Opinion issued December 29, 2015




                                        In The

                                Court of Appeals
                                       For The

                           First District of Texas
                              ————————————
                                NO. 01-14-00954-CR
                             ———————————
                        RALPH GARCIA, JR., Appellant
                                          V.
                        THE STATE OF TEXAS, Appellee


                    On Appeal from the 405th District Court
                          Galveston County, Texas
                       Trial Court Case No. 12CR2430


                         MEMORANDUM OPINION

      A jury convicted appellant Ralph Garcia, Jr. of murder and the court assessed

his punishment at twenty-eight years’ confinement in TDCJ. In a single issue,

appellant argues that the trial court abused its discretion when it admitted a statement

that appellant’s ex-girlfriend made to law enforcement. We affirm.
                                     Background

      The complainant, Maxie Flowers, was shot and killed as he was riding his

bicycle down a residential street in Galveston on October 13, 2011.

      Appellant’s ex-girlfriend, Sarah Alvarez, was the first witness called to testify

at appellant’s trial in 2014. Alvarez initially denied having a clear recollection of the

night that Flowers was killed. She testified that she was under the influence of drugs

and alcohol that night and that the events of that evening were a “blur.” Although

she initially admitted to being present when Flowers was shot, Alvarez testified

moments later that she and appellant were at the movies when the offense occurred,

and that the only thing she remembered was “waking up the next morning” at

appellant’s parents’ house “and seeing cops down the street around a body.”

      Alvarez acknowledged that she had previously given two statements to the

police about the shooting, one in March and one in September 2012, but she claimed

that she had been drinking heavily and taking Xanax during that period of time and

she did not recall making those statements.

      On further direct examination by the State, Alvarez testified that she had

recently watched her videotaped statements to police and acknowledged that, in that

in her second statement in September, she told the police that she and appellant

walked to a house down the street to buy marijuana the night Flowers was shot, but

returned to appellant’s parents’ house empty-handed. According to Alvarez, she also


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told police in her September statement that appellant was angry because Flowers—

“the guy on the bike”—had said something to Alvarez while they were trying to buy

drugs and then he followed the couple back to appellant’s parents’ house. Alvarez

also admitted to telling the police that she was in her mother’s truck with appellant

when appellant shot Flowers two or three times. Alvarez claimed that she had no

independent recollection of these events and that she was only testifying based on

her review of her prior statement.

      Alvarez, who was wearing a county jumpsuit during trial, admitted to the jury

that she did not want to testify and that she had been arrested after she failed to

comply with the trial subpoena. She also admitted to telling the prosecutor that she

did not want to testify at appellant’s trial because she was afraid of retaliation.

      After cross-examination, Alvarez was allowed to re-review her video

statements. On redirect examination, Alvarez testified that her review of those

conflicting statements refreshed her memory about the events surrounding the

murder. Alvarez told the jury that she had lied in her first statement when she denied

any knowledge of the shooting, and that her second statement, in which she admitted

to be being present when the offense occurred, was the truth.

      Alvarez further testified on redirect that when she and appellant were at the

“weed house,” Flowers remarked to appellant how pretty Alvarez was and then

Flowers followed them back to appellant’s parents’ home and refused to leave.


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According to Alvarez, she and appellant went into appellant’s bedroom where

appellant retrieved a shotgun from underneath his mattress. Appellant told Alvarez

that God put him on this Earth “to do his dirty work.” Alvarez and appellant then

drove down the street in Alvarez’s mother’s truck to where Flowers was riding his

bike. According to Alvarez, appellant stopped the truck, took the shotgun from his

lap, pointed it out the partially opened window and shot Flowers twice before they

returned to appellant’s house. Alvarez testified that she could “remember [the

shooting] like it was yesterday.” Alvarez also testified that she had tried to talk to

Officer Clemente Garcia about the incident on September 3, 2012, but that she

jumped out of his patrol car and ran off after he told her they were being recorded.

      Officer Garcia took the witness stand and testified that he is appellant’s cousin

and that he met Alvarez when she and appellant were dating. Garcia stated that he

responded to a disturbance call on September 3, 2012, and when he arrived he found

Alvarez at the scene. According to Garcia, Alvarez was crying, very upset, and she

appeared to be under the influence. Garcia testified that he escorted Alvarez back to

his patrol car and that he intended to take her to her mother’s home, where she would

be safe, but Alvarez jumped out of the car while en route. Garcia also testified that

Alvarez indicated to him that she was a witness to Flowers’s murder and that she

was with appellant the night of the shooting. The State played a nine-second video

clip of a statement Alvarez made to Garcia while she was sitting in his patrol car. In


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that clip, Alvarez, who is sobbing, tells Garcia: “I am the key to the whole thing

because I was there with [appellant]. I could . . . I could be charged with murder,

too.” The court admitted the statement under the statement-against-interest

exception to the hearsay rule.

      The record reflects that no physical evidence linking appellant to the scene

was admitted into evidence at trial.1 The shotgun that was used to shoot Flowers was

never recovered, and Alvarez’s mother’s truck was never searched for evidence.

Although other witnesses testified at trial, Alvarez was the only witness who

identified appellant as the shooter.

             Admission of Alvarez’s Statement was Harmless Error

      Appellant argues that the trial court abused its discretion when it admitted

Alvarez’s statement to Officer Garcia into evidence as a statement against penal

interest because the statement did not expose Alvarez to criminal liability and the

statement lacked sufficient corroborating circumstances. Appellant further contends

that he was harmed by the admission of this evidence because Alvarez was the key

witness in the case, inconsistencies in her testimony and statements to police placed

her credibility at issue, and the inadmissible statement was used to bolster her

credibility. Appellant further argues that, given the lack of any other significant



1
      The police recovered two red shotgun shell casings from the scene and found green
      shotgun shells in appellant’s bedroom.

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evidence implicating him in Flowers’s murder, the State’s emphasis on Alvarez’s

statement during its closing argument demonstrates that the admission of this

statement had a substantial influence on the outcome of the trial.

A.    Standard of Review

      We review a trial court’s decision on the admissibility of evidence for an

abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011).

“The erroneous admission of a hearsay statement constitutes non-constitutional error

that is subject to a harm analysis.” Coleman v. State, 428 S.W.3d 151, 162 (Tex.

App.—Houston [1st Dist.] 2014, pet. ref’d). “We do not overturn a conviction if,

after examining the record as a whole, we have fair assurance that the error did not

influence the verdict or had but a slight effect.” Id. An erroneous admission of

evidence does not constitute reversible error if the same or similar evidence is

admitted without objection at another point in the trial. See Brooks v. State, 990

S.W.2d 278, 287 (Tex. Crim. App. 1999).

B.    Analysis

      Even if Alvarez’s statement was inadmissible hearsay, the admission of the

statement was nevertheless harmless. Alvarez’s statement did not reveal any

evidence that was not already before the jury. Alvarez had already testified, without

objection, that she was in the truck with appellant when appellant shot Flowers, and

that appellant shot Flowers, in part, because Flowers had made a comment about


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Alvarez to appellant. Officer Garcia also testified that Alvarez indicated to him that

she was an eyewitness to the shooting. Therefore, Alvarez’s statement to Garcia is

cumulative of Alvarez’s and Garcia’s testimony and any error in the admission of

the statement was harmless. See Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim.

App. 2003) (“An error [if any] in the admission of evidence is cured where the same

evidence comes in elsewhere without objection.”); Brooks, 990 S.W.2d at 287

(holding that any error in admission of hearsay testimony was harmless in light of

other properly admitted evidence proving same fact).

      After examining the record as a whole, we have fair assurance that admission

of Alvarez’s statement did not influence the verdict or had but a slight effect. See

Coleman, 428 S.W.3d at 162.

      We overrule appellant’s sole issue.

                                    Conclusion

      We affirm the trial court’s judgment.




                                               Russell Lloyd
                                               Justice

Panel consists of Justices Higley, Huddle, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).



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