Fultz v. State

940 S.W.2d 758, 1997 WL 71729
CourtCourt of Appeals of Texas
DecidedMarch 25, 1997
Docket06-96-00015-CR
StatusPublished
Cited by16 cases

This text of 940 S.W.2d 758 (Fultz v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fultz v. State, 940 S.W.2d 758, 1997 WL 71729 (Tex. Ct. App. 1997).

Opinions

OPINION

ROSS, Justice.

Bennie Fultz appeals from his convictions for the offenses of aggravated sexual assault of a child and indecency with a child. Trial was to a jury. The court sentenced the appellant to twenty-five years’ confinement for the offense of aggravated sexual assault of a child and assessed ten years’ confinement, probated, for the offense of indecency with a child. The primary evidence against the appellant consisted of a videotaped statement by the victim, his four-year-old granddaughter. The videotape was admitted pursuant to Tex.Code Crim. Proo. Ann. art. 38.071, § 5 (Vernon Supp.1997). The appel[760]*760lant’s one point of error complains that the admission of this videotaped statement violated his right to confrontation, as guaranteed by the United States and Texas Constitutions. U.S. Const, amend. VI; Tex. Const, art. I, § 10.

This case presents us with nothing to review because the appellant has not preserved any error. In order for an issue to be preserved on appeal, there must be a timely objection that specifically states a legal basis for the objection. Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App.1990). An objection stating one legal basis may not be used to support a different legal theory on appeal. Id. Instead, an objection must draw the court’s attention to the particular complaint raised on appeal. Little v. State, 768 S.W.2d 551, 564 (Tex.Crim.App.), cert. denied, 488 U.S. 934, 109 S.Ct. 328, 102 L.Ed.2d 346 (1988). A loosely formulated and imprecise objection will not preserve error. United States v. Jimenez Lopez, 873 F.2d 769, 773 (5th Cir.1989). When his trial objections do not comport with his arguments on appeal, an appellant has failed to preserve error. Goff v. State, 931 S.W.2d 537, 551 (Tex.Crim.App.1996).

In this case, the appellant’s trial objections do not comport with his arguments on appeal. At trial, the appellant made the following objection to the admission of the videotape:

Your Honor, we would ask that the Court not allow the video to be offered for two reasons. First of all, this was taken back in March of ’94. Obviously, from the video, there’s not a showing on the video, nor testimony that the child was admonished as to right and wrong truth of making allegations, or whether or not they were in a truthful playroom where only the truth would be told, or it was going to be you make up stories, or if she is going to tell the truth of what somebody might want to hear. There was no admonishment as to the need to tell the truth, or what happens to people if they don’t tell the truth, or that there could be things happen, or things done if she did not tell the truth.
Secondly, the testimony is very clear that in the video, itself, that the little girl had been talked to, apparently at length about this, before the video began. And I think that this real action of the law, it’s certainly a video like this, without the defendant being there, or counsel being there, it necessarily must be spontaneous for her to have any ability of truthfulness and ability to judge the credibility of what’s being said. I’m not blaming the lady who did the video. I think it was just done in a way that couldn’t—
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I’m just saying what happened was wrong, done inadvertently, and not because of a malicious intent on the part of CPS to make a bad video, or to a situation that could not be allowed in a court of law, because of the seriousness of the allegations. I’m saying, I don’t say she intended to do anything wrong, but it is not a video that should, or could, be allowed.

Any allusion to the Confrontation Clause in these objections is extremely attenuated. The mere allusion to or implication of an objection does not preserve it for appeal. E.g., United States v. Musa, 45 F.3d 922, 924 (5th Cir.1995); United States v. Berry, 977 F.2d 915, 918 (5th Cir.1992); United States v. Jimenez Lopez, 873 F.2d 769, 773 (5th Cir.1989); Burks v. State, 876 S.W.2d 877, 899 (Tex.Crim.App.1994); Rezac v. State, 782 S.W.2d at 870-71; Little v. State, 758 S.W.2d at 564; Fancher v. State, 659 S.W.2d 836, 839-40 (Tex.Crim.App.1983).

The appellant does not argue on appeal that his Confrontation Clause rights were violated because the victim was not administered a proper oath. Instead, he broadly argues that the nonadversarial setting and lack of face-to-face cross-examination deprived him of rights under the Confrontation Clause. However, the appellant never mentioned the Confrontation Clause at trial. His trial objection was not urged on appeal, and his appellate objection was not urged at trial. Therefore, the appellant did not draw the trial court’s attention to his particular complaint.

This case is controlled by Holland v. State, 802 S.W.2d 696, 699-700 (Tex.Crim.App.[761]*7611991), which holds that a hearsay objection does not preserve a Confrontation Clause objection to the admission of a child-witness videotape:

When the State proffers an out-of-court statement of a child witness pursuant to [Tex.Code Crim. Proo. Ann.] Article 38.072 ... it is incumbent upon the accused to object on the basis of confrontation and/or due process and due course of law. At that point the State can respond by following either one of two courses. First the State can announce its intention to call the child declarant to the stand to allow confrontation without the accused having to call the child to the stand himself. See Buckley v. State, [786 S.W.2d 357 (Tex.Cr.App.1990)] supra, at 360-61; Briggs v. State, supra, at 922. Alternatively the State can make a showing both that 1) the out-of-court statement is one that is reliable under the totality of circumstances in which it was made, Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), which Article 38.072, Sec. 2(b)(2) already requires; and 2) use of the out-of-court statement in lieu of the child’s testimony at trial “is necessary to protect the welfare of the particular child witness” in that particular ease. Maryland v. Craig, 497 U.S. 836, 855, 110 S.Ct. 3157, 3169, 111 L.Ed.2d 666, 685 (1990); see also Buckley v. State, supra, at 360; Long v. State, [742 S.W.2d 302 (Tex.Cr.App.1987)] supra, at 312. If the State follows either of these two courses, the accused’s objection on confrontation grounds should be overruled.

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Fultz v. State
940 S.W.2d 758 (Court of Appeals of Texas, 1997)

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940 S.W.2d 758, 1997 WL 71729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fultz-v-state-texapp-1997.