trial court quickly addressed the impropriety of the witness's response and instructed the jury to disregard the question and the response from the witness. We presume that the jurors followed the trial court's instruction to disregard the witness's response. See Wesbrook v. State, 29 S.W.3d 103, 1156 (Tex. Crim. App. 2000); see also State v. Boyd, 202 S.W.3d 393, 402 (Tex. App.--Dallas 2006, pet. ref'd) ("The general rule is that error in admitting improper evidence may be corrected by withdrawal of the evidence and an instruction to disregard."). Finally, we determine that certainty of conviction without the misconduct was still quite high, given the evidence presented against appellant that we have already discussed elsewhere in this opinion.

Therefore, we cannot conclude that the trial court abused its discretion in denying appellant's motion for mistrial. Accordingly, we overrule appellant's fifth issue.

Ineffectiveness of Counsel

In his sixth issue, appellant contends that his trial counsel was ineffective for her failure to object to improper hearsay.

The "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064 (1984). Strickland establishes a two-part test for claims of ineffectiveness of counsel. First, the performance must be deficient to the level that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed to the defendant by the Sixth Amendment; second, the defendant must show that the deficient performance prejudiced the defense. Id. 466 U.S. at 687, 104 S. Ct. at 2064. Counsel's errors must have been so serious as to deprive the defendant of a fair trial, and there is a reasonable probability that, but for the counsel's unprofessional errors, the result would have been different. Id., 466 U.S. at 694, 104 S. Ct. at 2068.

There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance, and the defendant must overcome the presumption that the challenged action might be considered sound trial strategy. Id., 466 U.S. at 689, 104 S. Ct. at 2065. To overcome the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d at 808, 814 (Tex. Crim. App. 1999). "[W]hen no reasonable trial strategy could justify trial counsel's conduct," however, counsel's performance may fall below an objective standard of reasonableness as a matter of law, "regardless of whether the record adequately reflects trial counsel's subjective reasons for acting as he did." Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).

B. Discussion

Appellant contends, in part, that trial counsel was ineffective because "Detective Avila testified without objection about a clue sheet he received which caused him to make appellant a suspect." Detective Avila was testifying about a document the homicide detectives use to help them in their investigation when the following exchange occurred:

[Avila]: [I]f the officer [taking a phone call from someone with information about the case] doesn't know right there at that moment who the investigator [is] . . . he'll write it all down on the clue sheet and then give it to the on-duty lenient [sic].

[the State]: Okay.

[trial counsel]: Excuse me, may we approach, Your Honor?

[trial counsel]: I cannot say a hundred percent sure but it looks like this is leading to some hearsay that someone said.

[trial court]: Well, with regard to what's on that sheet or any talk about that, I'm not going to allow that.

[the State]: I understand that. Let me ask this: Where I expect to go to next is establish [with] this detective that, after reviewing that clue sheet, he began looking at the names Rick and Jermaine. Now, can I ask him why he was looking at Rick and Jermaine?

[trial court]: You can ask him: Did he look at a Rick and Jermaine--

[the State]: Okay. We'll just do that.

[trial court]: But as to why, no.

[the State]: Okay. You get this clue sheet, what do you do with it?

[Avila]: Well, I--

[the State]: Just so we're clear, don't go into the contents of it. Just what do you do with it?

[Avila]: I follow up with that information and construct a photo spread.

[the State]: [D]id you develop or limit down who it was that you were looking for as being involved in this murder?

[Avila]: Yes, sir.

[the State]: Okay. Who were you--who, specifically, did you have in mind as a suspect involved in the homicide.

[Avila]: Brandy Jermaine Scott.

[the State]: What was it about Brandy Jermaine Scott as opposed to these other three individuals that made you suspect him?

[Avila]: The name Jermaine.

Detective Avila then completed his testimony by explaining how he constructed the photo spread.

Although appellant complains that appellant's trial counsel did not object to Detective Avila's testimony, the record clearly reflects that counsel made the trial court aware of the potential for hearsay testimony being introduced as Detective Avila testified about his investigation and his use of the clue sheet. The trial court instructed the State accordingly, and none of the testimony that was given at trial constituted hearsay. See Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995) (holding that statements offered to explain how defendant became suspect and not for truth of matter asserted are not hearsay). It is well-established that failure to object to admissible evidence does not constitute ineffective assistance of counsel. Cooper v. State, 707 S.W.3d 686, 689 (Tex. App.--Houston [1st Dist.] 1980, pet. ref'd). There is no basis on which to conclude that appellant's trial counsel's performance was deficient in this regard.

Appellant also argues that his trial counsel was ineffective because she "failed to object when Officer [P.] Guerrero testified to hearsay that Thelma Leifester identified appellant going into the room shortly before the shooting when she did not testify to that." Officer Guerrero testified about Leifester's identification of appellant as follows:

[the State]: When you showed [the photo spread] to her, did she recognize anyone?

[Guerrero]: Yes.

[the State]: Who did she recognize?

[Guerrero]: [Appellant.]

[the State]: Who did she--excuse me, who did she identify him as?

[Guerrero]: He's the man that went into the room where [the complainant] was at and then--shortly before the shooting.

[the State]: All right. When you showed her these photographs, how long did it take before she recognized [appellant's] photo as the person she saw that night of the shooting?

[Guerrero]: It was very quick.

Again, appellant argues that trial counsel was ineffective for failing to object to this testimony. However, Rule of Evidence 801(e)(1)(C) provides, "A statement is not hearsay if . . . the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . one of identification of a person made after perceiving the person . . . ." Tex. R. Evid. 801(e)(1)(C). Leifester testified during the trial that she was shown the photo spread containing appellant's photograph and that she identified him as the shooter. Leifester also identified appellant in court as the shooter, and she was cross-examined by appellant's trial counsel. Therefore, Officer Guerrero's statements relating to Leifester's identification of appellant were not hearsay. Id.; see Rodriguez v. State, 975 S.W.2d 667, 682-83 (Tex. App.--Texarkana 1998, pet. ref'd) (holding that police officer's testimony concerning out-of-court identification by victim was not hearsay). Because the testimony was admissible, there is no basis on which to conclude that appellant's trial counsel's performance was deficient in this regard. See Green v. State, 191 S.W.3d 888, 895 (Tex. App.--Houston [14th Dist.] 2006, pet. ref'd).

Finally, appellant argues that his trial counsel was ineffective because she failed to object when Antoinette Miller testified about King's statements that he sent appellant to kill the complainant. Here, too, the record does not support the contention that trial counsel was ineffective. In fact, appellant's trial counsel objected that Miller's testimony was inadmissible, and the trial court held a hearing outside the presence of the jury to determine whether Miller's testimony should be admitted. After hearing Miller's testimony, the trial court allowed her to testify before the jury. Appellant's trial counsel was not required to object again when Miller's testimony was presented to the jury. See Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991) (holding that when trial court hears and overrules objections to evidence outside hearing of jury, those objections need not be made again in front of jury when evidence is actually presented). Therefore, we cannot find appellant's trial counsel's performance deficient in this regard. Accordingly, appellant has failed to establish the threshold first prong of the Strickland test. See Strickland, 466 U.S. at 687, 104 S. Ct. At 2064.

We overrule appellant's sixth issue.

Conclusion

We affirm the judgment of the trial court.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).

1. See Tex. Penal Code Ann. § 19.02 (Vernon 2003).

2.

Appellant also complains of Thomas's testimony that King told him that he had killed someone in the past. This argument was not preserved for appeal because the trial court never ruled on the admissibility of Garrett Thomas's testimony regarding any prior crimes King told him he committed, and trial counsel did not object when this testimony was presented in court. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (holding that complaining party must make timely, specific objection and obtain ruling on objection to preserve error for appellate review); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991) (holding that party must continue to object each time inadmissible evidence is offered). Even if appellant's trial counsel's general objection to Thomas's hearsay testimony preserved this complaint and it could be shown to have been admitted in error, there was no harm. See Crum v. State, 946 S.W.2d 349, 364 (Tex. App.--Houston [14th Dist.] 1997, pet. ref'd) ("We must determine from a review of the record whether the minds of an average juror would have found the State's case significantly less persuasive had the testimony at issue been excluded."). Thomas's brief testimony about King's prior criminal acts could not have had any affect on the jury's conviction of appellant given all of the evidence presented against appellant himself, including Leifester's testimony that appellant entered her home and shot the complainant.

3.

Appellant's argument that the statements were not admissible as statements of a coconspirator because appellant was not part of a conspiracy at the time the statements were made is unpersuasive because coconspirator statements are admissible when the coconspirator is part of a conspiracy "in which the defendant also participated or later joined." See Peoples v. State, 928 S.W.2d 112, 116 (Tex. App.--Houston [1st Dist.] 1996, pet. ref'd) (emphasis added). Furthermore, statements, like King's, that are made to induce another's involvement in the conspiracy are statements made in furtherance of the conspiracy. See Crum, 946 S.W.3d at 363 (holding that statements made in furtherance of conspiracy include those made "with intent to induce another to join the conspiracy"). However, the State was also required to prove that the statements were made in the course of a conspiracy. See Meador v. State, 812 S.W.2d 330, 333 (Tex. Crim. App. 1991) ("[T]he 'in furtherance' of the conspiracy requirement of Rule 801(e)(2)(E) is a separate requirement that must be met in addition to the requirement that the statement be made "during the conspiracy.'").

4. See Tex. Penal Code Ann. § 15.03(a) (Vernon 2003) ("A person commits an offense if, with intent that a capital felony or felony of the first degree be committed, he requests, commands, or attempts to induce another to engage in specific conduct that, under the circumstances surrounding his conduct as the actor believes them to be, would constitute the felony or make the other a party to its commission.").