Cetric Deshun Allen v. State ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Cetric Deshun Allen

Appellant

Vs.                   No. 11-01-00340-CR --  Appeal from Dallas County

State of Texas

Appellee

The jury found appellant guilty of aggravated robbery and assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of  30 years. The jury also imposed a fine of $5,000 and made an affirmative finding that appellant used or exhibited a deadly weapon during the offense.  We affirm.

The complainant testified that the robbery in question occurred as he was completing a delivery of beer to a small grocery store.   The delivery required the complainant to make several trips back and forth from his delivery truck in order to fill the store=s beer order.  The complainant observed appellant and an unidentified  taller man standing near the entrance of the grocery store as he made his delivery.  When the complainant completed the delivery, he traveled to the back of his delivery truck to secure the dolly which he used to carry the beer.  As the complainant was securing the dolly, a male approached him from behind and instructed the complainant to give him complainant=s money.  When the complainant turned around to face the assailant, he observed appellant standing close to him.  The complainant testified that appellant instructed him once again to give appellant his money.  Appellant then raised his shirt to reveal a handgun located in the pocket of his pants.  The complainant then gave his route money to appellant, at which time appellant fled the scene on foot.

The complainant reentered the grocery store in order to call the police.  He was followed into the store by the taller man who he had previously observed standing by the store=s entrance.  The taller man asked the complainant if he had just been robbed. The tall man subsequently left the store.  The complainant waited inside the store until the police arrived.

Three days later, the complainant made a beer delivery to a club located across the street from the grocery store in question.  The complainant testified that, upon parking his delivery truck in the club=s parking lot, he observed appellant and the taller man standing outside the grocery store.  The complainant called the police from inside the club.  He remained in the club waiting for the police to arrive.  Prior to the arrival of the police, the taller man and appellant entered the club. The taller man talked to the complainant for a few minutes.  Appellant and the taller man then left the club.  The complainant testified that appellant left the area of the grocery store and then returned wearing different clothes. 

After waiting an hour for the police to arrive, the complainant left the club to continue making his deliveries.  The complainant met a police car while driving to the next delivery location. The police officer and the complainant returned to the grocery store.  Appellant was no longer there.  He was subsequently located standing in the parking lot.  The complainant identified appellant as his assailant.

Appellant brings one issue on appeal.   He contends that the trial court erred in overruling his hearsay objection to testimony offered by the State.  The testimony in question was given by an investigator hired by the complainant=s employer to investigate the robbery. The investigator interviewed the complainant soon after the robbery occurred.  The investigator testified as to what the complainant told him about the events in question.  Appellant objected at the outset of the investigator=s testimony on the basis that the complainant=s statements to the investigator constituted hearsay.  The State responded to the objection by asserting that the statements were admissible as a prior consistent statement.  The trial court overruled appellant=s objection by permitting the investigator to testify with respect to the statements made to him by the complainant.  The investigator=s version of the events were identical to the testimony offered by the complainant at trial.

TEX.R.EVID. 801(e)(1)(B) provides that a prior consistent statement is not hearsay if: (1) the declarant testifies at trial; (2) the declarant is subject to cross-examination concerning the statement; (3) the prior statement is consistent with the declarant=s testimony at trial; and (4) the prior statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper motive or influence.  See Bolden v. State, 967 S.W.2d 895, 898 (Tex.App. B Fort Worth 1998, pet=n ref=d).  The trial court=s determination of the admissibility of evidence under Rule 801(e)(1)(B) is reviewed under an abuse of discretion standard.  See Bolden v. State, supra at 898.  Appellant concedes that the first three elements of Rule 801(e)(1)(B) were met. However, he argues on appeal that there was no express or implied charge against the complainant=s testimony of recent fabrication, improper motive, or improper influence.

Appellant=s trial counsel ascertained from the complainant on cross-examination that the complainant did not initially advise the police of any details concerning the taller man.^[1]  During the cross-examination of the police officer who interviewed the complainant on the day of the robbery, appellant=s counsel brought up inconsistencies between the police officer=s recollection of what the complainant reported to him and the complainant=s testimony at trial.  These inconsistences involved the type of gun carried by the assailant and the assailant=s hair.  The record, therefore, established that appellant=s counsel placed emphasis on the fact that the complainant=s testimony at trial differed from what he had earlier reported to the police.  The investigator=s testimony was not offered until these inconsistencies had been pointed out.  As a result of appellant=s emphasis on inconsistencies in the complainant=s account of what transpired, we conclude that the trial court did not abuse its discretion in implicitly determining that the investigator=s testimony was offered to rebut a charge against the complainant of recent fabrication, improper motive, or improper influence.  Appellant=s sole issue on appeal is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

JUSTICE

July 11, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

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     ^[1]The complainant explained this omission by testifying that he only placed significance on the taller man=s involvement when he observed appellant and the taller man together three days after the robbery on the grocery store=s parking lot.