author: LAURA CARTER HIGLEY, Justice.

text:
    Willie Allen CLAY, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-01223-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 19, 2005.
    Rehearing Overruled July 15, 2005.
    Discretionary Review Granted Feb. 1, 2006.

      Michael B. Charlton, Alvin, TX, for Appellant.
    Dan McCrory, Assistant District Attorney, Charles A. Rosenthal, Jr., District Attorney-Harris County, Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices HIGLEY and BLAND.
   OPINION

LAURA CARTER HIGLEY, Justice.

A jury found appellant, Willie Allen Clay, guilty of aggravated robbery and assessed punishment at 60 years’ confinement and a $10,000 fine. In one issue, appellant contends that the trial court’s admission into evidence of his accomplices’ statements to police violated his Sixth Amendment right to confrontation. Since appellant’s trial, the United States Supreme Court held in Crawford v. Washington that testimonial statements, such as the ones at issue in this case, are inadmissible. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004). The trial court did not have the benefit of Crawford when it, under the applicable law at that time, properly admitted the statements into evidence. Nevertheless, the admission of the statements was error. Because we cannot conclude beyond a reasonable doubt that the admission of the accomplices’ statements did not contribute to the jury’s finding that appellant was guilty of aggravated robbery, we hold that the error in admitting the statements was harmful error. For this reason, we reverse the judgment of the trial court and remand for further proceedings.

Background

On June 22, 2003, Monica Duran, Marina Lopez, and several other Mends went to a bar where their Mend, the complainant, Amber Trevino, worked as a waitress. The group of Mends left the bar at around 2:00 a.m. and returned to Monica’s townhouse in a Montrose neighborhood of Houston. Amber remained at the bar to clean up but planned to join her Mends after work at Monica’s townhouse.

When they arrived, the group of friends parked across the street from the townhouse. As they were parking, three men walked by the group’s vehicle. The men watched the group as they parked. When the friends got out of the vehicle, the three men, who were about 10 feet away, turned and faced them. Fearing the men, the group hurried into the townhouse without incident.

Amber left work at around 3:00 a.m. and drove to join her Mends. Amber parked her car down the street from Monica’s townhouse. She got out of the car, carrying her purse and a large Armani bag. As she walked toward Monica’s townhouse, Amber felt someone running up behind her. As she turned, a man hit her in the head with a nightstick. Two other men began kicking and hitting her with then-fists. The last two men then grabbed Amber’s bags and ran toward her car. The other man, who had struck her first, stayed and continued to beat Amber with the nightstick. He stopped hitting Amber only when a neighbor yelled, “Stop!”

As a result of the attack, Amber’s scalp was split open, requiring staples. She also developed a blood clot in her leg from torn muscles due to the beating. The three men stole her purse, her Armani bag, and her car. Three days after the attack, on June 26, 2003, the police spotted Amber’s Toyota Corolla going the wrong direction down a one-way street. Larry Monroe was driving the car. Appellant and Chad Ivy were passengers. Following a high-speed chase with police, the car hit a telephone pole. After the crash, the three men fled on foot from the vehicle but were apprehended hiding nearby. Monroe was arrested for driving a stolen vehicle and fleeing from the police. Ivy was arrested on an outstanding warrant. The police obtained identification from appellant and then released him.

Also on June 26, Amber identified appellant from a photo spread as the man who had beaten her with the nightstick. She also identified Monroe and Ivy as the other two participants in the robbery who took her bags. At trial, Amber again identified appellant as the assailant who struck her with the nightstick.

Marina Lopez also identified Monroe and Ivy in separate lineups. At trial, Marina identified appellant as one of the men that she saw on June 22, 2003, as she and her friends arrived at Monica’s townhouse.

At trial, appellant contended that Amber’s and Marina’s identifications of him were not rehable. In sum, the defense argued that the area in which the attack occurred was poorly lit and that Amber did not have a sufficient opportunity to see appellant’s face. The defense attacked Marina’s credibility because she admitted that she had been drinking margaritas earlier that night. In response, the State elicited testimony from Amber and Marina that each was certain of her identification of appellant and that each had sufficient opportunity to see his face on the night of the robbery.

Sergeant John Clinton Jr. of the Houston Police Department testified for the State as the investigating officer on the case. Outside the presence of the jury, the State raised the issue of whether Sergeant Clinton could testify regarding statements made to him by appellant’s accomplices, Monroe and Ivy, during custodial interviews. The defense objected that admission of the statements would violate appellant’s Sixth Amendment right to confrontation. The trial court ruled that it would allow Sergeant Clinton to testify regarding Monroe’s and Ivy’s statements “as far as planning a conspiracy to commit the offense.” The trial court stated that it found such evidence to be “highly probative of the actual guilt or innocence of this defendant, as far as these charges that are pending....”

Sergeant Clinton testified that he interviewed Monroe and Ivy separately. According to Sergeant Clinton, Monroe described the events leading up to the robbery during the interview. Monroe told Sergeant Clinton that, on the night of June 22, 2003, he, appellant, and Ivy planned to rob someone and steal that person’s vehicle. Monroe also told Sergeant Clinton that he had found a nightstick in the bushes and had given it to appellant that night. The trio then walked around the Montrose neighborhood, where Amber was attacked, looking for a victim. Sergeant Clinton stated that Monroe also placed himself at the scene of the robbery.

Sergeant Clinton testified that Ivy provided a similar account of the events and corroborated Monroe’s statement. In this regard, Sergeant Clinton told the jury that Ivy stated that he, Monroe, and appellant planned to rob someone and take the person’s vehicle on the night in question. Sergeant Clinton indicated that Monroe and Ivy each told him that they had acted on the plan to rob someone and steal a vehicle.

On recross-examination, the defense asked Sergeant Clinton whether Monroe’s and Ivy’s statements were self-serving. Sergeant Clinton responded that the two men downplayed them roles in the robbery. As part of this line of questioning, Sergeant Clinton testified that one of the two men denied participating in the offense. Sergeant Clinton also testified that Monroe and Ivy admitted to planning the robbery but denied participating in “the actual beating” of Amber.

Following the defense’s questioning, the State asked to approach the bench. The State asserted that the defense had “opened the door” to further questions about Monroe’s and Ivy’s statements. The defense responded that it tried to question Sergeant Clinton without “opening the door,” explaining that it was in a difficult position due to its inability to cross-examine Monroe and Ivy. On the basis that the defense’s questions arguably left the wrong impression of the facts with the jury, the trial court ruled that the State could further question Sergeant Clinton about Monroe’s and Ivy’s statements. Specifically, the trial court ruled that the State could question Sergeant ■ Clinton about whether Monroe and Ivy placed themselves and appellant at the robbery scene, whether they all left in Amber’s car, and whether the three men spent the three days following the robbery together until they were caught in Amber’s vehicle.

At that point, the following exchange occurred between the prosecutor and Sergeant Clinton:

Q. Officer, when you questioned both Mr. Monroe and Mr. Ivy independently, did Mr. Monroe put himself at the scene of Amber Trevino’s robbery over on Hawthorne Street?
A. Yes, ma’am.
Q. Did he also indicate that Chad Ivy was there at Ms. Trevino’s robbery?
A. Yes, ma’am.
Q. And did he also indicate that [appellant] was there at Ms. Trevino’s robbery?
A. Yes, ma’am.
Q. And did Mr. Ivy indicate the same things, that the three of them, [appellant], Mr. Monroe, and Mr. Ivy were all present over there on Hawthorne Street at Ms. Trevino’s robbery?
A. Yes, ma’am.
Q. Did Mr. Monroe and Mr. Ivy also both indicate that they got in that maroon Toyota Corolla, all three of them, and left the scene of that robbery that night, June 26th [sic]?
A. Yes, ma’am.
Q. And did they indicate that they spent the next three days together, all three of them?
A. Yes, ma’am.

Appellant did not testify and the defense called no witnesses. The jury found appellant guilty of aggravated robbery as charged in the indictment.

Admission of Accomplices’ Testimonial Statements

In one issue, appellant complains that the trial court erred by allowing Sergeant Clinton to testify regarding Monroe’s and Ivy’s statements. As he did in the trial court, appellant contends that the admission of the statements violated his right to confrontation under the Sixth Amendment of the United States Constitution.

Since the time of appellant’s trial, the United States Supreme Court held in Crawford v. Washington that, without exception, testimonial statements of witnesses absent from trial are admissible over a Confrontation Clause objection only when (1) the declarant is unavailable and (2) the defendant has had a prior opportunity to cross-examine. 541 U.S. at 68, 124 S.Ct. at 1374. In this case, the State concedes that Monroe’s and Ivy’s statements, obtained as a result of police interrogation, were inadmissible under the newly crafted test enunciated in Crawford. Instead, the State contends that the admission of the statements, through Sergeant Clinton’s testimony, was harmless error.

Because the Sixth Amendment right of confrontation is a fundamental right, and because a violation of that right constitutes constitutional error, we must reverse a trial court’s judgment when Confrontation Clause error is present, unless we can determine beyond a reasonable doubt that the error did not contribute to the conviction. See Tex.R.App. P. 44.2(a) (requiring reversal of constitutional error unless appellate court determines beyond reasonable doubt that error did not contribute to conviction); see also Evans v. State, 534 S.W.2d 707, 711 (Tex.Crim.App.1976) (concluding that error of admitting co-defendant’s statement was not harmless beyond a reasonable doubt). If there is a reasonable likelihood that the error materially affected the jury’s deliberations, then the error was not harmless beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Crim.App.2000).

In making this determination, we do not focus on the propriety of the outcome of the trial; rather, we “calculate, as nearly as possible, the probable impact of the error on the jury in light of the other evidence.” McCarthy v. State, 65 S.W.3d 47, 55 (Tex.Crim.App.2001). Though the presence of overwhelming evidence supporting the finding in question can be a factor in the evaluation of harmless error, our analysis is not whether the remaining, legally admitted evidence is sufficient to support the conviction. See id. (quoting Satterwhite v. Texas, 486 U.S. 249, 258-59, 108 S.Ct. 1792, 1798, 100 L.Ed.2d 284 (1988)); see also Wesbrook, 29 S.W.3d at 119; Brooks v. State, 132 S.W.3d 702, 708 (Tex.App.-Dallas 2004, pet. ref'd). When assessing harm caused by inability to confront, other non-exclusive factors include whether the unchallenged testimony was cumulative, presence or absence of corroboration, and overall strength of prosecution’s case. See Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986).

In a nutshell, the question that we ask in conducting our harm analysis is whether a reasonable possibility exists that the error, either alone or in context, “moved the jury from a state of nonpersuasion to one of persuasion as to the issue in question.” Wesbrook, 29 S.W.3d at 119. If we hold that an error is harmless, we are “in essence asserting that the nature of the error is such that it could not have affected the jury.” Id.

Here, the State contends that any error in the admission of Monroe’s and Ivy’s statements was harmless because the evidence of appellant’s guilt is “overwhelming.” Based on our review of the record, we disagree that the error in this case was harmless.

The charge in this case authorized the jury to convict appellant of aggravated robbery as a principal or as a party to the offense. A person commits the offense of robbery if, in the course of committing theft and with the intent to obtain or maintain control of property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Pen.Code Ann. § 29.02 (Vernon 2003). A person commits the offense of aggravated robbery if he commits robbery and uses or exhibits a deadly weapon. Id. § 29.03(a)(2) (Vernon 2003).

Under the law of parties, a person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Id. § 7.01(a)(2) (Vernon 2003). In this case, the jury was instructed that a person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Id.

The State had the burden to prove appellant’s culpable mental state with regard to the commission of aggravated robbery, regardless of whether the jury found appellant guilty as a principal or as a party to the offense. In this respect, the State had to prove that appellant hit appellant with a club with the intent of taking her belongings or with the intent of aiding or assisting Monroe and/or Ivy in taking her belongings. See id. §§ 7.02(a)(2); 29.02; see also Cooper v. State, 67 S.W.3d 221, 222 (Tex.Crim.App.2002). Undeniably, circumstantial evidence was presented in this case from which the jury could have reasonably inferred such intent.

Marina identified the three men that she saw near Monica’s townhouse as appellant, Monroe, and Ivy. Another friend in the group, Monica Duran, testified that she saw one of the three men carrying something that looked like a club, although she did not look at their faces. According to Amber, appellant was the first to strike her from behind with a “club.” Amber also testified that, while appellant repeatedly beat her with the club, Monroe and Ivy took her bags and ran toward her car. The evidence showed that Monroe, Ivy, and appellant were caught three days after the robbery in Amber’s car. When the police tried to stop the car, Monroe led them on a high-speed chase. After the car crashed, the three men ran from the car and fled on foot. Appellant and Ivy hid and were tracked down by the police K-9 unit. Such sequence of events is arguably sufficient to support the jury’s finding that appellant intended to commit aggravated robbery. However, the question we must answer in conducting our harm analysis is not whether the evidence is sufficient to support appellant’s conviction. As noted by Justice Hudson in a post-Crawford case in which the admission of a co-defendant’s statement was held to be harmful, “While such evidence may well be sufficient to satisfy the State’s burden of proof, we must not focus merely on the propriety of the outcome of the trial, but the integrity of the process that led to the conviction and punishment.” Jahanian v. State, 145 S.W.3d 346, 351 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (citing Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App.1989)).

Intent can be inferred from the acts, words, and conduct of the accused. Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App.1991). Moreover, the Court of Criminal Appeals has held that evidence showing that a theft occurs immediately following an assault is sufficient to support an inference that the defendant had an intent to commit robbery, even when the State does not offer other evidence to show that the assault was committed with the intent of facilitating the theft. Cooper, 67 S.W.3d at 225. However, as mentioned, we are not conducting a sufficiency of the evidence review in this case.

Here, the State’s evidence showed that appellant was the first to strike Amber. Amber testified that Monroe and Ivy then began kicking and hitting her. She testified that it was Monroe and Ivy who took her purse and Armani bag and then ran toward her car. She also testified that, after Monroe and Ivy ran toward the car with her belongings, appellant remained behind and continued to beat her with the nightstick until a neighbor intervened. No direct evidence was presented that appellant took Amber’s belongings or was ever in possession of them. When the three men were caught on June 26, three days later, it was Monroe who was driving the car; appellant was a passenger. Thus, while evidence of appellant’s acts constitute direct evidence of an intent to assault Amber, they are only circumstantial evidence of his intent to facilitate a robbery.

This case is unique because direct evidence of a defendant’s state of mind is rarely available. Intent is often inferred from conduct and from the cumulative effect of the circumstantial evidence and the rational inferences drawn from that evidence. In this case, however, the jury was not required to make such rational inferences. Rather, Monroe’s and Ivy’s statements provided direct evidence that appellant possessed the requisite intent to commit robbery as he struck Amber.

As discussed, Sergeant Clinton testified that Monroe and Ivy told him that they and appellant planned to rob someone and steal that person’s car on June 22, 2003. The accomplices also told Sergeant Clinton that they walked around the neighborhood where Amber was attacked looking for a victim to rob. The accomplices stated that they had acted on their plan that night. Thus, Monroe’s and Ivy’s statements constitute direct, unchallenged proof that appellant had the requisite intent to commit aggravated robbery when he was beating Amber. No other direct proof of appellant’s intent to rob Amber was offered in this case.

Other portions of the confessions provided circumstantial evidence from which the jury could infer that appellant struck Amber with the intent of facilitating the theft of her belongings, rather than solely with the intent and purpose of assaulting Amber. In this regard, Sergeant Clinton testified that Monroe told him that he found and gave a nightstick to appellant before the robbery occurred. Monroe and Ivy also told Sergeant Clinton that they and appellant left the robbery scene in Amber’s car and then spent the next three days together. This testimony also tends to show that appellant acted with the intent of robbing Amber. No other admitted evidence revealed these incriminating details.

Notably, Monroe’s and Ivy’s statements served to corroborate Amber’s identification of appellant. Concomitantly, Amber’s testimony also served to corroborate Monroe’s and Ivy’s statements. These two points are significant because appellant’s primary defense at trial was that the eyewitness identification of appellant was not reliable. Though Amber testified under direct examination that she was certain that appellant was her assailant, the defense elicited testimony that arguably called her identification into question. When evidence that corroborates the unchallenged accomplice statement is itself subject to attack, the potential for harm may be exacerbated. At that point, the accomplice statement gains strength from, and gives support to, the challenged corroboratory evidence, thereby increasing the perceived importance of the accomplice statements to the jury. See Mendez v. State, 56 S.W.3d 880, 893 (Tex.App.-Austin 2001, pet. ref'd) (concluding that co-defendant’s statement placing defendant at scene was most persuasive evidence of such when the reliability of other testifying witness’s account given at trial was undermined on cross-examination).

On cross-examination, Amber responded affirmatively that she was first struck from behind. Amber acknowledged that, while being attacked, she “curled up into a ball” and put her hands over her face to fend off the blows. The defense elicited testimony from Amber that she worked two jobs and attended school, suggesting that she may have been fatigued at the time of the 3:00 a.m. attack. The defense pointed out that, while Amber unequivocally identified Monroe and Ivy in the lineups, she told Sergeant Clinton that appellant “looked like” the man who hit her with the club when she was shown the photo spread. Undoubtedly, Marina’s identification of appellant as one of the men she saw an hour before the robbery lent credibility to Amber’s identification. However, the defense attacked Marina’s credibility, as a witness, by eliciting testimony that she had been drinking earlier that night.

In contrast, Monroe’s and Ivy’s statements were not subject to cross-examination. The statements constituted unchallenged substantive evidence offered to prove appellant’s guilt of aggravated robbery and to refute appellant’s defensive theory that the witnesses’ identifications were not reliable. Significantly, the statements are the only eyewitness evidence, besides Amber’s testimony, that placed appellant at the scene during the offense. Monroe’s and Ivy’s confessions directly implicate appellant in the offense and, although presumptively unreliable, were persuasive evidence of appellant’s guilt presented to the jury. An accomplice statement, offered without cross-examination, has the potential to be determinant evidence when presented to a lay jury. The statement’s self-inculpatory nature lends it credibility, while simultaneously overshadowing its often self-serving purpose. See Muttoni v. State, 25 S.W.3d 300, 308 (Tex.App.-Austin 2000, no pet.) (noting misleading and persuasive nature of co-defendant’s unchallenged eyewitness testimony).

Here, appellant had no opportunity to question Monroe’s and Ivy’s veracity, to refute the accomplices’ accounts, to call attention to any possible inconsistencies or discrepancies in the statements, or to delve into the co-defendants’ motivations for confessing and implicating appellant. It is well-settled that harmless error analysis for Confrontation Clause violations assumes that “the damaging potential of the cross-examination [would have been] fully realized.” Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438. Thus, it cannot be said that cross-examination of Monroe and Ivy regarding their statements would have been of marginal utility. See Lilly v. Virginia, 527 U.S. 116, 136, 119 S.Ct. 1887, 1900, 144 L.Ed.2d 117 (1999).

In sum, it is well-recognized that “[a] co-defendant’s statement that ‘expressly implicate^]’ a defendant is ‘powerfully incriminating.’ ” Brooks, 132 S.W.3d at 709 (quoting Richardson v. Marsh, 481 U.S. 200, 208, 107 S.Ct. 1702, 1707, 95 L.Ed.2d 176 (1987)). Monroe’s and Ivy’s unchallenged statements were certainly definitive and persuasive evidence for purposes of establishing that appellant was the man who struck Amber with the club and for purposes of showing that appellant acted with the requisite culpable mental state to commit aggravated robbery. Indeed, when the trial court determined that the accomplices’ statements could be admitted, it remarked that such evidence was “highly probative of the actual guilt or innocence of this defendant.”

In post-Crawford jurisprudence, courts have recognized that unchallenged direct evidence from a criminal ally is more persuasive than challenged circumstantial evidence from other more innocuous sources. See Jahanian, 145 S.W.3d at 351 (holding harmful error occurred when accomplice’s statement admitted because such was direct evidence of an essential element to the offense and was more persuasive than circumstantial evidence, even though circumstantial evidence was sufficient to support conviction); Brooks, 182 S.W.3d at 711 (holding admission of co-defendant’s statement harmful because statement was only-direct proof of appellant’s culpable mental state and active participation, prior to and during offense, and was “clearly” more persuasive evidence than challenged circumstantial evidence, including complainant’s eyewitness testimony that she saw defendant at crime scene); cf. Bratton v. State, 156 S.W.3d 689, 695 (Tex.App.-Dallas 2005, no pet.) (holding that error in admitting co-actors’ statements not harmful because cumulative of other evidence admitted at trial). Moreover, accomplice testimony that is not subject to cross-examination is powerful evidence to corroborate another witnesses’s identification that has been called into question on cross-examination. See Samarron v. State, 150 S.W.3d 701, 708 (Tex.App.-San Antonio 2004, pet. ref'd) (holding error in admitting co-defendant’s statement harmful when statement served to corroborate otherwise weak testimony of eyewitness at trial).

Although an unintended consequence, the State’s closing argument also demonstrates the importance of Monroe’s and Ivy’s statements to the prosecution in this case. The State first stressed that, even if there was any doubt about Amber’s identification of appellant, the jury could rely on the accomplices’ statements. In this regard, the State argued, “[Y]ou know he’s the guy because you know that Larry and Chad, the codefendants, also told you he was there, That [sic] they planned it. They walked around and they were looking for someone to rob-” Later in its summation, the State again stressed the accomplice statements. The State reminded the jury that it had ample evidence to convict appellant, including the evidence that appellant was captured in Amber’s stolen Corolla and Amber’s and Marina’s testimony identifying appellant. The State then emphasized, “And in addition to that, you have what the codefendants said to the officers. That they were out there on the corner, that they were looking for a victim and had been for hours.” In essence, the State’s argument conveyed to the jury that, even if the other evidence was not enough for them to convict appellant, the co-defendants’ statements served to tip the scales in favor of a guilty finding. Thus, not only did the trial court believe that the statements were “highly probative” of appellant’s guilt, the State’s argument suggests that it did as well.

Though the State’s properly admitted evidence against appellant was strong and could likely support a guilty finding, we do not agree that it was “overwhelming.” See Wesbrook, 29 S.W.3d at 119. Rather, Monroe’s and Ivy’s unchallenged statements, which served to incriminate appellant and refute the defense’s theory of eyewitness misidentification, was the most powerful and persuasive evidence offered by the State. If we were to rule that the error of admitting Monroe’s and Ivy’s statements was harmless, we would essentially be asserting that the nature of that error is such that it could not have affected the jury in this case. See id. This we cannot do.

Based on our review of the record, we conclude that a reasonable possibility exists that the error in this case, either alone or in context, moved the jury from a state of no'npersuasion to one of persuasion. See id. Monroe’s and Ivy’s statements were unequivocal and had the potential to remove any doubt about appellant’s guilt in this case. We conclude that there is a reasonable likelihood that the error materially affected the jury’s deliberations. See id. We, therefore, cannot conclude beyond a reasonable doubt that the admission of Monroe’s and Ivy’s statements did not contribute to the jury’s guilty verdict for the offense of aggravated robbery. See Tex.R.App. P. 44.2(a); Brooks, 132 S.W.3d at 711 (reaching same conclusion in analogous case).

Conclusion

For the reasons discussed above, we hold that the admission of Monroe’s and Ivy’s statements was harmful error and sustain appellant’s sole point of error. Accordingly, we reverse the judgment of the trial court and remand this cause for further proceedings.

      . The record reflects that Monroe and Ivy were convicted in a separate trial of aggravated robbery with regard to the incident at issue in this case. During appellant’s trial, Monroe and Ivy were brought before the trial court outside the presence of the jury. When asked, Monroe and Ivy refused to testify at appellant’s trial.

      . The Supreme Court specifically identified statements given during police interrogations as "testimonial." Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004). It is not in dispute that appellant had no opportunity to cross-examine Monroe or Ivy either before or during trial.

      . Originally, the trial court limited the State's questioning to the accomplices’ statements that the three men had a plan to rob someone and steal that person’s car. Subsequently, the trial court allowed the State to elicit testimony from Sergeant Clinton that Monroe and Ivy told him that the three men left in Amber’s car and then spent the next three days together. The defense purportedly "opened the door” by asking questions on cross-examination regarding whether the accomplice’s statements were self-serving. Arguably, appellant has waived his right to complain about the admission of the portions of the statements admitted after the defense "opened the door.” However, the better view would be that appellant has not waived his right to complain about any portions of his accomplice’s statements admitted at trial. Defense counsel made clear that he had no intention to waive his objection to the admission of the statements and was not "opening the door.” Pointing out that he was at a disadvantage because he could not cross-examine the accomplices, defense counsel stated that he was attempting to mitigate the damage done to his client by the previously admitted portions of the statements. Thus, appellant has not waived his right to complain about any portions of the statements admitted at trial. See Wappler v. State, 138 S.W.3d 331, 333-34 (Tex.Crim.App.2004) (holding that waiver of rights requires intentional relinquishment or abandonment of known right or privilege by actual renunciation or intentional conduct inconsistent with claiming that known right).


source: Caselaw Access Project

author: ELSA ALCALA, Justice.

license: Public Domain

text:
    Jude ULOGO, Appellant, v. Benita VILLANUEVA, Appellee.
    No. 01-03-00661-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 19, 2005.

      Robert A. McAllister, Houston, TX, for Appellant.
    Michael W. Cooper, Lueders & Boa-nerges, Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
   OPINION ON MOTION FOR REHEARING

ELSA ALCALA, Justice.

Appellant, Jude Ulogo, has filed a motion for rehearing of our opinion of January 6, 2005, and appellee, Benita Villa-nueva, has filed a response. We grant rehearing and withdraw our opinion of January 6, 2005 and issue this opinion and accompanying judgment in their place.

Appellant sued Villanueva for personal injuries resulting from a car collision. Villanueva filed a counter claim against Ulogo claiming injuries and damages resulting from Ulogo’s negligence. A jury found both parties negligent, apportioned liability 65% against Ulogo and 35% against Villanueva, and found that Villa-nueva had incurred $3,446.25 in damages. Ulogo appeals from the judgment awarding Villanueva $2,240.06 in actual damages, $317.36 in pre-judgment interest, and $2,082.16 in costs. In five issues, Ulogo contends that the trial court erred (1) by denying his motion for continuance, (2) by overruling his motion in-limine, (3) by allowing Villanueva’s attorney to refer to the nationality of Ulogo and his key witness, and (4) by excluding a police officer’s testimony regarding his opinions about how the car accident occurred and who was at fault. He also argues that the jury verdict was against the great weight and preponderance of the evidence. We affirm.

Background

At approximately 4:15 p.m. on March 2, 2001, in southwest Houston, Ulogo’s car collided with Villanueva’s car on Beechnut Street. Villanueva testified that she drove on Commerce Street until the road ended at Beechnut Street. Villanueva decided to turn left, which is west, onto Beechnut Street. Beechnut is a street that runs in an east-west direction, and has three lanes in each direction; a median divides the eastbound lanes from the westbound lanes. Villanueva drove across the three eastbound lanes and stopped at the median that divides the eastbound lanes from the westbound lanes. A portion of the rear end of her car, however, protruded onto the eastbound lane that was closest to the median. Ulogo then struck the rear end of Villanueva’s car with the front of his car. Her car was pushed into the westbound traffic, where it struck another car, whose owner is not a party to this lawsuit.

Ulogo testified that, as he drove on the eastbound lane of Beechnut Street that was farthest from the median, a car quickly entered onto Beechnut Street from Commerce Street in front of him, causing his car to collide with the rear end of Villanueva’s car.

At trial, the jury heard testimony from both Ulogo and Villanueva. Additionally, Officer Wright, a Houston Police Officer, testified that he investigated the traffic accident and spoke to both Ulogo and Villanueva on the afternoon of the accident. Ulogo also presented the testimony of Alex Edike, who said that he saw Villa-nueva run the stop sign on Commerce Street, causing the collision with Ulogo on Beechnut Street.

Factual Sufficiency

In his fifth issue, Ulogo contends that the jury verdict in favor of Villanueva, finding Ulogo 65% hable and Villanueva 35% liable, is against the great weight and preponderance of the evidence.

If a party challenges a jury finding regarding an issue upon which that party had the burden of proof, the moving party must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001). The court of appeals must consider and weigh all of the evidence and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id. It is the jury’s province to reconcile conflicting or contradictory evidence of the witnesses. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988). The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Transmission Exch. Inc. v. Long, 821 S.W.2d 265, 271 (Tex.App.-Houston [1st Dist.] 1991, writ denied). We may not substitute our opinion for that of the trier of fact. Id.

Ulogo contends that the evidence is factually insufficient because Edike’s testimony established that Villanueva did not stop at her stop sign on Commerce Street and because the officer testified that Ulogo told him he was in the eastbound lane of Beechnut Street that was farthest from the median.

The jury heard two different versions of the event. Villanueva contended that she stopped at the stop sign at Commerce Street, drove into the median, and stopped there to turn left onto to the westbound lanes of Beechnut Street, when Ulogo’s car struck her car. Ulogo’s and Edike’s testimony shows that Villanueva ran the stop sign at Commerce Street and was struck by Ulogo.

Villanueva’s and Ulogo’s disagreements concerning the versions of the event centered on whether Ulogo was in the eastbound lane on Beechnut Street that was nearest to the median, as Villanueva contended, or that he was in the lane that was nearest to Commerce Street, and farthest from the median, as Ulogo and Edike contended. Although the police officer testified that Ulogo told him he was in the lane that was farthest from the median, Ulogo admitted making inconsistent statements on this issue in a tape-recorded statement he made after the accident, by stating that he was in the lane nearest the median. Additionally, the police officer’s testimony shows that Villanueva consistently told him that she was stopped at the median when she was struck.

Although Ulogo and Edike purported to be strangers, the record shows that they lived in the same apartment complex and were both from Nigeria. Additionally, although he claimed to be at the scene of the accident, Edike did not give a statement to the police officer.

Ulogo’s factual sufficiency complaint asks us to substitute our opinion for that of the trier of fact by finding his witnesses’ testimony more credible than Villanueva’s testimony. As an appellate court, we must defer credibility assessments to the jury when the issues concern the weight to be given to testimony. See Transmission Exch. Inc., 821 S.W.2d at 271; Herbert, 754 S.W.2d at 144. The jury is free to believe or disbelieve a witness’s testimony in whole or in part. Miller v. Kendall, 804 S.W.2d 933, 939 (Tex.App.-Houston [1st Dist.] 1990, no writ). We hold that the evidence supporting the jury finding, that Ulogo was 65% liable and that Villanueva was 35% liable, was not so against the great weight and preponderance of the evidence so as to be clearly wrong or unjust. We hold the evidence is factually sufficient to support the judgment.

We overrule Ulogo’s fifth issue.

Motion for Continuance

In his first issue, Ulogo contends the trial court erred by denying his motion for continuance, which, he contends, alleged that he needed additional time to file a “Motion to Consolidate” other lawsuits allegedly involving the same facts and parties.

On March 7, Ulogo filed an “Agreed Motion for Continuance” in which he asserted his intention to file a motion to consolidate other cases involving the same facts and parties and alleged that “both attorneys of record have signed this agreed motion for continuance.” The record, however, shows that the motion did not contain the opposing counsel’s signature. The trial court did not rule on this motion.

Three days later, on March 10, Ulogo filed a “Supplemental Motion for Continuance” in which he asserted that the “Agreed Motion for Continuance” was not signed because opposing counsel refused to sign the agreement after having agreed to the continuance orally. The trial court denied Ulogo’s “Supplemental Motion for Continuance.”

No agreement between the attorneys or parties to a suit is enforceable unless it is in writing, signed, and filed with the papers as part of the record, or unless it is made in open court and entered of record. See Tex.R. Crv. P. 11. Ulogo asserts that, although no writing documents their agreement, he had an oral agreement with opposing counsel. Id. For an oral agreement to be sufficient, however, it must be “made in open court and entered of record.” See id; Ebner v. First State Bank of Smithville, 27 S.W.3d 287, 295 (Tex.App.-Austin 2000, pet. denied). Because no writing documents an agreement between the attorneys or parties, rule 11 renders the purportedly Agreed Motion for Continuance unenforceable. See Tex.R. Civ. P. 11.

To the extent that Ulogo complains of the denial of a continuance in order to file a motion to consolidate, we hold that he has failed to show that the trial court abused its discretion by failing to grant a motion for continuance on that basis. See Tex.R. Civ. P. 174; South West Prop. Trust, Inc. v. Dallas County Flood Control Dist., 136 S.W.3d 1, 12 (Tex.App.-Dallas 2001, no pet. h.) (trial court has broad discretion to consolidate cases with common issues of law or fact). The record before us does not show that a motion to consolidate was filed or that it would have been an abuse of discretion for the trial court to deny any motion to consolidate if one had been filed. See id.

We overrule Ulogo’s first issue.

Motion in Limine

In his second issue, Ulogo contends that the trial court erred by overruling his motion in limine. Ulogo’s motion in limine asked the trial court to exclude from evidence testimony that the doctor who treated him had been convicted of crimes relating to falsifying the treatment of patients. Ulogo contends on appeal that, by denying his motion in limine, the trial court effectively excluded his medical evidence from the trial.

A trial court’s ruling on a motion in limine is not a final ruling on the evidence and preserves no error for appellate review. See Acord v. Gen. Motors Corp., 669 S.W.2d 111, 116 (Tex.1984). A motion in limine merely precludes reference to the subject of the motion without a party’s first obtaining a ruling on the admissibility of those matters outside the presence of the jury. Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 557 (Tex.App.-Houston [1st Dist.] 1996), aff'd, 972 S.W.2d 35 (Tex.1998). Therefore, to complain on appeal that the trial court erroneously excluded evidence, Ulo-go must have offered the evidence during trial and obtained an adverse ruling from the trial court. See Tempo Tamers, Inc. v. Crow-Houston Four, Ltd., 715 S.W.2d 658, 662-63 (Tex.App.-Dallas 1986, writ ref'd n.r.e.).

At trial, after the trial court refused to grant the motion in limine concerning the doctor’s criminal history, Ulogo’s attorney did not offer any medical evidence from the doctor. Because Ulogo’s attorney failed to obtain any evidentiary ruling from the trial court concerning the use of the doctor’s criminal history at trial, Ulogo did not obtain a final adverse ruling from the trial court and preserved no error on this issue. See id. We hold that Ulogo’s motion in limine was not a final ruling sufficient to preserve error. See Acord, 669 S.W.2d at 116.

We overrule Ulogo’s second issue.

Evidence of Witness’s Nationality

In his third issue, Ulogo contends that the trial court erred by allowing testimony that Ulogo and Edike are from Nigeria because of allegedly negative character associations with the country. Ulogo asserts that the trial court granted his motion in limine to exclude this evidence.

The trial court granted Ulogo’s motion in limine to exclude “[a]ny testimony or evidence of Plaintiffs (Ulogo) ethnic heritage unless [Villanueva] demonstrates the relevance of such outside the presence of the jury.” At trial, Ulogo’s attorney asked Ulogo where he obtained his bachelor’s degree, and Ulogo responded, “in Nigeria.” Ulogo’s attorney thus introduced evidence that Ulogo was from Nigeria before any mention of that issue was made by Villanueva’s attorney. The record also shows that when Villanueva’s attorney asked Ulogo about his nationality, Ulogo’s attorney did not object. Similarly, when Villanueva’s attorney asked Edike about his nationality, Ulogo’s attorney did not object.

We conclude that Ulogo has waived any right to complain of any error concerning evidence of Ulogo’s or Edike’s nationality. Also, the motion in limine was insufficient to preserve error concerning Edike’s nationality. See id. (holding that motion in limine does not preserve error). We hold that, because Ulogo’s attorney did not object to the evidence concerning either Ulo-go’s or Edike’s nationality at trial, Ulogo has failed to preserve this issue for appeal. Collins v. Collins, 904 S.W.2d 792, 798 (Tex.App.-Houston [1st Dist.] 1995, writ denied) (en banc) (holding that if evidence is offered at trial, party who wants to exclude it must object when it is offered); Tex.R.App. P. 33.1(a).

We overrule Ulogo’s third issue.

Exclusion of Police Officer’s Testimony

In his fourth issue, Ulogo contends that the trial court erred by excluding the police officer’s accident report and testimony offered by Officer Wright as an accident reconstruction expert concerning who was at fault in the accident. Ulogo has failed to preserve this issue for appeal.

To preserve error in the exclusion of evidence, a party must (1) attempt during the evidentiary portion of the trial to introduce the evidence; (2) if an objection is lodged, specify the purpose for which [the evidence] is offered and give the trial court reasons why the evidence is admissible; (3) obtain a ruling from the court; and (4) if the court rules the evidence inadmissible, make a record, through a bill of exceptions, of the precise evidence the party desires admitted. Carlile v. RLS Legal Solutions, Inc., 138 S.W.3d 403, 411 (Tex.App.-Houston [14th Dist.] 2004, no pet.); see Tex.R.App. P. 33.1(a).

During direct examination at trial, the officer testified that he had received training concerning the completion of accident reports and accident investigations, and that he had responded to approximately 150 to 200 accidents a year for about seven-and-a-half years. When Ulogo asked the court to allow the officer to testify as an accident investigation expert, Villanueva’s attorney received permission from the trial court to take the officer on voir dire. On voir dire, the officer explained that, although his accident investigation training consisted of determining how accidents occur and who is at fault, he acknowledged that he did not have any accident-reconstruction training and had never reconstructed an accident. Villa-nueva’s attorney conceded to the trial court that the officer was an expert in gathering information and filling out accident reports, but maintained that the officer was not qualified to testify as to his opinion of what occurred in this accident. Ulogo’s attorney then reattempted to establish the officer’s expertise in the area of accident reconstruction by further questioning him on redirect examination and reoffering him as an accident-reconstruction expert. The trial court asked the attorneys to approach the bench, and a conversation occurred between them off the record. The record shows only that the trial court said, “Sustain the objection as to that one certain element[,]” but the record does not show who made the objection, what the objection was, or to what the words “certain element” referred.

The record thus shows no ruling by the trial court excluding the officer’s testimony as an accident reconstruction expert. Additionally, Ulogo made no offer of proof concerning what testimony was allegedly excluded by the trial court. Finally, contrary to Ulogo’s attorney’s assertion that the police report was excluded from evidence by the trial court, the record shows that it was offered by Villanueva’s attorney and admitted into evidence without objection.

We hold that, because Ulogo failed to obtain an adverse ruling from the trial court, he has failed to preserve his point of error for appeal. See Tex.R.App. P. 33.1(a); see Carlile, 138 S.W.3d at 411.

We overrule Ulogo’s fourth issue.

Conclusion

We affirm the trial court’s judgment.