Demarkous Clay v. State

361 S.W.3d 762, 2012 WL 503513, 2012 Tex. App. LEXIS 1255

Opinions

OPINION

TERRIE LIVINGSTON, Chief Justice.

Appellant Demarkous Clay challenges the trial court’s decision to proceed to adjudication of the offense of burglary of a habitation and the resulting ten-year sentence. Appellant argues that the trial court abused its discretion by admitting records from Louisiana concerning his community supervision, that the admission of those records violated his Sixth Amendment right to confrontation, and that the trial court erred by refusing to recognize his economic defense to his failure to pay restitution of $275 per month. We affirm.

Background Facts

In 2007, a Denton County grand jury indicted appellant for burglary of a habitation.¹ In 2008, appellant pled guilty, and the trial court placed him on ten years’ deferred adjudication community supervision. The order of deferred adjudication contained many conditions, including that appellant report monthly in person to his community supervision officer, pay $32,000 in restitution at the rate of $275 per month, complete a “drug'alcohol evaluation through an agency which offers such services” within thirty days of the order, and participate in a theft diversion class at the direction of his community supervision officer.

In 2010, the State filed a motion to proceed with adjudication of appellant’s guilt, alleging that appellant had violated each of the conditions described above, among others. Appellant retained counsel. At the contested hearing, Rhett Wallace, an employee of the Denton County probation department, testified that in February 2008, appellant received a copy of his community supervision conditions and that, on the same day, he requested that his community supervision be transferred to Louisiana, and it was. Wallace then testified to appellant’s failure to meet some of the conditions of his community supervision. Much of Wallace’s testimony was based on information that had been generated by Louisiana officials and later sent to Denton County. Appellant objected that Wallace’s testimony was based on hearsay; in response, the State offered the raw records from Louisiana that purport to be community supervision records relating to appellant, and the State asserted the business records exception as the basis for admission.² Appellant argued that although Wallace was a custodian of probation records for Denton County, the Louisiana documents were inadmissible as hearsay because Wallace had no knowledge as to how the documents were generated and could not confirm the trustworthiness or reliability of the records. The trial court overruled appellant’s objection and admitted the exhibit containing the Louisiana records “as a business record and a government record.”³

At the end of the contested revocation hearing, the trial court found that appellant had violated each of the conditions of his community supervision described above. The court, therefore, revoked appellant’s community supervision, adjudicated him guilty of burglary of a habitation, and sentenced him to ten years’ confinement. Appellant brought this appeal.

The Forfeiture of Appellant’s Complaints

In three issues, appellant contests the trial court’s decision to revoke his community supervision and adjudicate him guilty. Appellant’s first two issues depend on the correctness of the trial court’s admission of the Louisiana records.

As we explained in Cherry v. State,

We review an order revoking community supervision under an abuse-of-discretion standard. In a revocation proceeding, the State must prove by a preponderance of the evidence that the defendant is the same individual who is named in the judgment and order of probation, and then must prove that the defendant violated a term of probation as alleged in the motion to revoke.

In a community supervision revocation hearing, the trial judge is the sole trier of fact and determines the credibility of the witnesses and the weight to be given their testimony. We review the evidence in the light most favorable to the trial court’s ruling. If the State fails to meet its burden of proof, the trial court abuses its discretion in revoking the community supervision.

215 S.W.3d 917, 919 (Tex.App.-Fort Worth 2007, pet. ref d) (citations omitted). “Proof by a preponderance of the evidence of any one of the alleged violations of the conditions of community supervision is sufficient to support a revocation order.” Cantu v. State, 339 S.W.3d 688, 691-92 (Tex.App.-Fort Worth 2011, no pet.).

Appellant contends that the trial court abused its discretion by revoking his community supervision because the revocation was based on information contained in the Louisiana records, which appellant asserts were inadmissible. To preserve a complaint for our review, however, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context .of the request, objection, or motion. Tex.R.App. P. 33.1(a)(1); Layton v. State, 280 S.W.3d 235, 238-39 (Tex.Crim.App.2009). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court’s refusal to rule. Tex.R.App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex.Crim.App.2004). A reviewing court should not address the merits of an issue that has not been preserved for appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex.Crim.App.2009). Preservation of error is a systemic requirement that this court should review on its own motion. Archie v. State, 221 S.W.3d 695, 698 (Tex.Crim.App.2007).

Appellant objected to the admissibility of the Louisiana records, and as part of that objection, appellant’s counsel had a lengthy exchange with the trial court concerning whether the records were excepted from hearsay under rule of evidence 803(6). We have no doubt that this objection met the requirements of making the trial court aware of appellant’s complaint and sufficiently explaining the basis for it. See Ford, 305 S.W.3d at 533. But before and after the exchange, appellant did not object to many of the State’s questions, and much of Wallace’s testimony, concerning the contents of the records. For example, before the exchange, Wallace testified without objection, from information contained in the records, that appellant had reported to community supervision in Louisiana and that he had violated condition (b) of his community supervision, which required him to avoid the use of illegal narcotics, barbiturates, or controlled substances. After the exchange, Wallace testified on direct examination, based on data in the records, that appellant had tested positive for cocaine in June 2009, that he had failed to report to the Louisiana probation department during several months from 2008 through 2010, and that he had not completed an alcohol evaluation or a theft diversion class.⁴ Wallace also testified about some facts contained in the Louisiana records on cross-examination by appellant’s counsel.

With exceptions that do not apply here, to preserve error, a party must continue to object each time the objectionable evidence is offered.⁵ Martinez v. State, 98 S.W.3d 189, 198 (Tex.Crim.App.2003) (citing Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App.1991)); Fuentes v. State, 991 S.W.2d 267, 273 (Tex.Crim.App.), cert. denied, 528 U.S. 1026, 120 S.Ct. 541, 145 L.Ed.2d 420 (1999). A trial court’s erroneous admission of evidence will not require reversal when other such evidence was received without objection, either before or after the complained-of ruling. Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App.1998) (explaining that Texas applies the “futility rule,” meaning that despite a trial court’s ruling that evidence is admissible, a party must keep making futile objections on pain of waiver). This rule applies whether the other evidence was introduced by the defendant or the State. Id.

The Texarkana Court of Appeals analyzed an error preservation issue similar to the one presented in this case in Perry v. State, 957 S.W.2d 894 (Tex.App.-Texarkana 1997, pet. ref'd). During Perry’s trial for criminal nonsupport, the trial court admitted, over Perry’s hearsay objection, an exhibit containing a summary of child support that had accrued and payments that were due. Id. at 896. An employee of the attorney general’s office then testified, without objection, that the summary showed that Perry was $16,650 in arrears. Id. The Texarkana court held that the testimony about the exhibit after its admission forfeited any alleged error, explaining,

A party desiring to complain about particular evidence must object each time that evidence is offered, or the objection is waived. Although Perry objected to the admission of the calculation summary report when it was offered by the State, he did not object when the witness testified about the contents of the report. Thus, he did not preserve error.

Id. (citations omitted).

Our own court recently reached the same conclusion under similar facts. See Sikes v. State, No. 02-10-00029-CR, 2011 WL 4711998 (Tex.App.-Fort Worth Oct. 6, 2011, no pet.) (Dauphinot, J.) (mem. op., not designated for publication). Sikes argued that a trial court abused its discretion by admitting a letter that he wrote to his father; Sikes claimed that the letter was hearsay and was not relevant. Id. at *6. At trial, Sikes had objected to the admission of the letter, but when a witness later read the contents of the letter to a jury, Sikes failed to object again. Id. We noted that Sikes had “neither requested nor received a running objection to the evidence,” and held,

To preserve error, a party must continue to object each time the objectionable evidence is offered. A trial court’s erroneous admission of evidence will not require reversal when other such evidence was received without objection, either before or after the complained-of ruling. This rule applies whether the other evidence was introduced by the defendant or the State. Consequently, ... [Sikes] forfeited any error in the admission of the letter....

Id.

Thus, because Wallace provided testimony about the Louisiana records without objection before and after appellant’s objection to the admission of the records and because appellant failed to obtain a running objection,⁶ we conclude that he forfeited his objection to the records’ admission.⁷ See Martinez, 98 S.W.3d at 193; Perry, 957 S.W.2d at 896; see also Ratliff v. State, 320 S.W.3d 857, 861 (Tex.App.Fort Worth 2010, pet. ref d) (“If the defendant waits until the State offers the evidence at trial, the objection to the evidence must be made before a witness gives substantial testimony about it.”); Mai v. State, 189 S.W.3d 316, 324 (Tex.App.-Fort Worth 2006, pet. refd) (‘We hold that Appellant failed to preserve error ... by not repeating the objection again each time the State asked Officer Richie to read from or refer to the transcript.”). Based on the facts contained in those documents and Wallace’s unobjected-to testimony about them, we hold that the trial court did not abuse its discretion by revoking appellant’s community supervision and adjudicating him guilty. See Cherry, 215 S.W.3d at 919. We overrule appellant’s first two issues.

Because the State’s exhibit and Wallace’s testimony support several violations of appellant’s community supervision, and because only one violation is sufficient to support the trial court’s revocation decision, we need not address appellant’s third issue, in which he contends that revocation on the ground that he failed to pay restitution when not having sufficient ability to do so was improper. See Tex.R.App. P. 47.1; Moore v. State, 605 S.W.2d 924, 926 (Tex.Crim.App. [Panel Op.] 1980).

Conclusion

Having overruled appellant’s dispositive issues, we affirm the trial court’s judgment.

DAUPHINOT, J., filed a dissenting opinion.

Footnotes

1

. See Tex. Penal Code Ann. § 30.02(a)(1) (West 2011).

2

. See Tex.R. Evid. 803(6).

3

.The first issue of appellant’s brief focuses on rule of evidence 803(6); the brief does not directly discuss whether the Louisiana records were admissible as public records and reports under rule 803(8). See Tex.R. Evid. 803(8).

4

. Appellant testified later in the hearing in an attempt to explain or excuse these facts. For example, he stated that when he took two drug tests on the same day in June 2009, one was positive and the other was negative. He also testified that he asked his Louisiana probation officer about the drug and alcohol evaluation and that the officer set the class for a time that appellant was working. Appellant does not contest, however, that , the facts revealed through Wallace’s testimony are sufficient to support the trial court’s revocation decision under the preponderance of the evidence standard; he contends only that evidence of the facts should not have been admitted.

5

. For example, "it is settled that when a pretrial motion to suppress evidence is overruled, the accused need not subsequently object to the admission of the same evidence at trial in order to preserve error.” Fuller v. State, 827 S.W.2d 919, 930 (Tex.Crim.App.1992) (emphasis added), cert. denied, 509 U.S. 922, 113 S.Ct. 3035, 125 L.Ed.2d 722 (1993); see Williams v. State, 834 S.W.2d 502, 507 (Tex.App.-Fort Worth 1992, pet. ref’d). Appellant did not seek to suppress evidence associated with the Louisiana records prior to the trial court’s revocation hearing.

6

. A running objection would have, of course, relieved the trial court of the burden of "defense counsel jumping up and down like a Jack-in-the-Box at each mention of the documents complained of.” See Dissenting Op. at 771.

7

. We note that appellant did not argue in the trial court that his Sixth Amendment right to be confronted with the witnesses against him had been violated by admission of the Louisiana records. For this reason as well, he forfeited that complaint. See Reyna v. State, 168 S.W.3d 173, 179 (Tex.Crim.App.2005) (“An objection on hearsay does not preserve error on Confrontation Clause grounds.”); Robinson v. State, 310 S.W.3d 574, 577-78 (Tex.App.-Fort Worth 2010, no pet.).