      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00684-CR



                              Jeffrey Walker Kindred, Appellant

                                                v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
          NO. 69787, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury convicted appellant Jeffrey Walker Kindred of the offense of aggravated

assault of a peace officer with a deadly weapon. Punishment was assessed at forty years’

imprisonment. In two related issues on appeal, Kindred asserts that the district court abused its

discretion in admitting testimony by a police officer that Kindred contends was (1) hearsay and

(2) not relevant. We will affirm the judgment of conviction.


                                        BACKGROUND

               The jury heard evidence that on the afternoon of April 15, 2012, Officer Derek Rose

of the Temple Police Department responded to a dispatch reporting that a possible suspect in a

robbery from several weeks earlier had been identified buying gas at a convenience store. According

to Rose, the store clerk who had identified the suspect reported the suspect’s vehicle and license-

plate number to the police. Rose then entered the vehicle information into the police database and

ascertained the location of the apartment complex where the suspect likely resided. Rose testified
that he traveled to that location and, once there, identified the suspect vehicle exiting the complex.

Rose began following the vehicle and eventually conducted a traffic stop. After stopping the vehicle,

which contained both a driver and passenger, Rose began conversing with the driver, who was later

identified as Kindred.

               Shortly thereafter, Officer James Carr arrived at the scene to assist Rose. Carr

testified that Rose asked him to interview Kindred outside the vehicle while Rose interviewed the

passenger. Carr explained that he escorted Kindred to a nearby location and began interviewing him.

At some point during the conversation, Carr decided to place Kindred in handcuffs. However, before

Carr was able to do so, Kindred fled. According to Carr, Kindred jumped over a rail on the side of

the road, rolled down a nearby hill, and continued running. Carr chased after Kindred on foot, and

eventually caught up with him. Carr testified that when he made physical contact with Kindred,

Kindred turned around and “threw a punch” at him, “right in [Carr’s] face.” Carr punched Kindred

in return, in an attempt to gain control of him. The tactic did not work. Instead, Carr explained,

Kindred “dove for [Carr’s] gun” and the two men began wrestling for control of the firearm, with

Kindred eventually obtaining control of the weapon and pointing it at Carr’s head, “ready to shoot.”

As Carr struggled to regain control of the weapon, Kindred pulled the trigger. Carr testified that the

bullet did not hit him, but the shell casing did. As the struggle continued, Kindred repeatedly pulled

the trigger in an attempt to shoot Carr. He was unable to do so, according to the ballistic evidence

presented at trial, because the gun had jammed after the first shot was fired. Carr testified that

he soon became exhausted and was quickly losing his ability to fight Kindred. Fortunately, Carr

explained, Rose and other officers arrived at around that time and assisted Carr in gaining control

of Kindred and placing him under arrest.




                                                  2
                 Based on the above and other evidence, the jury convicted Kindred of the offense

of aggravated assault on a public servant with a deadly weapon and assessed punishment as

noted above. The district court sentenced Kindred in accordance with the jury’s verdict. This

appeal followed.


                                    STANDARD OF REVIEW

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

of discretion.1 The test for abuse of discretion is whether the trial court acted arbitrarily or

unreasonably, without reference to any guiding rules or principles.2 A trial court abuses its discretion

only when its decision “is so clearly wrong as to lie outside that zone within which reasonable

persons might disagree.”3 Moreover, we must sustain a trial court’s ruling admitting or excluding

evidence on any theory of law applicable to the case.4


                                              ANALYSIS

                 During Officer Rose’s testimony, the following exchange occurred:


        Q.                      And so at some point, did you get a dispatch about a
                                particular vehicle?

        A.                      Yes, sir, I did.

        Q.                      And what was that?



       1
            Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008).
        2
            Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
       3
            McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).
        4
            See Romero v. State, 800 S.W.2d 539, 543-44 (Tex. Crim. App. 1990).


                                                   3
       A.                      It was a call to a little convenience store at MLK and Booth
                               that there was a black male pumping gas—

       [Defense counsel]:      Your Honor, this is going to be a hearsay statement.

       [Prosecutor]:           Your Honor, we’re not offering this for the truth of the matter
                               asserted, but merely to understand why off—Lieutenant Rose
                               made the stop in the first place. It goes to the probable cause
                               of the stop.

       [The Court]:            Overruled.

       ....

       Q.                      What was that [dispatch]?

       A.                      It was a call that there was a black male pumping gas. And
                               the clerk recognized him, and it was called in that he had
                               committed a robbery there several weeks earlier.

       Q.                      Okay. And other than that, did you have any information
                               about the call?

       A.                      Yes, sir. It was a—they put it out that it was a gold car. . . .
                               And they said it was a Nissan Altima. And when I got the
                               return that says it was—it lived at the apartments just up from
                               there off of MLK.


No further objections to the testimony were raised. In his first issue on appeal, Kindred asserts that

the above testimony was inadmissible hearsay.5 In his second issue on appeal, Kindred additionally

asserts that the testimony was not relevant to any issue in the case.

               We first address Kindred’s contention that the testimony was inadmissible hearsay.

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing,




       5
          Specifically, Kindred contends that the testimony was “double hearsay,” or hearsay within
hearsay, because the officer was recounting statements by the dispatcher regarding statements by the
store clerk. See Tex. R. Evid. 805.

                                                  4
offered in evidence to prove the truth of the matter asserted.6 “It is well established that an

extra-judicial statement or writing offered for the purpose of showing what was said rather than

for the truth of the matter stated therein does not constitute hearsay.”7 Here, it would not be outside

the zone of reasonable disagreement for the district court to find that the statements made by the

clerk to the dispatcher and, subsequently, by the dispatcher to the officer, were not offered to

prove the truth of the matter asserted, i.e., that Kindred had committed a robbery at the store several

weeks earlier. Instead, the district court could have reasonably found that the statements were being

offered to provide the jury with relevant background information concerning the incident and the

circumstances surrounding the assault, including why Officer Rose had stopped Kindred and why

Officer Carr had arrived on the scene to assist Rose.8 On this record, we cannot conclude that the

district court abused its discretion in overruling Kindred’s hearsay objection to the evidence.

                Kindred next contends that the testimony was not relevant to any issue in the case.

Specifically, Kindred asserts that the prosecutor’s proferred reason for eliciting the testimony, to

establish “probable cause [for] the [traffic] stop,” was never an issue in the case or contested by the

defense, and thus the testimony was not relevant for that reason.9 However, as the State observes,


       6
           Tex. R. Evid. 801(d).
       7
           Porter v. State, 623 S.W.2d 374, 385 (Tex. Crim. App. 1981).
       8
           See id. at 385 (communication between officers and dispatch not hearsay when offered
to show “the circumstances surrounding and leading to” the charged offense and to show that
officer was “acting in the lawful discharge of an official duty” during incident); see also Dinkins
v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995) (explaining that State may offer out-of-court
statements without violating hearsay rule if statements are offered to explain why defendant became
subject of investigation).
       9
         See Christopher v. State, 833 S.W.2d 526, 529 (Tex. Crim. App. 1992) (holding that even
though certain evidence “was relevant to the determination of probable cause to stop appellant, that
issue was not contested before the jury,” and therefore, the evidence was not “admissible at trial on
grounds of relevancy to any issue of probable cause”).

                                                  5
Kindred did not object to the testimony at trial on this ground. His objection was limited to hearsay.

Accordingly, this complaint is being raised for the first time on appeal and has not been preserved

for our review.10

                 Moreover, even if we were to assume that error was preserved on the basis of

relevance and further assume that the testimony should not have been admitted either for that reason

or because it was inadmissible hearsay, we could not conclude on this record that Kindred was

harmed by its admission. A violation of the evidentiary rules that results in the erroneous admission

of evidence is non-constitutional error.11 Non-constitutional error that does not affect a defendant’s

substantial rights must be disregarded.12 Substantial rights are not affected by the erroneous

admission of evidence if the appellate court, after examining the record as a whole, has fair assurance

that the error did not influence the jury or had but a slight effect.13 “In assessing the likelihood that

the jury’s decision was adversely affected by the error, the appellate court should consider everything

in the record, including any testimony or 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.”14 We may also consider the jury




        10
          See Tex. R. App. P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002)
(“[T]he point of error on appeal must comport with the objection made at trial.”); Thomas v. State,
723 S.W.2d 696, 700 (Tex. Crim. App. 1986) (“[I]f an objection made in the trial court differs from
the complaint made on appeal, a defendant has not preserved any error for review.”).
        11
             See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).
        12
             Tex. R. App. P. 44.2(b).
        13
             Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
        14
             Id. at 355-56.

                                                   6
instructions, the State’s theory and any defensive theories, closing arguments, voir dire, if applicable,

whether the State emphasized the error, and whether there is “overwhelming evidence of guilt.”15

                 Here, Kindred’s identity as a possible robbery suspect was not emphasized by

the State, either during its case-in-chief or in its closing arguments. Instead, the State’s emphasis

throughout trial was on the charged offense. The vast majority of evidence presented at trial related

to the assault itself, including extensive testimony from Officer Carr explaining the circumstances

surrounding his struggle with Kindred for control of Carr’s firearm and describing in detail

Kindred’s repeated attempts to shoot Carr once he had gained control of the weapon, and ballistics

evidence that tended to corroborate Carr’s account of the assault. On this record, we have fair

assurance that the challenged testimony, brief and limited as it was, did not influence the jury or had

but a slight effect.

                 We overrule Kindred’s first and second issues.


                                           CONCLUSION

                 We affirm the judgment of the district court.



                                                __________________________________________

                                                Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Field

Affirmed

Filed: July 25, 2014

Do Not Publish


        15
             Id. at 355-57.

                                                   7
