                                  NO. 07-04-0425-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                               SEPTEMBER 20, 2005
                         ______________________________

                               ROBERT LEE OCANAS,

                                                               Appellant

                                            v.

                               THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

            FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

                   NO. 47903-B; HON. JOHN BOARD, PRESIDING
                       _______________________________

                             MEMORANDUM OPINION
                        ________________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

      Robert Lee Ocanas appealed his conviction for conspiracy to commit murder. His

four issues involved the trial court’s admission of evidence. The evidence in question

consisted of purported hearsay and the comparison of hair samples. We affirm the

judgment.

      Of the four issues, the first three issues concerned the purported hearsay, the latter

being the reiteration by one witness (Tenorio) of what another person (Valadez) told her
about the conspiracy.1 These reiterations were purportedly made while Valadez was

spending the night at Tenorio’s house. However, Tenorio was not the only witness at trial

to disclose their sum and substance. Valadez did also, and appellant does not complain

about that testimony on appeal. So, the evidence underlying appellant’s complaint was

cumulative of other evidence admitted at trial. Being cumulative, it caused appellant to

suffer no harm, even if its admission was improper. Hur v. City of Mesquite, 893 S.W.2d

227, 230 (Tex. App.–Amarillo 1995, writ denied) (holding that error arising from the

admission of evidence is deemed harmless when the same or similar evidence is admitted

elsewhere without objection).

       As for the evidence about the hair sample (i.e. the fourth issue), appellant contends

that it should have been excluded because its probative value was substantially outweighed

by its undue prejudice. Assuming arguendo that he is correct, we again find the purported

error harmless. This is so because the hair sample placed someone other than appellant

at the scene of the conspiracy, that individual being Raymond Placensio. In other words,

the evidence did not inculpate appellant. By not inculpating appellant, its admission did not

affect his substantial rights.

       Moreover, when the witness first identified the hair as being that of Placensio,

appellant uttered no objection to the comment. It was not until the witness attempted to

describe the procedure used that complaint arose. By remaining silent when the witness

first tied Placensio to the hair sample, appellant waived his complaint. TEX . R. EVID .

103(a)(1) (requiring a contemporaneous or timely objection); Amunson v. State, 928



       1
           Valadez purporte dly w as one o f appellant’s co-cons pirators.

                                                        2
S.W.2d 601, 607 (Tex. App.–San Antonio 1996, pet. ref’d) (holding that an objection made

after the testimony has been given is untimely, and any potential error is waived).

      We overrule each issue and affirm the judgment.



                                                Brian Quinn
                                                Chief Justice

Do not publish.




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