Summary
In Ahmed, the appellant argued to the trial court that the cross-examination questions that he sought to ask showed a witness's bias but then argued on appeal that he was deprived of the right to confrontation.
Summary of this case from Class v. StateOpinion
No. 05-19-00940-CR
08-05-2020
HAZEM AHMED, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 6 Collin County, Texas
Trial Court Cause No. 006-89052-2018
MEMORANDUM OPINION
Before Justices Myers, Partida-Kipness, and Reichek
Opinion by Justice Reichek
Hazem Ahmed appeals his conviction for family violence assault. In a single issue, appellant contends he was denied the opportunity to fully cross-examine the complainant, his ex-wife, regarding a potential motivation she had for making the allegations against him. Appellant contends the trial court's refusal to allow him to question his ex-wife about an incident that occurred two years before the offense violated his right to confront his accuser under the sixth amendment to the United States Constitution. We affirm the trial court's judgment.
In December 2018, Appellant was charged by information with intentionally, knowingly, and recklessly causing bodily injury to his ex-wife by hitting her with his hand. Before trial, defense counsel informed the court he intended to question the complainant about her filing for divorce and her financial interest in obtaining a guilty verdict as leverage for negotiations in that proceeding. The court stated questions regarding the divorce proceedings would be generally permitted and specific objections would be addressed during trial.
Defense counsel also stated he intended to ask the complainant about an incident in 2016 in which she took her and appellant's children to Canada in apparent violation of appellant's rights under a previous divorce decree. In making this request, counsel stated,
. . . there was a previous divorce between this same couple. And after that divorce that occurred in Egypt in 2016, she left with the kids, without notice, to go to Canada in 2016. That was against the - violated my client's right to see his kids. The reason why we'd be offering it - obviously it's not relevant as to whether or not this happened, but I think it's relevant as to her bias in that she has continually done things and will do anything to separate herself from him, and - including violate the law or make up stories or do that thing - things like that in this particular situation.The State responded that it had no objection to the defense questioning the complainant regarding the nature of her relationship with appellant. But it contended that testimony regarding the specific incident of her taking the children to Canada would be irrelevant and more prejudicial than probative. The trial court sustained the State's objection and defense counsel made no further argument.
In a single issue on appeal, appellant contends the trial court's refusal to allow questions regarding his ex-wife taking their children to Canada violated his right to confrontation under the sixth amendment to the United States Constitution. He argues that the limitation on his cross-examination prevented him from establishing the defense that his ex-wife was falsifying the assault charge to obtain custody of their children in the divorce proceeding. But neither the Confrontation Clause nor the custody dispute was raised in the trial court as a reason to allow the testimony at issue. The defense argued only that the evidence was admissible because it was relevant to show the complainant's bias and general lack of credibility.
To preserve error on Confrontation Clause grounds, a sufficiently specific objection must be made as soon as the basis for such objection becomes apparent. TEX. R. APP. P. 33.1; Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005). The purpose of requiring a specific objection is to give to the trial court or the opposing party the opportunity to correct the error or remove the basis for the objection. Id. If the proponent of the evidence does not "clearly articulate" that the Confrontation Clause demands admission, the trial judge never has the opportunity to rule upon this rationale. Id. While no "hyper-technical or formalistic use of words or phrases" is required to preserve error, the proffering party is not permitted to "bootstrap a constitutional issue from the most innocuous trial objection." Golliday v. State, 560 S.W.3d 664, 670 (Tex. Crim. App. 2018). A general dialogue about relevance is insufficient to preserve a Confrontation Clause argument. Id. at 671.
In this case, appellant failed to raise any constitutional argument in the trial court in support of his request to question the complainant about her taking the children to Canada. The argument that the evidence was relevant to show bias and lack of credibility was insufficient to preserve the Confrontation Clause issue for review. Id. Because we conclude appellant waived his constitutional complaint, we resolve his sole issue against him.
We affirm the trial court's judgment.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
190940F.U05
JUDGMENT
On Appeal from the County Court at Law No. 6, Collin County, Texas
Trial Court Cause No. 006-89052-2018.
Opinion delivered by Justice Reichek. Justices Myers and Partida-Kipness participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered August 5, 2020