COURT OF APPEALS
SECOND
DISTRICT OF TEXAS
FORT WORTH
NO. 2-04-352-CR
MICHAEL
JOSEPH TATUM APPELLANT
V.
THE
STATE OF TEXAS STATE
------------
FROM
THE 43RD DISTRICT COURT OF PARKER COUNTY
OPINION *
I. Introduction
Appellant
Michael Joseph Tatum appeals from his conviction for the offense of indecency
with a child by sexual contact. In his sole point, appellant argues that the
trial court abused its discretion by admitting a business record affidavit and
case notes from the Michigan Department of Corrections, which the State offered
to prove that appellant failed to comply with the conditions of his community
supervision. We affirm the judgment of the trial court.
II. Background Facts
Appellant
entered a negotiated plea of guilty to the offense of indecency with a child by
sexual contact. See Tex. Penal
Code Ann. § 21.11(a)(1) (Vernon 2003). Under that agreement, the trial
court placed appellant on deferred adjudication community supervision for ten
years. On January 28, 2004, the State filed its first amended petition to
proceed to adjudication, alleging that appellant had violated several conditions
of his community supervision.
At
the portion of the revocation hearing regarding the decision to proceed to an
adjudication of guilt, the State offered State’s Exhibit One, which consisted
of a business record affidavit and case notes from the Michigan Department of
Corrections.1 The case notes stated, among
other things, that appellant violated the conditions of his community
supervision by changing residences without registering as a sex offender,
failing to attend classes as part of his sex offender treatment program, and
residing in a household in which a child lives without first obtaining
permission from his community supervision officer. Appellant objected, arguing
that the exhibit was hearsay and that its admission violated his right of
confrontation as guaranteed by the United States and Texas Constitutions. See
U.S. Const. amend. VI; Tex. Const. art. I, § 10. The trial
court overruled appellant’s objections and admitted the exhibit.
The
State then called its only witness, Parker County Community Supervision Officer
Steven Dover, who testified that appellant failed to make several court-ordered
payments for court costs and restitution.2 He
also testified that he explained to appellant that appellant could not reside in
a household where children live without first obtaining permission from the
appropriate community supervision officer.3
After finding that appellant violated the terms of his community supervision,
the trial court found appellant guilty of indecency with a child by sexual
contact.
At
the punishment phase of the hearing, the State recalled Dover, who testified
that appellant did poorly on his sex offender treatment program while he was in
Michigan. Again, appellant objected, arguing that because Dover was testifying
from the previously-objected-to exhibit, he was testifying from hearsay. The
trial court overruled appellant’s objection and assessed his punishment at ten
years’ confinement.
III. Analysis
Appellant
argues that the trial court abused its discretion by considering the exhibit
both during its determination of whether to proceed to adjudication as well as
in the punishment phase of the hearing. Appellant contends that the admission of
the exhibit violated his confrontation rights as guaranteed by the U.S. and
Texas Constitutions and by the Supreme Court in Crawford v. Washington. See
U.S. Const. amend. VI; Tex. Const. art. I, § 10; Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004).
A. Decision to Proceed to Adjudication
According
to article 42.12, section 5(b) of the Texas Code of Criminal Procedure, a
defendant who has been placed on deferred adjudication community supervision and
who is later accused of violating a condition of his community supervision “is
entitled to a hearing limited to the determination by the court of whether it
proceeds with an adjudication of guilt on the original charge. No appeal may be
taken from this determination.” Tex.
Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2004-05).
In
the present case, appellant’s first objection to the admissibility of the
exhibit in the adjudication phase related to the trial court’s decision to
adjudicate his guilt. Article 42.12, section 5(b) denies appellant the right to
appeal this decision. See id.; Connolly v. State, 983 S.W.2d 738, 739
(Tex. Crim. App. 1999); Johnson v. State, 147 S.W.3d 656, 656 (Tex.
App.—Amarillo 2004, no pet.). Therefore, we dismiss appellant’s point to the
extent that it relates to the admission of the exhibit during the trial
court’s determination of whether to proceed to adjudication.4
See Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992).
B. Punishment
Although
article 42.12 denies a defendant the right to appeal from the trial court’s
decision to adjudicate, nothing prohibits him from appealing issues that arise
during the punishment phase of the hearing. See Kirtley v. State, 56
S.W.3d 48, 51 (Tex. Crim. App. 2001); Vidaurri v. State, 49 S.W.3d 880,
885 (Tex. Crim. App. 2001); McGee v. State, 124 S.W.3d 253, 256 (Tex.
App.—Fort Worth 2003, pet. ref’d); Jonesv. State, 39 S.W.3d 691, 693
(Tex. App.—Corpus Christi 2001, no pet.); Amaro v. State, 970 S.W.2d
172, 173 (Tex. App.—Fort Worth 1998, no pet.). However, a defendant must still
preserve his complaint for appellate review by presenting 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); Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999); Mosley
v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert.
denied, 526 U.S. 1070 (1999); Salazar v. State, 131 S.W.3d 210, 214
(Tex. App.—Fort Worth 2004, pet. ref’d). Further, the complaint made on
appeal must comport with the complaint made in the trial court, or the error is
forfeited. See Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.
Crim. App. 2004); Bell v. State, 938 S.W.2d 35, 54 (Tex. Crim. App.
1996), cert. denied, 522 U.S. 827 (1997); Rezac v. State, 782
S.W.2d 869, 870 (Tex. Crim. App. 1990).
At
the punishment phase of the hearing, the State recalled Dover, who testified
that appellant did poorly on his sex offender treatment program while he was in
Michigan. The following exchange occurred:
[DEFENSE
COUNSEL]: Your Honor, I guess I need – if I could object, I guess I need to
renew my objection that this is hearsay. And we’d ask for a running objection.
THE
COURT: Well I’m not sure what you’re objecting to. You’re objecting to
this previously admitted Exhibit 1 or are you objecting to something that he’s
referring to or hearsay just on what he’s saying? What are you specifically
objecting to?
[DEFENSE
COUNSEL]: I’m specifically objecting to the witness testifying from State’s
Exhibit No. 1 because he’s testifying from hearsay.
Here,
appellant objected to Dover’s testimony regarding appellant’s performance in
his sex offender treatment program. Specifically, appellant argued that Dover
was testifying from the exhibit, which constituted hearsay. On appeal, however,
appellant contends that the admission of the affidavit denied him his right of
confrontation.
A
hearsay objection is not the same as an objection to a violation of
confrontation. Holland v. State, 802 S.W.2d 696, 700 (Tex. Crim. App.
1991); see also Thornton v. State, 994 S.W.2d 845, 853 (Tex. App.—Fort
Worth 1999, pet. ref’d) (holding that an objection lodged solely as a hearsay
objection will not preserve error on other grounds).5
Thus, appellant’s complaint on appeal does not comport with his objection at
trial, so any alleged error is forfeited. We therefore overrule the
remainder of appellant’s point challenging the admission of the exhibit at the
punishment phase of the hearing.
III. Conclusion
We
dismiss appellant’s point in part and overrule it in part. We affirm the trial
court’s judgment.
TERRIE
LIVINGSTON
JUSTICE
PANEL
F: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
DAUPHINOT,
J. filed a dissenting opinion
PUBLISH
DELIVERED:
May 19, 2005
SECOND DISTRICT OF TEXAS
FORT WORTH
MICHAEL
JOSEPH TATUM APPELLANT
THE
STATE OF TEXAS STATE
DISSENTING OPINION
I
agree with the majority that the adjudication of Appellant should be affirmed,
but I would affirm the adjudication on the basis that the petition to adjudicate
alleged failure to pay probation fees as a ground for adjudication, and the
State proved this ground with testimony of a live witness. I respectfully
dissent from the majority’s analysis of Appellant’s complaints about the
admission of the Michigan documents because (1) as to adjudication,
Appellant’s complaint falls outside article 42.12, section 5(b), and (2) as to
punishment, Appellant adequately preserved his complaints. I would hold that the
trial court reversibly erred by admitting the documents, violating Appellant’s
constitutional right to confront the witnesses against him, and would remand for
a new punishment hearing.
We
should either address directly Appellant’s constitutional complaints about the
admission of the Michigan evidence at the adjudication phase, because they are
squarely before this court, or we should not reach them at all, because it is
unnecessary in resolving this case. We should in no event dismiss them. As I
have stated previously,
The cornerstone of the restricted appeal from an adjudication hearing is not
that the right to appeal is a legislatively created right, as this court has
erroneously stated in the past. Rather, it is that the constitutionally-grounded
right to appeal may be regulated by the legislature. Specifically, “in this
state, the right of appeal is conferred only by the Constitution, with such
exceptions or limitations as the legislature directs by statute.”
Constitutional guarantees of due process and equal protection require that once
the right to appeal a criminal conviction exists, it must be fairly applied.1
The
legislature has prohibited a defendant's questioning the decision to adjudicate.2 The legislature has not prohibited his challenging
the procedure, that is, the propriety of the conduct of the adjudication
hearing. Were we to continue blindly to adhere to the notion that there are no
constitutional limits to the legislature's authority to regulate appeals, we
would be forced to find that the legislature could write into every statute it
passes that there could be "no appeal challenging the constitutionality of
this statute."
To
hold that the legislature may suspend all constitutional guarantees to persons
on deferred adjudication community supervision invites capricious and arbitrary
decisions to adjudicate.3 The law is well
established that, in a criminal case, defendants are entitled to due process in
community supervision4 and parole revocation5 hearings. Similarly, section 5(b) "does not
deprive this Court of jurisdiction to determine if a 'hearing' was held that
satisfied the requirements of substantive and procedural due process."6 As an appellate court, we must ensure that
constitutional protections are honored. In doing so, we are obligated to
entertain claims regarding a denial of a constitutional right, including the
right of confrontation of witnesses.7
The
courts have already recognized that a defendant may challenge the impartiality
of the judge and the fairness of the adjudication proceeding.8
Courts have also recognized that a defendant is entitled to effective
representation by counsel at a hearing on the State’s petition to proceed to
adjudication.9 The constitutional right to
confront witnesses against the defendant is a no less compelling right. I would
hold that the trial court erred in admitting and considering the Michigan
documents contained in State’s Exhibit One. Clearly their admission
deprived Appellant of his constitutional right of confrontation. But I
would also hold that the error is harmless at the adjudication phase, because
the adjudication could correctly be based on Appellant’s failure to pay fees.
I
would address the merits of Appellant’s complaint at punishment. As the
State concedes, when Appellant first lodged his objection, he made it abundantly
clear that his hearsay objection was an objection to the violation of his right
to confront the witnesses implicated in State’s Exhibit One,
I’m going to be objecting to State’s Exhibit No. 1. And I would point
out just as a bit of a housekeeping chore, the evidence will show that
[Appellant], immediately after being placed on probation, moved to
Michigan. The State has not subpoenaed the Michigan probation
officer. And I’m left to conclude that they’re going to try to prove
their case through these business records that they’re introducing.
So
I’m going to object to the business records as being hearsay. And I have
a two prong argument as to that. Certainly the defendant agrees that
business records can be an exception to hearsay. Generally business
records are for matters that are considered reliable such as invoices. But
it is an impermissible stretch of business records to use those records to
substitute for a testimonial witness. In this case, a probation officer.
Let’s
take the example of business records of a police officer. Those can
qualify, made at or near the time by a person with knowledge, so on and so
forth. So now do we do away with police officers testifying? I think not.
The
State is attempting to get[] around calling an out-of-state witness. I would
suggest to the court that were this a capital murder case, the State would have
that probation officer here. In the case at bar, the witness — the probation
officer is not unavailable, but rather the State is taking a shortcut.
Also
note that in the business records affidavit that the State is seeking to
introduce, there is no language in that affidavit that swears to the
truthfulness of the data in the — State’s Exhibit No. 1. Therefore, without
cross examination of the probation officer, there is nothing to test the
reliability of the data.
The
second prong of my argument is that to introduce the documents and not have a
probation officer here is denial of the defendant’s right to confront his
accusers which goes against the U.S. Constitution [Six]th Amendment, Texas
Constitution Article 1[,] Section 10, [and] Texas Code of Criminal Procedure
Article 1.05.
Furthermore,
to not have the probation officer here is denial of the defendant’s right to
cross-examine witnesses[,] which is a violation of U.S. Constitution [Six]th
Amendment, Texas Constitution Article 1[,] Section 10, Texas Code of Criminal
Procedure Article 1.05, and further violation of Texas rules of evidence . . .
508, 607, 608, 609, 610, 611, 612, 613, and 615.
.
. . .
.
. . I would [also] argue that Crawford applies to the case in bar, in that the
State is attempting to use a business record to sit in the witness chair and
testify against the defendant without the defendant being given the right to
cross-examine that witness. In other words, the State is trying to get business
records to go around having the accuser take the stand.
When
there is . . . testimonial evidence, it should be subjected to
cross-examination. I would argue that the probation officer’s notes set out in
State’s Exhibit No. 1 go beyond the application meant for a business record.
They are in fact testimonial. And therefore, the substance of Crawford could
very well apply in this case.
It’s
for those reasons that I would object to State’s Exhibit No. 1.
The
trial court was and this court is well aware of the nature of Appellant’s
complaint regarding the Michigan documents. He wanted live witnesses to
cross-examine. The job of both the trial court and the appellate court is to
ensure that constitutional safeguards are afforded the defendant. “We should
be particularly careful to avoid dismissing substantive arguments on overly
technical procedural grounds” or because of the absence of “magic words.”10
Because
the majority chooses to base its opinion on dismissal and forfeiture rather than
addressing Appellant’s substantive arguments, I must respectfully dissent from
its thoughtful opinion.
LEE
ANN DAUPHINOT
NOTES
* Majority Opinion by Justice Livingston; Dissenting Opinion
by Justice Dauphinot
MAJORITY OPINION NOTES:
1.
Appellant was allowed to move to Michigan after he was placed on community
supervision. Appellant left Texas on February 28, 2003, and his probation was
transferred to Michigan.
2.
These payments were to be made to the Parker County Community Supervision and
Corrections Department, regardless of where appellant was residing.
3.
There was evidence in the exhibit that appellant violated this condition by
moving in with his girlfriend, who had a ten-year-old child.
4.
Even if appellant were allowed to appeal the trial court’s decision to proceed
to adjudication, admission of the exhibit was harmless. See Tex. R. App. P. 44.2(a). Dover testified
that appellant failed to make several required payments to the Parker County
Community Supervision and Corrections Department, where payments were still due
even after his move. Therefore, the trial court could have based its decision to
proceed to adjudication solely on appellant’s Texas violations of his
community supervision.
5.
I do not agree with the dissent when it says the “State concedes” anything
relevant. Dissenting op. at 5. The State argues appellant’s objection at the revocation
hearing was thorough and sufficiently specific to preserve a hearsay and
confrontation objection. The State does not, as the dissent says, concede
anything about appellant’s objection at the punishment hearing.
The
record shows that at the punishment hearing the trial court specifically tried
to clarify the exact objection counsel was lodging. In response, counsel
narrowed his objection to, “[H]e’s testifying from hearsay.” In neither
his preliminary objection at the punishment phase, nor in his attempt to clarify
his objection, did appellant ever mention his concern regarding his rights of
confrontation. While he first globally stated he was renewing his prior
objection that “its hearsay,” we cannot so boldly state, as the dissent
does, that, “[a]ppellant made it abundantly clear that his hearsay objection
was an objection to the violation of his right to confront the witnesses
implicated in State’s Exhibit One.” Dissenting op. at 5. Further, the
detailed and thorough objection the dissent incorporates into its opinion was
the preliminary objection appellant made during the hearing on revocation.
As we have noted, appellant narrowed his objection during the punishment phase
to the “witness testifying from State’s Exhibit 1.” Further, as the State
points out in its brief, it re-offered all of the probation officer’s
testimony from the revocation hearing at the beginning of the punishment hearing
without objection. We cannot see how the failure to clearly and adequately
re-apprise the trial court of a constitutional objection one might have is an
“overly technical ground[].” Dissenting op. at 7.
DISSENTING OPINION NOTES
1.
Small v. State, 977 S.W.2d 771, 776-77 (Tex. App.—Fort Worth 1998, no
pet.) (Dauphinot, J., concurring) (footnotes omitted) (citing Rinaldi v.
Yeager, 384 U.S. 305, 310, 86 S. Ct. 1497, 1500 (1966); Phynes v. State,
828 S.W.2d 1, 2 (Tex. Crim. App. 1992); Millican v. State, 145 Tex. Crim.
195, 167 S.W.2d 188, 191 (1943) (op. on reh’g)).
2.
See Tex. Code Crim. Proc. Ann. art.
42.12, § 5(b) (Vernon Supp. 2004-05).
3.
Of course, a writ of habeas corpus under Article 11.07 of the Texas Code of
Criminal Procedure is always available, but it seems an unnecessary burden to
place on the Texas Court of Criminal Appeals. Id. art. 11.07 (Vernon
2005).
4.
See Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 1759-60
(1973); Ruedas v. State, 586 S.W.2d 520, 523 (Tex. Crim. App. [Panel Op.]
1979).
5.
See Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600 (1972).
6.
Eldridge v. State, 731 S.W.2d 618, 619 (Tex. App.—Houston [1st Dist.]
1987, no pet.); see Gilbert v. State, 852 S.W.2d 623, 625-26 (Tex.
App.—Amarillo 1993, no pet.) ("[A]rt. 42.12, § 5(b) . . . is not
intended to preclude challenges to all of the rulings a trial court may
potentially make in the course of a deferred adjudication proceeding. . . . The
adjudication hearing must provide a defendant with minimum substantive and
procedural due process protection."); see also Homan v. Hughes, 708
S.W.2d 449, 452 (Tex. Crim. App. 1986) ("Nothing in Art. 42.12 . . .
prohibits appeal of matters unrelated to the determination of guilt after a
deferred adjudication. In fact, a plain reading of the germane section indicates
just the opposite."); Earley v. State, 855 S.W.2d 260, 261-63 (Tex.
App.—Corpus Christi 1993), pet. dism'd, improvidently granted, 872
S.W.2d 758 (Tex. Crim. App. 1994) (reversing trial court’s revocation of
straight probation in one case, deferred adjudication probation in two other
cases, and a conviction in a fourth case because the trial judge predetermined
the sentences, violating due course of law and due process); De Leon v. State,
797 S.W.2d 186, 187 (Tex. App.—Corpus Christi 1990, no pet.) ("[A] body
of decisional law has developed to allow a defendant to raise limited challenges
to the trial court's decision to adjudicate.").
7.
See Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 1374 (2004).
8.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)See, e.g.,
Earley, 855 S.W.2d at 262-63.
9.
See, e.g., Lopez v. State, 96 S.W.3d 406, 416 (Tex. App.—Austin 2002,
pet. ref’d).
10.
In re L.M.I., 119 S.W.3d 707, 719 (Tex. 2003) (Owen, J., concurring and
dissenting), cert. denied, Duenas v. Montegut, 541 U.S. 1043 (2004).