Tatum v. State

• Decision Date: 19 May 2005
• Docket Number: No. 2-04-352-CR.,2-04-352-CR.
• Citation: 166 S.W.3d 362
• Parties: Michael Joseph TATUM, Appellant, v. The STATE of Texas, State.
• Court: Texas Supreme Court

Page 362

166 S.W.3d 362

Michael Joseph TATUM, Appellant, v. The STATE of Texas, State.

No. 2-04-352-CR.

Court of Appeals of Texas, Fort Worth.

May 19, 2005.

John Morgan Minton, Fort Worth, TX, for Appellant.

Don Schnebly, District Attorney, and Edward D. Lewallen, Assistant District Attorney, Weatherford, TX, for State.

PANEL F: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.

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. 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, 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 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); 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. 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, 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 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.

DAUPHINOT, J. filed a dissenting opinion.

LEE ANN DAUPHINOT, Justice, 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 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."...