in the Matter of the Marriage of Brenda Jo Cox and Grady Lynn Cox

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-03-00132-CV ______________________________ IN THE MATTER OF THE MARRIAGE OF BRENDA JO COX AND GRADY LYNN COX On Appeal from the 102nd Judicial District Court Red River County, Texas Trial Court No. 002CV00316 Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION Grady Cox, pro se, has filed a motion asking this Court to dismiss his appeal because the parties have settled the matters in dispute between them. Pursuant to Tex. R. App. P. 42.1(a), his motion is granted. We dismiss the appeal. Josh R. Morriss, III Chief Justice Date Submitted: March 8, 2004 Date Decided: March 9, 2004 contends the evidence is factually insufficient to support the conviction. He bases this contention primarily on the facts that E.S. was unable to identify him in court as the perpetrator, and E.S.'s other identification testimony was by descriptions that were not specific and could have fit the general descriptions of one or more of the other males who were in the house when the offense occurred. We review a factual insufficiency challenge according to the standards set out in Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). We review all of the evidence in a neutral light and determine whether a rational trier of fact would be justified in finding guilt beyond a reasonable doubt. The evidence may be insufficient if, when considered by itself, it may be too weak to support the finding of guilt beyond a reasonable doubt, or after weighing both the contrary and the supporting evidence, the contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484–85. The jury may resolve conflicts in the evidence and in doing so may accept or reject all or any part of a witness' testimony. Anderson v. State, 895 S.W.2d 756, 757 (Tex. App.—Texarkana 1994, no pet.). We find the evidence factually sufficient to support the verdict. First, E.S. testified personally and directly to the elements of the offense. Although E.S. could only identify the perpetrator by general descriptions, other evidence showed that Vargas fit those descriptions and that he was present when the offense occurred. Other witnesses identified Vargas by terms and descriptions similar to those E.S. used, and there were other circumstances indicating that Vargas was the perpetrator. Additionally, Vargas made a written confession confirming that the offense occurred between him and E.S. Although Vargas tried in his statement to place the blame on E.S. for initiating the sexual contact between them, he made no attempt to deny that the offense occurred and that only he and E.S. were involved in the offense. There is other circumstantial evidence indicating that Vargas was the perpetrator. Suffice it to say, there is clear proof of Vargas' guilt. Vargas also contends that the trial court reversibly erred when it allowed E.S.'s mother to testify that, shortly after the offense was committed, E.S. told her what happened during the offense. The State did not qualify E.S.'s statement to his mother as an outcry statement admissible pursuant to Article 38.072 of the Texas Code of Criminal Procedure, nor did it justify the admission of the statement as an exception to the hearsay rule. Tex. R. Evid. 801(d), 802, 803; Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005). The statement was therefore hearsay and inadmissible. However, the error was waived when the same evidence was introduced at other points in the trial and Vargas made no objection. To preserve error in admitting improper evidence, a party must make a timely, proper objection and secure a ruling on the objection. The party must object each time the inadmissible evidence is offered unless a running objection has been obtained. Any error in the admission of inadmissible evidence is cured when the same evidence comes in elsewhere without objection. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003); Dunn v. State, 125 S.W.3d 610, 614–15 (Tex. App.—Texarkana 2003, no pet.); Broderick v. State, 35 S.W.3d 67, 74 (Tex. App.—Texarkana 2000, pet. ref'd); Thomas v. State, 1 S.W.3d 138, 142 (Tex. App.—Texarkana 1999, pet. ref'd). Vargas objected to E.S.'s statement to his mother about the offense, but subsequent to that evidence, the same evidence was admitted without objection during the testimony of Ms. Felicia Crumedy, a child therapist. Thus, any error in admitting the statement was cured. Thomas v. State, 1 S.W.3d at 142. Moreover, any error in admitting the evidence was clearly harmless. Not only did the therapist testify to the same facts as revealed to her by E.S., but E.S. testified without objection to all the circumstances of the offense, and Vargas signed a written statement admitting the offense. For the reasons stated, we affirm the judgment. William J. Cornelius Justice* *Chief Justice, Retired, Sitting by Assignment Date Submitted: March 15, 2006 Date Decided: May 26, 2006 Do Not Publish