Opinion issued June 2, 2005
In The
Court of Appeals
For The
First District of Texas
NOS. 01-04-00527-CR
01-04-00528-CR
GEORGE H. JOHNSON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause Nos. 973677 & 973678
MEMORANDUM OPINION
A jury convicted appellant, George H. Johnson, of tampering with evidence, enhanced by one prior felony conviction, and of possession of cocaine, enhanced by two prior felony convictions. The trial court assessed punishment at confinement for twelve years in the tampering with evidence case and ten years in the possession of cocaine case. We determine whether the trial court committed reversible error by admitting into evidence testimony offered by one police officer regarding statements made by another officer.
We affirm.
FACTS
An undercover drug investigation that was being conducted by police officers for the city of Houston, including an arresting team, a surveillance team, and an undercover officer, resulted in appellant’s arrest. Officer Esquibel, the undercover officer, picked up appellant and drove him to a designated house, where appellant was supposed to buy cocaine for Esquibel. After Esquibel had dropped appellant off at the house, he contacted the other officers by radio and gave a description of appellant. Officers McPherson and Hubbard saw appellant, who matched the description Esquibel had given them, sneak out of a wooded area behind the house and enter a church, near which the surveillance team was parked.
Concluding that appellant was conducting a “rip” (i.e., taking Esquibel’s money without giving him the drugs), McPherson and Hubbard followed appellant into the church and announced their presence. When he saw the officers, appellant hid his right hand from the officers’ view. McPherson, thinking that appellant might be armed, drew his gun and ordered appellant to lie down. After a brief struggle, the officers handcuffed appellant. McPherson noticed that appellant was chewing something and ordered appellant to spit out whatever he was chewing. The substance was later identified as cocaine. McPherson then went back into the church to investigate the area where appellant had hidden his hand from view and found several rocks that were also later identified as cocaine. At trial, McPherson’s testimony included statements made over the police radio by Esquibel to the other officers.
DISCUSSION
In his sole point of error, Johnson contends that it was reversible error for the trial court to allow McPherson to testify about statements made by Esquibel during the undercover operation. Appellant argues that McPherson’s testimony regarding Esquibel’s statements should not have been admitted at trial because the testimony was hearsay, appellant objected to the testimony, and the testimony offered did not fall within the present-sense-impression exception, as argued by the State at trial. Appellant also argues that it was a violation of his fundamental right of confrontation under the United States Constitution to admit Esquibel’s statements into evidence over objection because Esquibel was not available to testify at trial and appellant did not have a prior opportunity to cross-examine him.
We review a trial court’s evidentiary rulings for abuse of discretion. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). We must consider the trial court’s ruling based on what the court had before it at the time the ruling was made. Id.
Hearsay
To preserve a complaint regarding the trial court’s admission of evidence, the complaining party must not only make a proper objection and get a ruling from the trial court; that party must also object each time the inadmissible evidence is offered or obtain a running objection to that evidence. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). An error in the admission of evidence is cured if the same evidence comes in elsewhere without objection. Id.
Appellant raised one hearsay objection to McPherson’s testimony regarding Esquibel’s statements over the police radio during the undercover operation. At that time, the testimony had not yet been given. The exchange that took place was as follows:
State:After the suspect gets out . . . what happens to you?
McPherson:Officer Esquibel contacts me by police radio, advises me that the - -
Defense:Objection, Your Honor, hearsay.
State:Your Honor, I’m going to say this is an exception based on present sense impression, based on continuing investigation, what’s going on, what he sees and observes.
The Court:All right. Overruled.
State:Yes, sir.
McPherson:Advises me the suspect has his money and is going to the house on Rosie to purchase narcotics for him, specifically, crack cocaine, and for everybody to keep an eye on him.
“A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter” is admissible as an exception to the hearsay rule. Tex. R. Evid. 803(1). Appellant made his objection before the trial court could know the nature of McPherson’s hearsay testimony. Based on what the trial court had before it at the time the ruling was requested by appellant, the trial court did not abuse its discretion in overruling appellant’s hearsay objection. Appellant did not counter the State’s argument or renew his objection after it became apparent that the hearsay statement exceeded the limits of the present-sense-impression exception.
In addition, appellant’s cross-examination of McPherson and Hubbard elicited the following hearsay testimony regarding Esquibel’s statements:
Defense:By that time does Officer Esquibel indicate to you that - - that’s when he said he has the money?
McPherson:As soon as he dropped him off and the door shuts, he started to drive off, he picks up his radio and said, I’m dropping him off at the house on Rosie. He’s got my money. Keep your eyes on him.
* * *
Defense:Did you hear at some point Officer Esquibel said, I dropped him off at the dope house; he’s got my money; look out for him? Something like that? Do you remember the transmission of that nature?
Hubbard:As a matter of fact, I believe, [“]He’s at this location; he’s got my money; keep your eyes open.[”]
By failing to object once the nature and extent of the testimony was clearly before the court and by eliciting the same hearsay testimony on cross-examination of two witnesses, appellant waived his hearsay complaint regarding the admission of McPherson’s testimony.
Right of Confrontation
Appellant also argues that the admission of hearsay evidence violated his constitutional right to confront the witness, as established in Crawford v. Washington, 541 U.S. 36, 53–54, 124 S. Ct. 1354, 1369 (2004). To preserve a complaint for appellate review, a party must make a timely objection that specifically states the legal basis for the objection. Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). An objection stating one legal basis may not be used to support a different legal theory on appeal. Id.
At trial, appellant made only a hearsay objection regarding McPherson’s testimony. Appellant’s hearsay objection did not preserve his complaint regarding a violation of his right to confront the witness. Oveal v. State, No. 14-02-01089-CR, 2005 WL 1089187, at *1 n.2 (Tex. App.—Houston [14th Dist.] May 10, 2005, no pet. h.).
CONCLUSION
We overrule appellant’s sole issue and affirm the judgment.
Sam Nuchia
Justice
Panel consists of Justices Nuchia, Keyes, and Bland.
Do not publish. Tex. R. App. P. 47.2(b).