Rachell, Tangina v. State

• Court: Court of Appeals of Texas
• Decided: April 13, 2006
• Docket: 14-05-00122-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed April 13, 2006

Affirmed and Memorandum Opinion filed April 13, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00122-CR

TANGINA RACHELL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 975,462

M E M O R A N D U M  O P I N I O N

Appellant Tangina Rachell challenges her conviction for aggravated sexual assault of a child asserting as grounds for reversal factual insufficiency of the evidence,  jury charge error, and the erroneous admission of hearsay testimony.  We affirm.

I.  Factual and Procedural Background

On January 13, 2004, around 7:00 a.m., Deputy McNabb with the Harris County Sheriff=s Department responded to a sexualBassault call.   When he arrived at the scene, he found a young African-American girl in the back of an ambulance.  Deputy McNabb stated that the young girl, wearing a backpack, had messy hair and ripped pants.  Deputy McNabb then talked to the complainant, identified as A.C., and learned that she was eleven years old.   A.C. told Deputy McNabb a very detailed and elaborate story about how she was abducted, while walking home from school, by two white men in a purple van.  She told Deputy McNabb that there was another little girl in the van engaged in sex with one of the men.  A.C.  described how the other man took off her pants, put on a condom, and said, AWe=re going to get groovy.@   A.C. told Deputy McNabb that she kicked him when he began to rub his penis on her, which caused both men to run from the van.  A.C. claimed that she was somehow able to escape and run to a friend=s house a couple of blocks away.

A.C.=s father testified  that when he arrived at home on January 13, 2004, A.C. was not home.  He was concerned because his oldest stepdaughter was already home and it was not typical for A.C. to arrive home after her stepsister.  After driving around the neighborhood and failing to locate A.C., he called the  Harris County Sheriff=s Department and A.C.=s mother.  The following morning, A.C.=s father was called to come and retrieve A.C., who was at the fire station.  When he arrived and saw A.C., he felt as though she had been through Asomething.@  A.C.=s father, his wife, and A.C. then sat down with Deputy Ackley, an investigator assigned to the Harris County Sheriff=s Department=s Child Abuse Division.   When asked what had happened to her, A.C. repeated the version of events she had given the previous day.  Her father said A.C. was lying and demanded the truth, which prompted A.C. to give a different account, one she also gave at trial. 

A.C. told her father and Deputy Ackley that she called her mother because she had gotten in trouble with changing her grades at school.  The following day after school, her mother, Loretta Maxie waited for A.C. at the end of the street (near the home where A.C. lived with her father).  A.C. testified that they then walked for about five minutes until they arrived at another school where appellant, her mother=s friend, was waiting in a red car.   They drove to A.C.=s home, where Maxie picked up her car, a green Taurus, which she had left parked in front of A.C.=s home.^[1]  Maxie followed her daughter and appellant to the Haverstock Apartments, where Maxie lived with appellant.  Maxie told A.C. that her father did not love her and she was going to take him back to court to regain custody of A.C.  A.C. testified that her mother then cut her clothes with scissors and ripped her clothes to make it look like two men raped her.  A.C. stated that appellant instructed Maxie to put her finger inside of A.C. to make it look like sexual assault.  A.C. told her mother that it was not a good idea and she should just try to work out her issues with A.C.=s father.   A.C. then stated that appellant told Maxie that if she did not do it, appellant was going to Apitch@ Maxie out of the apartment.  Maxie then replied, AAnything for you baby.@  A.C. testified that her mother, upon this comment, stuck a finger in A.C.=s Aprivacy part@ and it hurt.  A.C.  said appellant sat on the side of the bed and smiled  at her mother as this happened.

A.C. testified that her mother left the room, came back with a black trash bag, and instructed A.C. to get inside of the bag.  A.C. complied and Maxie cut a breathing hole in the bag.  Maxie and appellant then picked A.C. up and put her on a shelf in the closet until the following morning.  After releasing A.C. from the closet, Maxie dropped A.C. off at A.C.=s friend=s house and instructed A.C. to call the police and tell them that two men in a purple and pink van had assaulted her.

Appellant testified that neither she nor Maxie picked A.C. up on January 13, 2004. She further testified, as Dennis Maxie (A.C.=s half-brother) did, that it was Dennis=s birthday that day and they had cake and dinner in the apartment that evening.   Both appellant and Dennis Maxie testified that A.C. was not in the apartment that night.  Appellant further denied telling Deputy Womack (the officer called to search the apartment the night A.C. was reported missing) that one of the closet doors was locked and had never been opened.

A jury found appellant guilty of the felony offense of aggravated sexual assault of a child and assessed punishment at six years= confinement in the Texas Department of Criminal Justice, Institutional Division.

II.  Issues Presented

Appellant asserts the following issues on appeal:

(1)     The evidence is factually insufficient to support the conviction of aggravated sexual assault of a child. (Issue 4)

(2)     Appellant was egregiously harmed by the lack of jury instructions in regard to extraneous offenses and badBact evidence in the punishment jury charge. (Issue 1)

(3)     Appellant was egregiously harmed by the lack of jury instructions in regard to the use of notes by the jury during deliberations in the punishment phase of the trial. (Issue 2)

(4)     The trial court abused its discretion by overruling appellant=s objection to the hearsay testimony in regard to Maxie=s statements to the police. (Issue 3)

III.  Analysis

A.      Is the evidence factually sufficient to support appellant=s conviction for aggravated sexual assault?

We first address appellant=s fourth issue in which she contends that the evidence is factually insufficient to support her conviction of aggravated sexual assault. When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the trier of fact was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).  A reviewing court may find the evidence factually insufficient in two ways. Id.  First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond‑a‑reasonable‑doubt standard could not have been met. Id. at 484B85.  In conducting the factual‑sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder.  Id. at 481B82.  Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).  In conducting a factual‑sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

A person commits the offense of aggravated sexual assault if the person intentionally or knowingly: (i) causes the penetration of the anus or female sexual organ of a child by any means.  Tex. Penal Code Ann. ' 22.021 (Vernon Supp. 2005) (emphasis added). Moreover, a person is criminally responsible as a party to an offense if the offense is committed by her own conduct, by the conduct of another for which she is criminally responsible, or by both. See Tex. Pen. Code Ann. ' 7.01 (Vernon 2003).   Under section 7.02(a)(2), a person is criminally responsible for an offense committed by the conduct of another if: (1) acting with the kind of culpability required for the offense, she causes or aids an innocent or non-responsible person to engage in conduct prohibited by the definition of the offense;(2) acting with intent to promote or assist the commission of the offense, she solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or (3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, she fails to make a reasonable effort to prevent commission of the offense.  Tex. Pen. Code Ann. ' 7.02(a) (Vernon Supp. 2005) (emphasis added).  In addition, presence at a crime is a circumstance tending to prove guilt which, when combined with other facts, may suffice to show that an accused was a participant in the crime. Ortiz v. State, 577 S.W.2d 246 (Tex. Crim. App. 1979).

Although A.C. admitted to not being truthful in her initial account to law enforcement, she testified at trial under oath as to what she claimed really happened to her the night of January 13, 2004.  A.C. testified that  her mother cut and ripped her clothing to make it look like she had been raped.  A.C. stated that appellant then instructed Maxie to put her finger inside of A.C. to make it look like sexual assault.  When A.C. tried to persuade  her mother that the ruse was not a good idea and she should just try and work things out with A.C.=s father, appellant intervened, telling Maxie that if she did not do it, appellant was going to Apitch@ her out of the apartment.  Maxie replied, AAnything for you baby.@  A.C. testified that her mother, upon hearing this comment from appellant, stuck a finger in A.C.=s  Aprivacy part@ and it hurt.  A.C. further stated that during this time, appellant was sitting on the side of the bed smiling at her mother.

A.C. further testified that her mother then instructed her to get inside a black trash bag. After Maxie cut a hole in the bag so that A.C. could breathe, she and appellant picked A.C. up and put her on a shelf in the closet until the following morning.  A.C. stated that her mother then dropped her off at A.C.=s friend=s house and told A.C. to call the police and report that two men in a purple and pink van had raped her.  All of this testimony was provided by A.C. herself and demonstrates that appellant encouraged, aided, and directed the sexual acts.  See Thompson v. State, 697 S.W.2d 413, 416 (Tex. Crim. App. 1985).

Appellant asks us to reverse her conviction because the State did not offer physical evidence to corroborate A.C.=s testimony and because appellant states that her testimony and Dennis Maxie=s testimony that A.C.  was not in the apartment on January 13, 2004 undermines the verdict.  Appellant further states that when Deputy Womack searched the apartment, he did not find A.C.  This evidence, however, does not explain Deputy Womack=s testimony that the closet was locked, and A.C.=s own testimony that she was placed on a shelf in that closet until the following morning.

We note that the  jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).  A.C., who was twelve years old when she testified, stated that she knew the difference between telling the truth and telling a lie, and that she understood how important it was for her to tell the truth.  On cross-examination, A .C. repeatedly stated that she was not lying. The jury, as the factfinder, could have believed A.C.=s testimony and wholly disbelieved any of the defense=s evidence, including appellant=s own testimony.  See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Marc v. State, 166 S.W.3d 767 (Tex. App.BFort Worth 2005, pet. ref=d)  (holding that jury could have believed victim so as to support conviction for aggravated sexual assault even though defendant argued that the victim=s veracity was suspect because she was a prostitute and drug addict and convicted felon); Sanders v. State, 834 S.W.2d 447, 449 (Tex. App.BCorpus Christi 1992, no pet.). Furthermore, the testimony of A.C, standing alone, is sufficient to support appellant=s conviction of aggravated sexual assault of a child.  See Tex. Code Crim. Proc. Ann. art. 38.07; see Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.BHouston [14th Dist.] 2002, pet. ref=d) (stating that the testimony of a victim, standing alone, even when the victim is a child, is sufficient to support a conviction for sexual assault); see also Satterwhite v. State, 499 S.W.2d 314, 315 (Tex. Crim. App. 1973) (holding that victim=s testimony that appellant placed Ahis male organ into her private parts@ was sufficient to sustain conviction); West v. State, 121 S.W.3d 95, 111 (Tex. App.BFort Worth 2003, pet. ref=d) (stating that victim=s testimony is sufficient to sustain conviction of sexual assault); Kimberlin v. State, 877 S.W.2d 828, 831 (Tex. App.BFort Worth 1994, pet. ref'd) (holding that a child victim=s outcry statement alone can be sufficient to support a conviction for aggravated sexual assault); Butler v. State, 875 S.W.2d 804, 806 (Tex. App.BBeaumont 1994, no pet.) (finding that scientific and other corroborating evidence was not required for aggravated sexual assault given that victim told her niece of the sexual assault only hours after the attack). We conclude the evidence is factually sufficient to support appellant=s conviction for aggravated sexual assault of a child. Accordingly, we overrule appellant=s fourth issue.

B.      Was appellant egregiously harmed by the lack of jury instructions in regard to alleged extraneous offenses and bad act evidence in the punishment phase jury charge?

In her first issue, appellant contends that, in the punishment phase, she was egregiously harmed by the omission in the jury charge of a beyondBaBreasonableBdoubt instruction regarding extraneous offenses and badBact evidence.  Appellant asserts that this instruction was necessary based on evidence that she may have placed A.C. in a trash bag and forced A.C. to spend the night on a shelf in a closet, and evidence that appellant and Maxie had been involved in a romantic relationship.

The State contends that appellant failed to object to the trial court=s omission of a reasonableBdoubt instruction in the punishmentBphase charge and she was not egregiously harmed by the lack of such an instruction.  Moreover, the State contends that appellant was not entitled to a reasonableBdoubt instruction in the punishmentBphase charge regarding alleged extraneous badBact evidence because such evidence was admissible during the guilt-innocence phase as same-transaction evidence.   Appellant does not dispute that she  failed to assert these objections at trial.

When an appellant alleges jury charge error on appeal, our first task is to determine whether error actually exists in the charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).   If there is juryBcharge error, we then must determine if the error caused sufficient harm to warrant reversal. Hutch, 922 S.W.2d at 170B71; Almanza, 686 S.W.2d at 171.  Preservation of charge error does not become an issue until we assess harm.  Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).  The degree of harm necessary for reversal depends on whether the appellant preserved the error by objection.  Id.  When the defendant fails to object or states that she has no objection to the charge, we will not reverse for jury‑charge error unless the record shows egregious harm to the defendant. Id. at 743‑44; Almanza, 686 S.W.2d at 171.

Egregious harm occurs  when an error affects the very basis of a case, deprives the defendant of a valuable right, vitally affects a defense theory, or makes the case for punishment clearly and significantly more persuasive.   Mathews v. State, 999 S.W.2d 563, 565 (Tex. App.BHouston [14th Dist.] 2000, pet. ref=d).  The reviewing court must determine the actual harm in light of the entire jury charge, the state of the evidence, including contested issues and weight of probative evidence, the arguments of counsel, and any other relevant information revealed by the record.  Almanza, 686 S.W.2d at 171.

ExtraneousBoffense evidence, which is indivisibly connected to the charged offense, may be admissible to provide context for the offense.   Lockhart v. State, 847 S.W.2d 568, 571 (Tex. Crim. App. 1992); Mayes v. State, 816 S.W.2d 79, 86‑87 n. 4 (Tex. Crim. App. 1991).  Where an offense is one continuous transaction, or is closely interwoven with the case on trial, proof of all such facts is proper.  Mayes, 816 S.W.2d at 87.   Evidence of these extraneous offenses is admissible to show the context in which the criminal act occurred.  Id.  This context permits the jury to realistically evaluate the evidence because Acrimes do not occur in a vacuum.@  Wilkerson v. State, 874 S.W.2d 127, 131 (Tex. App.BHouston [14th Dist.] 1994, pet. ref=d).

Because the evidence that appellant may have placed A.C. in a trash bag and forced A.C. to spend the night on a shelf in a closet was part of the same criminal transaction as the charged offense, this evidence was properly admitted as sameBtransaction contextual evidence.  See Nelson v. State, 864 S.W.2d 496, 498‑99 (Tex. Crim. App.1993); Lockhart, 847 S.W.2d at 571.  When evidence is admitted as sameBtransaction contextual evidence, no limiting instruction is required.  See Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993).  Thus, because the sameBtransaction contextual evidence is offered simply to explain the context of the crime, a jury instruction, requiring extraneous offenses be proven beyond a reasonable doubt, is not required. See Garza v. State, 2 S.W.3d 331, 335 (Tex. App.BSan Antonio 1999, pet. ref=d) (An extraneous offense instruction for same transaction contextual evidence is not required during the punishment phase of a trial.).  Accordingly, the trial court did not err in failing to give the reasonableBdoubt instruction as to this  evidence.

As for the evidence that appellant and Maxie were involved in a romantic relationship, we conclude that even if the evidence could somehow be construed as evidence of an extraneous bad act, appellant has not shown egregious harm resulting from the lack of a reasonableBdoubt instruction.  In reaching this conclusion, we evaluate the charge error in light of the entire jury charge, the state of the evidence, the argument of counsel and the record of the trial as a whole.  Almanza, 686 S.W.2d at 171.  Appellant is required to show actual, not theoretical, harm.  Cormier v. State, 955 S.W.2d 161, 164 (Tex. App.BAustin 1997, no pet.).

  Appellant points to this testimony to support her argument for a reasonableBdoubt instruction:

Q: [Prosecutor]: Isn=t it true, Ms. Rachell, that Mrs. Maxie could do just about anything you wanted her to, right?

A: No.

Q: You two were involved in a romantic relationship, right?

A: Yes, we were.

This testimony did not identify any Aact@ but addressed only a Arelationship.@  To the extent, this testimony could be construed as a reference to a Abad act,@ there is no merit to appellant=s argument.  Appellant offers no evidence that the jury would have given her probation if the jury charge had included a reasonableBdoubt instruction for this purported extraneous offense.  See Escovedo v. State, 902 S.W.2d 109, 114B15  (Tex. App.CHouston [1 Dist.] 1995, pet. ref=d) (stating that A[o]ne factor to consider is whether there is any actual indication that the jury might have considered the extraneous offense because of the absence of an instruction on the burden of proof. [t]hat is, would the jury have disregarded or discounted the extraneous offense if the instruction had been included@).  Indeed, appellant=s counsel did not even ask for probation during closing argument.

In addition, this is the only statement about which appellant complains on appeal.  This is the only time this question was asked by the State.   After the question was asked and answered (without objection), the State continued its line of questioning and did not expound on the nature of appellant=s and Maxie=s relationship.   The State did not mention the subject again during trial; nor did it mention this evidence in its closing argument. See  Huizar v. State, 29 S.W.3d 249, 250B51 (Tex. App.CSan Antonio 2000, pet. ref=d) (holding harmless error under Almanza even though the State relied on substantial evidence of extraneous conduct in seeking punishment  and commented during closing argument at the punishment phase of the trial that Athe State had no burden of proof during the punishment trial@).  The only possible reference to appellant=s and Maxie=s relationship made during closing argument was the State=s passing comment about Maxie=s statement, Aanything for you, baby.@   This remark by the State was only to demonstrate the influence that appellant, as a party to the offense, actually had over Maxie during the incident.  Indeed, Maxie=s comment, Aanything for you, baby@ was made moments before the assault on A.C.,  in response to appellant=s comment, Aif you don=t do it, I will pitch you out.@

          Given A.C.=s own testimony, it is likely that the jury sentenced appellant to six years= confinement on the facts of the convicted crime alone.  A.C.=s testimony alone supports the jury=s imposition of this sentence.  Further, the charge given at punishment appropriately stated the burden of proof for the charged offense and also placed this burden on the State. Given these instructions, the jury could have concluded that the record as a whole supported punishment of six years= without probation, without considering the nature of the relationship between appellant and Maxie. 

Finally, appellant did not request a limiting instruction on this evidence during the guilt-innocence phase; nor does she complain on appeal about the fact that the guilt-innocence charge did not contain a reasonableBdoubt instruction regarding extraneous bad acts. Therefore, in view of the entire charge, the evidence, argument of counsel, and the entire record of the trial on punishment, we conclude that to the extent appellant was entitled to a reasonableBdoubt instruction based on her romantic relationship with Maxie, appellant has failed to show egregious harm from omission of the reasonableBdoubt instruction for extraneous offenses.  See Allen v. State, 47 S.W.3d 47, 51‑53 (Tex. App.BFort Worth 2001, pet. ref=d) (finding no egregious harm based on the totality of the evidence and notwithstanding the State=s use of extraneous offenses in punishment argument); Brown v. State, 45 S.W.3d 228, 231B32 (Tex. App.BFort Worth 2001, pet. ref=d) (finding that appellant was not egregiously harmed by a trial court=s failure to give reasonable doubt instruction at punishment phase, as there was little doubt of appellant=s connection with most of the extraneous offenses and there was no indication that lack of an instruction resulted in greater sentence for appellant, who received probation on one offense and a sentence at the lower end of the scale on his other offense).   Therefore, we overrule appellant=s first issue.

C.      Was appellant egregiously harmed by the lack of jury instructions regarding the use of notes by the jury during deliberations at the punishment phase of trial?

In her second issue, appellant contends that she was egregiously harmed because the trial court failed to instruct the jury regarding the use of notes during deliberations in the punishment phase.  The State argues that appellant failed to preserve error on this issue by failing to object at the trial court level.  We disagree with the State=s argument because we conclude that appellant=s objection on appeal is limited to the sole issue as to whether she was egregiously harmed by the lack of jury instructions included in the charge at the punishment phase of trial. This is a complaint regarding jury charge error, which is not automatically waived by failing to object at the trial court.  As discussed in section A, above, appellant has not waived any error in this issue, but must satisfy the egregiousBharm standard in Almanza.   We conclude, as we did in the previous section, that the trial court=s failure to include a limiting instruction on the jury=s note-taking in the punishment phase charge did not cause egregious harm to appellant.

There is no dispute that the trial court gave the proper instructions to the jury on this issue in the guilt-innocence phase jury charge.  The guilt-innocence phase charge was given to the jury on the same day that the jury received the punishment phase charge.  Appellant acknowledges that the trial court=s jury instructions in the guilt-innocence phase charge were adequate.   Thus, at the time the jury assessed punishment, the jury already  had been given these instructions in the guilt-innocence phase charge.  Therefore, we conclude that appellant was not egregiously harmed.  We overrule appellant=s second issue.

D.      Did the trial court abuse its discretion by overruling appellant=s objection to hearsay testimony in regard to Loretta Maxie=s statements made to the police?

In her third issue, appellant contends that the trial court abused its discretion in overruling her objection to testimony by Detective Ackley regarding statements made by Loretta Maxie. The State first contends that appellant failed to preserve error on this issue by failing to object.  The State further contends that even if error had been preserved, Detective Ackley=s testimony was properly admitted because it was not hearsay. 

At a hearing outside the jury=s presence, the following testimony was elicited from Detective Ackley:

Q: [Prosector]: Detective, at this point, after they came in, did you ever speak with them at this point together?

A: Yes, I did.

Q: It was on theCon the day that you=ve just told us about?

A: Yes.

Q: What, if anything, did you observe regarding their interactions? Without going into what they said to each other, what if anything, did you observe in their interactions with each other?

A: That Ms. Rachell was theCevery time I ask a question, Ms. Maxie would defer to Ms. Rachell and talk about it and then answer my question.  I=d ask another question, same thing would happen. So itCsheCMs. Maxie had to defer everything to Ms. Rachell and then they would answer the question.

When I asked Ms. Rachell a question, she answered it by herself. Pretty much defiant the entire time.  Didn=t really want to answer the questions I had posed to them, which were very general at that point.

Q: Did you later make contactCwithout going into the specifics of the attempts of contact, when you later made contact again with Ms. Rachell, what, if anything, changed about her demeanor and attitude in speaking about whatever your questions were?

A: Became much more defiant, more aggressive, deceptive. Everything I asked, she would never come right out and give me an answer.  It was always talked around. It was alwaysCnever really answered any of my questions that I had at any point in time.

(emphasis added).  Once this testimony was elicited, appellant objected that the interactions described above were irrelevant and hearsay.  The trial court overruled appellant=s objection.  Appellant then requested that the objection be extended to the three questions and three answers asked during this hearing outside the jury.  Once those questions were asked and answered before the jury, the following bench conference occurred:

Defense Counsel: Just, just for the purposes of the record, I ask that my running objection be extended from the beginning of his testimony until I say to the Court that I want to stop.  I originally framed it as three questions.

The Court: Aren=t you finished with that?

The Prosecutor: With what?

The Court: The matter that we dealt with out of the jury=s presence initially?

The Prosecutor: Well, yes.  Now I=m just talking about his contact with them.

Defense Counsel: Just want to extend it. Not trying to stop it.

The Prosecutor: He mayCI intend to ask him a question about this defendant directly, but not probably between the two of them, no.

The Court: No, you=re not going into a conversation between him and the co-defendant.

The Prosecutor: No, I=m not. Although she was not in custody at the time, so Crawford does not apply. I don=t intend to go over anything.

The Court: I think the running objection probably ends at this point.

Defense Counsel: I would then like to requestCwell, because on the theory that what you are doing is your talkingCnot talking aboutCtell you what.  Let me do this then.  If there=s an answer that I regard as being interpretation, can I stand up and object to that?

The Court: Certainly.

The prosecutor continued to question Detective Ackley as follows:

The Prosecutor: And in speakingBwithout going into what she [Ms. Maxie] said, did that story remain consistent or inconsistent throughout your investigation.

Detective Ackley: Inconsistent.

(emphasis added).  The State maintains appellant=s failure to object to this question and answer waived appellate review of this issue.  We disagree with the State=s preservation argument and conclude that appellant=s prior objections in regard to this testimony were sufficient to preserve any error for our review.  

However, we also conclude that the trial court did not abuse its discretion in admitting Detective Ackley=s testimony over appellant=s objections because this testimony was not hearsay.  Hearsay is Aa 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); see also Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990).  Unless it falls within an exception created by statute or rule, hearsay is inadmissible. Tex. R. Evid. 802. Detective Ackley did not testify as to the substance of the statements made by Ms. Maxie, but merely that her statements were not consistent throughout the investigation.  Detective Ackley further discussed how Ms. Maxie and appellant acted toward each other but did not discuss or testify as to what was said during these conversations.  We conclude that the trial court did not abuse its discretion in overruling appellant=s hearsay objections because Detective Ackley=s testimony is not hearsay. 

We further conclude that, even if the trial court erred in admitting this evidence, it was harmless error. To determine whether the erroneous admission of evidence amounts to reversible error, we look to Texas Rule of Appellate Procedure 44.2(b), governing non-constitutional error in criminal cases.  See Tex. R. App. P. 44.2(b).   Neither appellant nor the State bears the burden of demonstrating whether appellant was harmed by the trial court=s error.   See Johnson v. State, 43 S.W.3d 1, 5 (Tex. Crim. App. 2001).  Rather, it is this court=s responsibility to assess, from the context of the error, whether the judgment requires reversal because the error affected appellant=s substantial rights. See id.   Error affects a substantial right when it has a substantial and injurious effect or influence in determining the jury=s verdict.  Johnson, 43 S.W.3d at 3B4.   Given the overwhelming evidence of guilt, as discussed above, even assuming error in the admission of this testimony, we could not conclude that appellant=s substantial rights were violated.   Accordingly, we overrule appellant=s third issue.

Having overruled all of appellant=s issues, we affirm the trial court=s judgment.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed April 13, 2006.

Panel consists of Justices Hudson, Frost, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  This account is consistent with the testimony given by Sarah Holt, A.C.=s father=s neighbor.  Ms. Holt testified that sometime in January 2004, she noticed a green Taurus in the driveway of A.C.=s home.  She explained that usually there was no car in the driveway during this time of day.