TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00276-CR
v.
The State of Texas, Appellee
NO. CR-94-314, HONORABLE JACK ROBISON, JUDGE PRESIDING
BACKGROUND
The record reveals that on the evening of June 10, 1994, Bowman approached the victim and the victim's boyfriend and asked for a ride to Austin. Bowman touched the victim's boyfriend in a manner that angered the victim. After an argument, Bowman allegedly struck the victim with a "lipstick knife" (2) in an overhand blow to the head.
Police officers Chase Stapp and Loy Locke arrived at the scene within five minutes after the offense occurred and found the victim bleeding profusely from the head. Officer Locke found a "lipstick knife" with blood on it at the crime scene. Officer Stapp interviewed three people who professed to witness the attack. Officer Stapp also saw the wound on the victim's head. Bowman was subsequently arrested for and charged with assaulting the victim with the knife.
At trial, the State called the victim, who testified pursuant to subpoena as a hostile witness. The State also called Officers Stapp and Locke. The State did not, however, call the three eyewitnesses. Instead, the State elicited the substance of the eyewitnesses' statements from Officer Stapp. Bowman objected to the first question as calling for hearsay, but the trial court overruled the objection and admitted the officer's testimony as falling under the excited utterance exception to the hearsay rule. See Tex. R. Crim. Evid. 802(3). Bowman's first three points of error relate to the State's introduction of the eyewitnesses' statements through the testimony of Officer Stapp. In her last two points, Bowman challenges the legal sufficiency of the evidence supporting the conviction.
DISCUSSION
In points of error one, two, and three, Bowman argues the trial court erred in admitting the eyewitnesses' statements as excited utterances. Specifically, she contends the trial court's ruling did not meet the requirements of Texas Rule of Criminal Evidence 803(2) and the confrontation clauses of the United States and Texas Constitutions. See U.S. Const. amend. VI; Tex. Const. art. I, § 10; Tex. R. Crim. Evid. 803(2).
The State responds first that Bowman did not preserve the alleged error for review. Bowman did not object before the trial court to the line of questioning on any constitutional ground. A defendant may waive even errors of constitutional dimension by failing to object at trial. E.g., Gibson v. State, 516 S.W.2d 406, 409 (Tex. Crim. App. 1974). Only fundamental error survives the failure to object. See Tex. R. Crim. Evid. 103(d). Errors that affect a defendant's right to confront accusers are not fundamental error. Briggs v. State, 789 S.W.2d 918, 921 (Tex. Crim. App. 1990). Consequently, Bowman waived her constitutional points by failing to object on constitutional grounds.
With respect to the hearsay issue, Bowman objected only to the first of many questions the State directed to Officer Stapp regarding the eyewitnesses' statements. Bowman did not attempt to make a running objection and did not ask for a hearing on the issue outside the jury's presence. She, therefore, failed to preserve her complaint. Ethington v. State, 819 S.W.2d 854, 859-60 (Tex. Crim. App. 1991).
Even if Bowman had properly preserved her arguments and assuming without deciding that the testimony was inadmissible, the alleged error was harmless. The testimony to which Bowman objects, namely Officer Stapp's relation of the eyewitnesses' statements, revealed only: (1) the impetus for the argument between Bowman and the victim; (2) that Bowman struck the victim on the head with an overhand blow; and (3) that the victim's head bled profusely immediately following the blow. Bowman did not object to Officer Locke's testimony that: (1) when he arrived at the scene he observed the victim was bleeding; (2) it appeared the victim had been "cut or stabbed by an object;" (3) the victim told him Bowman had assaulted her; and (4) he found a "lipstick knife" at the scene of the offense. Nor did Bowman object to Officer Stapp's testimony that: (1) the knife found at the scene was still wet with blood when he arrived; and (2) based on his experience, he could tell the cut on the victim's head was not one made by a fist but was most likely made with a blade. Most importantly, the victim herself testified: (1) about the impetus for the argument; (2) that Bowman struck her in an overhand blow; and (3) after the fight, she had to go to the hospital to get stitches in her head. In light of the evidence to which Bowman did not object, we hold that the admission of Officer Stapp's testimony about the eyewitnesses' statements was harmless. It could not have disrupted the juror's evaluation of the evidence so as to taint the conviction. See Harris v. State, 790 S.W.2d 568, 587-588 (Tex. Crim. App. 1989). Accordingly, we overrule points of error one, two, and three.
In point of error four, Bowman contends the evidence is legally insufficient to sustain the jury's determination that the alleged offense was committed with a knife. In deciding a legal sufficiency point, we view the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981). Viewed in this light, the evidence detailed above supports the inference that Bowman struck the victim with a knife. We conclude the evidence is legally sufficient to support the conviction and we overrule point of error four.
In point of error five, Bowman submits two sentences arguing the evidence is insufficient because the State failed to explain or account for the absence of the eyewitnesses at trial. Bowman cites two cases in support of her argument: Morris v. State, 446 S.W.2d 880 (Tex. Crim. App. 1969) and Ysasaga v. State, 444 S.W.2d 305 (Tex. Crim. App. 1969). In both cases, the court of criminal appeals reversed convictions because the evidence was insufficient. The court in Morris noted the absence of testimony from a key witness. Bowman does not explain, however, how either case imposes a general duty on the State to account for the absence of witnesses it does not call. We do not read either case as imposing such a duty and we overrule Bowman's fifth point of error.
CONCLUSION
Having overruled all of Bowman's points of error, we affirm the judgment of conviction.
_____________________________________________
Jimmy Carroll, Chief Justice
Before Chief Justice Carroll, Justices Jones and Kidd
Affirmed
Filed: October 23, 1997
Do Not Publish
1. The law applicable to this case is that in effect before the 1994 amendments to the Texas Penal Code. Because the 1994 amendments do not pertain to any issue in this case, we cite the current code for convenience.
2. A "lipstick knife" is a small retractable blade encased in the type of container that usually holds lipstick.
Only fundamental error survives the failure to object. See Tex. R. Crim. Evid. 103(d). Errors that affect a defendant's right to confront accusers are not fundamental error. Briggs v. State, 789 S.W.2d 918, 921 (Tex. Crim. App. 1990). Consequently, Bowman waived her constitutional points by failing to object on constitutional grounds.
With respect to the hearsay issue, Bowman objected only to the first of many questions the State directed to Officer Stapp regarding the eyewitnesses' statements. Bowman did not attempt to make a running objection and did not ask for a hearing on the issue outside the jury's presence