Opinion filed August 28, 2015




                                       In The


        Eleventh Court of Appeals
                                     __________

                                No. 11-13-00288-CR
                                     __________

                      CLINTON A. GRUBB, Appellant
                                          V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 42nd District Court
                                Callahan County, Texas
                            Trial Court Cause No. 6926


                      MEMORANDUM OPINION
      The jury convicted Clinton A. Grubb of burglary of a habitation. The trial
court assessed Appellant’s punishment at confinement for thirty years. Appellant
raises two issues for review. We affirm.
      In Appellant’s first issue, he claims that the evidence was legally insufficient
to support a jury verdict of burglary of a habitation by entering and committing
aggravated assault because the victim, Jackie Pancake, did not testify that he suffered
physical pain. In his second issue, Appellant argues that the trial court erred when
it admitted hearsay testimony from Darrell Lynn Sasser.
      Pancake testified that, around 3:00 a.m. on the date of the offense, someone
entered his home without his permission, shined a flashlight in his eyes, and told him
he was going to rob and kill him. The man proceeded to beat Pancake with a “club.”
The club, which was attached to the attacker’s arm with a rubber tie, was made from
a table leg and had a metal bolt sticking out of it. His attacker first hit Pancake just
below the eye and then hit Pancake several times on his arm. Pancake was able to
hit his attacker a couple of times, and the struggle continued out of Pancake’s
bedroom and down the stairs. Pancake’s attacker attempted to get out of the house
through the laundry room door, but because it was locked, he had to crawl between
Pancake’s legs to run out the front door. The trial court admitted two photographs
that depicted Pancake’s injuries from the assault. Pancake testified that the beating
“probably” hurt but that he was so focused on survival at the time that he was not
sure. Pancake testified that he did not know who the intruder was at the time of the
assault because the attacker was wearing a heavy coat and either a ski mask or a cap
with eye holes cut in it. The police found the table leg and a bag with a baseball cap,
towel, and windbreaker on Pancake’s property. The police tested DNA samples
from these items and found Appellant’s DNA on the table leg, the jacket, and the
baseball cap.
      Sasser testified that he lived with Appellant at the time of the offense but that
he was out of town when he learned about what had happened to Pancake. He
testified that, prior to the offense, Appellant told Sasser that he might rob Pancake.
Sasser stated that his “wife called [him] and told [him] that Jackie [Pancake] had
been in trouble.” The record states that Sasser “told him” that it could have been
Appellant, but in the context of Sasser’s testimony, Appellant assumes Sasser was
talking to his wife. Appellant objected that the statements Sasser’s wife made to
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him and his reply outside of court were hearsay. Without response from the State,
the trial court overruled Appellant’s objection.
      In Appellant’s first issue, he claims that the evidence was not legally sufficient
to find him guilty of burglary of a habitation by entering and committing aggravated
assault.    We will review Appellant’s sufficiency challenge under the
legal sufficiency standard set forth in Jackson v. Virginia. Under this standard, we
must review all of the evidence in the light most favorable to the verdict and
determine whether any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
(1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Juries are
permitted to make reasonable inferences from the evidence presented at trial, and
circumstantial evidence is as probative as direct evidence in establishing
guilt. Hooper v. State, 214 S.W.3d 9, 14–16 (Tex. Crim. App. 2007). Circumstantial
evidence alone can be sufficient to establish guilt. Id. at 15. In our review, we will
give deference to the duty of the factfinder to resolve credibility issues and to weigh
the evidence, including any reasonable inferences from that evidence. Id. at 13.
      Appellant argues that, because Pancake testified that the injuries he sustained
during the robbery only “probably” hurt, there is legally insufficient evidence of
bodily injury. The Texas Penal Code defines bodily injury as “physical pain, illness,
or any impairment of physical condition.” TEX. PENAL CODE ANN. § 1.07(a)(8)
(West Supp. 2014); Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989).
Pancake testified that he had suffered cuts and bruises from the assault and that he
had to “doctor” some of the injuries. The trial court admitted two photographs of
the injuries that Pancake received.
      Testimony that relates to the extent of injuries (such as cuts) has been found
to be sufficient to show bodily injury without direct testimony of physical pain. See
Bolton v. State, 619 S.W.2d 166, 167 (Tex. Crim. App. 1981). We have held that
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pictures of injuries sustained in an assault, without testimony of physical pain, was
sufficient to show bodily injury. Sanchez v. State, 460 S.W.3d 675, 681 (Tex. App.–
–Eastland 2015), pet. granted on other grounds, (Tex. Crim. App. July 1, 2015) (No.
PD-0372-15). Finally, we have held that testimony that the defendant hit the victim
in the chest was sufficient to show bodily injury. Cooper v. State, No. 11-98-00289-
CR, 1999 WL 33754515, at *2 (Tex. App.—Eastland Sept. 23, 1999, no pet.) (not
designated for publication). The jury could have inferred Pancake suffered physical
pain from Pancake’s testimony and the photographs of Pancake’s injuries. See
Hooper, 214 S.W.3d at 14–16. Consequently, we hold that Pancake’s testimony, the
photographs of his injuries, and the nature of the weapon are sufficient to show
bodily injury. We overrule Appellant’s first issue.
      In Appellant’s second issue, he argues that the trial court erred when it
admitted, over Appellant’s hearsay objection, Sasser’s testimony referred to above.
Appellant claims that Sasser’s statements were offered for the truth of the matter
asserted in violation of Texas Rule of Evidence 801. Under Rule 801, hearsay is “a
statement that: (1) the declarant does not make while testifying at the current trial or
hearing; and (2) a party offers in evidence to prove the truth of the matter asserted
in the statement.” TEX. R. EVID. 801. We review a trial court’s decision to admit or
exclude evidence under an abuse of discretion standard. Montgomery v. State, 810
S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). We will reverse a trial
court’s ruling only if it is outside the “zone of reasonable disagreement.” Id.
      The State argues that the first statement was not offered for the truth of the
matter asserted but, rather, to explain how Sasser became linked to the case.
Statements made outside of court are admissible, without violating the hearsay rule,
if they are not offered for the truth of the matter asserted. See, e.g., Gholson v. State,
542 S.W.2d 395, 398 (Tex. Crim. App. 1976). From the record, it is clear that
Sasser’s statement that Pancake “had been in trouble” was not offered for the truth
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of the matter asserted because the statement was not offered to prove that Pancake
had been in trouble. The State used the conversation to explain how and when Sasser
became connected to Appellant’s case, what he did with the information from his
wife, and how Appellant became a suspect. See Meier v. State, No. 07-08-0209-CR,
2009 WL 3335282, at *6 (Tex. App.––Amarillo Oct. 16, 2009, pet. ref’d) (mem. op.,
not designated for publication). Sasser’s statement to his wife to tell the police that
“it might have been [Appellant]” that caused Pancake trouble is similar to the
statements admissible through police officers’ testimony about how a defendant
became a suspect. See Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App.
1995). In Dinkins, the court held that statements “to explain how the defendant came
to be a suspect” are not hearsay because they are not offered for the truth of the
matter asserted. Id. (citing Jones v. State, 843 S.W.2d 487, 499 (Tex. Crim. App.
1992), abrogated on other grounds by Maxwell v. State, 48 S.W.3d 196 (Tex. Crim.
App. 2001)). Although Sasser was not a police officer, the statements to which he
testified resulted in Appellant becoming a suspect. Thus, the reasoning in Dinkins
similarly applies to this case. See id. In fact, this reasoning is specifically why
Appellant argues that the introduction of such evidence was harmful to his case.
Because we do not find that the admission of Sasser’s testimony is outside the zone
of reasonable disagreement, we cannot say the trial court abused its discretion.
      Additionally, even if the trial court erred when it admitted the statements
between Sasser and his wife, any error was harmless. TEX. R. APP. P. 44.2(b) applies
to nonconstitutional errors. Pursuant to Rule 44.2(b), an error is not reversible error
unless it affects a substantial right of the defendant. A substantial right is affected
when the error has a substantial and injurious effect or influence in determining the
jury’s verdict. Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001); King v.
State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). An accused’s substantial rights
are not affected by the erroneous admission of evidence if the court, after examining
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the record as a whole, has fair assurance that the error did not influence the jury or
had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.
1998). When conducting a Rule 44.2(b) harm analysis based upon the erroneous
admission of evidence, an appellate court should consider everything in the record,
including:
      [A]ny testimony or physical evidence admitted for the jury’s
      consideration, the nature of the evidence supporting the verdict, the
      character of the alleged error and how it might be considered in
      connection with other evidence in the case, the jury instructions, the
      State’s theory and any defensive theories, closing arguments, voir dire,
      and whether the State emphasized the error.

Rich v. State, 160 S.W.3d 575, 577–78 (Tex. Crim. App. 2005).
      When reviewing the record as a whole, Sasser’s statement that his wife told
him that Pancake had been in trouble did not harm Appellant. The improper
admission of evidence is harmless when the same facts are proven by other properly
admitted evidence. Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999).
If the statement was offered for the truth of the matter asserted, the jury had already
heard that an intruder attacked Pancake through the testimony of Pancake and
Cross Plains Chief of Police Don Gosnell, who responded to the scene the night of
the offense.
      Further, Sasser’s statement that Appellant may be the one that caused
Pancake’s “trouble” did not harm Appellant. Several items found on Pancake’s
property after the burglary and assault contained Appellant’s DNA.            Pancake
testified that the items that contained Appellant’s DNA, found on the property after
the offense, were not on the property before the offense. Pancake further testified
that Appellant knew that Pancake had money on him often because Pancake had
previously loaned Appellant money. Sasser linked Appellant to the crime when he
testified that, prior to the offense, Appellant told Sasser that he might rob Pancake.

                                          6
Considering the nature of the complained-of testimony, the emphasis placed on that
testimony, the fact that it was cumulative, and the nature of the evidence supporting
the verdict, we hold that any error was harmless. See Bagheri v. State, 119 S.W.3d
755, 763 (Tex. Crim. App. 2003). We overrule Appellant’s second issue.
      We affirm the judgment of the trial court.




                                                    JIM R. WRIGHT
                                                    CHIEF JUSTICE


August 28, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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