11th Court of Appeals

Eastland, Texas

Opinion

Nelson Romero

            Appellant

Vs.                  No. 11-03-00063-CR -- Appeal from Dawson County

State of Texas

            Appellee

            The jury convicted Nelson Romero of the offense of aggravated robbery, made an affirmative deadly weapon finding, found the enhancement allegation to be true, and assessed punishment at confinement for 40 years and a $5,000 fine. We affirm.

            Appellant does not challenge the sufficiency of the evidence. In his sole point of error, appellant argues that the trial court erred by admitting into evidence the written statement of Manuel Sanchez. Appellant asserts that Sanchez had not admitted or denied any specific question regarding any specific statement and that Sanchez’s written statement is hearsay.

            The record reflects that Sanchez was an accomplice to the crime and had already been convicted of robbery with respect to this offense when appellant’s trial occurred. The State called Sanchez to testify. Sanchez immediately stated that he did not remember the events of August 16, 2000, (the date of the instant offense) and that he did not remember giving a statement regarding those events. Sanchez was then shown a written statement, and he identified the signature on that statement as his. The record reflects the following with respect to that statement:

[PROSECUTOR]: Okay. And you said in that statement that you were approached on the --

[DEFENSE COUNSEL]: Objection, your Honor. She’s reading from the statement. It’s not been introduced into evidence.

THE COURT: Sustained.

[PROSECUTOR]: Okay. Well, your Honor, at this time we’d move for admission of State’s Exhibit No. 8.

[DEFENSE COUNSEL]: Judge, I’m going to object. That contains hearsay. The witness is here. He’s not unavailable.

[PROSECUTOR]: Your Honor, he testified it’s his signature. It’s his statement, and we’ve already heard all the contents of the statement through Larry Flenniken and through Tommy Flores.

The trial court overruled defense counsel’s objection and allowed the statement to be introduced into evidence. After Sanchez was allowed to review the statement, he continued to testify that he could not remember anything about the robbery.

            We agree with appellant that the State did not lay the proper predicate for the admission of the statement as a prior inconsistent statement under TEX.R.EVID. 613 or as an exception to the hearsay rule under TEX.R.EVID. 803. However, we conclude that any error in the admission of Sanchez’s statement is not reversible error. Prior to the offer of Sanchez’s statement as State’s Exhibit No. 8, Detective Tommy Flores had testified regarding the contents of that statement. Detective Flores’s testimony tracked Sanchez’s statement in detail. Consequently, under the principles of either waiver or harmless error, the trial court’s ruling does not constitute reversible error. Leday v. State, 983 S.W.2d 713, 718 (Tex.Cr.App. 1998). Appellant’s sole point of error is overruled.

            The judgment of the trial court is affirmed.

                                                                                                PER CURIAM

April 1, 2004

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.