Tatum v. State

166 S.W.3d 362, 2005 Tex. App. LEXIS 3875, 2005 WL 1189359

• Court: Court of Appeals of Texas
• Decided: May 19, 2005
• Docket: 2-04-352-CR
• Status: Published

Opinions

OPINION

TERRIE LIVINGSTON, Justice.

I. Introduction

Appellant Michael Joseph Tatum apPeals from his conviction for the offense of indecency with a child by sexual contact, ⅛ 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, faffing 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, 158 L.Ed.2d 177 (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 Chim. PROG. 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); Jones v. 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, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999); Salazar v. State, 131 S.W.3d 210, 214 (Tex. App.-Fort Worth 2004, pet. refd). 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, 118 S.Ct. 90, 139 L.Ed.2d 46 (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 Hon- or, 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. refd) (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.

DAUPHINOT, J. filed a dissenting opinion.

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 367. 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, "[ajppellant 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 ■ — . 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 368.