TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00684-CR
Jeffrey Walker Kindred, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 69787, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant Jeffrey Walker Kindred of the offense of aggravated
assault of a peace officer with a deadly weapon. Punishment was assessed at forty years’
imprisonment. In two related issues on appeal, Kindred asserts that the district court abused its
discretion in admitting testimony by a police officer that Kindred contends was (1) hearsay and
(2) not relevant. We will affirm the judgment of conviction.
BACKGROUND
The jury heard evidence that on the afternoon of April 15, 2012, Officer Derek Rose
of the Temple Police Department responded to a dispatch reporting that a possible suspect in a
robbery from several weeks earlier had been identified buying gas at a convenience store. According
to Rose, the store clerk who had identified the suspect reported the suspect’s vehicle and license-
plate number to the police. Rose then entered the vehicle information into the police database and
ascertained the location of the apartment complex where the suspect likely resided. Rose testified
that he traveled to that location and, once there, identified the suspect vehicle exiting the complex.
Rose began following the vehicle and eventually conducted a traffic stop. After stopping the vehicle,
which contained both a driver and passenger, Rose began conversing with the driver, who was later
identified as Kindred.
Shortly thereafter, Officer James Carr arrived at the scene to assist Rose. Carr
testified that Rose asked him to interview Kindred outside the vehicle while Rose interviewed the
passenger. Carr explained that he escorted Kindred to a nearby location and began interviewing him.
At some point during the conversation, Carr decided to place Kindred in handcuffs. However, before
Carr was able to do so, Kindred fled. According to Carr, Kindred jumped over a rail on the side of
the road, rolled down a nearby hill, and continued running. Carr chased after Kindred on foot, and
eventually caught up with him. Carr testified that when he made physical contact with Kindred,
Kindred turned around and “threw a punch” at him, “right in [Carr’s] face.” Carr punched Kindred
in return, in an attempt to gain control of him. The tactic did not work. Instead, Carr explained,
Kindred “dove for [Carr’s] gun” and the two men began wrestling for control of the firearm, with
Kindred eventually obtaining control of the weapon and pointing it at Carr’s head, “ready to shoot.”
As Carr struggled to regain control of the weapon, Kindred pulled the trigger. Carr testified that the
bullet did not hit him, but the shell casing did. As the struggle continued, Kindred repeatedly pulled
the trigger in an attempt to shoot Carr. He was unable to do so, according to the ballistic evidence
presented at trial, because the gun had jammed after the first shot was fired. Carr testified that
he soon became exhausted and was quickly losing his ability to fight Kindred. Fortunately, Carr
explained, Rose and other officers arrived at around that time and assisted Carr in gaining control
of Kindred and placing him under arrest.
2
Based on the above and other evidence, the jury convicted Kindred of the offense
of aggravated assault on a public servant with a deadly weapon and assessed punishment as
noted above. The district court sentenced Kindred in accordance with the jury’s verdict. This
appeal followed.
STANDARD OF REVIEW
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion.1 The test for abuse of discretion is whether the trial court acted arbitrarily or
unreasonably, without reference to any guiding rules or principles.2 A trial court abuses its discretion
only when its decision “is so clearly wrong as to lie outside that zone within which reasonable
persons might disagree.”3 Moreover, we must sustain a trial court’s ruling admitting or excluding
evidence on any theory of law applicable to the case.4
ANALYSIS
During Officer Rose’s testimony, the following exchange occurred:
Q. And so at some point, did you get a dispatch about a
particular vehicle?
A. Yes, sir, I did.
Q. And what was that?
1
Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008).
2
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
3
McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).
4
See Romero v. State, 800 S.W.2d 539, 543-44 (Tex. Crim. App. 1990).
3
A. It was a call to a little convenience store at MLK and Booth
that there was a black male pumping gas—
[Defense counsel]: Your Honor, this is going to be a hearsay statement.
[Prosecutor]: Your Honor, we’re not offering this for the truth of the matter
asserted, but merely to understand why off—Lieutenant Rose
made the stop in the first place. It goes to the probable cause
of the stop.
[The Court]: Overruled.
....
Q. What was that [dispatch]?
A. It was a call that there was a black male pumping gas. And
the clerk recognized him, and it was called in that he had
committed a robbery there several weeks earlier.
Q. Okay. And other than that, did you have any information
about the call?
A. Yes, sir. It was a—they put it out that it was a gold car. . . .
And they said it was a Nissan Altima. And when I got the
return that says it was—it lived at the apartments just up from
there off of MLK.
No further objections to the testimony were raised. In his first issue on appeal, Kindred asserts that
the above testimony was inadmissible hearsay.5 In his second issue on appeal, Kindred additionally
asserts that the testimony was not relevant to any issue in the case.
We first address Kindred’s contention that the testimony was inadmissible hearsay.
Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing,
5
Specifically, Kindred contends that the testimony was “double hearsay,” or hearsay within
hearsay, because the officer was recounting statements by the dispatcher regarding statements by the
store clerk. See Tex. R. Evid. 805.
4
offered in evidence to prove the truth of the matter asserted.6 “It is well established that an
extra-judicial statement or writing offered for the purpose of showing what was said rather than
for the truth of the matter stated therein does not constitute hearsay.”7 Here, it would not be outside
the zone of reasonable disagreement for the district court to find that the statements made by the
clerk to the dispatcher and, subsequently, by the dispatcher to the officer, were not offered to
prove the truth of the matter asserted, i.e., that Kindred had committed a robbery at the store several
weeks earlier. Instead, the district court could have reasonably found that the statements were being
offered to provide the jury with relevant background information concerning the incident and the
circumstances surrounding the assault, including why Officer Rose had stopped Kindred and why
Officer Carr had arrived on the scene to assist Rose.8 On this record, we cannot conclude that the
district court abused its discretion in overruling Kindred’s hearsay objection to the evidence.
Kindred next contends that the testimony was not relevant to any issue in the case.
Specifically, Kindred asserts that the prosecutor’s proferred reason for eliciting the testimony, to
establish “probable cause [for] the [traffic] stop,” was never an issue in the case or contested by the
defense, and thus the testimony was not relevant for that reason.9 However, as the State observes,
6
Tex. R. Evid. 801(d).
7
Porter v. State, 623 S.W.2d 374, 385 (Tex. Crim. App. 1981).
8
See id. at 385 (communication between officers and dispatch not hearsay when offered
to show “the circumstances surrounding and leading to” the charged offense and to show that
officer was “acting in the lawful discharge of an official duty” during incident); see also Dinkins
v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995) (explaining that State may offer out-of-court
statements without violating hearsay rule if statements are offered to explain why defendant became
subject of investigation).
9
See Christopher v. State, 833 S.W.2d 526, 529 (Tex. Crim. App. 1992) (holding that even
though certain evidence “was relevant to the determination of probable cause to stop appellant, that
issue was not contested before the jury,” and therefore, the evidence was not “admissible at trial on
grounds of relevancy to any issue of probable cause”).
5
Kindred did not object to the testimony at trial on this ground. His objection was limited to hearsay.
Accordingly, this complaint is being raised for the first time on appeal and has not been preserved
for our review.10
Moreover, even if we were to assume that error was preserved on the basis of
relevance and further assume that the testimony should not have been admitted either for that reason
or because it was inadmissible hearsay, we could not conclude on this record that Kindred was
harmed by its admission. A violation of the evidentiary rules that results in the erroneous admission
of evidence is non-constitutional error.11 Non-constitutional error that does not affect a defendant’s
substantial rights must be disregarded.12 Substantial rights are not affected by the erroneous
admission of evidence if the appellate court, after examining the record as a whole, has fair assurance
that the error did not influence the jury or had but a slight effect.13 “In assessing the likelihood that
the jury’s decision was adversely affected by the error, the appellate court should consider everything
in the record, including any testimony or physical evidence admitted for the jury’s consideration,
the nature of the evidence supporting the verdict, the character of the alleged error and how it might
be considered in connection with other evidence in the case.”14 We may also consider the jury
10
See Tex. R. App. P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002)
(“[T]he point of error on appeal must comport with the objection made at trial.”); Thomas v. State,
723 S.W.2d 696, 700 (Tex. Crim. App. 1986) (“[I]f an objection made in the trial court differs from
the complaint made on appeal, a defendant has not preserved any error for review.”).
11
See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).
12
Tex. R. App. P. 44.2(b).
13
Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
14
Id. at 355-56.
6
instructions, the State’s theory and any defensive theories, closing arguments, voir dire, if applicable,
whether the State emphasized the error, and whether there is “overwhelming evidence of guilt.”15
Here, Kindred’s identity as a possible robbery suspect was not emphasized by
the State, either during its case-in-chief or in its closing arguments. Instead, the State’s emphasis
throughout trial was on the charged offense. The vast majority of evidence presented at trial related
to the assault itself, including extensive testimony from Officer Carr explaining the circumstances
surrounding his struggle with Kindred for control of Carr’s firearm and describing in detail
Kindred’s repeated attempts to shoot Carr once he had gained control of the weapon, and ballistics
evidence that tended to corroborate Carr’s account of the assault. On this record, we have fair
assurance that the challenged testimony, brief and limited as it was, did not influence the jury or had
but a slight effect.
We overrule Kindred’s first and second issues.
CONCLUSION
We affirm the judgment of the district court.
__________________________________________
Bob Pemberton, Justice
Before Chief Justice Jones, Justices Pemberton and Field
Affirmed
Filed: July 25, 2014
Do Not Publish
15
Id. at 355-57.
7