James E. Page v. State ( 2007 )

MEMORANDUM OPINION

MEMORANDUM OPINION

No. 04-06-00576-CR

James E. PAGE,

Appellant

                                                                             v.                   

The STATE of Texas,

Appellee

From the 226th Judicial District Court, Bexar County, Texas

Trial Court No. 2005-CR-1163B

Honorable Sid L. Harle, Judge Presiding

Opinion by:     Rebecca Simmons, Justice

Sitting:            Catherine Stone, Justice

                        Karen Angelini, Justice

                        Rebecca Simmons, Justice

Delivered and Filed:  December 28, 2007

AFFIRMED

Appellant James Page was convicted of the offense of murder and sentenced to twenty years confinement.  On appeal, Page asserts that the trial court erred in allowing Crystal Landry to testify about statements allegedly made by Page in an audio recording because (1) the recording was not offered into evidence in accordance with the “Best Evidence Rule” and (2) Crystal’s testimony was hearsay.  We affirm the judgment of the trial court. 

Factual Background

This case stems from a purported sale of twenty-five pounds of marijuana to Andrew Thompson, the murder victim.  Vincent Martinez testified that upon realizing that he would be unable to provide the twenty-five pounds of marijuana, he and Page decided to rob and murder Thompson.  According to Martinez, the plan was for Martinez to lead Thompson to a secluded apartment complex where Page would be waiting to shoot Thompson. 

There was testimony that Page visited Paul Landry after the robbery and murder of Thompson and that Paul accidently recorded their conversation.  Crystal Landry, Paul’s wife, testified to what she heard on the recording.  Crystal explained that she was familiar with Page’s voice, from the multiple times he called her house, and that she could identify his voice on the recording.  Crystal was not present when the recording was made and only heard the recording when Paul played it for her.  Crystal testified that all she remembered from the recording was Page talking about a gun and the gun being thrown into a body of water or smashed under a rock.

Preservation of Error

Page contends the court erred in admitting the testimony of Crystal based on lack of best evidence and hearsay.  As an initial matter, the State contends that Page failed to preserve error “because his argument on appeal does not comport with the objection he made at trial.”  We agree. 

Page states he preserved error through his counsel’s objections after opening statements. Out of the presence of the jury, defense counsel complained that the State had referenced the recording in its opening.  Defense counsel noted that he had a motion in limine as to hearsay matters and made an objection as to best evidence with regards to any testimony Crystal might offer about what she heard in the audio recording. 

Defense counsel’s initial objections regarding hearsay and best evidence cannot preserve error because Page never obtained a ruling.  Further, a motion in limine does not preserve error.  See Gonzales v. State, 685 S.W.2d 47, 50 (Tex. Crim. App. 1985) (stating “[f]or error to be preserved with regard to the subject matter of the motion in limine it is absolutely necessary that an objection be made at the time when the subject is raised during the trial”).

The trial court did not make a ruling but noted it would take it up at another time.  Two days later, when Crystal was ultimately called to testify, no hearsay or best evidence objection was made immediately preceding her testimony.  Rather, as shown below the objection focuses on reliability.  Immediately prior to Crystal’s direct examination, the State made an offer of proof outside the presence of the jury.  After the State’s offer and cross-examination, Page made the following objections: 

[Defense]:       If she could remember exactly what was said, that may get close to being admissible.  The CD was never found.  It was never available to the Defense to examine.  She was not present when the conversation was held.  Her own testimony is that she does not remember exactly what was said.  This is a recall of a paraphrased statement.  It doesn’t accurately inform the jury of what was said exactly on that tape. 

            Also, there is evidence already present that my client had told Paul Landry that he was, in fact, the person that shot Andrew Thompson.  Mr. Landry’s available, who was present when that conversation was held, the person that recorded that conversation. 

            I would object that it’s not sufficiently reliable for her to testify because she does not recall the exact words said, that it would be repetitious to - - of course, the objection is no good any more, bolstering, and I clearly don’t think it’s admissible, Judge. 

. . . .

The Court:       Well, I think we’ve already heard about it.  It’s been discussed in the opening statements.  Mr. Page talked about it already.  This guy apparently is going to, who actually made the recording, discuss it.  I think her recollection – the objection goes to the weight and not the admissibility, so I’m going to overrule the objection and she can testify to what she recalls and you can make hay on cross-examination. 

Page’s objections appear to be lack of reliability, bolstering, and repetitious.  The trial court correctly interpreted Page’s complaints to be based on Crystal’s inability to recall the event or conversation.  Accordingly, Page failed to preserve error based on best evidence and hearsay grounds.  Tex. R. App. P. 33.1. 

Harm Analysis

Alternatively, assuming Page preserved error and the trial court abused its discretion, any resulting error in admitting Crystal’s testimony does not constitute reversible error.  In relevant part, Crystal testified that she could not recall anything other than Page talking about putting a gun by a body of water or smashed under a rock.   

We disregard a nonconstitutional error unless it affects a substantial right.  Tex. R. App. P. 44.2(b).  The erroneous admission of evidence does not affect substantial rights if, after examining the record as a whole, we have a fair assurance that the error did not influence the jury, or had but a slight effect.  Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). 

Crystal testified after Paul Landry and Martinez.  Martinez testified that when he arrived at the apartment complex, he left Thompson and pretended to go up to an apartment.  Martinez stated that he went to a random apartment and waited about ten minutes until he heard gunshots.  Martinez stated that he did not see Page shoot Thompson but when he met up with Page later, Page was sweating and nervous and admitted that he shot and killed Thompson.  Some time thereafter, Martinez and Page went to Paul Landry’s home.  There, Martinez stated Page “confessed to Paul . . . what we had done.” 

Paul provided a written statement during the investigation wherein he states that he accidentally recorded his conversation with Page and transferred the recording to a compact disk (CD).  At trial, Paul testified that he did not remember making a recording of his conversation with Page.  Although Paul testified that he did not recall most of the events, his written statement was read to the jury.  In his statement, Paul said that Page described the robbery and murder of Thompson, including how Page shot Thompson.  Paul’s statement was generally consistent with Martinez’s testimony about the robbery and murder of Thompson.

While Page questions the credibility of Paul and Martinez and claims Crystal was the only credible witness, Crystal’s testimony was of minimal value.  She testified about Page describing how one or possibly more than one person disposed of a gun.  At best, Crystal could only state that her impression was that Page participated in disposing of a gun.  Combining Paul’s and Martinez’s testimony, and in reviewing the entire record, we cannot say the trial court’s error, if any, had a substantial and injurious effect or influence on the jury’s verdict. Accordingly, Page’s issues on appeal are overruled. 

Conclusion

Because Page failed to preserve error and in the alternative, we are unable to conclude that the admission of the contested evidence constitutes reversible error, we affirm the judgment of the trial court. 

Rebecca Simmons, Justice

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