

Opinion issued May 5, 2011.

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-00314-CR
———————————
Eddie Wayne Johnson III, Appellant
V.
The State of
Texas, Appellee

 

 
On Appeal from the 228th Judicial District  
Harris County, Texas

Trial Court Case No. 1187625
 

 
O P I N I O N
          A
jury convicted Eddie Wayne Johnson III of assault of a household member and a
person with whom he had a dating relationship. 
See Tex. Penal
Code Ann. § 22.01(a)(1), (b)(2) (West Supp. 2010). 
The jury assessed Johnson’s
punishment at sixty-three years’ confinement after it found two enhancement
paragraphs to be true.  On appeal,
Johnson contends that the trial court abused its discretion by admitting hearsay
evidence that Johnson’s nieces offered the complainant money if she would drop
the charges against him and sign an affidavit of non-prosecution. 
We affirm.    
Background
          Johnson
and his girlfriend, Shannon Cook, lived together in an apartment at the time of
the assault and had dated intermittently for nine years.  In September 2008, Johnson terrorized and brutally
struck Cook in the head, face, back, legs, and arms with various objects for
over ten hours at the apartment.  Cook
reported the incident to the South Houston Police Department.  At trial, Cook testified that Johnson
attempted to persuade her to drop the charges against him.  She stated that Johnson’s lawyer sent her an
affidavit of non–prosecution,
and his two nieces had visited her while she was incarcerated on an unrelated drug
offense.  Over Johnson’s hearsay
objections, Cook further testified that the nieces offered to deposit money in
her jail account if she would drop the charges and sign an affidavit of non-prosecution. 
The relevant testimony is as follows:
 
 
 
PROSECUTOR:  Did Eddie Johnson ever try to get you to drop
the charges in this case?
 
COOK:  While I was incarcerated his lawyer sent . .
. an affidavit to me and wanted me to sign the affidavit.  And he sent his two nieces up to see me in
jail on Easter, last Easter.
 
PROSECUTOR:  Did
they offer you anything to drop the charges?
                   
         COOK: 
Well, Tamra told me that—
                   
         DEFENSE COUNSEL:  Objection
to hearsay.
                   
          THE COURT:  Listen
to the question and answer the question.
                   
          PROSECUTOR:  Just
yes or no. Did they offer you anything to drop the charges?
                   
         COOK: 
Yes. 
                   
         PROSECUTOR:  What did they offer you to drop the charges? 
                   
         DEFENSE
COUNSEL:  Objection, Your Honor. It would
be hearsay. 
                   
         THE COURT:  Overruled. 
                   
          COOK: 
They said that they would put
money—that they would split my money—I mean, the money they put on his books,
they would split it and put it on my books and help me anyway that they could. 
 
Johnson also objected when the State offered the
affidavit into evidence.  The trial court
admitted it.  Later during re-cross examination, Cook testified without
objection that Johnson’s investigator sent her an affidavit of non-prosecution also while she was
incarcerated.
Discussion
          In one issue, Johnson contends that
the trial court erred in admitting the testimony concerning the nieces’ offer to Cook and the affidavit because
both are inadmissible hearsay.  
Standard of Review and Applicable
Law 
          We review the trial court’s admission
of evidence under an abuse of discretion standard.  Salazar v. State, 38 S.W.3d 141, 153 (Tex. Crim. App. 2001).  We will uphold the trial court’s decision
unless it lies outside the “zone of reasonable disagreement.”  Id. at 153–54.
          Hearsay is “a statement, other than
one made by the declarant while testifying at trial or hearing, offered in
evidence to prove the truth of the matter asserted.” Tex. R. Evid. 801(d).  An
extrajudicial statement or writing that is offered for the purpose of showing
what was said, rather
than for proving the truth of the matter stated therein, does not constitute
hearsay.  Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App.
1995); Ellis v. State, 99
S.W.3d 783, 788 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).  In other words, a statement is not hearsay if
its relevancy does not hinge on its truthfulness.  Bell v.
State, 877 S.W.2d 21, 24–25 (Tex. App.—Dallas 1994, pet. ref’d) (holding
that witness’s testimony that individual told witness and defendant that victim
had $1100 was not hearsay because State offered testimony to show defendant’s
motive to kill victim; whether victim actually had money was irrelevant).
Analysis 
          Here, Cook testified that the nieces
offered her money to drop the charges against Johnson and to sign an affidavit
of non-prosecution.  The affidavit is
relevant not because of the truthfulness of its contents.  Rather, the State offered the affidavit to
show that Johnson attempted to induce Cook not to testify, and she refused.  An attempt to tamper with a witness is
evidence of “consciousness of guilt.”  Wilson v. State, 7 S.W.3d 136, 141 (Tex.
Crim. App. 1999) (holding that defendant, whom witness saw assault another
person, made veiled attempt to tamper with witness by referencing witness’s
father and new baby in later conversation). 
The affidavit was, therefore, relevant as circumstantial evidence of
Johnson’s consciousness of his guilt.  As
such, the evidence was not offered for the truth of the matter asserted, and thus
the trial court did not err in admitting it. 
See Dinkins, 894
S.W.2d at 347; Ellis, 99
S.W.3d at 788.  As to the admission of
the nieces’ testimony about depositing money into Cook’s jail account, it is
cumulative of other efforts made by Johnson to persuade Cook not to testify or
prosecute.  Overruling an objection to
evidence will not result in reversal when other such evidence was received
without objection, either before or after the complained-of ruling.  Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).  Cook testified without objection that Johnson had attempted
to persuade her to drop the charges against her, and she produced the affidavit
that she received from Johnson’s nieces. 
She testified that
Johnson’s investigator also had sent her an affidavit of non-prosecution.  Thus, any error in the admission of the nieces’ statements is
harmless because other evidence exists in the record that Johnson attempted to induce
Cook to drop the case.  See Leday,
983 S.W.2d at 718.  We hold
that Johnson has not shown reversible error in the admission of evidence at
trial.  
Conclusion
          We
hold that the trial court committed no reversible error in the admission of
evidence.  We therefore affirm the
judgment of the trial court.    
 
 
 
                                                                   Jane
Bland
                                                                   Justice

 
Panel
consists of Chief Justice Radack and Justices Alcala and Bland.
Publish.   Tex. R. App. P. 47.2(b).

