

                                                             11th
Court of Appeals
                                                                  Eastland,
Texas
                                                                        Opinion
 
Brock Jerwayne Ballard                        
Appellant
Vs.                   No.
11-01-00377-CR B Appeal from Dallas County
State of Texas
Appellee
 
A jury
convicted Brock Jerwayne Ballard of murder. 
TEX. PENAL CODE ANN. ' 19.02 (Vernon 2003).  Appellant
pleaded true to a prior felony, and the trial court sentenced appellant to life
imprisonment and a $10,000 fine.  We
affirm.
Issues
Presented
Appellant
presents eight issues on appeal.  In his
third issue, appellant claims that his confessions to Daytron Taylor and
Annette Menefee should have been excluded as hearsay.  In his first issue, appellant claims that testimony offered by
Esther Garcia and Vanessa Rodriguez also constituted impermissible
hearsay.  In his fifth and sixth issues,
appellant complains that admission of the hearsay evidence and the confessions
violated his constitutional rights under the confrontation clauses of both the
United States Constitution and the Texas Constitution.  In his seventh issue, appellant challenges
the admission of an extraneous offense; and in his second, fourth, and eighth
issues, appellant argues that the hearsay evidence and the extraneous offense
should have been excluded as their probative value was greatly outweighed by
the danger of unfair prejudice.  
Background
Facts




Appellant
was convicted of the murder of his former live-in girlfriend, Angelica
Lopez.  Lopez and appellant lived in
Houston.  The evidence showed that the
couple=s relationship was one of control and
violence by appellant that included appellant being convicted of assaulting
Lopez in July 1999.  Appellant was
released from jail in December 1999, and 
Lopez moved to Dallas in January 2000 in an attempt to escape from
appellant.  Appellant followed Lopez to
Dallas, staying there with her in her apartment.  Lopez was found dead along the North Central Expressway service
road in Dallas during the early morning of January 27, 2000, approximately two
weeks after she moved to Dallas.  Her
car was found abandoned on the expressway about 150 feet from her body.  She had been shot 15 times with a
9-millimeter gun; she also had a black eye and 6 hematomas to the back of her
head.  A bullet recovered from Lopez=s apartment was fired from the same gun that
was used to kill Lopez.  Appellant=s fingerprints were found on a box of
9-millimeter bullets in Lopez=s car.  Similar bullets were
found in Lopez=s apartment. 
Appellant=s DNA was recovered from Lopez=s car. 
Evonne Ruelas, who worked with Lopez at a Dallas club, testified that
appellant was at the club almost the entire day of January 26, that she served
appellant alcohol during that time, that it looked like Lopez and appellant
were arguing, and that Lopez appeared to be upset.
Prior to
Lopez=s murder, one witness observed that appellant
had a tattoo depicting the AGrim Reaper walking a dog@ with the name AAngelica Ballard@ at the top.  Four days after
Angelica Lopez was killed, appellant had another tattoo with AAngelica Ballard@ written over a cross.




Detective
Richard Dodge of the Dallas Police Department testified concerning the
photographs of the crime scene and about the spent shell casings and bullets
that he had collected at the crime scene. 
Detective John Davison of the Dallas Police Department introduced a
receipt where Patricia Ann Ballard, appellant=s aunt, had purchased a 9-millimeter Smith & Wesson handgun from a
pawn shop on January 3, 2000.  Detective
Davison questioned Patricia Ann Ballard about the gun on February 4, 2000, but
she said that she no longer had the gun. 
Daytron Taylor testified that he saw appellant carry a 9-millimeter
handgun prior to Lopez=s
death but not afterwards.[1]  Detective Davison testified that appellant=s fingerprints were on the box of
9-millimeter ammunition found in Lopez=s car and that it was the same type of ammunition that was found inside
Lopez=s apartment. 
Detective Davison testified that the officers began trying to find
appellant in February 2000; that an arrest warrant for appellant was obtained
on March 17, 2000; and that they could not find appellant to arrest him until the
Houston police found him in November 2000. 
Detective Davison testified that they contacted and questioned appellant=s mother, grandparents, other relatives, and
friends, but that appellant remained a fugitive for nine months.  There was testimony that appellant knew that
the police were looking for him.  Based
on his experience, Detective Davison expressed his opinion that the murder was
one of domestic violence because Athe amount of force that was used to cause the death [was] extensive.@
Appellant=s Confessions to Daytron Taylor and Annette
Menefee
Taylor,
who lived in Houston, testified that his girlfriend was appellant=s cousin; that appellant and Lopez did not
always get along well; and that, after Lopez=s death, he had asked appellant where Lopez was.  Taylor testified that appellant made his
living selling crack cocaine and that appellant first told him that Lopez died
in a drug deal that went bad.  Later,
appellant told Taylor that he had killed Lopez by shooting her until his gun
was empty.  
Appellant=s aunt, Annette Menefee, also lived in
Houston.  Menefee testified that Lopez
wanted to marry appellant, but that Lopez was fearful of how he treated
her.  Menefee recommended that Lopez get
out of the relationship with appellant. 
The day after Lopez=s death, Menefee asked appellant about Lopez.  Appellant simply said:  A[S]he wouldn=t be with us no more.@  When Menefee asked if he had
killed Lopez, appellant responded by hanging his head.  Subsequently, appellant admitted to Menefee
that he shot Lopez Ain
their car, in Dallas@ and
that he took the gun apart and threw its pieces away.
In his
third issue, appellant complains that the testimony by Taylor and Menefee
concerning  appellant=s confessions to them should have been
excluded as hearsay.  We disagree. A
statement is not hearsay if it is offered against a party and is the party=s own statement in either an individual or
representative capacity.  TEX.R.EVID.
801(e)(2)(A).  ARule 801(e)(2)(A) plainly and unequivocally
states that a criminal defendant=s own statements, when being offered against him, are not hearsay.@ Trevino v. State, 991 S.W.2d 849, 853
(Tex.Cr.App.1999); McNair v. State, 75 S.W.3d 69, 72 (Tex.App. B San Antonio 2002, no pet=n). 
Appellant=s reliance on Davis v. State, 872 S.W.2d 743
(Tex.Cr.App.1994), is misplaced because Davis involved Rule 803(24), an
exception to the hearsay rule.  The
hearsay exception for statements against a declarant=s interest and the exclusion as non-hearsay
for admissions by a party opponent are distinct.  Bingham v. State, 987 S.W.2d 54, 56 (Tex.Cr.App.1999); McNair v.
State, supra at 72.  Appellant=s third issue is overruled.
Testimony
by Esther Garcia and Vanessa Rodriguez




Several
witnesses testified to the relationship between appellant and Lopez.  Lopez=s mother, Esther Garcia, testified that she had planned a family
birthday party for Lopez in January 1999, but that Lopez told her that A[appellant] said that if he doesn=t come with me then, I can=t go alone.@  Garcia testified that four
days later Lopez called her late at night, saying that she needed money because
appellant had threatened to beat and kill her unless she gave appellant $250.  Garcia also testified that, in July 1999,
Lopez came to stay with her and that Lopez had stitches and bandages on her
face.  Lopez explained that appellant
had assaulted her and that she had to go to the hospital.  The hospital records were admitted into
evidence without objection, as were the records of appellant=s conviction for the assault.  Appellant was sentenced to 150 days in jail
for the Class A assault.  Garcia then
testified how Lopez was afraid that, once appellant was released from jail, he
would come after her.  As a result,
Lopez stayed with Garcia and then moved to Dallas in January 2000 in an attempt
to get away from appellant. 
Garcia
kept Lopez=s young son, Jeremy, while Lopez moved to
Dallas.  One day in January 2000,
appellant=s mother picked Jeremy up from day care,
although Garcia maintained that she was the one authorized to pick Jeremy
up.  Garcia testified that, when she
found Jeremy at the house of appellant=s mother, Jeremy was frantic and excited, telling her that A[appellant was] very angry, he [had] a gun,
he [was] going to hurt my mommy.@  Garcia changed schools for
Jeremy the next day.
Garcia
testified that on January 20, 2000, Lopez told her that she planned to come to
Houston on January 27 for her birthday party at Garcia=s home on January 28.  On January 27, Garcia learned that Lopez had
been murdered.  Garcia testified to
other conversations when Lopez expressed her fear of appellant.
Vanessa
Rodriguez testified that she worked with Lopez at a Dallas topless bar.  She stated that she saw appellant with Lopez
on the night of January 24, 2000, two days prior to the murder.  Rodriguez also testified that Lopez told her
that she was running from her boyfriend. 
Lopez told Rodriguez that she was with appellant against her will and
that she did not have a choice to leave the relationship.  Lopez also told Rodriguez that she was
planning to leave Dallas to get away from appellant a second time.  Another coworker, Evonne Ruelas, testified
that appellant was with Lopez on the nights of January 25 & 26, 2000, the
day prior to the murder and the night of the murder.




In his
first issue, appellant argues that the trial court should have excluded the
following testimony as hearsay: (1) Garcia=s testimony that Lopez asked Garcia for a $250 loan because appellant
had threatened to kill Lopez if Lopez did not give him $250 and Garcia=s testimony that Lopez told Garcia that
appellant assaulted Lopez in July 1999; and (2) Rodriguez=s testimony that Lopez told Rodriguez that
appellant had hurt Lopez with a gun and that the only way Lopez could leave
appellant was to pack her belongings and leave in the middle of the night.
A trial court’s decision to admit or exclude
evidence is reviewed under an abuse of discretion standard.  Burden v. State, 55 S.W.3d 608, 615
(Tex.Cr.App.2001).  An appellate court
will not reverse a trial court’s ruling unless that ruling falls outside the
zone of reasonable disagreement. 
Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Cr.App.2003); Burden v. State,
supra at 615. 
We will
first deal with Garcia=s
testimony that Lopez told her that appellant assaulted Lopez in July 1999.  Garcia testified that Lopez came into her
apartment with stitches, bandages, and bruises on her face.  When Garcia asked her daughter what had
happened, Lopez told her about the assault by appellant.  The hospital=s medical records relating to the July 1999 assault were introduced
without objection.  The records
reflected that the injuries were caused by a direct blow from the fist of Lopez=s ex-boyfriend.  Garcia identified appellant as the ex-boyfriend and stated that
Lopez had not dated anyone else.  Garcia
told Lopez that A[she] need[ed] to call the police and make
reports.@ Because the evidence of the July 1999
assault came in through Lopez=s hospital records and the court record of appellant=s assault conviction, appellant=s hearsay objection to Garcia=s testimony about the July 1999 assault was
either waived or rendered harmless.  See
Leday v. State, 983 S.W.2d 713, 715-18 (Tex.Cr.App.1998)(distinguishing the
rule of harmless error, waiver, and the common-law doctrine of curative
admissibility); Jones v. State, 843 S.W.2d 487, 493 (Tex.Cr.App.1992), cert.
den=d, 507 U.S. 1035 (1993).
Garcia=s testimony about Lopez=s request for the $250 loan and Rodriguez=s testimony concerning Lopez=s statements that appellant had hurt her with
a gun and that the only way she could leave was in the middle of the night were
impermissible hearsay.  These statements
had no relevance except to prove the truth of the matters stated.  They were merely statements of memory to
prove the facts remembered and, therefore, were not admissible under
TEX.R.EVID. 803(3).  Dorsey v. State, 24
S.W.3d 921, 929 (Tex.App. B Beaumont 2000, no pet=n); Navarro v. State, 863 S.W.2d 191 (Tex.App. B Austin 1993), pet=n ref=d, 891 S.W.2d 648 (Tex.Cr.App.1994).




Under
TEX.R.APP.P. 44.2(b), we disregard the error if it does not affect appellant=s substantial rights.  Rule 44.2(b); Mosley v. State, 983 S.W.2d
249, 259 (Tex.Cr.App.1998).  A
substantial right is affected when the error had a substantial and injurious
effect or influence on the jury=s verdict.  Solomon v. State, 49
S.W.3d 356, 365 (Tex.Cr.App.2001); King v. State, 953 S.W.2d 266, 271
(Tex.Cr.App.1997).  We review the record
as a whole to determine whether the error had such an influence on the jury=s verdict. 
Mosley v. State, supra at 259. 
Overwhelming evidence of guilt is a factor to be considered in a harm
analysis conducted under Rule 44.2(b). 
Motilla v. State, 78 S.W.3d 352 (Tex.Cr.App.2002).
In view of
Motilla v. State, supra, we reviewed a substantial portion of the testimony at
the outset of this opinion.  The
evidence of guilt was overwhelming, and appellant did not challenge the
sufficiency of the evidence.  In its
closing argument, as in Motilla, the State did not mention the
impermissible hearsay testimony.  The State
only briefly mentioned the $250 loan in rebuttal.  After reviewing the record as a whole, we conclude that the
inadmissible evidence did not have a substantial and injurious effect on the
jury=s verdict. 
Appellant=s first issue is overruled.  
Confrontation
Clauses
In his
fifth and sixth issues, appellant complains that the admission of the hearsay
statements  through Garcia and the
admission of his confessions to Taylor and Menefee violated his constitutional
right to confront witnesses under both the United States Constitution and the
Texas Constitution.  U.S. CONST. amend.
VI; TEX. CONST. art. I, ' 10.  Appellant did not preserve
error. At trial, appellant objected to the testimony only on the ground of
inadmissible hearsay.  Although
admission of hearsay evidence against a criminal defendant implicates the
confrontation clauses, hearsay objections and objections to violations of the
constitutional right to confront witnesses are neither synonymous nor
necessarily coextensive.  Holland v.
State, 802 S.W.2d 696, 700 (Tex.Cr.App.1991). 
AAlthough the right of confrontation is vital
to an ordered criminal justice system, and of constitutional magnitude it is
nonetheless a trial right.”  Mallory v.
State, 752 S.W.2d 566, 569 (Tex.Cr.App.1988). 
Because he did not object to the testimony on the basis of his right to
confront witnesses, appellant waived review of this claim on appeal.  TEX.R.APP.P. 33.1.  Moreover, testimony about his confessions was not hearsay because
a Aparty cannot complain of an inability to
cross-examine him/herself.”  Bingham v.
State, supra at 55.  Appellant=s fifth and sixth issues are overruled.  
 




Extraneous
Offense
In his
seventh  issue, appellant complains that
evidence of an extraneous offense should have been excluded under TEX.R.EVID.
404(b).  Taylor testified that appellant
sold crack cocaine for a living. 
Appellant objected to the evidence on the grounds that this was an
extraneous offense.  Rule 404(b) states
that:
Evidence of other crimes, wrongs or acts is
not admissible to prove the character of a person in order to show action in
conformity therewith.  It may, however,
be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake.
 
The testimony was not used to show that appellant acted with the
conformity of a drug dealer but, instead, to explain why appellant would tell
Taylor that Lopez died in a drug deal that went bad.  As mentioned above, appellant first told Taylor that Lopez died
in a drug deal that went bad and then later changed his story and admitted to
shooting Lopez Auntil his gun ran out of ammunition.”  The trial court did not abuse its discretion
in allowing the extraneous offense testimony into evidence.  Appellant=s seventh issue is overruled.
Rule 403
In his second, fourth, and eighth issues, appellant argues that
evidence of the hearsay statements and extraneous offense should have been
excluded under TEX.R.EVID. 403. 
Appellant raises these issues for the first time on appeal; therefore,
they were not preserved.  Rule 33.1.
Appellant=s second, fourth, and eighth issues are
overruled.
This Court=s Ruling
The judgment of the trial court is affirmed.
 
TERRY McCALL
June 5, 2003                                                                JUSTICE
Publish.  See TEX.R.APP.P. 47.2(b).
Panel consists of:  Arnot, C.J., and
Wright, J., and McCall, J.




[1]At the trial, Taylor testified that he saw appellant
with the gun A[b]etween, I guess, October and December [1999]@ and that A[e]verywhere
he went, he kept it on him.@


