Opinion issued July 7, 2016




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                            ————————————
                               NO. 01-15-00279-CR
                            ————————————
                     JOSEPH JUAN FACUNDO, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee
══════════════════════════════════════════════════════════════════

                    On Appeal from the 338th District Court
                            Harris County, Texas
                        Trial Court Case No. 1344346
══════════════════════════════════════════════════════════════════

                          MEMORANDUM OPINION

      A jury convicted appellant, Joseph Juan Facundo, of capital murder, and,

because the State did not seek the death penalty, the trial court assessed punishment

at confinement for life. We affirm.
                                 BACKGROUND

      On the evening of December 20, 2011, Russell Lopez was at home taking care

of his seven-year-old son, Caden, his six-year old niece, Bailey, and his nine-month-

old daughter, Julianne. Lopez’s wife, Marie, and his cousin, Shonte Mabe, were at

work together. When they got off work shortly after 9:00 that night, Marie tried

calling Lopez twice, but was unable to reach him. Mabe gave Marie a ride home.

When they pulled up to Marie’s house, they noticed that Lopez’s black Tahoe was

not in the driveway.

      Upon entering the home, they found that their house had been ransacked and

Marie’s nine-month-old daughter was sitting on the couch unattended. Lopez was

found lying on the bedroom floor covered in blood. While Mabe called 911, Marie

went to Caden’s bedroom to check on the children. Marie found the children in

Caden’s bedroom. Both Caden and Bailey were unharmed, but their hands and feet

had been bound together. While Marie was in the children’s bedroom, the 911

dispatch operator instructed Mabe to confirm that Lopez was not breathing. Lopez’s

face was so distorted that he was unrecognizable. Due to the severe nature of the

injuries to Lopez’s face, Mabe was unable to perform CPR.

      Paramedics arrived and declared Lopez dead on the scene. A sword was lying

across his left chest and arm. There was a large concentration of blood on the floor

of the dining room area, as well as bloody trails on the carpet leading to Lopez’s


                                         2
body, indicating that his body had been dragged from the dining room to the

bedroom. Various items had been removed from the home, including a television, a

game system, jewelry, and Lopez’s vehicle.

      Sergeant Craig Clopton, an investigator for the homicide unit at the Harris

County Sheriff’s Office, spoke with people in the neighborhood and developed two

potential suspects, Amber Thornton and appellant. On December 28th, Clopton

interviewed Thornton, who voluntarily consented to the interview, at the homicide

department. Based on the information he received from Thornton, Clopton also

developed Tony Escobar as a suspect.

      Clopton produced photo arrays containing pictures of the three suspects and

showed them to Caden. Caden identified appellant. Clopton then sought capital

murder charges against appellant, and an arrest warrant was issued for his arrest.

      On December 30th, 2011 appellant was apprehended in Laredo, where he was

attempting to cross the border into Mexico.

Appellant’s Trial

      At appellant’s trial, Thornton testified as a witness for the State. According to

Thornton, Lopez was the neighborhood drug dealer. On the evening of December

20, 2011, Thornton went to the vacant house next door to her home to get high. She

found that Escobar and appellant were already at the vacant house. Thornton testified

that they spent the next 30 minutes discussing a plan to rob Lopez to get money and


                                          3
drugs. They planned to enter Lopez’s home under the pretense of selling him a

laptop, which Escobar had brought to the vacant house, in exchange for three bags

of cocaine worth $20.00 each. Once inside, appellant would hit Lopez over the head

with a hammer, Escobar would tie up the children, and they would steal Lopez’s

property and his Tahoe.

      Appellant called Lopez and arranged for the “sale” of the laptop. Then they

walked to Lopez’s house, and he let them inside. Appellant was carrying the hammer

in his pocket. Thornton testified that Lopez was sitting at the dining room table

feeding his infant daughter. Caden and Bailey were also present, but Lopez told them

to go to the back room. Appellant and Escobar set the laptop on the table and grabbed

the cocaine. Then appellant pulled the hammer out of his pocket and struck Lopez

about 10 times in the back of the head. Lopez fell to the ground, and appellant

continued to repeatedly strike him with the hammer.

      Thornton testified that the baby began crying, so she picked her up from the

highchair and held her while Escobar went to Caden’s room and tied up the other

children. Appellant, Thornton, and Escobar started grabbing televisions, guns,

electronics, drugs, and money. Appellant and Escobar loaded the stolen items into

Lopez’s Tahoe, while Thornton held the baby. Appellant and Escobar grabbed

Lopez by the hands and dragged his body into the bedroom. Then, appellant retrieved

an ornamental sword from Lopez’s bedroom. Appellant and Escobar were standing


                                          4
over Lopez’s body, and appellant was about to stab Lopez with the sword, when he

told Thornton to look the other way. Appellant, along with Thornton and Escobar,

drove the Tahoe to the vacant house and hid the stolen property in the attic. They

discarded the Tahoe at a lake known locally as “The Cliffs.”

      Sergeant C. Clopton testified as a witness for the State. Clopton testified that

he contacted the Webb County Jail after discovering that appellant was detained in

Laredo. Clopton called to inquire if the jail was equipped to record inmates’

telephone conversations. When he learned the jail recorded appellant’s telephone

conversations, he requested a copy of the recordings to further investigate Lopez’s

murder.

      Lieutenant A. Vera also testified as a witness for the State. Vera was custodian

of records for the Webb County Jail at the time appellant was detained there. Clopton

coordinated with Vera to obtain appellant’s recorded telephone conversations. Vera

testified that the jail uses a system called Intel to record and log phone calls made

by inmates. Before making a call, inmates are prompted with a recording that

informs them the call will be monitored. The State presented State’s Exhibit 111 as

evidence, which was a CD of recorded conversations that appellant made while

housed at the Webb County jail. In the recorded conversations with friends and

family members, appellant is heard repeatedly protesting his innocence, pleading




                                          5
with his mother to hire him a lawyer, and talking about his alibi.1 Defense counsel

objected to the recordings based on a violation of the Fifth Amendment and the fact

that appellant “is in custody at that point.” The trial court overruled appellant’s

objection to the admission of the recordings.

      The State also presented State’s Exhibit 3, an EMS report that was created by

the paramedic who responded to the scene and found Lopez dead. The report was

authored by Dawn Visneau, an assistant chief of Emergency Medical Services and

the supervisor on duty when EMS responded to the call at Lopez’s home. When it

was offered into evidence, appellant objected to the report’s narrative portion, which

described the physical condition of the victim’s body and the appearance of the

house in which was discovered, as inadmissible hearsay within hearsay. The trial

court overruled appellant’s objection.

      Archie Woods, appellant’s cellmate in the Harris County Jail, testified that

appellant told Woods that he was in jail for capital murder because he had hit a man

in the head with a hammer during a home invasion seeking drugs and money.

Appellant described his co-actors as a man and a woman and talked about a sword

being involved. Appellant also told Woods about how he was arrested while




1
      Appellant is heard telling family members to find “Blinky,” who could tell police
      that he was with appellant and Escobar at the bayou at the time of the murder.
                                           6
attempting to cross the border into Mexico. Finally, Woods testified that appellant’s

nickname in jail was “Hammer.”

      Sergeant Clopton also testified about a conversation he had with Jimmy

Whalen, also known as “Blinky,” wherein Whalen told him that appellant had asked

him to lie and be his alibi. This evidence was admitted after Whalen denied at trial

that such a conversation ever took place.

      The jury found appellant guilty of capital murder as charged in the indictment.

     ADMISSION OF RECORDED TELEPHONE CONVERSATIONS

      In four related issues on appeal, appellant contends the trial court erred by

admitting evidence of jailhouse telephone calls that he made to friends and family.

Specifically, appellant presents the following issues:

      1.     Whether a defendant’s constitutional right to counsel under the
      Fifth Amendment is violated when he is discussing retaining an
      attorney with his family on a jail house phone call that is recorded by
      the State and is used against him as evidence at trial?

      2.     Whether a defendant’s constitutional right to counsel under the
      Sixth Amendment is violated when he is discussing retaining an
      attorney with his family on a jail house phone call that is recorded by
      the State and is used against him as evidence at trial?

      3.     Whether a defendant’s due process rights are violated when he is
      discussing retaining an attorney with his family on a jail house phone
      call that is recorded by the State and is used against him as evidence at
      trial?

      4.     Whether overruling as untimely an objection to an exhibit
      constitutes error when the exhibit was objected to prior to being


                                            7
      admitted and then further objected to on additional grounds before it
      was published to the jury?

      The State responds that only appellant’s Fifth Amendment claim was

preserved for review because appellant’s Sixth Amendment and Due Process

objections were untimely. Thus, we begin by addressing appellant’s fourth issue.

Standard of Review and Applicable Law

      We review a trial court’s decision to admit evidence for an abuse of discretion.

Castrejon v. State, 428 S.W.3d 179, 184 (Tex. App.—Houston [1st Dist.] 2014, no

pet.). We will not reverse a trial court’s evidentiary ruling unless it falls outside the

zone of reasonable disagreement. Id.

      An objection is timely if it is raised as soon as the ground objection becomes

apparent, or otherwise the matter is forfeited. Johnson v. State, 878 S.W.2d 164, 167

(Tex. Crim. App. 1994). To preserve error for appellate review, the complaining

party must make a specific objection and obtain a ruling on the objection. Wilson v.

State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). The objection must be made at

the earliest possible opportunity. Id.

Timeliness of Sixth Amendment and Due Process Objections

      When the State offered the recorded telephone conversations into evidence

during direct examination of witness Lieutenant Vera, appellant initially made

objections as to 1) the lack of authentication of the recordings, and 2) the legality of

intercepting and recording an inmate’s telephone conversations (presumably, a
                                            8
Fourth Amendment objection). Both objections were overruled by the court.

      Immediately thereafter, appellant made an objection to admission of the

recordings grounded upon a violation of the Fifth Amendment. Defense counsel did

not give specific grounds for the alleged violation other than that appellant was in

custody when the conversations were recorded. The exchange occurred as follows:

      [Defense counsel]: I need to put on the record, notwithstanding the
      Court’s ruling, I forgot to add the violation of the Fifth Amendment.
      He’s in custody at that point.

      [The State]: He is not subject to counsel on recorded phone calls. He
      has no right to privacy to that conversation in jail, and the State would
      assert     there’s       no       Fifth     Amendment           violation.

      [Trial Court]: I understand.

      [Defense counsel]: Same ruling, I understand. I just want the record to
      reflect.

After an off the record discussion, the Court ruled on appellant’s Fifth Amendment

objection as follows:

        [Trial Court]: Objection is overruled. It will be admitted.

        [The State]: Your Honor, I’ll ask for permission to publish at a
        later time.

        [Trial Court]: Sure.

      Later that afternoon, the Court recessed for the day and announced that

proceedings would resume the following morning. When the trial resumed the next

day, and before the jury was empaneled, appellant made a second objection


                                          9
grounded upon a violation of the Fifth Amendment as follows:

         [Defense counsel]: Your Honor, prior to State’s Exhibit 111 being
         published or played in the presence of the jury, I would object to
         those portions of those conversations between my client and family
         members that deal with specifically his parents’ efforts at retaining
         counsel on his behalf, his admonitions or warnings from his mother
         about not talking to law enforcement and everything pertaining to
         that subject matter of representation and counsel and his need not to
         talk to anyone, his need to immediately invoke his rights to counsel,
         and that whole line of conversation as being irrelevant. And since
         these are post arrest statements, a jury could hear that to potentially
         infer comments on his post-arrest right to silence. It is tantamount to
         an implicit suggestion perhaps of his guilt, and I just think it’s
         irrelevant, inflammatory, and prejudicial.

         [Trial Court]: I’ll overrule the objection.

      Thereafter, the State noted for the record that State’s Exhibit 111 had already

been entered into evidence earlier in the trial and that the recordings should come in

in its entirety. The court responded:

          [Trial Court]: I’ll overrule the objection. I just think it’s not timely.

      The State argues that appellant’s Sixth Amendment and Due Process

objections [if indeed those are the bases for appellant’s renewed objections] were

untimely because the evidence had already been admitted the previous day, even

though the jury had not yet heard it. We agree.

      In Castrejon, the State moved to admit a recording, and the appellant objected

based on the lack of a certified interpreter. 428 S.W.3d at 186. The trial court

overruled the objection, and the recording was admitted, but not published to the


                                           10
jury at that time. Id. At closing argument, when the State requested to publish the

recording to the jury, appellant objected based on a different ground, i.e., the lack of

a written transcript. Id. This Court held that the new objection, made after admission

of the evidence, but before publication to the jury, came too late to preserve error.

Id.   The same is true here.       Appellant’s Due Process and Sixth Amendment

objections came the day after the evidence was admitted at trial, and, as such, were

not “made at the earliest possible opportunity.”         Wilson, 71 S.W.3d at 349.

Therefore, we conclude that the trial court did not abuse its discretion when

determining that appellant’s Due Process and Sixth Amendment objections were

untimely.

         We overrule point of error four. Because appellant’s Due Process and Sixth

Amendment objections were untimely, we also overrule points of error two and

three.

Fifth Amendment Objection

         In point of error one, appellant claims the trial court erred in admitting the

recorded telephone conversations. Specifically, appellant argues that admission of

the recordings violated his Fifth Amendment right against self-incrimination

because he was entitled to have counsel present during custodial interrogation.

Appellant further claims that the statements he made on the phone calls were the

product of custodial interrogation because they were captured by a system


                                           11
specifically designed to record the conversation of a defendant in police custody.

Appellant’s argument is without merit.

      Although appellant was in custody, the recorded statements that he made over

the jail phone were not made in response to interrogation by law enforcement. See

State v. Scheineman, 77 S.W.3d 810, 813 (Tex. Crim. App. 2002) (en banc)

(observing that no custodial interrogation occurred when the defendant’s custodial

statement was not made in response to interrogation by law enforcement personnel

but instead was made when the defendant was alone with a co-defendant); see also

Banargent v. State, 228 S.W.3d 393, 402 (Tex. App.—Houston [14th Dist.] 2007,

pet. ref’d) (holding that recordings of telephone calls made by defendant from prison

were not product of custodial interrogation.).

      Because there was no custodial interrogation, the trial court did not err in

overruling appellant’s Fifth Amendment objection. Accordingly, we overrule point

of error one.

                            BATSON CHALLENGES

      In points of error five and six, appellant contends that the trial court erred in

denying his Batson challenge that he raised during voir dire in violation of Texas

Code of Criminal Procedure article 35.261 and Batson v. Kentucky.2 Appellant

argues that the State’s use of peremptory challenges against two venire members,


2
      476 U.S. 79, 106 S. Ct. 1712 (1986).
                                             12
both of whom were Hispanic, was racially motivated. Specifically, appellant brings

the following issues:

      5.     Whether striking a Hispanic venire person based on his opinion
      of law enforcement in the neighborhood where the venire person lives
      resulted in a statutorily prohibited race based peremptory challenge in
      violation of Texas Code of Criminal Procedure 35.261?

      6.     Whether striking a Hispanic venire person based on his opinion
      of law enforcement in the neighborhood where the venire person lives
      resulted in a statutorily prohibited race based peremptory challenge in
      violation of Batson v. Kentucky?

Standard of Review and Applicable Law

      In Batson, the United States Supreme Court held that the prosecution is

forbidden from exercising peremptory strikes based solely on the race of the

potential venire member. 476 U.S. at 86, 106 S. Ct. at 1717. To succeed on a Batson

challenge: First, the defendant makes a prima facie case that a venire member was

excluded on the basis of race. Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App.

2001). Second, the State must come forth with race-neutral reasons for exercising

the peremptory challenge. Id. The defendant has the opportunity to rebut those

reasons. Id. The burden of persuasion remains with the defendant. Id. “The ultimate

plausibility of that race-neutral explanation is to be considered as part of the third

step of the analysis, in which the trial court determines whether the opponent of the

strike (usually the defendant) has satisfied his burden of persuasion to establish by a

preponderance of the evidence that the strike was indeed the product of the


                                          13
proponent’s purposeful discrimination.” Watkins v. State, 245 S.W.3d 444, 447

(Tex. Crim. App. 2008) (citing Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769,

1771 (1995)).

      The determination of whether the State’s explanation is a pretext “is solely a

question of fact; there is no issue of law.” Gibson v. State, 144 S.W.3d 530, 534

(Tex. Crim. App. 2004). Because the trial court’s fact finding will be based on

factors not evident in the record, its decision is accorded great deference and will not

be overturned unless it is clearly erroneous. Id; see Jasper, 61 S.W.3d at 421–422.

      Appellant concedes that the State gave a race-neutral reason for the use of its

peremptory strikes, but argues that its reason was pretextual and not supported by

the record.

Analysis

      After venire members were struck for cause, and after each side made its

peremptory challenges, but before the jury was empaneled and sworn in, defense

counsel made an oral Batson motion, arguing that appellant was Hispanic and the

State struck “66% or two-thirds of the Hispanics on this panel.” Appellant

challenged the State’s peremptory strikes regarding venire members 26 and 34,

claiming that they were racially motivated. The State responded that, among other

reasons, venire members 26 and 34 were struck because of their negative view of

law enforcement.


                                          14
      The record shows that the State asked the venire the following question:

      Now I’m going to ask everyone’s opinion of law enforcement. We’re
      going to go down the list again, 1 through 65. Obviously, one is thumbs
      down. Four is thumbs up. And this is your opinion of law enforcement
      in your community where you live.

Both venire members 26 and 34 rated their opinion of law enforcement at a 2.

Appellant now claims the question was a method of racial discrimination because it

inquired into the venire members’ opinion of law enforcement in the community

where they live. In his appellate brief, appellant argues:

      Since it is not uncommon for people of similar race, nationalities,
      cultures and/or backgrounds to live in the same area and share similar
      opinions, including opinions about law enforcement, the answer
      solicited resulted in the same outcome as if the State would have asked,
      “In your Hispanic neighborhood, what is your opinion of law
      enforcement?”

      However, appellant’s argument assumes that all Hispanic individuals reside

in ethnically segregated communities. Further, the record shows that defense counsel

identified venire member 38 as a third Hispanic individual who remained on the

panel. Venire member 38 answered “3” in response to the question regarding law

enforcement. Had the State intended to strike all Hispanic venire members, the State

could have struck venire member 38 because it only used nine out of ten of its

peremptory challenges. Nonetheless, venire member 38 was not struck from the

panel. The State’s failure to strike venire member 38 is some evidence that the State

was willing to accept Hispanics who had a more positive view of law enforcement.


                                          15
Thus, this supports the trial court’s finding that venire members 26 and 34 were

struck by the State based on their view of law enforcement, and not on the fact that

they lived in Hispanic communities. Indeed, the record shows that, after strikes for

cause were made, the State struck all remaining venire members who evaluated law

enforcement at a two or less.

      Having reviewed the entire record, we conclude the trial court’s decision to

deny appellant’s Batson motion was not clearly erroneous. The State provided a

racially-neutral explanation for its use of peremptory challenges, and appellant failed

to carry his burden to show that the stated reason was pretextual. The trial court was

in the best position to assess the genuineness of the State’s assertions regarding the

strikes. Such an assessment would rely on a number of intangible judgments made

by the trial court. See Miller–El v. Cockrell, 537 U.S. 322, 339, 123 S. Ct. 1029,

1040–41 (2003). Giving, as we must, deference to the trial court’s ruling, we do not

have a “definite and firm conviction that a mistake has been committed.” See

Guzman v. State, 85 S.W.3d 242, 254 (Tex. Crim. App. 2002).

      We overrule points of error five and six.

                                     HEARSAY

      In point of error seven, appellant contends that the trial court abused its

discretion by admitting State’s Exhibit 3, a report prepared by an Emergency

Medical Services paramedic, which contains a narrative portion indicating the


                                          16
supervisor’s observations of the scene. Specifically, appellant brings the following

issue:

         7.     Whether a business record that contains hearsay within hearsay
         is erroneously admitted into evidence when each part of the hearsay
         within hearsay fails to conform with an exception to the hearsay rule as
         required by Texas Rules of Evidence 805?

Standard of Review and Applicable Law

         We review the trial court’s admission of evidence for abuse of discretion.

Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Ford v. State, 179

S.W.3d 203, 210 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). The test for

abuse of discretion is not whether, in the opinion of the reviewing court, the facts

present an appropriate case for the trial court’s action; rather, it is a question of

whether the trial court acted without reference to any guiding rules or

principles. Hernandez v. State, 53 S.W.3d 742, 750 (Tex. App.—Houston [1st Dist.]

2001, pet. ref’d).

Analysis

         Appellant contends State’s Exhibit 3, the report prepared by an Emergency

Medical Services paramedic, contains a narrative portion indicating the supervisor’s

observations of the scene, which contains hearsay within hearsay. The narrative

portion of the report reads:

         Upon arrival PT presented supine in bedroom of home. PT was covered
         in blood, Pulse less and Apneic. PT was cold and cyanotic with lividity.
         PT had sword laying across his left chest and left arm. PT had brain
                                           17
        matter and skull fragments beside his body. PT had laceration to the
        right chest and throat. PT. had penetrating trauma to right cheek
        esposing bone and tissue. 6 second strip performed showing Astyote.
        PT pronounced DOS due to unknown downtime and injuries
        incompatible with life. House had blood splatter on ceiling of bedroom
        just above the body as well as in living room and kitchen. Kitchen
        pantry had copious amounts of coagulated blood on floor. House
        appeared to be ransacked as TV in bedroom was upside down on floor.
        Drawers in living room and bedroom were overturned. TV in living
        room was missing. PT family was taken to back bedroom awaiting SO
        arrival. Upon arrival of SO report given to officer. Assistant chief and
        Medic 41 remained on scene to give report to homicide detective.

Appellant bases his complaint on Rule of Evidence 805, which provides, in relevant

part:

        Hearsay within Hearsay: Hearsay within hearsay is not excluded by the
        rule against hearsay if each part of the combined statements conforms
        with          an          exception         to         the       rule.

Even when a document is admissible under an exception to the hearsay rule, portions

of its contents nonetheless may remain hearsay. See TEX. R. EVID. 805; see also

Texas Worker’s Comp. Comm’n v. Wausau Underwriters Ins., 127 S.W.3d 50, 61

(Tex. App.—Houston [1st Dist.] 2003, pet. denied) (“Even though a document is

admissible pursuant to a hearsay exception, further objections to hearsay contained

within the document must be examined separately.”).

        Here, the State proffered the report as a business record, exempt from the

hearsay rule. See TEX. R. EVID. 803(6). Appellant argued the narrative portion of the

report, which described the EMT’s observations of the crime scene, was hearsay

within hearsay, and should have not been admitted, even though the EMT report
                                          18
itself was admissible under the business record exception.

      Assuming, without deciding, that the EMT report contained hearsay within

hearsay, we conclude that its admission was harmless error. Admitting evidence in

violation of a rule of evidence is considered non-constitutional error. See TEX. R.

APP. P. 44.2(b); Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011); Jabari

v. State, 273 S.W.3d 745, 754 (Tex. App.—Houston [1st Dist.] 2008, no pet.). We

disregard any non-constitutional error that does not affect a defendant's substantial

rights. Jabari, 273 S.W.3d at 754. “A substantial right is affected when the error had

a substantial and injurious effect or influence in determining the jury’s verdict. Id.

(citing Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)). We should

not reverse a conviction for non-constitutional error if, after examining the record as

whole, we have “fair assurance that the error did not influence the jury, or had but a

slight effect.” Id. (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.

1998)).

      In making this determination, we consider the entire record, including any

testimony and physical evidence admitted for the jury’s consideration, the nature of

the evidence supporting the verdict, the character of the alleged error, and how it

might be considered in connection with other evidence in the case. Haley v. State,

173 S.W.3d 510, 518 (Tex. Crim. App. 2005); Motilla v. State, 78 S.W.3d 352, 355–

56 (Tex. Crim. App. 2002). The weight of evidence of the defendant’s guilt is


                                          19
relevant in conducting the harm analysis under rule 44.2(b). Neal v. State, 256

S.W.3d 264, 285 (Tex. Crim. App. 2008); Motilla, 78 S.W.3d at 356–57.

      After examining the record as a whole, we are fairly assured the error did not

have a substantial and injurious effect or influence in determining appellant's

conviction. See Jabari, 273 S.W.3d at 754. Here, there was copious other evidence

presented about the condition of the complainant’s body, that a sword was used, that

the house had been ransacked, and that items were missing from the house. The

narrative portion of the EMT statement provided no significant information that was

not otherwise available to the jury, and nothing in it points to appellant as the

murderer. A trial court’s error in admitting evidence is harmless error when similar

facts are proved by other properly admitted evidence. See Bourque v. State, 156

S.W.3d 675, 677 (Tex. App.—Dallas 2005, pet. ref’d) (concluding that admission

of hearsay was harmless because considerable, substantially similar evidence was

presented during trial); see also Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.—

Houston [1st Dist.] 2002, pet. ref’d) (concluding that improper admission of hearsay

was harmless because similar testimony was admitted through complainant, medical

records, and other witnesses).

      And, there was significant other evidence establishing appellant’s guilt,

including his co-defendant’s testimony, Caden’s identification of appellant, the fact

that appellant was caught while attempting to flee to Mexico, and appellant’s


                                         20
jailhouse confession to his cellmate. The weight of evidence of the defendant’s guilt

is relevant in a harm analysis. Neal, 256 S.W.3d at 285.

      Because the admission of Exhibit 3 was harmless, we overrule appellant’s

seventh issue on appeal.

                                 CONCLUSION

      We affirm the trial court’s judgment.




                                                Sherry Radack
                                                Chief Justice

Panel consists of Justices Radack and Justices Keyes and Higley.

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




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