Tatum v. State
Tatum v. State
Opinion of the Court
OPINION
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.
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.
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.
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
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.
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*365 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).
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.
. 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.
. These payments were to be made to the Parker County Community Supervision and Corrections Department, regardless of where appellant was residing.
.There was evidence in the exhibit that appellant violated this condition by moving in with his girlfriend, who had a ten-year-old child.
. 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.
. 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.
Dissenting Opinion
dissenting.
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
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.
To hold that the legislature may suspend all constitutional guarantees to persons on deferred adjudication community supervision invites capricious and arbitrary decisions, to adjudicate.
The courts have already recognized that a defendant may challenge the impartiality of the judge and the fairness of the adjudication proceeding.
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.
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 accuser's 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.
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... 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.”
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.
. Small v. State, 977 S.W.2d 771, 776-77 (Tex.App.-Fort Worth 1998, no pet.) (Dau-phinot, J., concurring) (footnotes omitted) (citing Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S.Ct. 1497, 1500, 16 L.Ed.2d 577 (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)).
. See Tex.Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp.2004-05).
. 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).
. See Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759-60, 36 L.Ed.2d 656 (1973); Ruedas v. State, 586 S.W.2d 520, 523 (Tex.Crim.App. [Panel Op.] 1979).
. See Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972).
. 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
. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004).
. See, e.g., Earley, 855 S.W.2d at 262-63.
. See, e.g., Lopez v. State, 96 S.W.3d 406, 416 (Tex.App.-Austin 2002, pet. ref'd).
. In re L.M.I., 119 S.W.3d 707, 719 (Tex. 2003) (Owen, J., concurring and dissenting), cert. denied, Dueñas v. Montegut, 541 U.S. 1043, 124 S.Ct. 2175, 158 L.Ed.2d 733 (2004).
Reference
- Full Case Name
- Michael Joseph TATUM, Appellant, v. the STATE of Texas, State
- Cited By
- 19 cases
- Status
- Published