No CR IN THE FIFTH COURT OF APPEALS OF TEXAS AT DALLAS, TEXAS MARLON BRISCOE STATE OF TEXAS

Transcription

1 No CR IN THE 5th Court of Appeals FILED: 03/01/ :00 Lisa Matz, Clerk Counsel of Record: FIFTH COURT OF APPEALS OF TEXAS AT DALLAS, TEXAS MARLON BRISCOE V. STATE OF TEXAS On Appeal from the 422 nd Judicial District Court, Kaufman County, Texas, in Cause Number BRIEF OF THE STATE OF TEXAS MICHAEL McLELLAND KAUFMAN COUNTY CRIMINAL DISTRICT ATTORNEY SUE KORIOTH ASSISTANT DISTRICT ATTORNEY SBN# KAUFMAN COUNTY COURTHOUSE 100 W. MULBERRY KAUFMAN, TEXAS ATTORNEYS FOR THE APPELLEE, THE STATE OF TEXAS fax

2 IDENTITY OF PARTIES AND COUNSEL: APPELLANT: Marlon Briscoe APPELLANT S TRIAL COUNSEL: Antonius Massar APPELLANT S COUNSEL ON THIS APPEAL: Dennis Jones APPELLEE: THE STATE OF TEXAS APPELLEE S TRIAL COUNSEL: Assistant Criminal District Attorneys Cameron Cowan and Lauren Cook APPELLEE S COUNSEL ON THIS APPEAL: Michael McLelland, Kaufman County Criminal District Attorney; Sue Korioth, Assistant Criminal District Attorney -ii-

3 TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL... -ii- INDEX OF AUTHORITIES... -iv- STATEMENT OF THE CASE STATE S COUNTERPOINT THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ADMITTING THE COMPLAINED-OF TESTIMONY OVER APPELLANT S OBJECTIONS STATEMENT OF PERTINENT FACTS SUMMARY OF THE ARGUMENT COUNTERPOINT, restated CONCLUSION CERTIFICATE OF SERVICE iii-

4 INDEX OF AUTHORITIES CASES Dinkins v. State, 894 S.W.2d 330 (Tex. Crim. App. 1995) , -27- Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997) , -26- Mayes v. State, 816 S.W.2d 79 (Tex. Crim. App. 1991) Nino v. State, 223 S.W.3d 749 (Tex. App. Houston [14 th Dist.] 2007, no pet.) ,-26- RULES Tex. R. App. P. 33.1(a) Tex. R. App. P. 44.2(b) ,-26- -iv-

5 No CR IN THE FIFTH COURT OF APPEALS OF TEXAS AT DALLAS, TEXAS MARLON BRISCOE V. STATE OF TEXAS TO THE HONORABLE JUDGES OF SAID COURT: The State of Texas, appellee herein, respectfully submits this brief in response to appellant s brief, and would show the Court: STATEMENT OF THE CASE Appellant Marlon Briscoe was charged with the offense of aggravated robbery in cause number (CR: 4). Appellant pleaded not guilty and was afforded a trial before a jury, which convicted him of aggravated robbery as charged in the indictment. (CR: 53; 55). The court assessed his punishment on September 9, 2010, at confinement for fifty years in TDCJ. (CR: 55). Appellant filed his notice of appeal on October 1, 2010, along with his motion for new trial, which was overruled by operation of law. (CR: 59; 62). STATE S COUNTERPOINT THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ADMITTING THE COMPLAINED-OF TESTIMONY OVER APPELLANT S OBJECTIONS. -1-

6 STATEMENT OF PERTINENT FACTS Appellant pleaded not guilty to the aggravated robbery of Katrina Rinkus, alleged to have been committed on or about January 2, 2009, by threatening or placing the victim in fear of imminent bodily injury or death and using or exhibiting a deadly weapon, a handgun. (CR: 4). Katrina Rinkus Glenn testified as the State s first witness that she worked at EZ Money Loan Services in Terrell and that she was working there on January 2, 2009, with Ermisha (Mesha) Sorrell when they were robbed. (RR4: 16-19). A third employee, Wendy Skinner, was working with them at the location in January January 2 was a Friday, very busy; Wendy had just left and Ermisha was working with Katrina when the robbery occurred at 5 p.m. (RR4: 19-20). Katrina had just walked back in to EZ Money from the EZ Pawn next door (because there were no restrooms in the EZ Money), and there were a couple of customers there. One of the customers Mr. Donally left, and Katrina was talking to the other one Novella Barron when the robbers came in. (RR4: 21-22). Katrina testified that a black man walked in wearing a blue hoodie sweatshirt, gloves, and a bandana; he covered his face. Katrina explained that even though it was January 2, it was not very cold outside and not necessary to bundle up. The man had the hood on his sweatshirt pulled up and cinched up around his face. (RR4: 22-23). He wore a bandana around his neck, and he pulled it over his face as soon as he walked in. (RR4: 24). He walked around the end of the counter and said only, you know what to do. Katrina understood that he meant for her to open the safe, and she -2-

7 knew they were being robbed. (RR4: 24-25). Katrina testified that another black man walked in behind him, wearing a white hoodie with some black markings on it, cinched up around his face, with a red bandana. (RR4: 26). The man in the blue hoodie wore a black bandana. (RR4: 26). The second man came around the counter and grabbed Ermisha and told her to sit down. (RR4: 27). Katrina identified photos of the store and various items in it, including the work stations, safe, her purse, and Ermisha s phone. (RR4: 28-32). She identified State s exhibit 8 as the surveillance video tape from the time of the robbery. (RR4: 32-33). She identified Wendy and the customers as the video was played for the jury. (RR4: 34). She identified the two robbers as they came into the store. (RR4: 35). She identified Ermisha seated against the wall and herself beginning to open the safe upon the robber s demand. (RR4: 35). Katrina testified that the robbers had not threatened her at that point. She explained to them that she could not immediately open the safe, because it had a 10 minute time delay. (RR4: 36). She was attempting to cooperate with the robbers in compliance with company policy. (RR4: 36). The robber in the white sweatshirt went to lock the front door; both men were wearing gloves. (RR4: 37). She explained that where the tape showed them close to her they were telling her to sit down, and she pointed out where they zip-tied Ermisha s and Novella s hands. Katrina told them she could not open the safe with her hands tied, so they told her to sit. (RR4: 37-38). The robber in the blue jacket got money from the cash drawer, -3-

8 and they kept asking her to get the safe open. She explained again about the 10 minutes, and they told her she d better not be lying. (RR4: 38). The robber in white had his hands in his pocket as though he had a weapon, and he warned her not to lie and not to press anything. She explained that they were crouching down at that point in the video because the one in blue was going through her purse and the one in white was holding Ermisha s phone to her ear to answer a call. Katrina s phone then rang, and he made her answer and talk briefly to the caller, who was the manager at another store. (RR4: 39-41). At that point on the video, another customer Ronald Curtis can be seen entering the store. (RR4: 41). Katrina stood up from behind the counter as the two robbers ducked down. She asked Curtis to step outside, and he ran out the door. The robber in white started after him with a gun that he had pulled out of his front pocket. (RR4: 42). The two robbers went out the front door, and Katrina locked the door after them. (RR4: 42). She explained the end of the surveillance video where she tried to cut the ties off of Ermisha and Novella, and Kenya Shaw came to the door. (RR4: 43). Katrina testified that the robber in the white hoodie seemed to be in charge, that she was afraid during the robbery, that she thought they might kill her, and that the robber pointed the gun at her from inside his pocket and nudged her in her side with it as he warned her not to lie about the safe or press an alarm. (RR4: 44-45). She testified that although store policy was to cooperate, she would have done so anyway to avoid being hurt or killed that day. (RR4: 45). Katrina testified that when they went through her purse, they took her -4-

9 Katana flip phone; they also took Ermisha s phone. Katrina identified her phone as pictured in State s exhibits (RR4: 45-46). The police came quickly; Katrina met with Detective Bulin and told him about the offense, gave descriptions of the robbers and their clothing, told them that her phone was taken, and gave them the phone number, (RR4: 48). Bulin returned her phone to her about two months later. (RR4: 49). Katrina could not identify the two men. (RR4: 51). She described the gun that they had as having a long barrel, had a wooden handle, and it looked older. She believed the gun was black. (RR4: 56). Katrina identified State s exhibit 13 as a photo of the white hoodie that one robber was wearing. (RR4: 56). She identified State s exhibit 14 as depicting the same kind of red bandana he had, and she identified the photo admitted as State s exhibit 15 as depicting the gun they had. (RR4: 57). Ermisha Sorrell next testified that she was working at EZ Money on January 2, 2009, when this robbery occurred. (RR4: 60-61). Ermisha testified that she and Katrina were working that day about 5 p.m., and that she was helping customer Novella Barron, when the two robbers came in. One came in and told them to give him everything they had, then told them to get down, and Ermisha got against the wall. The other one came in, and one went to Katrina while the other one came and tied her hands with a zip-tie. (RR4: 62-64). She testified that the guys were black, that she did not know them, and that the first one was wearing a blue hoodie like a sweatshirt. (RR4: 65-66). He pulled a bandana over his face, and she could not identify him. (RR4: 65-66). The second robber was wearing a white -5-

10 hoodie with a black design on it. She identified State s exhibit 13 as a photo of that white jacket. (RR4: 67). The second robber threatened to shoot Katrina if she pushed an alarm. (RR4: 68). She described the events during the robbery, when the robbers told Katrina to open the safe, dumped her purse, and tied up Ermisha and Novella. (RR4: 69-70). She described how the two men were pacing and waiting for the timer on the safe, and she could see the outline of the gun in the pocket of the robber in the white hoodie. (RR4: 73-74). He kept threatening Katrina, and Ermisha spoke up and said that she was telling the truth about the safe being on a timer. (RR4: 74). After the robbers had brought Novella around behind the counter, Novella was feeling faint and told them she needed water, and Katrina asked the robbers to reach into the icebox and get a water bottle. The one in the blue hoodie reached into the icebox in response. After Ermisha had testified to these facts, defense counsel objected to unresponsive, hearsay. (RR4: 75). Ermisha then testified that before they could get the bottle of water for Novella, another customer Ronald came through the door. Everyone was surprised because the robbers had tried to lock the door. (RR4: 76-77). Katrina popped up and asked him to wait outside for a few minutes; Ronald could see Ermisha behind the counter and seemed to realize something was wrong. Ronald began backing away as the robber in white jumped up and pulled the gun out. He told Ronald to come back, but Ronald took off running. (RR4: 77-78). Ermisha identified the gun in the photo admitted as State s exhibit 15 as looking like the gun the robber pulled out. (RR4: 78). Ermisha testified that the second -6-

11 robber got up from behind the counter, they asked Katrina how long it would take for the safe to open, and when she told them four or five more minutes, they took off out of the store. (RR4: 79). Katrina ran to the door and locked it, then cut the zip-ties off of Ermisha and Novella. A minute later, Kenya from next door came to the door and told them the license plate number, so they could write it down. (RR4: 79). The police showed up within five minutes, and they gave them the information. (RR4: 80). Ermisha explained that the robber in the blue hoodie took her cell phone. Ermisha explained how the office phone rang during the robbery, they made her talk to the store manager calling from another store and tell her Katrina had already left, and Katrina s cell phone then rang. (RR4: 80-81). The robber in white took Katrina s cell phone, and then the robber in blue took Ermisha s cell phone as he was emptying the cash drawer. (RR4: 82). Ermisha testified that at some point during the robbery, as the robbers were stuffing cash into their hoodies, Katrina gave them one of the Wells Fargo cash bags from the store and told them to just use it. (RR4: 83-84). She identified photos admitted as State s exhibits as depicting the store front and surroundings, her cell phone, and the Wells Fargo bank bag. (RR4: 84-87). Ermisha agreed that she could not identify either of the robbers. (RR4: 87). Ermisha knew that the robber in the blue hoodie was wearing gloves, and she thought the other robber had gloves too. (RR4: 90-91). Novella Barron testified that she was present at the robbery on January 2, (RR4: 94-97). She described the robbers and their blue and white hoodies and bandanas. -7-

12 (RR4: ). The robber in white was giving orders to the other one. (RR4: 101). Novella was afraid, and her blood pressure went up. (RR4: 103). Novella testified without objection that after she was made to go sit behind the counter on the floor, Katrina suggested that they get her some water, but a customer came in and interrupted the robbery before she got any water. (RR4: ). Novella testified that the gun was old and ugly, an antique with a long barrel and wood handle. (RR4: 106). Novella identified the photo admitted as State s exhibit 15 as looking like the gun the robber in white had that day. (RR4: ). Novella could not identify the robbers. (RR4: 108). Novella confirmed that Katrina s and Ermisha s cell phones were taken by the robbers; her own phone was in her car. (RR4: ). Ronald Curtis testified that he walked in on the robbery that day. He saw one of the girls kind of sitting behind the counter, then another girl who worked there kind of appeared and told him it would be a few minutes. As he turned, he saw a man in a white hoodie with a bandana over his mouth. (RR4: ). He knew something wasn t right, and as he turned and headed for the door, he heard the man in the hoodie say something like don t leave, bitch. (RR4: 117). Ronald turned and saw a gun in the man s hand. (RR4: 117). He did not get a clear look at the gun. (RR4: 118). Ronald took off running; he ran outside, past the pawn shop, across the street, and behind a business. He pulled out his cell phone and called 911. (RR4: 118). Kenya Shaw testified that she worked at EZ Pawn and was working on January 2, -8-

13 2009, when the robbery happened at EZ Money next door. (RR4: 121). She had just left work around 5:30 p.m. and was sitting in her car, making a phone call, when she saw two people running down the steps, hunched over; they ran to a black four door car, jumped into it, and took off. (RR4: 122). She identified State s exhibits 22-26, photos of the parking lot and storefront, and she explained where she was at the time. (RR4: ). Kenya testified that one of the people was wearing a white and black hoodie, and the other was wearing a blue kind of wind-jacket. (RR4: 125). She thought the men looked weird, because although it was getting dark they had on sunglasses and hoodies and were hunched over like they were holding something. (RR4: 125). Kenya watched them because they looked really suspicious, and she got their license plate before they drove off. (RR4: ). She memorized the number, then ran up the steps to the EZ Money to see if Katrina and the other girl there were okay. (RR4: 129). She gave the license number to police. (RR4: 130). Kenya identified State s exhibits 27 and 28 as depicting the license plate and vehicle she saw the robbers leave in that day. (RR4: ). State s exhibit 27 depicts Texas license plate number DYX 311. (RR8: 31). Terrell Police officer Christopher Lee testified that he was working patrol on January 2, 2009, when he responded to a robbery call at the EZ Money on Moore Street in Terrell. (RR4: 141). He drove there with lights on but no sirens, but when he arrived the robbers were gone. He met Kenya Shaw outside. (RR4: ). She gave him the license plate number of the suspect s vehicle as well as a description of the vehicle. (RR4: 143). -9-

14 Lee passed the information on to the dispatcher, who ran a computer check on the vehicle. (RR4: 143). The dispatcher obtained a registered name and address for the vehicle from the computer check, an address at an apartment complex in Balch Springs. (RR4: ). Officer Lee later proceeded out to that address. (RR4: 145). Balch Springs had already responded to the location based upon the information about the vehicle registration. (RR4: ). Lee also talked to the victims and got phone numbers for the stolen phones. (RR4: ). He got a clothing description for the suspects. (RR4: 150). When Lee proceeded to the apartment complex in Balch Springs to assist as needed, he found that the vehicle with the plate he had been given was in fact there. (RR4: 151). He identified the photo of the license plate as matching the number given to him by Ms. Shaw. (RR4: 152). Glynnis Burch testified that she lives at 4317 Shepherd Lane in Balch Springs near Highway 635 and Seagoville Road. (RR4: 155). She testified that she had relatives in Terrell and sometimes visited there, and she also testified that she was acquainted with Keontee Smith, who was a friend of her daughter Jasmine. (RR4: 156). Burch had two daughters: Jasmine, who was 21, and Brittany. She had known Smith for 10 or 15 years and believed him to be about 28 years old. (RR4: 157). Burch testified that she let Smith borrow her 2000 Mitsubishi Diamante on January 2, The car was very dark green, but many people thought it looked black. (RR4: 158). Smith was to drive Jasmine to a Medicaid appointment at about 4 p.m. at Masters and Lake June while Burch was at work. (RR4: ). Burch drove her other car to her job as an -10-

15 engineering inspector at the Texas Department of Transportation. (RR4: 160). Burch got a call from Jasmine after she got off work, and she had to go pick Jasmine up from her appointment, although she had expected Smith to pick Jasmine up. (RR4: ). Jasmine called Smith on their way home, and then Burch called him, but he did not answer their calls. (RR4: ). When Burch and Jasmine got back to their second-floor apartment and approached the door, they saw Keontee Smith and another young man coming up the stairs. (RR4: 162). Burch identified appellant as the man with Smith that day. (RR4: 163). She had never seen him before, but he and Smith ran into her apartment like bombers. She thought they had to use the restroom or something, and she asked them what was going on, but they did not explain. (RR4: ). A neighbor came up the stairs and told her that the police were down at her car, so she went downstairs to see what was wrong. (RR4: ). She saw police officers by her car and asked them what was wrong; they asked if it was her car and told her she was under arrest. (RR4: 165). She asked why, and they told her that her car has been in criminal activities. (RR4: 165). She explained that the car belonged to her but that she had not gotten out of it, so they let her go. (RR4: 165). They would not let her go to her apartment, however, but made her sit outside. (RR4: 166). Her apartment door was locked, because appellant had locked it when he went in. (RR4: 166). Burch saw a policeman preparing to kick in the door, and she asked him not to because her daughter Brittany was inside recovering from knee surgery. (RR4: 167). Jasmine unlocked the door, -11-

16 and Burch gave consent for police to go in. (RR4: 167). Burch testified that she never gave Smith consent to do anything illegal in her car. She owned a windbreaker that she kept in the car, but she did not have a white hoodie. (RR4: 168). Burch identified State s exhibit 29 as resembling her jacket. (RR4: 169). Burch insisted that she saw appellant go into her apartment with Smith, although in her statement to police she had said she did not see him go in. She explained that she was confused and nervous when this happened and that she wrote part of the statement and told the officer part of it that he then wrote. (RR4: ). Jasmine Harris next testified that she was 21 years old and lived with her mother in Balch Springs. (RR4: 180). Keontee Smith was a close family friend. (RR4: 181). Jasmine testified that on January 2, 2009, Smith picked her up to take her to an appointment at the food stamp office; when he did not come back to take her home, she called her mother for a ride. (RR4: 183). When they got home and went inside, Jasmine went back out to go to a neighbor s, but she heard another neighbor come asking for her mother, and her mother then came outside and went down to the car. She had seen Keontee Smith run by earlier and assumed that he went into the apartment. (RR4: 185). There was someone else with him, but Jasmine didn t know him. Smith was in a hurry, running, when he went into the apartment that day. (RR4: 186). Jasmine testified that there was a key to the apartment on the key ring that Smith had that day. (RR4: 187). Jasmine followed her mother downstairs, but when they went back up the police were trying to enter the apartment. Jasmine unlocked -12-

17 the door for them and gave them permission to go in. (RR4: ). She saw the police bring Smith and the other man out after they arrested them. (RR4: ). Balch Springs Police Officer Jimmy Young testified that he had been a police officer for 12 years and had worked in Balch Springs for 5 years. He was on patrol on January 2, 2009, in his marked vehicle when he received a dispatch at about 5:30 p.m. to go to 4317 Shepherd to look for a black Mitsubishi with license DYC311 [sic] which had just been involved in an armed robbery in Terrell. (RR4: ). Officer Jupp also responded in a separate vehicle. (RR4: 205). They went to the address and began looking for the vehicle, which Officer Jupp located as it drove toward Young on the east side of the complex. (RR4: 206). Officer Young identified the vehicle in previously admitted State s exhibits 27 and 28 as the car they were sent to locate and did locate that day, with the same license plate that they received through dispatch. (RR4: 207). Young testified that he recognized the vehicle that day as it drove past him, and he turned around and initiated a traffic stop as the vehicle was pulled into a parking space. (RR4: 207). The black male driver and passenger simultaneously exited the vehicle, looked at Young, and began running west through the complex. (RR4: 208). Young could see that they both wore white short-sleeved shirts and that one had an orange bandana hanging out of his left pocket; both wore jeans. (RR4: 208). Young ran to the vehicle first to check for additional occupants, and he saw a black ski mask on the front seat. (RR4: 209). He then pursued the men into the complex as they ran -13-

18 between buildings 5 and 6. 9RR4: 209). Officer Young testified that Officer Jupp had gone around to the back of the complex to ensure that the men didn t run through. Four other officers arrived to assist. (RR4: 209). Officer Baldwin stayed with the vehicle while the other officers began searching between buildings 5 and 6. (RR4: 210). They eventually located the men. (RR4: 210). When Young began to testify that they were approached in the complex by a black male juvenile, defense counsel objected to hearsay, which the court initially sustained. (RR4: 210). The court then agreed to allow testimony to show how he proceeded in his investigation, and Young testified that the young man told them the two fleeing men had gone into apartment (RR4: 211). Officer Craker stayed in the courtyard area to ensure that no one left out of the back door of that apartment while Young and Officer Rumsey went to the front door. (RR4: 211). Young identified State s exhibit 30 as a photo of that front door, and it was admitted without objection. (RR4: 212). Young radioed their location to dispatch, then the officers began knocking on the door. (RR4: 212). Eventually two black females approached; the younger one tried to call her sister inside to open the door, and then the older one appeared, told them she was on the lease, and opened the door for them with her key. (RR4: 213). The 15 year old girl came out of the apartment, and officers went in and found appellant walking out of a bedroom. (RR4: 213). Young testified that he recognized appellant as the passenger from the Mitsubishi. (RR4: 214). Young testified that appellant claimed he had been sleeping in the apartment; he was -14-

19 wearing the same white tee-shirt and grey sweat pants. They handcuffed him and found during the process of patting him down that he had on the jeans under the sweat pants. (RR4: 214). Appellant still had the orange bandana Young had seen him with when he got out of the Mitsubishi. (RR4: 214). Young sponsored admission of State s exhibits 14, 31, and 32, photos of the scene, appellant s bandana and cigarettes, and his id card. (RR4: ). In the meantime, Officers Crakey and Rumsey went to the back bedroom, where they located a large amount of cash on top of some laundry and found the other defendant hiding under the bed. (RR4: 217). The other defendant, Smith, was the driver. (RR4: 218). Young identified State s exhibit 33 as the evidence bag which he had tagged that night, containing evidence seized from the apartment. (RR4: 218). He explained that the bag contained the orange bandana that he took from appellant, and it was admitted. (RR4: ). Young explained that Terrell police searched the bedroom where Keontee Smith was found. (RR4: 223). Balch Springs Officer Jeffrey Baldwin next testified that he was working traffic that night when he responded to the call from Officer Young needing assistance at the apartment complex at 4317 Shepherd Lane. (RR4: ). Baldwin saw the suspect vehicle, which he had heard described over dispatch, and he stayed with that vehicle. He did not search the vehicle, but he did look through the window and saw a black ski mask in the front seat. He also saw clothing on the back seat, including a black cloth next to a white jacket. Sticking out between those items he saw the wooden handle of a handgun. (RR4: 228). He identified -15-

20 State s exhibits 34 and 35 as photos of the items he saw through the window. (RR4: ). He also identified State s exhibits 27 and 28 as photos of the Mitsubishi that he guarded. (RR4: 229). Baldwin pointed out in State s exhibit 34 the white jacket that he had seen through the car window and he pointed out the handgun, of which he could only clearly see the handle. (RR4: 230). He identified the same items in State s exhibit 35 and explained that he could also see the upper or the trigger, the hammer area as well on the gun. (RR4: 230). Baldwin testified that he stayed with the vehicle until Officer Craker arrived, after which he was released from the scene. (RR4: 230). Balch Springs Police Officer John Craker next testified that he was on duty on January 2, 2009, when he received a call that Officer Young needed assistance regarding a robbery that took place in Terrell. (RR4: ). Defense counsel made a late objection to hearsay after the witness had answered the prosecutor s question, which the court heard and overruled because the testimony was not offered for the truth of the matter asserted but simply to explain the reason for the officer s investigation. (RR4: ). Craker testified that the dispatch indicated that there was a robbery and that a license plate came back to Balch Springs to an apartment complex at 4317 Shepherd Lane, so he went to that address. (RR4: 236). He was training Officer Turner that day, so they responded together. (RR4: 237). Craker directed Turner to stay with the suspect vehicle downstairs, and he went up to assist Officer Young in entering a particular apartment. (RR4: 237). Sergeant Rumsey and -16-

21 Officer Jupp were also there, and when they entered the apartment, appellant walked into view around a corner and was arrested by Jupp. (RR4: 237). Craker testified that he continued searching the apartment and located defendant Smith hiding under a bed. (RR4: 238). Craker identified defendant Smith and the bed he hid under in State s exhibit 36. (RR4: 239). He identified appellant as he appeared that night in State s exhibit 37. (RR4: 240). The State next called co-defendant Keontee Smith; Smith was admonished at length prior to testifying. (RR4: ). Smith then testified before the jury that he was in jail and had been charged with the aggravated robbery at the EZ Money store in Terrell on January 2, (RR4: ). Smith pleaded guilty to that offense in December 2009 but had not been sentenced at the time of his testimony. (RR4: 255). Smith, who was 30 years old, testified that at the time of this offense he was living in South Dallas with his mother. (RR4: ). He met appellant a couple of weeks before the robbery through a friend, and he and appellant committed an aggravated robbery on January 2, 2009, after talking about it for a couple of weeks. (RR4: 258). Smith came up with the idea of going to Terrell, because he figured it would be easier since it was a little country town. (RR4: ). He had been there to visit before with his friend Glynnis Burch. (RR4: 259). Smith borrowed Glynnis s car that day; he was supposed to pick up her daughter but called appellant instead. (RR4: 260). He met got on his robbery gear, including a bandana, -17-

22 gloves, a blue hoodie, and zip ties, and met appellant at a gas station. (RR4: ). Appellant wore a white hoodie, jeans, a black stocking cap, and gloves. (RR4: ). They headed to Terrell and scoped out the EZ Loan for an hour or hour and a half. (RR4: 264). They planned that Smith would go in first, with appellant behind him. Appellant would wave the gun around while Smith would get people tied up and try to get the register open. (RR4: ). Smith learned appellant had a gun when they got to Terrell. (RR4: ). They got their hoodies on and put bandanas around their necks. (RR4: ). Appellant showed Smith the gun, which was an old type gun, black with brown handles. (RR4: 267). Smith testified that when it was time, he backed the car into a space at the place next to the EZ Loan so they could get away quickly. (RR4: 269). When they started to go in, Smith saw there was a customer and wanted to wait, but appellant wanted to get in and get out. They went in, Smith made them sit down and tied them up, and he asked for the combination but the woman said there was a 10 minute timer. (RR4: 270). Appellant began to take the purse from one of the ladies and argued with Smith about it, then he argued with the employee about the safe timer. Smith got the money from the register. (RR4: 270). Smith remembered the phone ringing during the robbery, but he couldn t recall if a cell phone rang. (RR4: 272). Smith testified that a man walked into the store. (RR4: 271). They all ducked down behind the counter, and Smith told the lady to tell him she was counting money and to come -18-

23 back. The man was fixing to leave, but appellant stood up, pointed the gun at him, and told him to stay where he was. (RR4: 273). Smith got scared and ran out behind him, and appellant followed. They got into the car and pulled out. (RR4: 273). Appellant got into the back and laid down so that if the police were looking for two men they wouldn t pay attention to Smith driving. (RR4: 275). They went back to Glynnis s house. (RR4: ). They went to the back of the apartments and split the money up, about $400 or $500. (RR4: 277). They took their hoodies off and left them in the car. (RR4: 278). Smith pulled around to put the car in Glynnis s reserved spot, but he saw two police cars, hopped out of the car, and ran to Glynnis s apartment. (RR4: ). Appellant got out and ran with him. (RR4: 280). When he got to the apartment, Smith told Glynnis the police were after him and to go see about them. He locked the door and put on different clothes. (RR4: ). He gave the clothes he had been wearing to Jasmine, who took them up to a neighbor. (RR4: 283). Appellant came out of the bathroom wiping off two cell phones with his shirt. (RR4: ). Appellant told Smith he left the gun in the car. (RR4: 284). Smith went and hid in a bedroom after hiding some money in the closet. (RR4: 285). Smith identified photos of the car, State s exhibits 38-48, which were admitted, and he identified in those photos the blue hoodie he wore in the robbery and the white hoodie appellant wore. (RR5: 6-8). He also identified appellant s black stocking cap in state s exhibit 42, as well as the gloves they both wore in State s exhibit 43. (RR5: 8-9). Smith -19-

24 explained that the black bandana shown in the back seat of the car was the one he wore during the robbery. (RR4: 16). Terrell Police Detective Michael Bulin next testified that he responded to this aggravated robbery call at around 5:45 p.m. on January 2, (RR5: 18-20). Bulin described his investigation beginning at the crime scene, where he collected the zip ties used to bind the victims. (RR5: 23-25). He explained that they did not try to obtain fingerprints from the scene because the video showed that both robbers were wearing gloves. (RR5: 25-26). After they received a call from Balch Springs that they had suspects in custody, Bulin traveled there with Sergeant McKeown and Officer Lee. (RR5: 26-28). They went to the apartment at 4317 Shepherd Lane, number 5206, where Jasmine Harris and Glynnis Burch lived, after stopping to look at the vehicle downstairs. Some jackets and a pistol were in plain view in the car. (RR5: 28-29). They left Balch Springs officers in place to secure the vehicle and went upstairs, where they talked to officers and scanned the apartment. (RR5: 30). They saw a wad of money in the closet as well as a cell phone. Officer Lee had obtained the numbers for the victims cell phones that were taken in the robbery, and when they called those numbers both phones rang in the closet. (RR5: 30-31). The officers photographed the phones and money in the closet before collecting them. (RR5: 31-35). The officers also located identification belonging to both defendants, (RR5: 35-36), interviewed the apartment residents, and then went to process the car. (RR5: 37-38). Bulin testified about processing the car, photographing it and its contents, and -20-

25 collecting the evidence, including the gun, hat, one pair of gloves, black bandana, bank bag, zip ties, and hoodies. (RR5: 38-55; 71). Bulin explained that they submitted all of the physical evidence to the DPS crime lab along with DNA samples taken from the defendants and the victims who were tied with zip ties. (RR5: 55-59). Texas DPS biological screener Kimberlee Mack next testified that she received the evidence in this case from Terrell Police Department. (RR5: 86-90). She explained how she processed the box of evidence received from Terrell, including swabbing the inside of the black toboggan hat to preserve any DNA inside. She also swabbed the gun, the zip ties, the bank bag, the bandana, the inside of each of the gloves, and the hoodies to preserve any possible DNA present for analysis. (RR5: ). Texas DPS forensic serologist Trisha Kacer next testified that she tested biological material for DNA in this case. (RR5: ). She obtained the DNA profiles of appellant and Keontee Smith from their buccal swabs, State s exhibits 70 and 71, after she had processed the evidence samples. (RR5: ). Kacer testified regarding the results of her DNA testing of the various items of evidence. The cell phones in question did not have sufficient DNA on them to make a comparison. (RR5: ). The samples from the black toboggan cap had DNA present; appellant was not excluded as a donor, but Smith and the victims were excluded. (RR5: 125). The samples from the gun contained a DNA mixture from two or more individuals, but appellant, Smith, and the victims were all excluded as donors. (RR5: 126). The zip ties -21-

26 did not contain sufficient DNA to test, but the black bandana contained a mixture which included Keontee Smith as the major contributor. Kacer explained that she could not include or exclude any other persons, including appellant, as contributors to the DNA on the bandana. (RR5: ). The inside of the black gloves contained a mixture of DNA from which appellant could not be excluded as a contributor, but Keontee Smith and the victims were excluded from contributing to the DNA found in the gloves. (RR5: 128). Kacer explained the process of assessing the statistical reliability of DNA findings on the individual items; she explained that the process provides a statistical estimation of how rare a particular DNA profile is in the population. (RR5: 132). Kacer testified regarding statistical probabilities relating to the evidence in this case. In regard the black bandana, Keontee Smith was the major contributor, and the probability of selecting some person at random who could be the major contributor ranged from 1 in septillion for hispanics to 1 in septillion for blacks. (RR5: ). In regard the black toboggan cap in which appellant s DNA was found, the odds of selecting a person at random who could be a contributor to the profile on that item would be 1 in billion for blacks to 1 in billion for hispanics. (RR5: 134). Kacer testified in regard the black gloves that appellant s DNA profile was only present at some specific locations, so that the statistical value of the sample would be somewhat lower, but even with that limitation the odds of selecting an unrelated person at random with a consistent profile would range from 1 in [sic] in blacks to 1 in -22-

27 3.08 million in hispanics. (RR5: ). She explained that the probabilities were not as high for the gloves as for some of the other items because fewer alleles were found on the gloves for the major contributor. (RR5: ). The State rested after Kacer s testimony, and the defense rested without presenting any evidence. (RR5: ). SUMMARY OF THE ARGUMENT Appellant claims that the trial court abused its discretion in admitting certain testimony over hearsay objections. The State contends in response that in some instances the objection was untimely, in each instance testimony substantially the same as the complainedof testimony was admitted without objection, and any error was harmless. COUNTERPOINT, restated THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ADMITTING THE COMPLAINED-OF TESTIMONY OVER APPELLANT S OBJECTIONS. Appellant contends that the trial court erred in four instances in overruling appellant s hearsay objections. 1. In the first instance, appellant complains that the trial court erred in overruling his objection which came during Ermisha Sorrell s testimony. Ermisha had already testified that after the robbers had brought Novella around behind the counter, Novella was feeling faint and told them she needed water, and Katrina asked the robbers to reach into the icebox and get a water bottle. Ermisha then testified that the robber in the blue hoodie reached into the icebox in response, and only after that testimony did defense counsel object to -23-

28 "unresponsive, hearsay." (RR4: 75). The State contends that appellant s objection was untimely and failed to preserve any error for this Court s review, because it was not made until the witness had answered several questions about the same subject matter. See Tex. R. App. P. 33.1(a); Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997). Moreover, even if appellant s objection was sufficient to preserve his complaint for review, any error was harmless because the same evidence was admitted during the testimony of Novella Barron without objection. (RR4: ). Improper admission of evidence is not reversible error if the same or similar evidence is admitted without objection at another point in the trial. See Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991); Nino v. State, 223 S.W.3d 749, 754 (Tex. App. Houston [14 th Dist.] 2007, no pet.); Tex. R. App. P. 44.2(b). In addition, appellant has failed to even argue how the court s ruling could have affected his substantial right to a fair trial under Tex. R. App. P. 44.2(b), because the testimony objected to only concerned the store employee s request to the robbers to get a bottle of water for the customer in distress. The testimony was not inculpatory or particularly relevant to the offense but merely explained the events depicted on the security tape. 2. Appellant next complains of the trial court s ruling on his objection during the testimony of Officer Young, who testified that he drove to the apartments in Balch Springs in response to a call from dispatch requesting him to look at that address for the Burch s -24-

29 black Mitsubishi, which had just been involved in a robbery in Terrell. (RR4: ) 1. The court properly admitted the testimony to show why the officer went to that address, not for the truth of the matter asserted that the car had been involved in a robbery. See Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995). In any event, any error in admission of this testimony was harmless because all of the facts contained in the dispatch had already been admitted in evidence through the testimony of other witnesses. Nino v. State, 223 S.W.3d 749, 754 (Tex. App. Houston [14 th Dist.] 2007, no pet.); Tex. R. App. P. 44.2(b). Kenya Shaw had testified about the black four-door car used by the robbers, and she testified that she memorized the license and gave it to police. (RR4: 122, ; RR8: 31). Terrell Police officer Christopher Lee testified that he obtained the license number and vehicle description from Shaw and that he passed the information on to the dispatcher, who ran a computer check and obtained a registration for the vehicle at the Balch Springs apartment in question. (RR4: ). Lee testified that Balch Springs officers were dispatched to that apartment to look for the vehicle. (RR4: ). Lee also responded to the apartment and found the car there that Shaw had described. (RR4: ). Admission of the statement regarding the dispatch to Burch s apartment was harmless. 3. Appellant next complains of testimony from Officer Young regarding being directed 1 Although defense counsel on appeal refers to the complained-of testimony as appearing in Volume 8 of the Reporter s Record, that is the Exhibits volume, and it is apparent from the record that he intends to refer to Volume

30 to Burch s apartment by a young black man in the apartment courtyard. (RR4: ). The trial court allowed the testimony to show why Young proceeded to that apartment, and it was admissible for that purpose. Dinkins, 894 S.W.2d at 347. The statement was not offered to show that the young man was truthful about where the suspects had gone, but simply to show why the officers proceeded to Burch s apartment. The man s statement did not serve to incriminate them, particularly because other un-objected-to testimony proved that the officers had already seen the suspects when they got out of the car, (RR4: 208), the apartment in question was Burch s apartment and was already identified by other officers, (RR4: ; RR5: 27-29), appellant and his co-defendant were actually found in the apartment hiding and with proceeds of the robbery, (RR4: ), and co-defendant Keontee Smith later testified that he and appellant did run from the car to that apartment. (RR4: ). The trial court did not abuse its discretion in admitting the testimony for the limited purpose of explaining the officer s course of action, and in any event the testimony was harmless because the same evidence was admitted through other testimony without objection. Nino, 223 S.W.3d at 754; Tex. R. App. P. 44.2(b). 4. Appellant finally complains about the trial court s ruling on his hearsay objection to Balch Springs Officer Craker s testimony that he responded on this case when he received a call that Officer Young needed assistance regarding a robbery in Terrell. (RR4: ). Defense counsel did not object until after the question was asked and answered, and his objection was therefore untimely and failed to preserve error for review. See Tex. R. App. -26-

31 P. 33.1(a); Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997). In any event, the same evidence had already been admitted through other witnesses without objection, as set out above, Nino, 223 S.W.3d at 754; Tex. R. App. P. 44.2(b), the testimony was admissible to show why the officer responded to Burch s apartment complex, Dinkins, 894 S.W.2d at 347, and its admission was harmless. Because the trial court acted within its discretion in admitting the testimony in question for the limited purpose, appellant s objections were in some cases untimely, and the same evidence was admitted in each instance elsewhere without objection, appellant has failed to assert any error in the case which would require reversal, and his point of error is meritless. -27-

32 CONCLUSION WHEREFORE, PREMISES CONSIDERED, there being legal and competent evidence sufficient to justify the verdict and no error appearing in the record of the trial of this case, the State requests that this Honorable Court will affirm the judgment of the Trial Court below. Respectfully submitted, MIKE McLELLAND CRIMINAL DISTRICT ATTORNEY KAUFMAN COUNTY ATTORNEYS FOR THE STATE SUE KORIOTH, State Bar No ASST. CRIMINAL D.A. DISTRICT ATTORNEY'S OFFICE 100 W. MULBERRY STREET KAUFMAN, TEXAS (972) ext FAX (972) CERTIFICATE OF SERVICE The undersigned does hereby certify that on the 23 rd day of February 2011, a copy of the foregoing was served on Dennis Jones, attorney for appellant, by placing it in the folder in the front of the D.A. s Office where he has agreed to accept service of documents. Sue Korioth -28-