IN THE

TENTH COURT OF APPEALS

No. 10-99-346-CR

     PETE GONZALES,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 99-259-C

O P I N I O N

      A jury convicted Pete Gonzales of aggravated robbery, enhanced by three prior felony convictions, and sentenced him to forty years’ confinement. He claims in two issues that the evidence is legally insufficient to support a jury finding that: 1) he intended to obtain and maintain control over property, and 2) he used a deadly weapon in the commission of the offense.

Standard of Review

      In reviewing a claim of legal insufficiency, we view the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential element beyond a reasonable doubt. See Lacour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979)). We resolve any inconsistencies in the evidence in favor of the verdict. See Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

      A person commits the offense of robbery when “in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, he: (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.” Tex. Pen. Code Ann. § 29.02(a)(2) (Vernon 1994). Robbery is aggravated if the person commits robbery as defined in section 29.02 and “uses or exhibits a deadly weapon.” Tex. Pen. Code Ann. § 29.03(a)(2) (Vernon 1994).

      Because Gonzales argues that the evidence is legally insufficient to support two elements of his conviction, we will review the facts in the light most favorable to the verdict.

The Evidence

      The State presented evidence through the testimony of seven witnesses. The victim, Jeff Hughes, testified that he was leaving his apartment in Waco, Texas when he passed a Hispanic man and a black man. Hughes testified that just as he reached his truck, the same Hispanic man grabbed him around the neck and held a sharp object to his throat. Hughes identified Gonzales as the assailant by his facial features as well as the distinctive Dallas Cowboys football team jacket worn by Gonzales at the time of the offense. Hughes testified that Gonzales demanded his wallet. When Hughes stated that his wallet was in the apartment, Gonzales demanded that he open the truck. Hughes testified that he did not see the knife as it was up to his throat but it cut his throat enough to draw blood. Hughes testified that Gonzales released him when the police arrived.

      Officer Contreras was called to the scene in order to investigate a suspicious person. When he arrived, Contreras witnessed Gonzales holding Hughes around the neck and saw that Gonzales had a weapon in his hand. Contreras testified that, although he did not see the exact weapon in Gonzales’s hand, he did see him holding a shiny object that he knew to be a weapon. Contreras identified Gonzales as the assailant he had witnessed holding a weapon to Hughes’s throat. Contreras also identified the car in which Gonzales and another Hispanic male fled the scene.

      Officers Donaho, Garcia, and Nix responded to the scene and located the suspects’ car. Before they could stop the car, the officers witnessed one of the vehicle’s occupants exit the vehicle and run into a wooded area. Nix identified Gonzales as the man who exited the car. He testified that he saw Gonzales’ face and the white and blue jacket. After a brief pursuit on foot, Officers Nix and Donaho located Gonzales under a cluster of bushes in a nearby apartment complex. Both identified Gonzales at trial.

      Officer Garcia, Contreras’ partner on the night in question, witnessed the fleeing suspect’s clothing and identified the suspect as wearing a white and blue Dallas Cowboys jacket. He identified the knife found in the car and testified that it had fresh blood on it. Garcia stated that the knife was capable of causing serious bodily injury or death.

Conclusion

      When viewed in the light most favorable to the verdict, we hold that the evidence is more than adequate to support a jury finding on each element of the offense questioned here. Therefore, issues one and two are overruled.

      The judgment of the trial court is affirmed.

                                                                         REX D. DAVIS

                                                                         Chief Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Affirmed

Opinion delivered and filed August 29, 2001

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ted the alibi of having been at Six Flags on the day in question, and several witnesses testified to that effect.

      In rebuttal, the State called an investigator from the district attorney's office who testified that she contacted Six Flags the day before and was told that the park had not been open on the date of the offense. The investigator further testified that Six Flags had "faxed" a calendar to her reflecting its dates of operation. That calendar was introduced into evidence. It established the facts to which the investigator had testified. The investigator's testimony as well as the calendar were admitted into evidence without objection.

      Counsel for Appellant acknowledges that ordinarily error is waived by the failure to object at the time the evidence is offered. See Tex. R. App. P. 52(a). However, Appellant contends that an exception applies—that Rule 103(d) of the Texas Rules of Criminal Evidence allows this court to take notice of "fundamental error affecting substantial rights," though no objection was made. See Tex. R. Crim. Evid. 103. We disagree.

      The record reflects that Appellant's counsel informed the State's attorneys that he would not object to the investigator's testimony. On the record, Appellant's counsel stated to the court that he had no objection to the admission of State's Exhibit No. 4 and No. 5, a facsimile of an operating calendar from Six Flags and an advertising flyer also showing the days the park was open.

      We hold that Appellant waived the right to complain of these matters on appeal by stating affirmatively to the court that he had no objection. See Tex. R. App. P. 52(a); Whiteside v. State, 756 S.W.2d 765, 767 (Tex. App.—Corpus Christi 1988, pet. ref'd). The authorities cited by Appellant are distinguishable because the evidence in those cases was admitted over timely objection. The Court of Criminal Appeals has indicated that the admission of hearsay evidence, admitted without objection, does not constitute infringement upon a substantive right of a criminal defendant requiring reversal. Marin v. State, 851 S.W.2d 275, 280-81 (Tex. Crim. App. 1993). Appellant has presented no authority which stands for the proposition that hearsay evidence admitted without objection is fundamental error. Moreover, since the hearsay evidence was not only admitted without objection but Appellant additionally stated that he had no objection, he cannot now complain on appeal. Point three is overruled.

      We affirm the trial court's judgment.

                                                                               BOBBY L. CUMMINGS

Before Chief Justice Thomas,

      Justice Cummings, and

      Justice Vance

Affirmed

Opinion delivered and filed June 1, 1994

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