                                         NO. 07-09-0031-CR

                                   IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                            AT AMARILLO

                                                PANEL C

                                            JULY 16, 2010

                               ______________________________


                            CHARLES BLACKBURN, JR., APPELLANT

                                                    V.

                                THE STATE OF TEXAS, APPELLEE


                             _________________________________

              FROM THE 277TH DISTRICT COURT OF WILLIAMSON COUNTY;

                 NO. 08-1008-K277; HONORABLE KEN ANDERSON, JUDGE

                               _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                     MEMORANDUM OPINION


          Following a plea of not guilty, Appellant, Charles Blackburn, Jr. was convicted by

a jury of two counts of aggravated robbery, with an affirmative finding on use of a deadly

weapon, a first degree felony.1 Punishment was assessed at thirty years confinement

as to each count, with the sentences to be served concurrently. Presenting two points


1
    Tex. Penal Code Ann. § 29.03(a) and (b) (Vernon 2003).
of error, Appellant challenges his conviction and sentence. By his first point, he raises a

multifarious argument2 regarding whether the BB gun used in the robbery in question

was a deadly weapon. Specifically, he questions the qualifications of the State's expert

witness, alleges abuse of discretion by the trial court in overruling his objection to the

admission of State's Exhibit No. 233, a website printout of Crosman Products, the BB

gun manufacturer, and challenges admission of the State's expert witness's testimony

as it relates to certain firing tests performed. By point of error two, which relates only to

punishment, Appellant contends the trial court abused its discretion in denying the

admission of his co-defendant's videotape statement because the denial deprived him

of his constitutional right to present a defense. We affirm.


                                        Factual Background


        On January 30, 2008, Appellant robbed the Bank of America in Round Rock,

Texas. His co-defendant mother, Diedre Blackburn, who had an account at the bank,

entered the bank at approximately 3:13 p.m. to make a deposit. While she was being

waited on by a teller, Olivia Ortega, Appellant entered the bank, walked toward Ortega's

window, pushed Diedre aside, and demanded money. Ortega complied in accordance

with her training.



2
 Relying on Martinez v. State, 969 S.W.2d 497, 499 (Tex.App.--Austin 1998, pet. ref'd) (citing Martinez v.
State, 924 S.W.2d 693, 698 (Tex.Crim.App. 1996)), the State maintains that presentation of a multifarious
point results in procedural default. By his reply brief, Appellant contends his point of error is not
multifarious. Nevertheless, he references Whirty v. Grimes, No. 07-08-0394-CV, 2009 Tex.App. LEXIS
(Tex.App.--Amarillo April 14, 2009, pet. denied) (citing Foster v. State, 101 S.W.3d 490, 499 (Tex.App.--
Houston [1st Dist.] 2002, no pet.)), in which this Court recognized that an appellate court may address a
multifarious issue that is sufficiently developed. In the interest of judicial economy and justice, we will
address Appellant's various claims raised in point of error one. See Gallo v. State, 239 S.W.3d 757, 770
(Tex.Crim.App. 2007). See also Sterling v. State, 800 S.W.2d 513, 521 (Tex.Crim.App. 1990).


                                                    2
      During the robbery, Appellant wore a hoody, a knit cap, and a bandana over his

face, while exhibiting a weapon later discovered to be a BB gun. After the robbery,

Appellant fled on foot, but he was seen by an assistant bank manager ducking behind a

nearby truck. The bank manager wrote down the license plate of the truck, while other

witnesses at a nearby business photographed the truck and its license plate with their

cell phones.


      Following the robbery, the bank manager asked Diedre to stay and give a

statement. Diedre insisted, however, that she needed to leave for medical reasons.

She left her contact information and proceeded toward her truck, which she had

inconveniently parked away from the bank.           When the assistant bank manager

observed Diedre enter the same truck she had witnessed Appellant duck behind, she

surmised that Diedre was involved in the robbery.


      Officer Jim Weber responded to the aggravated robbery call when he spotted the

suspected truck and confirmed the license plate. He radioed that he was in pursuit of

the truck and backup officers were dispatched. Officer Weber followed the truck to a

subdivision in Pflugerville, activated his patrol car lights, and stopped the vehicle near

the house where Appellant and Diedre had been staying with friends. Due to the nature

of the call, the stop was considered high risk and Officer Weber drew his weapon and

issued commands to Appellant and Diedre. Notwithstanding their compliance with his

commands, Officer Weber testified that Appellant was verbally aggressive and

belligerent. Backup officers, detectives, and FBI agents arrived on the scene. In plain

view inside the truck, the officers observed a hoody, black ski mask, bandana, green

mesh bag, and tan gloves. Having determined probable cause to search the truck

                                            3
existed, backup officers conducted a search and found an air pistol and a bag

containing over $10,000 in cash.


          Officer Donald D'Amour testified that Appellant was handcuffed and placed in his

patrol car.      Diedre was also handcuffed and taken to the police department where

Detectives Shawn Scott and Jeff Hill interviewed her for approximately ninety minutes.

Based on Diedre's interview and their investigation, Appellant was indicted for five

counts of aggravated robbery committed in four different robberies, to wit: two counts

on January 19, 2007; one count on December 1, 2007, one count on January 10, 2008,

and one count for the Bank of America robbery on January 30, 2008.3                          The State

decided to prosecute Appellant only for the two 2008 aggravated robberies. At the time

of those robberies, Appellant was only sixteen years old; however, he was subsequently

certified to be tried as an adult.


          During the lengthy punishment phase, the State sought to prove that Appellant

also committed the two 2007 robberies. Appellant theorized that he was innocent of the

two extraneous robberies because those robberies were committed by someone

exhibiting an actual firearm, while he only owned a BB gun.                       After weighing the

evidence, the jury sentenced Appellant to thirty years confinement for each offense and

this appeal followed.4




3
    The January 10, 2008, and January 30, 2008, robberies were of the same branch of Bank of America.
4
 Originally appealed to the Third Court of Appeals, this appeal was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. Tex. Gov=t Code Ann. ' 73.001 (Vernon 2005).
We are unaware of any conflict between precedent of the Third Court of Appeals and that of this Court on
any relevant issue. See Tex. R. App. P. 41.3.


                                                    4
                                          Analysis


I.        Point of Error One


          By his first point of error, Appellant challenges (1) the qualifications of Chris

Herndon, the State's expert witness, (2) alleges error by the trial court in overruling his

objection to Herndon's testimony regarding State's Exhibit No. 233, a website printout of

Crosman Products, the BB gun manufacturer, and (3) questions the relevancy of tests

performed by firing the BB gun into a watermelon and an unknown type of wood.

Essentially, Appellant's complaints challenge the trial court's evidentiary rulings in

relation to the jury's deadly weapon finding.


          In reviewing a trial court's ruling on the admissibility of evidence we utilize an

abuse of discretion standard. Prystash v. State, 3 S.W.3d 522, 527 (Tex.Crim.App.

1999). We will not disturb the trial court's ruling if it was within the zone of reasonable

disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op.

on reh'g).


          A deadly weapon is defined as a firearm or anything manifestly designed, made,

or adapted for the purpose of inflicting death or serious bodily injury or anything that in

the manner of its use or intended use is capable of causing death or serious bodily

injury.    Tex. Penal Code Ann. § 1.07(17)(A) and (B) (Vernon Supp. 2009).              The

placement of the word "capable" is crucial to understanding the method of determining

deadly-weapon status. Tucker v. State, 274 S.W.3d 688, 691 (Tex.Crim.App. 2008).

Serious bodily injury is bodily injury that creates a substantial risk of death or that



                                                5
causes death, serious permanent disfigurement, or protracted loss or impairment of the

function of any bodily member or organ. Id. at (46).


         In determining whether an object used in the commission of an offense is a

deadly weapon, the jury may consider all the surrounding facts, including the

defendant=s words and whether the victim feared death or serious bodily injury. Blain v.

State, 647 S.W.2d 293, 294 (Tex.Crim.App. 1983).        See Hernandez v. State, 649

S.W.2d 720, 722 (Tex.App.BAmarillo 1983, no pet.). The State need not prove that the

complainant actually sustained serious bodily injury for the alleged weapon to be a

deadly weapon. Jefferson v. State, 974 S.W.2d 887, 892 (Tex.App.BAustin 1998, no

pet.). In fact, wounds are not a necessary prerequisite for an object to be considered a

deadly weapon. Turner v. State, 664 S.W.2d 86, 90 (Tex.Crim.App. 1983). Neither

does the State have to show that the accused intended to cause serious bodily injury.

Lane v. State, 111 S.W.3d 203, 210 (Tex.App.BEastland 2003), aff=d, 151 S.W.3d 188

(Tex.Crim.App. 2004) (quoting Clark v. State, 886 S.W.2d 844, 845 (Tex.App.BEastland

1994, no pet.).    Either expert or lay testimony may be sufficient to support a deadly

weapon finding by the jury. English v. State, 647 S.W.2d 667, 668-69 (Tex.Crim.App.

1983).


         A.    Chris Herndon's Qualifications


         Appellant insists there is no showing that Investigator Chris Herndon was

qualified as an expert during the guilt/innocence phase regarding whether a BB gun is a

deadly weapon. Appellant concedes that Herndon was qualified as a firearms expert;

however, he references Herndon's testimony that a BB gun is not a firearm and


                                            6
deduces that Herndon, therefore, had no expertise to testify on compressed air guns.

We do not agree.


       Herndon testified that he was a peace officer since 1994 before becoming an

investigator for the district attorney's office ten years earlier. A police officer can be an

expert witness with respect to whether a deadly weapon, other than a firearm, is used.

See generally Tucker, 274 S.W.3d at 691-92 (finding police officer was qualified to

testify whether a knife or key was used as a deadly weapon).             At trial, Appellant

objected to Herndon's testimony on hearsay grounds; his complaint on appeal is that

Herndon was not qualified to testify as an expert on compressed air pistols.             His

complaint on appeal does not comport with his trial objection. See Mays v. State, No.

AP-75,924, 2010 Tex.Crim.App. LEXIS 480, at *62 (Tex.Crim.App. April 28, 2010)

(citing Guevara v. State, 97 S.W.3d 579, 583 (Tex.Crim.App. 2003). Consequently, his

contention regarding Herndon's expertise is not preserved for appellate review.


       B.     Crosman Products Website Printout


       Early during Herndon's testimony, the State offered Exhibit No. 232, a receipt for

a BB gun purchased for testing. The gun was identical to the one used in the robberies.

Defense counsel requested, and was permitted, an opportunity to take Herndon on voir

dire regarding the purchase of the BB gun. See Tex. R. Evid. 705(b). After voir dire,

defense counsel lodged a relevancy objection to Exhibit No. 232.             The trial court

sustained the objection and disallowed introduction of the receipt.


       When the State then offered Exhibit No. 233, a printout from the website of the

BB gun manufacturer, Crosman Products, defense counsel objected "to hearsay as to

                                             7
anything that might be in these documents." Before the trial court ruled, the prosecutor

asked Herndon if the company specifics had aided him in his testing and whether the

exhibit would aid the jury in understanding his testimony. After Herndon answered

affirmatively, the State offered Exhibit No. 233 and defense counsel again objected on

hearsay grounds. This colloquy followed:


       Court: He's an expert. 233 is admitted.

       [Defense counsel]: May I take the witness on voir dire?

       Court: You already did, and I already admitted it.

       [Defense counsel]: Well, I'd like to take him on voir dire for purposes of
       this objection.

       Court: But you already took him on voir dire, you made your objection, and
       I overruled it.

       [Defense counsel]: On a different issue, Judge.

                                           ***

       Court: Your previous objection was overruled, yes.

       [Defense counsel]: May I take the witness on voir dire?

       Court: Not to object to the same piece of evidence.

       [Defense counsel]: No, this is new evidence, Judge.

       Court: I'm sorry. I thought 233 is the specifications from the company.

       [Defense counsel]: Yes, it is.

       Court: And I already admitted it. You had already taken him on voir dire
       and made an objection, and I admitted it.


       Rule 705(b) of the Texas Rules of Evidence is clear. If a criminal defendant

timely requests to conduct voir dire examination of an expert, the trial court shall permit


                                            8
him to question the expert on the underlying facts or data upon which the opinion is

based. See Tex. R. Evid. 705(b). See also Alba v. State, 905 S.W.2d 581, 587-88

(Tex.Crim.App. 1995).       Rule 705 permits an abbreviated method of laying the

groundwork before asking for an expert's opinion. Id. at 588. As noted by the Court of

Criminal Appeals, "the focus of Rule 705(b) is to prevent the jury from hearing the

underlying facts and data which might ultimately be ruled as inadmissible." Id.


       Rule 705(b) is mandatory. Id. A trial court's denial of a timely and proper request

constitutes error. Id. In such a case, a reviewing court is required to decide whether

the trial court's error was so harmful as to require reversal.


       Relying on Alba, the State maintains that Appellant's request was not timely. We

disagree. In Alba, the defendant did not object until the "cat was already out of the

bag." Harris v. State, 133 S.W.3d 760, 774 (Tex.App.--Texarkana 2004, pet. ref'd). In

the underlying case, although the exhibit itself had already been admitted into evidence,

neither the exhibit, nor the specifics from the exhibit, had been published to the jury

when Appellant objected to the exhibit on hearsay grounds. The trial court's immediate

and hasty ruling in labeling Herndon an expert and admitting Exhibit No. 233 effectively

denied Appellant the opportunity to request voir dire examination before admission of

the exhibit. Under the scenario presented in this record, fairness dictates that we find

Appellant's request was timely, and the trial court erred in denying him the opportunity

to conduct a second voir dire examination of Herndon on this new piece of evidence.

Even though we have found this decision to be error, we must now determine the effect

of that error. Error in denying voir dire under Rule 705(b) constitutes non-constitutional

error that is subject to harm analysis. Alba, 905 S.W.2d at 588.

                                              9
        Non-constitutional error must be disregarded unless it affected the substantial

rights of the accused. Tex. R. App. P. 44.2(b). In other words, a conviction should not

be reversed unless a reviewing court, after examining the record as a whole, has a fair

assurance that the error did not influence the jury or had but a slight effect. McDonald

v. State, 179 S.W.3d 571, 578 (Tex.Crim.App. 2005).


        Here, the State sought to use Herndon to testify regarding whether a BB gun is a

deadly weapon and Herndon testified as much. However, Herndon was not the only

witness to testify that the weapon used was a deadly weapon. During the State's case-

in-chief, Bank teller Charity Childress also testified that on January 10, 2008, when she

was robbed, the suspect entered the bank and pointed the gun at her face, placing her

in fear of death or serious bodily injury. Furthermore, Bank teller Olivia Ortega, who

was pregnant at the time of the January 30, 2008 robbery, testified that the suspect

pointed the gun at her head, causing her to fear for her life and the health of her unborn

baby.


        Either expert testimony or lay testimony may be sufficient to support a deadly

weapon finding by a jury. See English, 647 S.W.2d at 669. See also Quincy v. State,

304 S.W.3d 489, 500 n.10 (Tex.App.--Amarillo 2009, no pet.).                           The unobjected-to

testimony of Childress and Ortega regarding their fear of death or serious bodily injury

from having a BB gun pointed at them is sufficient to support a deadly weapon finding.

See Tex. Penal Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2009).5 See also Adame v.

State, 69 S.W.3d 581, 581-82 (Tex.Crim.App. 2002). Therefore, notwithstanding the

5
 A "deadly weapon" is a firearm or anything manifestly designed, made, or adapted for the purpose of
inflicting death or serious bodily injury; or anything that in the manner of its use or intended use is capable
of causing death or serious bodily injury.

                                                      10
trial court's erroneous denial of Appellant's request to conduct voir dire examination of

Herndon and the subsequent admission into evidence of the Crosman website printout,

we have a fair assurance the error did not influence the jury or had but a slight effect

and does not require reversal of Appellant's conviction.


       C.    Relevancy of Tests Performed by Herndon


       Herndon also testified that he test fired the BB gun used in the robberies into a

watermelon and an undetermined type of wood. Appellant argued at trial and argues

here that the tests were not relevant, and testimony regarding them should have been

excluded. Herndon explained that he used watermelon and wood as mediums which

the average person could understand. Where tests showed that a projectile discharged

by the BB gun traveled a median of 263 feet per second, he opined that pointing the BB

gun into someone's face could penetrate the eye and cause serious bodily injury.

Based on his tests and the underlying data, Herndon was able to form an opinion that

that the BB gun was capable of causing death or serious bodily injury. Although the

State did not establish whether the BB gun was loaded at the time of the robberies, the

Texas Court of Criminal Appeals has held that is not significant in a deadly weapon

analysis. Adame, 69 S.W.3d at 582 (finding that evidence that appellant displayed a BB

gun to convenience store clerk and that the gun was capable of causing serious bodily

injury if pointed and fired at someone was sufficient to support jury's deadly weapon

finding).


       Because the crux of Appellant's multifarious point is a challenge to the jury's

deadly weapon finding, albeit argued via evidentiary rulings, the State was required to


                                           11
show that the use or intended use of the BB gun was capable of causing death or

serious bodily injury.   Tucker, 274 S.W.3d at 691.       Charity Childers, the Bank of

America teller who was robbed on January 10, 2008, testified that the suspect pointed a

gun at her face and she was in fear of death or serious bodily injury. State's Exhibit No.

2 showed a suspect holding a gun similar to Appellant's BB gun during one of the 2008

robberies in very close proximity to a bank teller's head. Whether the BB gun was

loaded is not significant. Adame, 69 S.W.3d at 582. Cf. Mosley v. State, 545 S.W.2d

144, 145-46 (Tex.Crim.App. 1976) (deciding whether an air pistol, as used, was a

deadly weapon under the newly enacted definition of "deadly weapon").            But see

Mosely, 545 S.W.2d at 146 (op. on reh'g) (addressing the State's concern that the

opinion on original submission held that an air pistol could never be a deadly weapon

and concluding that the original opinion did not attempt to exclude all types of air guns

from the definition of a firearm). Because the evidence supports that Appellant's BB

gun was capable of causing serious bodily injury, the jury was justified in finding that

Appellant used a deadly weapon during the two 2008 robberies. We conclude the

challenged evidentiary rulings of the trial court fell within the zone of reasonable

disagreement and we will not disturb those rulings. See Resendiz v. State, 112 S.W.3d

541, 544 (Tex.Crim.App. 2003). Point of error one is overruled.


II.   Point of Error Two


      By his second point of error, Appellant again challenges an evidentiary ruling of

the trial court. Here, he maintains the trial court erred in refusing his request to admit

the videotape statement of his co-defendant, Diedre, because the statement would have



                                           12
dispelled allegations that he was involved in the extraneous robberies, thereby depriving

him of his Sixth Amendment right to present a defense.6


       A.      Background


       Following her arrest, Diedre gave a videotaped statement to Detective Scott that

was about an hour and a half long. In that statement she implicated Appellant in all four

robberies originally charged in the indictment, but she stated that he "never had a real

gun." During the punishment phase of trial, firearms expert Herndon testified that the

January 19, 2007 robbery was committed with an actual firearm, a Sig Sauer P226. He

also testified that the December 1, 2007 robbery was committed with either a Sig Sauer

or a Heckler and Kock compact USP, both actual firearms. Appellant contends that

introduction of the videotape would have promoted his defense that he did not commit

the two 2007 robberies because it would have established that he did not own a firearm

like the ones used in those robberies.


       The videotape statement in question was not admitted into evidence during the

guilt/innocence phase of the trial; however, at the punishment phase, during Appellant's

cross-examination of Detective Scott, the trial court attempted to limit Appellant's use of

that statement. At the time, defense counsel argued that the State's questioning of

Detective Scott had opened the door to the admission of the statement and that the

statement was admissible pursuant to Appellant's Sixth Amendment right of

confrontation.

6
 The State asserts that Appellant waived his contention because his complaint on appeal does not
comport with his complaint at trial. See Sorto v. State, 173 S.W.3d 469, 476 (Tex.Crim.App. 2005). We
nevertheless will review Appellant's point.


                                                 13
       The State's line of questioning during Detective Scott's punishment phase

testimony had focused on the detective's decision to charge Appellant with all four

robberies.     During cross-examination, defense counsel asked Detective Scott the

following:


       Q. So the evidence you got from Diedre Blackburn was that she drove
       [Appellant] to each robbery, correct?



He responded, "That is correct."           After a follow-up question, the following colloquy

ensued:


       [Prosecutor]: Your Honor, I'm going to object to any questioning about
       exactly what Diedre Blackburn said. Counsel knows that violates the
       constitutional right of the defendant.

       [Defense Counsel]: I'm sorry. I don't understand the objection.

       [Prosecutor]: I'm going to object to any Crawford violations propounded by
       the defense to this witness.

       [Defense Counsel]: Your Honor, it's not offered for the truth of the matter.
       We don't think it's true. It's offered to show how this detective conducted
       his investigation.



The judge asked everyone to approach for an on-the-record bench conference. After

he advised the prosecutor that it was not up to him to defend the defendant's

constitutional rights, the State again expressed Crawford7 concerns if the defense was

7
 A testimonial hearsay statement may not be admitted in evidence against an accused unless the
declarant is unavailable and the accused had a prior opportunity to cross-examine the declarant.
Crawford v. Washington, 541 U.S. 36, 68 124 S.Ct. 1354, 158 L.Ed.2s 177 (2004). Interrogations by law
enforcement officers fall in the class of testimonial hearsay. See 541 U.S. at 53. See also Gutierrez v.
State, 150 S.W.3d 827, 830 (Tex.App.--Houston [14th Dist.] 2004, no pet.). The Texas Court of Criminal
Appeals has not addressed whether Crawford applies when a jury determines the sentence in a non-
capital case. Stringer v. State, No. PD-1569-08, 2010 LEXIS 249, at *15 (Tex.Crim.App. 2010 April 14,
2010).

                                                  14
allowed to admit certain portions of Diedre's statement without the State being allowed

to introduce the remainder of the statement.         The judge expressed frustration and

commented that the quality of Detective Scott's investigation was not a relevant

punishment issue and advised the parties to continue with the punishment phase. He

asked defense counsel if Diedre's statement was the "avenue he wanted to go down."

He replied, "Yes, Judge. That's why I'm doing it."


      Defense counsel was then permitted to question Detective Scott about his

interrogation with Diedre.   Defense counsel wanted to show that Diedre had been

badgered into admitting that Appellant had been involved in all four robberies. The

State made a relevancy objection to defense counsel attempting to challenge the

voluntariness of Diedre's statement, which the trial court sustained. Outside the jury's

presence, the State made another Crawford objection. The judge, again expressing

frustration, advised the State that it did not have the right to assert the Confrontation

Clause for Appellant.


      The punishment phase continued with testimony from other witnesses. Defense

counsel then asked to recall Detective Scott for the purpose of admitting Diedre's

statement.   The judge permitted Detective Scott to be recalled but regarding the

introduction of Diedre's videotape statement, ruled as follows:


      I'm going to rely on some basic principles of law which are that the trial
      judge has some discretion in what he's going to allow in and at the state it
      is now, we've gotten past what is relevant and now we're pushing it even
      further beyond just the oral testimony to this videotape which would get us
      even beyond that. So I'm not inclined to allow the videotape statement of
      Diedre Blackburn into evidence.



                                            15
      Based on the court's ruling, defense counsel requested that the videotape

statement, Defendant's Exhibit No. 20, be made a part of the record for purposes of

appeal. He now argues that Diedre's statement would have established he did not

commit the two 2007 robberies and he speculates that if Diedre's statement had been

introduced into evidence, "it is very doubtful [the jury] would have assessed the

punishment actually imposed."


      B.        Analysis


      As stated above, we utilize an abuse of discretion standard to review the trial

court's evidentiary rulings. Prystash, 3 S.W.3d at 527. If the trial judge was correct

under any theory of law applicable to the case, we will uphold the judge's decision. Id.

Whether or not evidence is relevant is a matter within the sound discretion of the trial

court. Moreno v. State, 858 S.W.2d 453, 463 (Tex.Crim.App. 1993). Furthermore, even

relevant evidence may be excluded if the probative value is substantially outweighed by

considerations of undue delay, or needless presentation of cumulative evidence. Tex.

R. Evid. 403.


      With those standards in mind, this Court has reviewed Diedre's entire videotape

statement in the context within which it was presented. Given the status of the trial,

particularly the issues presented at the punishment phase of the trial in light of the

evidence already admitted, we cannot say that the trial court's decision to exclude this

statement, either on the basis of relevance or undue delay, was an abuse of discretion.


      Furthermore, even assuming for the sake of argument that the trial court abused

its discretion in excluding the statement from evidence, we find the exclusion was

                                           16
harmless. In her statement, Diedre implicates Appellant in all four robberies and claims

to have driven him to all four robberies.         Moreover, the defense was allowed to

distinguish the two sets of robberies by putting on evidence through Herndon that the

2007 robberies were committed with weapons other than a BB gun. Consequently, we

fail to see how exclusion of this evidence harmed Appellant or prevented him from

presenting a defensive theory during the punishment phase of the trial.


       Moreover, Appellant's speculation on the degree of punishment assessed is

without merit. Appellant received thirty years punishment for two first degree felonies,

each of which carries a maximum penalty of ninety-nine years, or life, and a $10,000

fine. Point of error two is overruled.


                                         Conclusion


       Accordingly, the trial court's judgment is affirmed.



                                                   Patrick A. Pirtle
                                                       Justice


Do not publish.




                                             17
