AFFIRM and Opinion Filed February 25, 2019




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-17-01180-CR

                         ROLMAN GARCIA-RAMIREZ, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                      On Appeal from the 194th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1675687-M

                             MEMORANDUM OPINION
                        Before Justices Whitehill, Molberg, and Reichek
                                 Opinion by Justice Whitehill
       A jury convicted appellant of continuous sexual abuse of a child and assessed punishment

at thirty-eight years in prison. In a single issue, appellant argues that the trial court erred by

admitting hearsay evidence about who sent certain text messages. Assuming the issue was

preserved for our review and there was error, the record shows there was no harm since the

complainant provided the same or similar testimony without objection. We thus affirm the trial

court’s judgment.

                                       I. BACKGROUND

       Appellant was charged with continuous sexual abuse of a child, MD, appellant’s wife’s

sister. MD testified about appellant’s abuse, which began when she was eight and continued until
she was approximately fourteen. The jury convicted appellant of continuous sexual abuse of a

child and assessed punishment at thirty-eight years in prison.

                                          II. ANALYSIS

       Appellant’s sole issue argues that the trial court erred by admitting hearsay evidence about

whether appellant was the person who sent certain text messages to MD.

A.     Standard of Review and Applicable Law

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

Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). Abuse of discretion occurs only

if the decision is “so clearly wrong as to lie outside the zone within which reasonable people might

disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008).

       Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter

asserted and is inadmissible unless a statute or rule of exception applies. TEX. R. EVID. 801(d),

802. A party claiming the erroneous admission of hearsay must make a timely objection and secure

a ruling or the issue is not preserved for appellate review. See TEX. R. APP. P. 33.1; Mack v. State,

872 S.W.2d 36, 38 (Tex. App.—Fort Worth 1994, no pet.) (holding any error in admission of

hearsay testimony was not preserved because defendant failed to make a timely objection and

secure a ruling on the objection).

       The complained-of testimony was elicited through the testimony of MD’s sister, Alma.

Specifically, appellant complains the testimony was improperly admitted hearsay—that is, that

“Alma’s testimony that MD told her that the ‘unidentified sender’ was [appellant] was offered for

the truth of the matter asserted.”

B.     Was appellant harmed?

       Assuming the issue was preserved and that admitting the testimony was error, the record

does not demonstrate that appellant was harmed. The erroneous admission of hearsay evidence is

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nonconstitutional error.   Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

Nonconstitutional error requires reversal only when the error affected a party’s substantial rights.

See TEX. R. APP. P. 44.2(b). Error that has a substantial and injurious effect or influence in

determining the jury’s verdict affects a substantial right. Coble v. State, 330 S.W.3d 253, 280

(Tex. Crim. App. 2010).

       Here, the complained-of testimony was that appellant sent the text messages to MD. But

this was also established through MD’s testimony without objection. Specifically, MD testified:

       PROSECUTOR: All right. And so you had talked about the defendant giving you
       gifts, did he ever send you messages?
       MD: Yes.
        ...
       PROSECUTOR: Okay. And so when he — what would he send you on your phone?
       MD: He would send me text messages saying that he loved me. Send me pictures
       of, like, flowers or, like — I guess, a GIF which says, I love you.
       ...
       PROSECUTOR: And so he would send you these messages. Did any of your sisters
       ever see those messages?
       MD: Yes.
       PROSECUTOR: What sisters saw some of those messages that the defendant sent
       you?
       MD: My sister Edith and my sister Alma.
       “Erroneously admitting evidence ‘will not result in reversal when other such evidence was

received without objection, either before or after the complained-of ruling.” Coble, 330 S.W.3d at

282. This holds true even when the evidence is not the same but is very similar or substantially

the same evidence. Estrada v. State, 313 S.W.3d 274, 302 n. 29 (Tex. Crim. App. 2010) (very

similar evidence admitted); Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991)

(substantially the same evidence admitted). Therefore, even if the evidence was improperly

admitted through Alma, we cannot conclude that appellant suffered harm.



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      We resolve appellant’s sole issue against him and affirm the trial court’s judgment.




                                       /Bill Whitehill/
                                       BILL WHITEHILL
                                       JUSTICE



Do Not Publish
TEX. R. APP. P. 47
171180F.U05




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                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

 ROLMAN GARCIA-RAMIREZ, Appellant                 On Appeal from the 194th Judicial District
                                                  Court, Dallas County, Texas
 No. 05-17-01180-CR       V.                      Trial Court Cause No. F-1675687-M.
                                                  Opinion delivered by Justice Whitehill.
 THE STATE OF TEXAS, Appellee                     Justices Molberg and Reichek participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered February 25, 2019




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