                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                 ________________________

                                      No. 07-14-00061-CR
                                 ________________________

                                RAHEEM SMITH, APPELLANT

                                                 V.

                              THE STATE OF TEXAS, APPELLEE



                             On Appeal from the 371st District Court
                                     Tarrant County, Texas
                 Trial Court No. 1319577D; Honorable Mollee Westfall, Presiding


                                         October 27, 2015

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


      Appellant, Raheem Smith, was convicted by a jury of murder 1 and sentenced to

confinement for life. On appeal, Appellant asserts the trial court erred by (1) permitting

testimony concerning statements made by third parties at the scene of the crime




      1
          See TEX. PENAL CODE ANN. 19.02(b)(1) (West 2011).
identifying Appellant as the murderer and (2) permitting expert testimony from a lay

witness.2 We affirm.


        BACKGROUND

        In May 2013, a two paragraph indictment was returned alleging (1) that, on or

about May 20, 2013, Appellant intentionally and knowingly caused Natasha McDade’s

death by shooting her with a deadly weapon, a firearm, and (2) that, with intent to cause

serious bodily injury to McDade, he also intentionally committed an act clearly

dangerous to human life, i.e., shooting her with a firearm, which caused her death. A

jury trial was held in January 2014.


        At trial, the testimonial and physical evidence established Appellant shot McDade

three times as she lay on the ground and then turned the gun on himself in an

unsuccessful suicide attempt. At the trial’s conclusion, the jury found Appellant guilty of

murder and he was sentenced to confinement for life. This appeal followed.


        By his first issue, Appellant contends the trial court erred in overruling his

“hearsay” objections to testimony from an investigating officer concerning crime scene

statements made by non-testifying third parties who identified Appellant as the

murderer. Appellant also contends the admission of those statements violated his Sixth

Amendment right of confrontation of witnesses. See U. S. CONST. amend. VI. The State

contends the statements were not hearsay and the Confrontation Clause complaint was

not preserved.

        2
           Originally appealed to the Second Court of Appeals, this case was transferred to this court by
the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001
(West 2013). We are unaware of any conflict between precedent of the Second Court of Appeals and
that of this court on any relevant issue. See TEX. R. APP. P. 41.3.

                                                   2
      Appellant’s second issue concerns whether the trial court erred by allowing a lay

person (in this case one of the investigating officers) to testify that deformities in the

bullets recovered from the scene were consistent with the types of deformities seen

when a bullet strikes a hard object. The State contends the objected-to statements

were merely “observational” statements that did not require expert qualification and that

the complaint, if any, was waived when the same information later came in without

objection. Alternatively, as to both issues, the State contends the admission of the

complained-of evidence constitutes harmless error.


      STANDARD OF REVIEW

      A trial court’s decision to admit or exclude evidence is reviewed for abuse of

discretion. See Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). The trial

court abuses its discretion only when the decision lies outside the zone of reasonable

disagreement. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010), cert.

denied, ___ U.S. ___, 131 S. Ct. 2966, 180 L. E. 2d 253 (2011).


      If an appellate court determines that the trial court committed error in the

admission or exclusion of evidence, it must then determine whether Appellant was

harmed by that error.      Generally, the erroneous admission of evidence is non-

constitutional error subject to harmless error analysis under Rule 44.2(b) of the Texas

Rules of Appellate Procedure. TEX. R. APP. P. 44.2(b); Johnson v. State, 967 S.W.2d

410, 417 (Tex. Crim. App. 1998). Non-constitutional error does not require reversal

unless it affects the appellant’s substantial rights. An appellant’s substantial rights are

not affected by the erroneous admission of evidence if, after examining the record as a

whole, the appellate court has a fair assurance that the error did not influence the jury,

                                            3
or had but a slight effect. Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App.

2001); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (disregarding the

erroneous admission of evidence where evidence did not have a substantial or injurious

influence on the jury’s decision). Furthermore, erroneously admitted testimony may

constitute harmless error when it is cumulative of other evidence introduced in the case.

Franks v. State, 90 S.W.3d 771, 805-06 (Tex. App.—Fort Worth 2002, no pet.)

(admission of evidence was harmless where same evidence was introduced through

several other witnesses).


         Certain constitutional errors are also subject to harmless error analysis under

Rule 44.2(a) of the Texas Rules of Appellate Procedure.         TEX. R. APP. P. 44.2(a).

Violation of the Confrontation Clause of the Sixth Amendment is a “non-structural” error

of constitutional dimension that is subject to harmless error analysis. See Delaware v.

Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986); Langham v.

State, 305 S.W.3d 568, 582 (Tex. Crim. App. 2010); Bibbs v. State, 371 S.W.3d 564,

570 (Tex. App.—Amarillo 2012, pet. ref’d). If the record reveals constitutional error that

is subject to harmless error review, we must reverse the judgment of conviction or

punishment unless we are able to determine beyond a reasonable doubt that the error

did not contribute to the conviction or punishment. TEX. R. APP. P. 44.2(a). In making a

harmless error determination under Rule 44.2(a), appellate courts should ascertain

whether the conviction or punishment would have been the same absent the error,

adhering strictly to the question of whether the error in question contributed to the

verdict obtained in that case. Snowden v. State, 353 S.W.3d 815, 821 (Tex. Crim. App.

2011).


                                            4
       ISSUES ONE AND TWO

       By his first issue, Appellant asserts the trial court erred by permitting Officer

Justin Seabourn to testify that he spoke to two bystanders shortly after arriving at the

scene of the incident and that they told him Appellant shot McDade. He also asserts,

via his second issue, that the trial court erred by permitting Officer Christian Williams to

offer unqualified expert testimony when he stated, “[w]hen a bullet hits an object, it’s

going to deform, sure.”


       Even if we were to assume, arguendo, that the trial court committed error in both

instances, any such error would be harmless because there were two eyewitnesses that

testified they saw Appellant shoot McDade and there was other evidence of Appellant’s

guilt. Claudia Greer testified Appellant’s relationship with McDade did not end well.

Although she did not witness the actual shooting, she did testify that she saw Appellant

chasing McDade around the apartment complex with a gun immediately prior to the

shooting. Bridgett Greer testified she heard McDade screaming for help just prior to the

shooting. LaShonda Jones testified she saw Appellant with the gun and witnessed him

standing over McDade when he shot her three times.            Judith Balleza testified she

witnessed Appellant shooting McDade. Officer Mark Ochsendorf testified Appellant told

him he shot himself; John Hamilton, a paramedic who treated Appellant, testified

Appellant confessed to shooting McDade. Therefore, even assuming the trial court

erred in admitting the complained-of testimony, we have a fair assurance that the

evidence in question did not influence the jury’s verdict or had but a slight effect. As to

any constitutional error, we find beyond a reasonable doubt that the error, if any, did not

contribute to the conviction or punishment. Issues one and two are overruled.


                                             5
      CONCLUSION

      The trial court’s judgment is affirmed.




                                                Patrick A. Pirtle
                                                   Justice


Do not publish.




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