Summary
finding that when defendant "[a]rguably, but only tangentially, while arguing his hearsay objection, . . . briefly touched on a claim that the evidence's admission violated the Confrontation Clause," he failed to preserve error
Summary of this case from Austin v. StateOpinion
No. 06-05-00033-CR
Submitted: January 6, 2006.
Decided: January 13, 2006. DO NOT PUBLISH.
On Appeal from the 7th Judicial District Court, Smith County, Texas, Trial Court No. 007-2049-03.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
After hearing what Matthew Clark Taylor asserts was hearsay evidence, a jury found Taylor guilty of the offense of failing to register as a sex offender. See Tex. Code Crim. Proc. Ann. art. 62.051 (Vernon Supp. 2005). The trial court set Taylor's punishment at ten years' imprisonment. On appeal, Taylor contends the trial court erred by admitting hearsay into evidence, thereby denying Taylor the right to confront and cross-examine the purported declarant, in violation of Crawford v. Washington, 541 U.S. 36 (2004). The State asserts Taylor did not preserve this issue for appellate review. We affirm the trial court's judgment because Taylor's trial objection was not sufficiently specific to preserve a Confrontation Clause error. Taylor made the following objection before the trial court:
Your Honor, I do have one matter. I understand that the only State's witness that's a civilian is not actually under subpoena. It's my understanding, from looking at the discovery, that she's the only one with personal knowledge of anything about this case.
So I know what's going to be coming up is going to be a lot of hearsay objections, so I would like an oral motion in limine so that the State not go into anything about what this Tracy Santana may have said to a police officer during their opening statements, since that will probably not be allowed during the trial.
Also, that they not ask any type of questions that would lead to a hearsay response from the officer.(Emphasis added.) Thus, it appeared that Taylor's objection was initially based strictly on our rule of evidence prohibiting hearsay. See Tex. R. Evid. 802. Later, continuing to argue the same objection, Taylor told the trial court:
And I just cannot imagine any way the State can get around this as being hearsay. It comes straight from — at least the discovery says straight from my client's mother that says, "He has not lived here in three or four months; he's living with his sister," and gives an address. I just cannot imagine how that cannot be hearsay.
. . . .
I believe we had something very similar to this last week in the trial that I had in here where the witness was not subpoenaed, and the witness that was not subpoenaed was not — the officer was not allowed to repeat anything that the witness said.
We even tried the excited utterance and the presen[t sense impression], and, of course, that's not part of this. But that officer was not allowed to go into anything that that person said.(Emphasis added.) The court, the prosecutor, and defense counsel continue discussing the issue for another seven pages of the reporter's record — chiefly over whether the testimony sought to be solicited by the State would truly be offered for the truth of the matter asserted — before defense counsel finally stated:
And you say how could — how could the State ever prove the case? Well, by bringing in the person so that we have the right to confront them and to cross-examine them.
And that's the reason that hearsay is not allowed, because if hearsay was allowed in all these cases, you wouldn't need a defense attorney because there would be no one — you couldn't test their knowledge. There wouldn't be anybody here. There would only be police officers here every trial. And that's what it looks like it's going to be in this trial.To preserve a complaint for appellate review, the party must state the grounds for the desired ruling from the trial court "with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds [are] apparent from the context. . . ." Tex.R.App.P. 33.1(a)(1)(A); Reyna v. State, 168 S.W.3d 173, 177 (Tex.Crim.App. 2005). This is to give the trial court an opportunity to rule on the appellant's appellate rationale. Reyna, 168 S.W.3d at 178 (citing Clark v. State, 881 S.W.2d 682, 694 (Tex.Crim.App. 1994)). It is also to give the trial court the opportunity to correct the error or remove the basis for the objection. Reyna, 168 S.W.3d at 179 (citing Martinez v. State, 22 S.W.3d 504, 507 (Tex.Crim.App. 2000)). When a single objection "encompasses complaints under both the Texas Rules of Evidence and the Confrontation Clause, the objection is not sufficiently specific to preserve error." Reyna, 168 S.W.3d at 179 (citing Cantu v. State, 939 S.W.2d 627, 634 (Tex.Crim.App. 1997)). When an objection is based on hearsay, that objection does not preserve a Clause error. Reyna, 168 S.W.3d at 179 (citing Paredes v. State, 129 S.W.3d 530, 535 (Tex.Crim.App. 2004)). Based on these authorities, we believe no Confrontation Clause error was preserved. As in Reyna, Taylor's arguments to the trial court addressed a traditional hearsay objection under our rules of evidence. Arguably, but only tangentially, while arguing his hearsay objection, Taylor briefly touched on a claim that the evidence's admission violated the Confrontation Clause. Under the precedent set forth by the Texas Court of Criminal Appeals in Reyna, because Taylor's objection involved, at most, a hybrid argument raising complaints under both federal and state rules, we hold this issue has not been preserved for our review. And, given the many pages of discussion concerning Taylor's sole objection, the constant focus of that discussion on hearsay, and the extremely brief, tangential reference to confrontation embedded in the extensive hearsay discussion, we believe the trial court was not given any real opportunity to rule on the admissibility of evidence based on the Confrontation Clause. Accordingly, we overrule Taylor's sole point of error. We affirm the trial court's judgment.
See U.S. Const. amend. VI.
The trial court granted the requested motion in limine but, initially, reserved its rulings on admissibility until the time-specific evidence was tendered. Later, the court ruled it would admit the evidence and granted Taylor a running objection as to hearsay from a law enforcement officer quoting a neighborhood resident to the effect that Taylor did not live at the address.
In Reyna, the accused was charged with indecency with a child. In an attempt to discredit the victim's accusation, "Reyna [had] sought to introduce evidence of the victim's prior false allegation of sexual assault and her recantation of that allegation." 168 S.W.3d at 174. The trial court conducted an in camera hearing, during which Reyna's counsel said the purpose of admitting the evidence was to test the victim's credibility, not to offer the evidence for the truth of the matter asserted, and as a result, the trial court excluded the evidence. Id. at 174-75. The Texas Court of Criminal Appeals held Reyna had not preserved error under the United States Constitution's Confrontation Clause. Id. at 179.