Hernan Perez Collazo v. State

Collazo v. SOT NUMBER 13-02-00058-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG HERNAN PEREZ COLLAZO, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 107th District Court of Cameron County, Texas. MEMORANDUM OPINION Before Justices Hinojosa, Yañez, and Garza Opinion by Justice Hinojosa A jury found appellant, Hernan Perez Collazo, guilty of two counts of the offense of indecency with a child (1) and assessed his punishment at seven years imprisonment for each count. The jury recommended that the sentences in both counts be suspended and that appellant be placed on community supervision. The trial court followed the jury's recommendations and, in both counts, suspended the sentences and placed appellant on community supervision for a term of seven years. Appellant does not challenge the legal or factual sufficiency of the evidence to support his conviction. Instead, by two points of error, appellant challenges (1) the admission of the complainant's outcry statement as hearsay, and (2) the trial court's granting of the State's motion in limine. We affirm. As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here. See Tex. R. App. P. 47.4. By his first point of error, appellant contends the trial court erred "in allowing claimant's hearsay statement be heard by way of an outcry exception." Appellant concedes that the testimony of the designated outcry witness was properly admitted, but contends the trial court erred by admitting into evidence: (1) a tape-recorded statement made by the victim at the time of her outcry, and (2) a later-videotaped interview of the victim by a child abuse expert. Appellant asserts that the recordings fail to comply with article 38.071, section 5 of the code of criminal procedure, and thus, were inadmissible hearsay. The State argues that the recordings were admitted as prior consistent statements of the victim. See Tex. R. Evid. 801(e)(1)(B). Trial courts should be allowed considerable discretion to admit or exclude evidence before the jury, and an appellate court should not set aside the trial court's rulings absent a showing on the record that the trial court has abused that discretion. Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990). We cannot reverse a judgment if the trial court's decision was within the zone of reasonable disagreement. Id. at 391. After carefully reviewing the record, we conclude the trial court did not err in admitting the recordings into evidence. Moreover, any error in the admission of evidence is subject to a harm analysis under Texas Rule of Appellate Procedure 44.2(b). See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Under Rule 44.2(b), we are to disregard any error unless it affects appellant's substantial rights. Tex. R. App. P. 44.2(b). "When the admission of evidence is at issue, a substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." Ford v. State, 73 S.W.3d 923, 925 (Tex. Crim. App. 2002). Under the harm analysis, it is well established that the improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (holding that any error in admission of hearsay testimony was harmless in light of other properly admitted evidence proving same fact); see also Barrera v. State, 10 S.W.3d 743, 746-47 (Tex. App.-Corpus Christi 2000, no pet.) (finding no reversible error when alleged hearsay evidence is cumulative of same evidence adduced). After reviewing the transcript of the tape-recorded statement and the videotaped interview, we conclude that the contents of these two recordings are substantially similar to the testimony presented to the jury by the child and the designated outcry witness. Assuming, arguendo, that the trial court erred in admitting these recordings into evidence, we would hold that the error is harmless because the evidence is cumulative of properly admitted live testimony on the same issue. Appellant's first point of error is overruled. By his second point of error, appellant contends the trial court erred in granting the State's motion in limine. It is axiomatic that the grant or denial of a motion in limine, without more, preserves nothing for appellate review. McDuff v. State, 939 S.W.2d 607, 618 (Tex. Crim. App. 1997); Morris v. State, 89 S.W.3d 146, 151 (Tex. App.-Corpus Christi 2002, no pet.). To preserve error, a timely objection stating specific grounds must be made to the trial court. Tex. R. App. P. 33.1(a)(1). At trial, appellant objected that the State had violated his motion in limine. After a bench conference, the trial court overruled appellant's objection. Because he now argues on appeal that the trial court erred in granting the State's motion in limine, we hold that appellant has preserved nothing for our review. See Sterling v. State, 800 S.W.2d 513, 521 (Tex. Crim. App. 1990) (concluding that an objection which differs from the error raised on appeal preserves nothing for review). Appellant's second point of error is overruled. The judgment of the trial court is affirmed. FEDERICO G. HINOJOSA Justice Do not publish. See Tex. R. App. P. 47.2(b). Opinion delivered and filed this the 24th day of April, 2003. 1. See Tex. Pen. Code Ann. § 21.11(a) (Vernon 2003).