IN THE
TENTH COURT OF APPEALS
No. 10-10-00027-CR
In re Calvin Vernon
Original Proceeding
MEMORANDUM Opinion
The petition for writ of mandamus is denied. Relator’s Motion for Leave to File Original Petition for Writ of Mandamus is dismissed as moot.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Petition denied
Opinion delivered and filed March 17, 2010
[OT06]
Appellant Ward appeals from his 13-year sentence to the Texas Department of Criminal Justice–Institutional Division. The sentence was assessed by a jury after Appellant pled guilty to aggravated robbery of an elderly person.
At 4:00 a.m. on September 13, 1996, Helen Bierman, a 67-year-old widow, awoke to find the then 15-year-old Appellant and Billy Maynard in her bedroom grabbing her hands and pinning her to her bed. Appellant and Maynard put a pillow over her head and took turns hitting her while demanding that she given them her money. Appellant and Maynard found her purse, looked through the purse, then returned to her bed and hit her again. After her assailants were gone, Bierman called her son. The police arrived and Bierman identified her assailants. Bierman, who was taken to the hospital, suffered bruises, bloody marks on her arms, and knots all over the left side of her head. She still has headaches, jumps at every sound, and has trouble sleeping.
Officers arrested Appellant and Maynard and transported them to the Juvenile Detention Center. On September 16, 1996, Appellant gave a voluntary written-confession admitting that he participated in the robbery and that he hit Bierman about seven times.
Appellant was certified to stand trial as an adult. Appellant pled guilty before the jury; pursuant to the trial court's instruction, the jury found appellant guilty of aggravated robbery of a person over 65 years-of-age. The jury then, in the punishment phase, assessed Appellant's punishment at 13 years in prison plus a fine of $1,320.
Appellant appeals on one point of error: "The trial court committed reversible error by refusing to grant Appellant's motion for mistrial when the State elicited a statement from its rebuttal witness, Diana Tillery, which constituted inadmissible prejudicial hearsay."
Appellant testified he and Maynard spoke to Tillery about purchasing a car from her that she had for sale for $350. He testified he had his part of the money but Maynard needed money.
The State called Tillery as a rebuttal witness. She testified that Appellant and Maynard came to see her about purchasing the car she had for sale; that they told her they did not have the money, but were fixing to come into some money.
Defense counsel objected; the trial judge sustained the objection and instructed the jury to disregard the answer. Defense counsel them made a motion for a mistrial which the trial judge denied.
Appellant contends the State elicited inadmissible hearsay from Tillery which implied that he and Maynard were planning the robbery to obtain money to buy the car.
Thereafter, Tillery testified, without objection, that Appellant stated to her, "Don't sell the car, we will be back tomorrow with the money" and "that he didn't have the money then, but that he would get the money."
A defendant may not complain about evidence on appeal when the same evidence is admitted elsewhere without objection. Rogers v. State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993).
Moreover, Tillery's testimony was not hearsay. "Hearsay" is an out-of-court statement offered for the truth of the matter asserted. Tex. R. Crim. Evid. 801(e)(2)(A). Here, testimony about Appellant's own statement did not constitute hearsay.
Further, the trial judge instructed the jury to disregard. Generally, harm from improper testimony is cured by an instruction to disregard, except in extreme cases where the evidence is clearly calculated to inflame the minds of the jury. Coe v. State, 683 S.W.2d 431, 436 (Tex. Crim. App. 1984).
Here also, Appellant pled guilty to the aggravated robbery of Bierman and his confession detailed his role, including that he had placed the pillow over the elderly widow's face and hit her in the head about seven times.
Finally, in light of the entire record, the issue of whether Appellant had enough money to purchase Tillery's car and whether he told her that he and Maynard were coming into some money was a relatively minor point in the jury's assessment of punishment. Given everything before the jury, the testimony likely made no contribution to the jury's imposition of the 13-year sentence in the this case. Tex. R. App. P. 44.2(b).
For all of the above reasons, Appellant's point of error is overruled.
The judgment is affirmed.
FRANK G. McDONALD
Chief Justice (Retired)
Before Chief Justice Davis,
Justice Cummings, and
Chief Justice McDonald (Retired)
Affirmed
Opinion delivered and filed May 6, 1998
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