### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00684- CR

Jeff rey Walker Kindred, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 27TH JUDICI AL DISTRICT NO. 697 87, H ONO RAB LE MARTH A J. TRUDO , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted appellant J eff rey Walker Kindred of th e o ff en s e of ag g rava ted assault of a peac e office r with a deadly wea pon. Punishm ent was assessed at forty y ear s’ imprisonment. I n two rela ted issues o n ap p eal, Kindred asser ts that the district court abused its discretion in admitting t es t i m o ny by a police office r that Kindred contends was (1) hear say and (2) not re levant. We will affir m the judgme nt of conviction.

BACK GR OUND The jury hear d evidenc e that on the afte rnoon of April 15, 2012, Offic er Der ek Rose of the T em p l e Police Depa rtment responde d to a dispatch repor ting that a possible suspect in a robber y from sever al wee ks ear lier had been identified buy ing g as at a convenie nce store. Acc ording to Rose, the store cler

k who had identified the suspect repor ted the suspect’s vehicle and licenseplate number to the police. Rose then enter ed the vehicle information into the police databa se and

asce rtained the location of the apar tment c omplex wher e the suspec t likely resided. Rose testifiedthat he trave led to tha t location and, once there , identified the suspect vehicle exit ing the complex.

Rose beg an following the vehicle and eventua lly conducte d a traff ic stop. After stopping the vehicle, which contained both a driver and passeng er, Rose beg an conver sing with the driver, who was later identified as Kindr ed.

Shortly there afte r, Offic er J ames Carr arr ived at th e s cene to assist Rose. Carr testified that Rose aske d him to int ervie w Kindre d outside the vehicle while Rose interview ed the passeng er. Carr explained that he escor ted Kindred to a near

by location and beg an interviewing him. At some point during the conver sation, Carr decide d to place Kindred in hand cuff s. Howeve r, befor e Carr was able to do so, Kindred fled. Acc ording to Carr, Kindred jumped over a rail on the side of the road, rolled down a near by hill, and continued running

. Carr chase d afte r Kindred on foot, and eventua lly caug ht up with him. Carr testified t h at when he made phy sical contac t with Kindred, Kindred turned around and “thre w a punch” at him, “rig ht in [C arr ’s] fac e.” Carr punched Kindred in return, in an attempt to g ain control of him. The tactic did not work. I nstead, Carr explained, Kindred “dove for [C arr ’s] g un” and the t wo men beg an wr estling for control of t he firear m, with Kindred eventua lly obtaining control of the wea pon and pointing it at Carr’ s head, “re ady to shoot.” As Carr strug g led to reg ain control of the wea pon, Kindred pulled the trig g er. Carr testified that the bullet did not hit him, but the shell casing did. As the strug g le continued, Kindred repe atedly pulled the trig g er in a

n attempt to shoot Carr. He was unable to do so, acc ording to the ballistic e vidence p re s en t ed at t rial, beca

use the g un had jammed afte r the first shot was fired. Carr testified that he soon beca

me exhausted and was quickly losing his ability to fig ht Kindred. Fo rt u n ately , Carr explained, Rose and other office rs arrived at around tha t time and assisted Carr in g aining control of Kindre d and plac ing him under arr est.

2Ba sed on the abo v e an d o t h er evidenc e, the jury convicted Kindred of the offe nse

of ag g rava ted assau l t o n a p u b lic serva nt with a deadly wea

pon and assessed punishment as noted above. The district court sentenc ed Kindred in accor d an ce wi t h the jury ’s verdic t. This appea l followed.

STANDARD OF REVIEW

We revie w a t ri al co urt’s decision to admit or exclude evidenc e for an abuse of discretion. The test for abuse of discretion is whether the trial court acte d arbitra rily or 1

unrea sonably , without ref ere nce to any g uiding rules or principles. A trial court abuses its discretion 2 only when its decision “is so clea rly wrong as to lie outside that zone within which rea sonable persons mig ht disag ree .” Moreove r, we must sust ain a trial court’s ruling admitting or excluding 3 evidenc e on any

theory of law a pplicable to the c ase. 4

ANALYSIS During Offic er Rose’ s testimony , the following exchang e occ urre d: Q. And so at some point, did y ou g et a dispatch about a

particula r vehic le? A. Yes, sir, I did. Q. And what wa s that?

Ramos v. State , 245 S.W .3d 410, 417-18 (Te x . Crim. App. 2008). 1 Montgomery

v. State , 810 S.W .2d 372, 380 (Tex. Crim. App. 1990). 2 McD onald v. State , 179 S.W .3d 571, 576 (Tex. Crim. App. 2005). 3 See R omero v . State , 800 S.W .2d 539, 543-44 (Te x . Crim. App. 1990). 4

3A. I t was a call to a li ttle convenie n ce s t o re at M L K and Booth that there was a

black male pumping g as— [Defense counsel]: Your Honor , this is going to be a he arsa y statement. [P rosec utor]: Your Honor, we’ re not offe ring this for the truth of the matter

asser ted, but mere ly to understand why off—L ieutenant Rose made the stop in the first place

. I t g oes to the probable cause of the stop. [The Court] : Over ruled.

. . . . Q. What was that [dis patch]? A. I t wa s a call that there was a black male pumping g as. And

the cler k rec og nized him, and it was ca l led in that he had committed a robbe ry

there sever al wee ks ear lier. Q. Okay

. And other than that, did y ou h av e an y i n formation

about the ca ll? A. Yes, sir. I t was a

— t h ey p u t i t out that it was a g old car . . . .

And they said it was a Nis s an Al t i m a. And when I g ot the return that say s it was—it lived at the apar tments just up from there off of

ML K.

No further objections to the testimony wer e raised. I n his first issue on appea l, Kindred asser ts that the above testimony was inadmissible hear say . I n his second issue on appea l, Kindred additionally 5

asser ts that the testimony

was not re levant to any

issue in the case

. We first addre ss Kindred’ s contention that the testimony was inadmissible hear say . Hea rsay is a statement, other than one made by the decla rant while testify ing at the trial or hear ing,

Specifica lly , Kindred contends that the testimony was “double hear say ,” or hear say within 5 hear say , beca

use the office r was rec ounting statements by the dispatcher reg arding statements by the store cle rk. See Tex. R. Evi d. 805. 4offe red in evidenc e t o prove the truth of the matter asser ted. “I t is well established that an 6 extra-judicial statement or writing offe red for the purpose of showing what was said rathe r t han for the truth of the matter stated there in does not constitute hear say .” Her e, it would not be outside 7 the zone of rea sonable disag ree ment for the d i s t ri ct court to find that the statements made by the cler k to the dispatcher and, su b s equently , by the dispatcher to the office r, wer e not offe red to prove the truth of the matter asser ted, i.e., that Kindred had committed a robber y at the store sever al

wee ks ear lier. I nstead, the district court could have rea sonably found that the statements wer e being offe red to provide the jury with rele vant backg round information con ce rn ing the incident and the circ umstances surr ounding the assault, i ncluding why Offic er Rose had stopped Kindre d and why Offic er Carr had arr ived on the sce ne to assist Rose. On this recor d, we c annot conc lude t hat t he 8 district court abuse d its discretion in overruling Kindred’ s hear say objection to the evidenc e. Kindred nex t contends that the t estimony was not rele vant t o any issue in the case. Specifica lly , Kindred assert s t hat the prosec utor’s profe rre d rea son for eliciting the testimony , to establish “proba

ble cause [for] the [t raf

fic] stop,” was never an issue in the case or contested by the defe nse, and thus the testimony was not rele vant for that rea son. Howeve r, as the State observe s, 9

Tex. R. Evi d. 801(d). 6 Porter v. State , 623 S.W .2d 374, 385 (Tex. Crim. App. 1981). 7 See id

. at 385 (communica tion between office rs and dispatch not hear say when offe red 8 to show “the circ umstances surroundi n g an d leading to” the char g ed offe nse and to show that office r was “ac ting in the lawful discharg e of an officia l duty ” duri n g i ncident); see also Dinkins v. State , 894 S.W .2d 330, 347 (Tex. Crim. App. 1995) (explaining that State may offe r out-of-c ourt statements without violating hear say rule if statements are offe red to explain why defe ndant beca me subject of investig ation). See Christ opher v. State , 833 S.W .2d 526, 529 (Tex. Crim. App. 1992) (holding that even 9 though cer

tain evidenc e “wa s rele vant to the deter mination of probable cause to stop appellant, that issue was not contested befor e the jury ,” and there fore , the evidenc e was not “admissible at trial on g rounds of re levanc y

to any issue of proba

ble ca use”)

. 5Kindred did not object to the testimony at trial on this g round. His objection was limit ed to hear say .

Acc ording ly , this c omplaint is being ra ised for the first time on appea l a nd has not be en prese rved for our revie w. 1 0 Moreove r, even if we wer e t o assume that err or was prese rved on the basis of rele vance and further assume that the testimony should not have been admitted either for that rea son

or beca use it was inadmissible hear say , we could not concl u d e o n this rec ord that Kindred was harme d by its admission. A violation of the evidentiar y rules that results in the err oneous admission of evidenc e is non-constitutional err or. Non-c onstitut ional err or that does not aff ect a defe ndant’s 1 1 substantial righ ts must be disreg arde d. Substantial rig hts are not aff ecte d by the err oneous 1 2 admission of evidenc e if the appellate court, afte r examining the rec ord as a whole, has fair assura nce that the err or did not influence the jury or had but a slight eff ect. “I n assessing the likelihood that 1 3 the jury ’s decision was adver sely aff ecte d by the err or, the appellate court sho uld consider ever y thing in the rec o rd , i n cl u d i ng any testimony or phy sical evidenc e admitted for the jury ’s consideration, the nature of the evidenc e supporting the verdic t, the char acte r of the alleg ed err or and how it might be considere d in connec tion with other evidenc e in the case .” We may also consider t h e jury 1 4

See Tex. R. App. P. 33.1(a) ; W ilson v. State , 71 S.W .3d 346, 349 (Tex. Crim. App. 2002) 1 0 (“[T]he point of err or on appea l 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 differ s from the complaint made on a

ppeal, a defe ndant has not pre serve d any err or for revie w.”)

. See King v. State , 953 S.W .2d 266, 271 (Tex. Crim. App. 1997). 1 1 Tex. R. App. P . 44.2(b). 1 2 Motilla v. State , 78 S.W .3d 352, 355 (Tex. Crim. App. 2002). 1 3 Id . at 355-56. 1 4 6instructions, the State’s theory an d a n y d efe nsive theories, closing arg uments, voir dire, if applicable , whether the S tate emphasiz ed the err or, and whether there is “o v er whelmi ng evidenc e of g uilt.” 1 5

Her e, Kindred’ s iden t i t y as a possible robber y suspect was not emphasized by the S tate, either during its case -in-chie f or in its closing arg u m en t s . I nstead, the State’s emphasis throug hout trial was on the char g ed offe nse. The vast majority of evidenc e prese nted at trial rela ted to the assault itself, including extensive te stimony from Offic er Carr explaining the circ umstances surrounding his strug g le with Kindred for co n t ro l of Carr’ s firea rm and descr ibing in detail Kindred’ s repe ated attempts to shoot Carr once he had g ained control of the wea pon, and ballistics evidenc e that tended to corr oborate Carr’ s acc ount of the assault. On this rec ord, we have fair

assura nce that the challeng ed testimony , brief and limit ed as it was, did not influence the jury or had but a slight e ffe ct.

We overrule Kindred’ s first and sec ond issues.

CONCLUSION We affir m the judgme nt of the district court.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Field Affir med Filed: Jul y

25, 2014 Do Not Publish

Id . at 355-57. 1 5 7