Opinion issued March 19, 2020




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00731-CR
                           ———————————
                         KEVIN PEOPLES, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 185th District Court
                           Harris County, Texas
                       Trial Court Case No. 1551878


                         MEMORANDUM OPINION

      Kevin Peoples appeals his conviction for aggravated assault with a deadly

weapon. See TEX. PENAL CODE § 22.02(a)(2). He alleges that the trial court erred by

admitting testimony regarding his involvement in prostitution and drug dealing. We

affirm.
                                   Background

      Around noon on April 28, 2016, a commercial truck driver named Alex

Benson parked his 18-wheeler in the parking lot of a hotel and rented a room. When

he rented the room, he was accompanied by Dixie Shirley, a woman with pink hair.

She was known to stay with Peoples, who was a long-term resident of the hotel.

Around 11:00 p. m. that evening, Shirley suddenly ran from Benson’s room to get

Peoples. When she did so, Benson ran from his room to his 18-wheeler without

putting on his shoes or underwear. Alerted that Benson was trying to run out, Peoples

grabbed a loaded .45-caliber pistol from his hotel room, climbed an exterior

staircase, and fired three shots at Benson as he reached his rig. One of those shots

struck Benson in the back of the head. Benson continued into his rig, got inside, and

began to drive away.

      After shooting at Benson, Peoples returned to his room and put the pistol in a

drawer. He and Shirley then fled from the hotel in Peoples’s car. Meanwhile,

Benson, disoriented because of the gunshot wound to his head, drove away from the

hotel without disengaging his parking brakes. He drove for approximately one mile

before pulling over on the shoulder of an elevated portion of the Gulf Freeway.

Dazed, he got out of the rig’s cab and wandered the highway before falling over a

barrier into the U-turn lane below. Motorists found him severely injured but




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responsive and called 911. An ambulance arrived and transported Benson to the

hospital, where he was pronounced dead.

      Investigators soon connected Benson to the abandoned 18-wheeler on the

freeway above where his body was found. They traced the tire tracks back to the

hotel and obtained the hotel’s security video. The video showed Benson and Shirley

together renting a room, Peoples and Shirley together, Shirley and Benson running

out of Benson’s hotel room, and the shooting. They obtained Peoples’s name and

phone number from the hotel’s guest registration paperwork and entered the phone

number on Facebook. The search produced a page listed under Peoples’s alias,

“Millie Mack” and photographs of him with several women, including Shirley.

      Peoples was originally charged with murder, but the charge was dismissed,

and the State charged him with aggravated assault with a deadly weapon, including

two punishment enhancement allegations in the indictment. Peoples pleaded guilty

and elected jury sentencing. After a punishment hearing, the jury found the State’s

enhancement allegations true and assessed Peoples’s punishment at 43 years’

imprisonment. The trial court sentenced him in accordance with the jury’s verdict in

August 2018.




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                              Admission of Evidence

       On appeal, Peoples argues that the trial court erred by admitting testimony

from witnesses who stated they believed that Peoples dealt drugs and was involved

in prostitution.

A.     Standard of Review and Applicable Law

       Texas Rule of Evidence 602 provides that “[a] witness may testify to a matter

only if evidence is introduced sufficient to support a finding that the witness has

personal knowledge of the matter. Evidence to prove personal knowledge may

consist of the witness’s own testimony.” TEX. R. EVID. 602. Rule 701 provides that

a witness who is not testifying as an expert may testify in the form of an opinion that

is “(a) rationally based on the witness’s perception; and (b) helpful to clearly

understanding the witness’s testimony or to determining a fact issue.” TEX. R. EVID.

701.

       We review the trial court’s decision to admit or exclude evidence for an abuse

of discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). Under

this standard, we may reverse the trial court only if its decision is outside the zone

of reasonable disagreement. Id. at 83. We will uphold the ruling if it is correct under

any applicable theory of law, even if the trial court relied on an incorrect reason for

reaching its decision. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App.

2009).


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B.    Testimony Regarding Drugs

      Peoples argues that the trial court erred in admitting testimony from

Christopher Gilbert, a long-term hotel resident. Specifically, when asked how he

knew Peoples, Gilbert responded that Peoples sold “products, like marijuana and

stuff like that” around the property. On appeal, Peoples argues that Gilbert’s

statement should have been excluded because Gilbert did not have personal

knowledge of his activities. The State responds that Peoples failed to preserve this

complaint for appellate review. We agree.

      To preserve a complaint for appellate review, the complaining party must

normally make a timely and specific objection and obtain a ruling from the trial

court. TEX. R. APP. P. 33.1(a); Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim.

App. 2014). Peoples did not object when Gilbert offered the testimony that Peoples

challenges on appeal. He therefore waived his right to complain about the admission

of this testimony on appeal. TEX. R. APP. P. 33.1.

C.    Testimony Regarding Prostitution

      Next, Peoples contends that the trial court erred in admitting testimony that

Peoples was involved in prostitution. The State asked Maritsa Vargas, the hotel

manager, if she knew how Peoples made money or what he was doing at the hotel.

Peoples’s counsel objected that the question called for speculation. The trial court

overruled the objection, and Vargas testified that she “assumed [Peoples made


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money by] prostitution.” Similarly, the State asked Gilbert if he knew what Peoples

did at the hotel. Peoples’s counsel objected that the question called for speculation.

The trial court overruled the objection, and Gilbert responded, “I think a pimp or

whatever.” Peoples contends that neither witness had personal knowledge of the

matter and their testimony prejudiced the jury against him.

      The questions asked by the State elicited responses from each witness that

were based on personal knowledge. Specifically, the prosecutor asked Vargas, “Did

you know how the defendant was making money or what he was doing at the hotel?”

The prosecutor asked Gilbert, “Anything else that you are aware of that he was

doing?” The witnesses’ responses demonstrated that they were expressing personal

opinion based on their observations of Peoples at the hotel property. See TEX. R.

EVID. 701. The trial court did not abuse its discretion in admitting the testimony from

Vargas or Gilbert.

      Moreover, even assuming the trial court erred in admitting the evidence,

Peoples has not demonstrated that he was harmed by the admission of the statements.

The erroneous admission of evidence constitutes non-constitutional error governed

by Rule of Appellate Procedure 44.2(b). Melgar v. State, 236 S.W.3d 302, 308 (Tex.

App.—Houston [1st Dist.] 2007, pet. denied). Non-constitutional errors require

reversal only if it affects the substantial rights of the accused. TEX. R. APP. P. 44.2(b);

Barshaw v. State, 342 S.W.3d 91, 93–94 (Tex. Crim. App. 2011). “A substantial


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right is affected when the error had a substantial and injurious effect or influence in

determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.

1997). We will not overturn a criminal conviction for non-constitutional error if,

after examining the record, we have fair assurance that the error did not influence

the jury or had but a slight effect. Barshaw, 342 S.W.3d at 93–94. Error in the

admission of evidence may be rendered harmless when substantially the same

evidence is admitted elsewhere without objection. See Leday v. State, 983 S.W.2d

713, 717–18 (Tex. Crim. App. 1998); Anderson v. State, 717 S.W.2d 622, 628 (Tex.

Crim. App. 1986).

      Any error in admitting Vargas’s and Gilbert’s statements that each believed

Peoples was involved in prostitution was harmless because it was duplicative of

evidence admitted elsewhere without objection. The State introduced numerous

letters written by Peoples referencing his status as a “pimp.” The letters were written

from jail to Shirley, his mother, and at least two other women. In a letter to Shirley,

Peoples wrote a “rap” about his involvement in prostitution: “Dis [sic] is Millie

Mack. Live out da [sic] boot. Pimping is my game, breaking hoes is what I do.” In

another letter, Peoples wrote: “Well I’m a gentleman of legior [sic] (pimp). On my

team is females that do what daddy say.” (parenthetical in original). The content of

the letters demonstrated People’s involvement in prostitution in greater and more

explicit detail than either Vargas’s or Gilbert’s testimony. Therefore, any error in


                                          7
admitting the testimony of those two witnesses was unlikely to have had a substantial

and injurious effect or influence upon the jury’s deliberations. We overrule Peoples’s

evidentiary issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                               Peter Kelly
                                               Justice

Panel consists of Justices Lloyd, Kelly, and Countiss.

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




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