MARIANO CARCUS RIVON v. THE STATE OF TEXAS (2012)

OPINION

Opinion By Justice Richter

Appellant plead guilty to six aggravated robbery offenses and true to two enhancement paragraphs in the indictments.   At the conclusion of the punishment hearing, a jury sentenced appellant to life imprisonment in all cases, and the trial court made a deadly weapon finding.   In a single issue on appeal, appellant contends the trial court abused its discretion in allowing hearsay testimony.   Because the same evidence about which appellant complains was admitted through another witness without objection, we conclude appellant suffered no harm and affirm the trial court's judgments.

We review a trial court's admission of evidence for abuse of discretion.   Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App.2002).   The trial court does not abuse its discretion unless the court acts outside the zone of reasonable disagreement.  Taylor v. State, 268 S.W.3d 571, 579 (Tex.Crim.App.2008).

Here, the testimony about which appellant complains was elicited during the re-direct examination of Ruben Ponce, one of the robbery victims.   Ponce testified about the robbery at the supermarket where he was employed, and confirmed that no gunshots were fired and there were no physical injuries.   Ponce was then asked whether he knew the manager of the store that was robbed a month later, and Ponce responded affirmatively.   Ponce was not present during the subsequent robbery at the other location, but when asked if someone was shot during that robbery he replied, “Yes, the manager of the store ․ Juan Calderon.”

The state concedes that Ponce's testimony is inadmissible hearsay, but insists that any error in the admission of the testimony was harmless.   Having reviewed the state's concession in light of the record, we agree.

It is well-established that “erroneously admitting evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling.”  Coble v. State, 330 S.W.3d 253, 282 (Tex.Crim.App.2010) (quoting Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App.1998));  see also Estrada v. State, 313 S.W.3d 274, 302 n. 29 (Tex.Crim.App.2010) (noting any error was harmless in light of “very similar evidence” admitted without objection).   In other words, error in the admission of evidence may be rendered harmless when “substantially the same evidence” is admitted elsewhere without objection.  Mayes v. State, 816 S.W.2d 79, 88 (Tex.Crim.App.1991).

Here, although Ponce's testimony about Calderon was inadmissible, Calderon subsequently testified in detail about the robbery at his store, and the fact that he was shot during the commission of the robbery.   In view of Calderon's testimony about the same evidence and appellant's guilty pleas to the six armed robberies, we conclude the error in the admission of Ponce's testimony is harmless beyond a reasonable doubt.   See Tex.R.App. P. 44.2(b);  Leday, 983 S.W.2d at 717.   Appellant's issue is overruled.   The trial court's judgments are affirmed.

MARTIN RICHTER

JUSTICE

Do Not Publish

Tex.R.App. P. 47

101417F.U05 S

Court of Appeals

Fifth District of Texas at DallasJUDGMENT

MARIANO CARCUS RIVON, Appellant

No. 05–10–01417–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 363rd Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F09–62022–W).

Opinion delivered by Justice Richter, Justices O'Neill and Frances participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered April 5, 2012.

/Martin Richter/

MARTIN RICHTER

JUSTICE

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

MARIANO CARCUS RIVON, Appellant

No. 05–10–01418–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 363rd Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F09–62064–W).

Opinion delivered by Justice Richter, Justices O'Neill and Frances participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered April 5, 2012.

/Martin Richter/

MARTIN RICHTER

JUSTICE

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

MARIANO CARCUS RIVON, Appellant

No. 05–10–01419–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 363rd Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F09–62065–W).

Opinion delivered by Justice Richter, Justices O'Neill and Frances participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered April 5, 2012.

/Martin Richter/

MARTIN RICHTER

JUSTICE

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

MARIANO CARCUS RIVON, Appellant

No. 05–10–01420–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 363rd Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F–09–73108–W).

Opinion delivered by Justice Richter, Justices O'Neill and Frances participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered April 5, 2012.

/Martin Richter/

MARTIN RICHTER

JUSTICE

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

MARIANO CARCUS RIVON, Appellant

No. 05–10–01454–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 363rd Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F–09–73123–W).

Opinion delivered by Justice Richter, Justices O'Neill and Frances participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered April 5, 2012.

/Martin Richter/

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

MARIANO CARCUS RIVON, Appellant

No. 05–10–01473–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 363rd Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F–10–71036–W).

Opinion delivered by Justice Richter, Justices O'Neill and Frances participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered April 5, 2012.

/Martin Richter/

MARTIN RICHTER

JUSTICE

MARTIN RICHTER JUSTICE