Jamal Mahjoub v. State

• Court: Court of Appeals of Texas
• Decided: August 5, 2010
• Docket: 02-09-00038-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 2-09-038-CR

JAMAL MAHJOUB APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM COUNTY CRIMINAL COURT NO. 5 OF TARRANT COUNTY

MEMORANDUM OPINION 1

A jury convicted appellant, Jamal Mahjoub, of the misdemeanor offense of

violating a protective order. 2 The trial court assessed punishment at ninety days’

confinement in the Tarrant County jail. In a single point, Mahjoub contends that the

trial court violated his constitutional right to confrontation by excluding a series of

1  See Tex. R. App. P. 47.4. 2  See Tex. Penal Code Ann. § 25.07 (Vernon Supp. 2009); Tex. Fam. Code Ann. § 85.001 (Vernon 2008). e-mails between Mahjoub and his ex-wife, Lisa York, the complainant. W e will affirm.

At trial, the State presented the testimony of both York and the ex-couple’s

son, both implicating Mahjoub in the offense. During cross-examination of York,

Mahjoub’s attorney attempted to introduce a series of e-mails allegedly exchanged

between York and Mahjoub a few days prior to York having complained to the police

about Mahjoub’s alleged violation of an existing protective order. The State objected

that the e-mails were not relevant and were hearsay. Mahjoub argued that they

should be introduced “[b]ecause access and motive. The E-mail was written two

days before.” The trial court then held a hearing outside the jury’s presence. At the

hearing, the contents of the e-mails were introduced as an exhibit and read aloud for

the record. Mahjoub never mentioned either the federal or State confrontation

clauses. The trial court sustained the State’s objections.

Mahjoub now contends that the trial court violated his constitutional right to

confrontation under both the federal constitution and the Texas constitution by

excluding the proffered e-mails. U.S. Const. amend. VI; Tex. Const. art. I, § 10. But

Mahjoub failed to preserve an issue regarding confrontation for appellate review.

See Tex. R. App. P. 33.1(a). To preserve an error for our review, a party must make

a timely objection or request to the trial court, sufficiently stating the specific grounds

for the requested ruling, unless apparent from the context, and obtain an adverse

ruling. See id.; Wilson v. State, 71 S.W .3d 346, 349 (Tex. Crim. App. 2002).

Moreover, the objection or request at trial must comport with the complaint

2 presented on appeal. Wilson, 71 S.W .3d at 349. Even constitutional errors may be

forfeited by failure to object at trial. Broxton v. State, 909 S.W .2d 912, 918 (Tex.

Crim. App. 1995). W hen a party’s argument for admitting evidence could refer to a

confrontation clause complaint, the party must specifically articulate that the

confrontation clause demands admission of the evidence to preserve error on this

ground. See Reyna v. State, 168 S.W .3d 173, 179 (Tex. Crim. App. 2005) (holding

that because a trial objection regarding the “credibility” of the proffered evidence

could be in reference to either the rules of evidence or the confrontation clause, the

objection was not sufficiently specific to preserve error for appellate review).

In this case, Mahjoub’s argument at trial for proffering the e-mails could have

encompassed either the rules of evidence regarding relevance or hearsay, or his

purpose for proffering them could have encompassed the federal or State

confrontation clauses. See Tex. R. Evid. 401, 404, 608(b); see also Hurd v. State,

725 S.W .2d 249, 252 (Tex. Crim. App. 1987) (reasoning that exposing a witness’

motivation to testify against a defendant is a proper and important function of the

constitutionally protected right of cross-examination). Mahjoub, however, did not

inform the trial court that either confrontation clause demanded admission of the

proffered testimony nor present any constitutional arguments. Indeed, both the

State’s and Mahjoub’s attorneys discuss hearsay and relevancy regarding the

proffered e-mails, but neither attorney ever mentions a confrontation-clause

3 complaint. Therefore, Mahjoub failed to preserve any possible confrontation-clause

complaint. See Reyna, 168 S.W .3d at 179.

Accordingly, we overrule Mahjoub’s sole point and affirm the trial court’s

judgment.

BILL MEIER JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: August 5, 2010