TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-00-00677-CR

NO. 03-00-00759-CR

NO. 03-00-00760-CR

Bobby Joe Harper, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT

NOS. CR-99-0005, CR-99-0003 & CR-99-0004

HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING

In appellate cause number 03-00-00677-CR, appellant Bobby Joe Harper is appealing

from a judgment in a cause in which a jury found him guilty of capital murder. See Tex. Pen. Code

Ann. § 19.03(a)(2) (West 1994). Because the State did not seek the death penalty, the trial court

sentenced appellant to life imprisonment. See Tex. Code Crim. Proc. Ann. art. 37.071, § 1 (West

Supp. 2001). In appellate cause numbers 03-00-00759-CR and 03-00-00760-CR, appellant appeals

from judgments in which he was convicted of aggravated robbery. See Tex. Pen. Code Ann.

§ 29.03(a)(2) (West 1994). Before his trial for capital murder, appellant waived jury trials and

entered pleas of not guilty before the court to the charges of aggravated robbery. The trial court

found appellant guilty in each case and assessed appellant’s punishment at life imprisonment. Because

appellant’s points of error and briefs are virtually the same in all three appeals, they will be considered
2

together. Appellant complains of the admission in evidence of his videotaped confession, of the

admission of extraneous offenses, and of the admission of hearsay evidence. We will affirm the

judgments.

Facts

In early October 1998, San Marcos City police officers were investigating three

aggravated robberies as well as a capital murder committed in the course of an aggravated robbery.

The general description and the modus operandi of the masked robber was in each of these crimes

very similar. In the armed robbery of a clerk at a Sac-N-Pak store, a security surveillance videotape

was obtained. This videotape was shown to appellant’s father, mother, and cousin, all of whom, after

becoming visibly distressed, identified appellant as the person shown committing the robbery.

Although appellant was wearing a mask, they recognized his voice and the manner in which he

moved. Thereafter, the officers obtained a warrant to arrest appellant for that offense. The officers

found appellant and, after a four-hour standoff, he was arrested and advised of his lawful rights.

Detectives Scott Johnson and Steve Peyton took appellant to a room to conduct a

videotaped interview. When they started to interview appellant, the detectives again, for the second

time, advised appellant of his rights. See Tex. Code Crim. Proc. Ann. art. 38.22, § 2 (West 1979);

Miranda v. Arizona, 384 U.S. 436 (1966). Appellant confessed to committing the armed robbery

at the Sac-N-Pak store on October 1, 1998 and to an armed robbery at a Conoco store two hours

before the robbery at the Sac-N-Pak store. Appellant also confessed that on October 8, 1998, he

committed a robbery at another Conoco store and that he shot the clerk who appeared to be reaching
3

for something. The clerk died as a result of that gunshot wound. Over objection, appellant’s

videotaped confession was admitted in evidence.

Request for Lawyer

In his first five points of error, appellant insists that his constitutional and statutory

rights were violated because his confession was obtained after his request for an attorney was

disregarded. See U.S. Const. amend. V, VI, and XIV; Tex. Const. art. 1, § 10; Tex. Code Crim.

Proc. Ann. arts. 1.05 (West 1977), 38.22, § 2 (West 1979).

After appellant was advised of his rights, the detectives started to interview appellant;

he soon admitted the aggravated robbery at the Sac-N-Pak store. As the detectives continued the

interview, the following colloquy occurred:

DETECTIVE PEYTON: It’s not? Where is it?

MR. HARPER: It’s a toy gun. I gave it to my little brother.

DETECTIVE PEYTON: Okay. Well, that’s nice of you. Okay.

MR. HARPER: I don’t even want to talk unless I have me a lawyer

and go through this shit. I don’t have to go through

this shit, right?

DETECTIVE PEYTON: Well, the first thing that’s going to happen is, you

know, you’re going to get your fingers stitched up.

MR. HARPER: No. I don’t want them stitched up.

Detective PEYTON: Well, that’s between you and the medics, okay? All

right. The next thing that’s going to happen is you’re

going to get woke up after while and you’re going to

go before the judge and the judge is going to see that

you have warrants out for you for a long time, a year.

The evading warrant was a year ago--a year and one
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month ago that they issued that evading warrant for

you, and the engaging in organized criminal activity

was longer than that. And the judge is going to see

that you’ve been on the run for a year, and then he’s

going to see that the judge issued--another judge

issued a warrant for your arrest for aggravated

robbery, a first degree felony that could put you in the

penitentiary for the rest of your life.

What’s really–what’s really interesting is that you have

a chance to get this off your chest, and I know it’s

eating you up. I know what happened last night is

eating you up.

MR. HARPER: I don’t know what you’re talking about.

DETECTIVE PEYTON: When things go wrong.

DETECTIVE JOHNSON: Bobby Joe, you made mention of an attorney.

MR. HARPER: Huh?

DETECTIVE JOHNSON: You made mention of an attorney.

MR. HARPER: Yeah.

DETECTIVE JOHNSON: We’ve got a good system here and I believe in it and

we told you you had the right to request an attorney

before and during any questioning. Are you telling us

you want to terminate this interview and speak to an

attorney or do you want us to continue to discuss this

matter?

MR. HARPER: Now?

DETECTIVE JOHNSON: Yes.

MR. HARPER: It’s fine.

DETECTIVE JOHNSON: What’s fine?

MR. HARPER: We can discuss this.
5

DETECTIVE JOHNSON: All right.

After this colloquy, appellant confessed to the murder and the other robbery. Appellant argues

strenuously that he asked for counsel and that the officers should have ceased to question him after

he said, “I don’t even want to talk unless I have me a lawyer and go through this shit. I don’t have

to go through this shit, right?” The State disagrees. We must decide whether appellant actually

invoked his right to counsel before continuing with the interview.

The Sixth Amendment right to counsel attaches only at the initiation of adversary

criminal proceedings; before proceedings are initiated, a suspect in a criminal investigation has no

constitutional right to assistance of counsel. Davis v. United States, 512 U.S. 452, 456-57 (1994)

(citing United States v. Gouveia, 467 U.S. 180, 188 (1984)). Nevertheless, the Supreme Court held

in Miranda, 384 U.S. at 469-73 that a suspect subject to custodial interrogation has the right to

consult with an attorney and to have counsel present during questioning, and that the police must

explain this right to him before questioning begins. The right to counsel established in Miranda was

one of a series of safeguards mandated that were not in themselves rights protected by the

constitution but were instead measures to insure that the Fifth Amendment right against compulsory

self-incrimination was protected. Davis, 512 U.S. at 457; Michigan v. Tucker, 417 U.S. 433, 443-44

(1974). Law enforcement officers must immediately cease questioning a suspect who clearly asserts

his right to have counsel present during custodial interrogation. Edwards v. Arizona, 451 U.S. 477

(1981).

In Davis, the Supreme Court determined that Davis, who during custodial

interrogation told officers, “Maybe I should talk to a lawyer” did not invoke his right to a lawyer.
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Davis, 512 U.S. at 455. Because a thorough discussion of the law applicable to this case is found in

Davis, we quote a lengthy portion of that opinion:

. . . Invocation of the Miranda right to counsel “requires, at a minimum, some

statement that can reasonably be construed to be an expression of a desire for the assistance

of an attorney.” McNeil v Wisconsin, 501 US, at 178, 115 L Ed 2d 158, 111 S Ct 2204. But

if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a

reasonable officer in light of the circumstances would have understood only that the suspect

might be invoking the right to counsel, our precedents do not require the cessation of

questioning. See ibid. (“[T]he likelihood that a suspect would wish counsel to be present

is not the test for applicability of Edwards”); Edwards v Arizona, supra, at 485, 68 L Ed 2d

378, 101 S Ct 1880 (impermissible for authorities “to reinterrogate an accused in custody if

he has clearly asserted his right to counsel”) (emphasis added).

Rather, the suspect must unambiguously request counsel. As we have observed, “a

statement either is such an assertion of the right to counsel or it is not.” Smith v Illinois, 469

US, at 97-98, 83 L Ed 2d 488, 105 S Ct 490 (brackets and internal quotation marks omitted).

Although a suspect need not “speak with the discrimination of an Oxford don,” post, at 476,

129 L Ed 2d , at 382 (Souter, J., concurring in judgment), he must articulate his desire to

have counsel present sufficiently clearly that a reasonable police officer in the circumstances

would understand the statement to be a request for an attorney. If the statement fails to meet

the requisite level of clarity, Edwards does not require that the officers stop questioning the

suspect. See Moran v Burbine, 475 US 412, 433, n 4, 89 L Ed 2d 410, 106 S Ct 1135

(1986) (“[T]he interrogation must cease until an attorney is present only [i]f the individual

states that he wants an attorney”) (citations and internal quotation marks omitted).

We decline petitioner’s invitation to extend Edwards and require law enforcement

officers to cease questioning immediately upon the making of an ambiguous or equivocal

reference to an attorney. See Arizona v Roberson, supra, at 688, 100 L Ed 2d 704, 108 S Ct

2093 (Kennedy, J., dissenting) (“[T]he rule of Edwards is our rule, not a constitutional

command; and it is our obligation to justify its expansion”). The rationale underlying

Edwards is that the police must respect a suspect’s wishes regarding his right to have an

attorney present during custodial interrogation. But when the officers conducting the

questioning reasonably do not know whether or not the suspect wants a lawyer, a rule

requiring the immediate cessation of questioning “would transform the Miranda safeguards

into wholly irrational obstacles to legitimate police investigative activity,” Michigan v.

Mosley, 423 US 96, 102, 46 L Ed 2d 313, 96 S Ct 321 (1975), because it would needlessly

prevent the police from questioning a suspect in the absence of counsel even if the suspect did

not wish to have a lawyer present. Nothing in Edwards requires the provision of counsel to

a suspect who consents to answer questions without the assistance of a lawyer. In Miranda
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itself, we expressly rejected the suggestion “that each police station must have a ‘station

house lawyer’ present at all times to advise prisoners,” 384 US, at 474, 16 L Ed 2d 694, 86

S Ct 1602, and held instead that a suspect must be told of his right to have an attorney present

and that he may not be questioned after invoking his right to counsel. We also noted that if

a suspect is “indecisive in his request for counsel,” the officers need not always cease

questioning. See id., at 485, 16 L Ed 2d 694, 86 S Ct 1602.

We recognize that requiring a clear assertion of the right to counsel might

disadvantage some suspects who—because of fear, intimidation, lack of linguistic skills, or

a variety of other reasons—will not clearly articulate their right to counsel although they

actually want to have a lawyer present. But the primary protection afforded suspects subject

to custodial interrogation is the Miranda warnings themselves. “[F]ull comprehension of the

rights to remain silent and request an attorney [is] sufficient to dispel whatever coercion is

inherent in the interrogation process.” Moran v Burbine, supra, at 427, 89 L Ed 2d 410, 106

S Ct 1135. A suspect who knowingly and voluntarily waives his right to counsel after having

that right explained to him has indicated his willingness to deal with the police unassisted.

Although Edwards provides an additional protection—if a suspect subsequently requests an

attorney, questioning must cease—it is one that must be affirmatively invoked by the suspect.

In considering how a suspect must invoke the right to counsel, we must consider the

other side of the Miranda equation: the need for effective law enforcement. Although the

courts ensure compliance with the Miranda requirements through the exclusionary rule, it is

police officers who must actually decide whether or not they can question a suspect. The

Edwards rule—questioning must cease if the suspect asks for a lawyer—provides a bright line

that can be applied by officers in the real world of investigation and interrogation without

unduly hampering the gathering of information. But if we were to require questioning to

cease if a suspect makes a statement that might be a request for an attorney, this clarity and

ease of application would be lost. Police officers would be forced to make difficult judgment

calls about whether the suspect in fact wants a lawyer even though he has not said so, with

the threat of suppression if they guess wrong. We therefore hold that, after a knowing and

voluntary waiver of the Miranda rights, law enforcement officers may continue questioning

until and unless the suspect clearly requests an attorney.

Of course, when a suspect makes an ambiguous or equivocal statement it will often

be good police practice for the interviewing officers to clarify whether or not he actually

wants an attorney. That was the procedure followed by the NIS agents in this case.

Clarifying questions help protect the rights of the suspect by ensuring that he gets an attorney

if he wants one, and will minimize the chance of a confession being suppressed due to

subsequent judicial second-guessing as to the meaning of the suspect’s statement regarding

counsel. But we decline to adopt a rule requiring officers to ask clarifying questions. If the

suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers

have no obligation to stop questioning him.
8

Davis, 512 U.S. at 459-61, 129 Ed. 2d at 371-73.

The Texas cases decided both before and after Davis are in accord with Davis. See

in particular Dinkins v. State, 894 S.W.2d 330, 350-51 (Tex. Crim. App. 1995); also Dowthitt v.

State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996); Muniz v. State, 851 S.W.2d 238, 251-53 (Tex.

Crim. App. 1993); Robinson v. State, 851 S.W.2d 216, 232-34 (Tex. Crim. App. 1991).

After twice being advised of his right to counsel, appellant confessed to the robbery

at the Sac-N-Pak store. Then, appellant said: “I don’t even want to talk unless I have me a lawyer

and go through this shit. I don’t have to go through this shit, right?” On the hearing of appellant’s

motion to suppress the confession and at trial, the officers testified that they did not hear and did not

understand appellant’s statement to be a request that he be furnished a lawyer before continuing the

interview. In the context of the colloquy, it appears the officers reasonably construed appellant’s

statement to be a request for an explanation of the procedure to follow—“I don’t have to go through

this shit, right?” Immediately after appellant said this, the officers proceeded to answer his question

about what he was going to go through. They explained he was going to be taken before a judge who

would consider the outstanding warrants against him, and the officers told appellant that he could be

imprisoned for life for the aggravated robbery to which he had confessed. In the ensuing exchange,

appellant was asked to clarify what he wanted to do. Did he want to terminate the interview and

speak to an attorney or did he want “to continue to discuss the matter.” Appellant clearly expressed

his desire to continue the interview.

Following the pretrial hearing of appellant’s motion to suppress his confession, the

trial court filed complete written findings of fact and conclusions of law that include the following

findings:
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(3) THE COURT FINDS that the Defendant, Bobby Joe Harper, was Mirandized

and advised of his legal and constitutional rights a second time after he had been

“booked into the jail” and immediately prior to commencement of the interview;

(4) THE COURT FINDS that after having been Mirandized on 2 separate

occasions, that the Defendant, Bobby Joe Harper, did understand his legal and

constitutional rights and furthermore, the Defendant, Bobby Joe Harper,

indicated and acknowledged his understanding of his legal rights to the

investigating officers;

(5) THE COURT FINDS that with full understanding of his legal and constitutional

rights, that the Defendant knowingly, intelligently and voluntarily waived his

legal rights and agreed to proceed with the interview. The Court makes this

finding after a review of “the totality of the circumstances” which includes a

review of the actions and the conduct of the Defendant as well as taking into

consideration the background and experience of the Defendant. The Court

specifically cites to the Defendant’s “extensive history with the criminal justice

system” wherein:

 the evidence establishes that the Defendant has been “educated” about his

legal rights as a result of having been repeatedly Mirandized as a

consequence of repeated arrests; and 

 the evidence establishes that the Defendant has been “educated” about his

legal rights as a result of “exercising” those legal rights in connection with

formal juvenile criminal proceedings wherein he has obtained the legal

services of an attorney;

(6) THE COURT FINDS that during the course of the interview, the Defendant,

Bobby Joe Harper, did raise the subject matter of “a lawyer.” However, the

Court further finds that after “raising the subject matter of a lawyer,” the

Defendant specifically re-initiated contact and communication with the

investigators by directing an inquiry to them relevant to “what was going to

happen to him” and “to what extent he would have to participate.”

(7) THE COURT FINDS after explaining to the Defendant the sequence of events

that were going to immediately transpire, that Det. Scott Johnson “scrupulously

honored” the defendant’s legal rights by seeking to “clarify” the Defendant’s

intentions when he specifically asked the Defendant “. . . whether or not he

wanted to terminate the interview and to obtain the assistance of an attorney”

or “. . . whether or not he wanted to continue the interview.”
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(8) THE COURT FINDS that the Defendant knowingly, intelligently and

voluntarily waived his legal and constitutional rights to assistance of counsel and

to terminate the interview when in response to Det. Scott Johnson’s inquiry, the

Defendant answered that he was “willing to continue to discuss the cases.”

Moreover, before the jury, appellant raised the issue of whether he requested counsel

during the videotaped interview. Therefore, the trial court carefully instructed the jury on the law

applicable to that issue and then the court charged:

Now, therefore, if you find from the evidence, or if you have a reasonable

doubt thereof, that at the time of the making of the statement, if any, to Steve Peyton,

the Defendant legally invoked his right to counsel by communicating to the police a

desire to speak to an attorney or have an attorney present during an interview, then

you will completely disregard such statement as evidence for any purpose nor will you

consider any evidence obtained as a result thereof unless you find beyond a reasonable

doubt that the Defendant initiated further discussion after indicating his desire to

speak to an attorney.

Because it was necessary for the jury to give credit to appellant’s confession to rationally find that

he committed the murder, implicit in the jury’s verdict is a finding that appellant did not clearly and

unambiguously voice his right to counsel during the interview.

The evidence supports the trial court’s findings and the implied finding of the jury that

appellant did not unambiguously and unequivocally request counsel before continuing with the

videotaped confession. We have viewed the videotape and considered all of the evidence to make

our independent judgment. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We

conclude that appellant’s request for counsel was ambiguous and equivocal and that appellant did not

exercise his right to counsel during the course of his videotaped interview, in which he confessed to

capital murder. Appellant’s first five points of error are overruled.

Confession Voluntary
11

In points of error six through ten, appellant urges that his videotaped confession was

erroneously admitted in evidence because it was not a voluntary confession. Appellant contends that

his federal and state constitutional rights and his statutory rights were violated. See U.S. Const.

amend. V, VI, and XIV; Tex. Const. art. 1, § 10; Tex. Code Crim. Proc. Ann. arts. 1.05 (West 1977),

38.22, § 2 (West 1979).

After hearing appellant’s motion to suppress the confession, the trial judge made these

additional written findings of fact:

 (9) THE COURT FINDS that the Defendant was not threatened or otherwise

coerced into making his statement;

(10) THE COURT FINDS that there were no promises made or other improper

inducements communicated to the Defendant in exchange for or otherwise made

to the Defendant in order to obtain his statement;

(11) THE COURT FINDS that the videotaped statement obtained from the

Defendant on 10 October 1998, wherein he admits his involvement in two (2)

Aggravated Robberies as well as committing the Capital Murder during the

course of a third Aggravated Robbery were knowingly, intelligently and

voluntarily made by the Defendant and are admissible into evidence because

they are fully in compliance with the requirements of Article 38.22, Texas Code

of Criminal Procedure.

Appellant also raised the issue of the voluntariness of his confession before the jury,

and the trial court carefully instructed the jury on the law applicable to that issue; then the court

charged:

Now therefore, if you find from the evidence, or if you have a reasonable

doubt thereof, that at the time of the making of the statement, if any, that the said

Defendant was induced by unlawful compulsion or persuasion to make said statement,

if any, then you will completely disregard such statement as evidence for any purpose,

nor will you consider any evidence obtained therefrom as a result thereof.
12

Because it was necessary for the jury to give credit to the appellant’s confession to rationally find that

appellant committed the charged offense of capital murder, implicit in the jury’s verdict is a finding

that appellant was not induced by unlawful compulsion or persuasion to make the confession.

On appeal, appellant argues that his confession was involuntary because “it was the

result of coercion and improper promises.” Appellant bases his claim of coercion on the following

evidence. Soon after appellant stated it would be “fine” to continue his interview, Detective Johnson

raised his voice and said: “Bobby Joe I’ve been awake for a long time . . . . I’m getting real tired and

I’m getting real shaky and I’m getting real pissed off for you to sit there all cocky and lie to us like

that.” Detective Johnson then angrily left the room. Detective Peyton continued to interview

appellant but was soon called out of the room leaving appellant alone. When Detective Peyton

returned, he told appellant that Detective Johnson was quite upset. Appellant agreed that Johnson

had upset him and that they did not have a good relationship. On the other hand, appellant agreed

that he and Peyton had a good relationship. Peyton told appellant that, if they could continue to talk,

Johnson would not come back into the room; appellant agreed. Appellant says that Peyton’s

statements combined with Johnson’s previous statements were coercive and therefore rendered his

confession involuntary. The tactics used by the detectives cannot be characterized as abusive and

coercive. These tactics are well within the bounds of propriety for officers taking a confession. See

Lane v. State, 933 S.W.2d 504, 513 (Tex. Crim. App. 1996); Garcia v. State, 919 S.W.2d 370, 388

(Tex. Crim. App. 1996).

In addition, appellant contends that Detective Peyton made improper promises to him.

The basis for this claim is that Detective Peyton told him, “Let me tell you something about the real

world. If you are a crook and you try to lie your way out of everything, then district attorneys and
13

juries will put you away for the rest of your life. But if you’re a stand-up guy [and tell the truth] and

you want to take care of your business, then juries respect that.” In response to Peyton’s questions,

appellant said several times that he was a “stand-up guy.” For a promise to render a confession

involuntary, it must be (1) positive, (2) made or sanctioned by someone in authority, and (3) of such

an influential nature that it would cause an accused to speak untruthfully. See Henderson v. State,

962 S.W.2d 544, 564 (Tex. Crim. App. 1997); Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim.

App. 1993). We do not construe Peyton’s common-sense statement of the benefit of being a “standup guy” to be a positive promise of such an influential nature that it would cause appellant to speak

untruthfully.

Appellant also complains that Peyton coerced him to make the confession by touching

and hugging him and praying with him, asking God to forgive and help him. Although Peyton gently

touched appellant when he was confessing, it was not until after appellant confessed to the murder

that Peyton placed his arm around appellant’s shoulders and prayed for appellant and the family of

the victim whom appellant had killed. Peyton’s prayer and his concern shown for appellant and the

victim’s family after appellant had confessed did not induce the confession.

The evidence supports the trial court’s findings and the jury’s implied finding that

appellant’s confession was voluntary. We have viewed the videotape and considered all of the

evidence. In compliance with Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997), we have

independently determined that appellant’s confession was voluntary. Appellant’s points of error six

through ten are overruled.

Extraneous Offenses
14

In his eleventh point of error, appellant complains that the trial court “erred in allowing

extraneous offense evidence of various robberies allegedly committed by appellant.” Through the

testimony of Detective Johnson, the State offered evidence that within the two-week period before

the commission of the capital murder offense, appellant committed three very similar aggravated

robberies at convenience stores. Appellant argues that: “The only conceivable purpose of the

extraneous offense evidence was to show that appellant was a criminal in general, to prove appellant’s

character, and to show that he acted in conformity therewith.” Appellant insists that the admission

of this evidence violated Rule 404(b). See Tex. R. Evid. 404(b). In addition, appellant contends that,

even if relevant, evidence of the extraneous offenses should have been excluded because the probative

value of this evidence was substantially outweighed by the danger of its unfair prejudice. See Tex.

R. Evid. 403.

Evidence of the extraneous offenses was admitted by the trial court after the State

argued: 

[I]t is highly probative on the issue of identity, it is highly probative on the issue of

common course, scheme, and design . . . particularly where, in this case, we have no

eyewitness who can identify him, we have a perpetrator who is concealing his identity

through the use of a mask, we have no physical evidence, no finger prints . . . . And

all we have is a confession which he [appellant] is trying to tell this jury is legally

inadmissible, they should not consider [it] . . . . [A]t a prior hearing he has recanted

and challenged the truthfulness and accuracy of that confession.”

The trial court overruled appellant’s objection to the testimony of Detective Johnson, and also found

that the probative value of the evidence was not substantially outweighed by the danger of unfair

prejudice.
15

We conclude the trial court’s rulings were within the “zone of reasonable

disagreement” and must, therefore, be upheld. See Montgomery v. State, 810 S.W.2d 372, 387 (Tex.

Crim. App. 1990). Further analysis of the issues that appellant attempts to present is unnecessary

because the same evidence of which he complains was otherwise admitted in evidence without

objection. The videotaped confession and the written transcription of the audio portion of that tape

were admitted in evidence as separate exhibits. Although appellant had been granted a running

objection to the admission of these exhibits on grounds that the confession was involuntary and made

after appellant requested a lawyer, appellant has not designated where in the record he made an

objection to these exhibits on grounds that they included evidence of the extraneous offenses; we

have been unable to find such an objection. “Our rule, therefore, is that overruling an objection to

evidence will not result in reversal when other such evidence was received without objection, either

before or after the complained of ruling.” Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App.

1998). Appellant’s point of error eleven is overruled. 

In points of error twelve through fourteen, appellant complains that the trial court

“erred when it overruled appellant’s objection to Officer Johnson testifying about various alleged

extraneous offenses.” Appellant’s complaint here is based on Detective Johnson’s testimony

concerning the three extraneous aggravated robbery cases. Appellant repeatedly objected to this

testimony on the ground that it was hearsay. Appellant argues that the State makes the untenable

contention that this hearsay evidence was admissible as an exception to the hearsay rule, because it

was not offered to prove the truth of the matter. While we agree that the State’s unorthodox manner

of proving the extraneous offenses through the hearsay testimony of Detective Johnson, rather than

through the testimony of the victims of those offenses, may constitute error, it is not reversible error.
16

Here again, the same evidence was contained in the videotaped confession and in the written

transcription of the audio portion of the tape that were admitted in evidence without an extraneous

offense objection. No error is shown. See Leday, 983 S.W.2d at 718; Webber v. State, 21 S.W.3d

726, 730 (Tex. App.—Austin 2000, pet. ref’d). Points of error twelve through fourteen are

overruled. 

The judgments are affirmed.

 

Carl E. F. Dally, Justice

Before Justices Kidd, Puryear and Dally*

Affirmed on All Causes

Filed: November 8, 2001

Do Not Publish

* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See

Tex. Gov’t Code Ann. § 74.003(b) (West 1998).