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                                  MEMORANDUM OPINION

                                         No. 04-08-00714-CR

                                      Jake Robert BLANCARTE,
                                              Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                        From the County Court at Law No. 7, Bexar County, Texas
                                        Trial Court No. 977382
                            Honorable Monica E. Guerrero, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: July 15, 2009

AFFIRMED

           Jake Blancarte was convicted of assault and he was sentenced to one year in jail, probated

for twenty-four months, and fined $4,000. We affirm the trial court’s judgment.

                                            BACKGROUND

           On August 18, 2006, San Antonio Police Officer Edward Beltran was dispatched to the scene

of a reported assault. When he arrived at the scene, Officer Beltran found the complainant, Jennifer
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Martinez, crying in the parking lot of her apartment complex. Officer Beltran observed a knot on

the left side of Martinez’s head and an abrasion on her arm. Martinez told Officer Beltran that she

was assaulted by her boyfriend, Blancarte. She further told Officer Beltran that Blancarte had

yanked the telephone out of the wall when she attempted to call the police for assistance.

           Officer Beltran spoke to Blancarte about the alleged incident when Blancarte returned to the

apartment complex. Blancarte admitted having an argument with Martinez when the couple were

returning to their apartment, but denied assaulting Martinez inside their residence. The record

indicates Officer Beltran also interviewed an eyewitness to the alleged assault, Jose Lopéz. Lopéz,

who is also Martinez’s cousin, confirmed Martinez’s version of the events concerning the assault.

Based on his observations and the statements he obtained, Officer Beltran arrested Blancarte for

assault.

           Blancarte was charged with the offenses of assault and interference with an emergency call.

At Blancarte’s trial, the only witnesses to testify were Officer Beltran and Lopéz. Officer Beltran

provided testimony regarding Martinez’s and Blancarte’s statements to him after the alleged assault

had occurred, while Lopéz testified about his recollection of the events he had witnessed between

Martinez and Blancarte. In addition to this testimony, the jury viewed photographs of the injuries

Martinez sustained as a result of Blancarte’s alleged assault.

           After hearing all the evidence, a jury acquitted Blancarte on the charge of interference with

an emergency call, but found Blancarte guilty of assault. Blancarte was sentenced to one year in jail,

probated for twenty-four months, and fined $4,000. This appeal followed.




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                                           DISCUSSION

       Blancarte complains the admission of any out-of-court statements to Officer Beltran

regarding the assault violated his Sixth Amendment right of confrontation. He argues the statements

were barred under Crawford v. Washington, 541 U.S. 36 (2004), and their admission constituted

reversible error. In Crawford, the United States Supreme Court concluded that out-of-court

statements by a witness, who fails to testify at trial, are barred by the Confrontation Clause of the

constitution unless the witness is unavailable to testify and the accused had a prior opportunity to

cross-examine the witness, regardless of whether such statements are deemed reliable under the rules

of evidence. 541 U.S. at 59-69; see Oveal v. State, 164 S.W.3d 735, 739 n. 2 (Tex. App.—Houston

[14th Dist.] 2005, pet. ref’d). The State contends Blancarte has not preserved his complaint because

he failed to object under the Confrontation Clause at trial. We agree with the State.

       When Officer Beltran offered his testimony relating to Martinez’s and Blancarte’s out-of-

court statements during trial, Blancarte objected on hearsay grounds. An objection on the basis of

hearsay, however, does not preserve error on Confrontation Clause grounds. Reyna v. State, 168

S.W.3d 173, 179 (Tex. Crim. App. 2005); Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App.

2004). Because Blancarte did not object on Confrontation Clause grounds during trial, we must

conclude Blancarte failed to preserve this issue for our review. See Reyna, 168 S.W.3d at 179;

Paredes, 129 S.W.3d at 535.

       To the extent Blancarte complains on appeal that Officer Beltran’s testimony constituted

inadmissible hearsay that was admitted in violation of the rules of evidence, any error in the

admission of this evidence was harmless. “The admission of inadmissible hearsay constitutes

non-constitutional error, and it will be considered harmless if the appellate court, after examining



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the record as a whole, is reasonably assured that the error did not influence the jury verdict or had

but a slight effect.” Yanez v. State, 199 S.W.3d 293, 308 (Tex. App.—Corpus Christi 2006, pet.

ref’d). “Admission of inadmissible evidence is harmless error if other evidence that proves the same

fact that the inadmissible evidence sought to prove is admitted without objection at trial.” Broderick

v. State, 35 S.W.3d 67, 75 (Tex. App.—Texarkana 2000, pet. ref’d).

       The record indicates Lopéz was an eyewitness to Blancarte’s assault on Martinez. Lopéz

testified without objection about the events leading up to the assault, the assault itself, and how the

incident ended. Because Lopéz’s testimony proves the same facts that the alleged inadmissible

evidence sought to prove, any error in admitting Officer Beltran’s testimony is harmless.

       Blancarte also alleges the State failed to lay the proper predicate or foundation for the

admission of Officer Beltran’s testimony. To preserve such error, however, Blancarte was required

to “inform the court just how the predicate is deficient.” See Bird v. State, 692 S.W.2d 65, 70 (Tex.

Crim. App. 1985). Blancarte never informed the trial court exactly how the predicate was deficient

and therefore failed to preserve his complaint for appellate review. See id.

       Finally, Blancarte contends that without the allegedly improper hearsay testimony, the

evidence is legally insufficient to support his conviction. Blancarte’s contention that we may not

consider the allegedly inadmissible hearsay when conducting our sufficiency review is incorrect.

“[A]n appellate court must consider all evidence actually admitted at trial in its sufficiency review

and give it whatever weight and probative value it could rationally convey to a jury.” Moff v. State,

131 S.W.3d 485, 489 (Tex. Crim. App. 2004). Thus, even if the trial court erred in admitting Officer

Beltran’s testimony concerning the out-of-court statements, we must consider the improperly

admitted testimony in assessing the sufficiency of the evidence. See id. at 489-90. Regardless of



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Officer Beltran’s testimony regarding the out-of-court statements, Lopéz provided detailed testimony

about the events surrounding the assault. In light of Lopéz’s testimony, we conclude the evidence

is legally sufficient to support Blancarte’s conviction.

                                           CONCLUSION

       Based on the foregoing, the judgment of the trial court is affirmed.



                                                       Catherine Stone, Chief Justice

Do Not Publish




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