Affirmed and Memorandum Majority and Concurring Opinions filed August 25, 2011.

In The

Fourteenth Court of Appeals

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NO. 14-10-00672-CR

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Jack Murenga Harris, Appellant

V.

THE State of Texas, Appellee

On Appeal from the 252nd District Court

Jefferson County, Texas

CONCURRING MEMORANDUM OPINION

            I concur in the majority’s decision to affirm the conviction but disagree with the reasoning on the second and third issues.

A.        Second Issue

            The majority concludes that the admission of the medical records was harmless because the complainants testified about their medical conditions without objection.  I disagree with this analysis but agree that the trial court did not err in admitting the records.

            Initially, I note that appellant complains of the admission of both Scypion’s and Holmes’s medical records.  Appellant was acquitted of the aggravated assault charge on Scypion and fails to explain how Scypion's medical records influenced the guilty verdict as to Holmes. 

            Holmes’s medical records corroborated his testimony that he suffered serious bodily injury, an element of the crime of aggravated assault.  In addition, the medical records identify Holmes’s chief complaint as “hit in back of head with gun, gun fired and was grazed in head with it.”

            While the majority’s analysis that “improper admission of evidence is not reversible error if the same or similar evidence is admitted without objection”[1] is a true statement of law, applying the rule here would vitiate the State’s duty to comply with discovery orders.  It would require a defendant to object to admissible evidence (here, the complainants’ testimony about the same subjects addressed in the medical records) in order to preserve a point of error.  That is an untenable result.

            I agree, however, that this point of error should be overruled because appellant failed to prove that the State willfully withheld evidence under the discovery order.  The record indicates that the State subpoenaed the medical records months before trial but the hospital failed to respond to the subpoena.  In preparation for trial, the State reissued the subpoena and obtained the records.  As soon as they obtained the records, the State disclosed them to appellant.  These facts do not support a finding that the State willfully withheld evidence under a discovery order.  See Oprean v. State, 201 S.W. 3d 724, 726 (Tex. Crim. App. 2006).  Thus, the trial court did not abuse its discretion in admitting the records.

B.        Third Issue

            The majority concludes that the question, “Do you believe that the young man and young woman had someone else shoot them just to get your husband in trouble?” calls for a permissible lay opinion.  I disagree with that conclusion and would hold that the question calls for impermissible speculation, but the error was harmless.

            Deborah testified that appellant hit Holmes but did not shoot anyone.  She did not see anyone else shoot the complainants.  She could not have perceived whether or not the complainants arranged for “someone else to shoot them” nor could she have known the state of mind of complainants—“to get appellant in trouble.”  See Fairow v. State, 943 S.W.2d 895, 899 (Tex. Crim. App. 1997).  This question did not call for a permissible lay opinion.

            I nevertheless would conclude that the error was harmless.  See Harris v. State, 790 S.W. 2d 568, 587–88 (Tex. Crim. App. 1989).  The question was designed to test the believability of Deborah’s testimony and to show that it was not reasonable to conclude that an unknown person shot the complainants shortly after the altercation.  A jury would not place great weight on this lay opinion and her opinion was not emphasized in closing.  As such, any error was harmless.

                                                                        /s/        Tracy Christopher

                                                                                    Justice

Panel consists of Justices Anderson, Brown, and Christopher (Anderson, J. majority).

Do Not Publish — Tex. R. App. P. 47.2(b).