Opinion
No. 09-06-247 CR
Submitted on May 3, 2007.
Opinion Delivered August 15, 2007. DO NOT PUBLISH.
On Appeal from the 410th District Court, Montgomery County, Texas, Trial Cause No. 05-12-11023 CR.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
MEMORANDUM OPINION
After a bench trial, the trial court convicted appellant Joshua Blue Godwin of possession of a controlled substance and sentenced him to two years of confinement in a state jail facility. Godwin filed this appeal raising two issues. He asserts the statutory requirements for waiver of the right to jury trial were not met, and the trial court erred in admitting hearsay evidence. We affirm the judgment of the trial court. Deputy Jack Hunter of the Montgomery County Sheriff's Department testified he was dispatched to the scene of a theft at a Wal-Mart store. Upon arriving at the scene, Deputy Hunter learned that a male and a female had left the store in a vehicle, and he received a description of the vehicle and its license plate number. Deputy Hunter reported the information to dispatch. While Deputy Hunter stood outside the store, a female later identified as Carey Cranford approached, and Deputy Hunter learned she had left the store with Godwin. The authorities located the parked vehicle on Sawdust Road behind a restaurant, and Godwin was inside the vehicle in the driver's seat. After conversing with Cranford, Deputy Hunter determined the vehicle belonged to her, and he obtained her written consent to search it. The authorities searched the car "for what Wal-Mart had told [them]. . . was some type of radio or [iPod] that was taken from [the] store." On the passenger seat of the vehicle, Deputy Hunter found a backpack that contained "a small clear baggy with a glassy substance in it." The substance tested positive for methamphetamine. A wallet containing Godwin's identification was in the backpack, as were tax forms that did not belong to Godwin. Deputy Hunter also found a new iPod, and Godwin told him he had taken the iPod. According to Deputy Hunter, the backpack was "on top of the passenger seat within arm's reach." After the substance tested positive for methamphetamine, Deputy Hunter handcuffed Godwin, finished searching the car, and took Godwin to the Montgomery County jail. Godwin testified that neither the backpack nor the methamphetamine belonged to him. According to Godwin, a constable removed Godwin's wallet from his pocket before Deputy Hunter arrived. Godwin admitted he stole the iPod, that he uses methamphetamine, and that he intended to sell the iPod to obtain money to buy drugs. In his first issue, Godwin contends we must reverse and remand for a new trial because the record does not contain an oral statement by him in open court or a written statement indicating that he desired to waive his right to a jury trial. Although the record does not contain Godwin's oral or written statement indicating a waiver of his right to a jury trial, the judgment recites that Godwin "waived his right of trial by jury[.]" In addition, the docket sheet states that Godwin waived his right to trial by jury, and the trial court stated, "you have, of course, waived the jury" before pronouncing judgment. This case is indistinguishable from Johnson v. State, 72 S.W.3d 346 (Tex.Crim.App. 2002). In Johnson, the trial court's judgment recited that Johnson waived his right to trial by jury, yet Johnson contended he never waived a jury trial in open court or in writing. Id. at 347; see Tex. Code Crim. Proc. Ann. art. 1.13(a) (Vernon 2005) (requiring that a waiver of the right to jury trial "must be made in person by the defendant in writing in open court[.]"). The Court of Criminal Appeals began its analysis by noting that because "Johnson alleges merely that there was no written jury waiver, and does not allege that there was no jury waiver at all, he alleges statutory error, not constitutional error. We therefore analyze harm under Appellate Rule 44.2(b)." Johnson, 72 S.W.3d at 348; see Tex. R. App. P. 44.2(b). The Court pointed out that the recitation that Johnson waived his right to jury trial was binding unless the record directly proved its falsity, and that the use of the term "waive" in the judgment presumes that Johnson knew of his right and knowingly declined to exercise it. Johnson, 72 S.W.3d at 349. The Court concluded that because the record contains no direct proof that the statement in the judgment was false, the violation of article 1.13 did not harm Johnson because "the record reflects that he was aware of his right to a jury trial and opted for a bench trial." Id. Like the appellant in Johnson, Godwin does not allege that he was unaware of his right to trial by jury, or that he did not waive that right. Instead, Godwin merely asserts that because the record does not contain his waiver of his right to jury trial either in writing or in open court, his conviction must be reversed. As in Johnson, nothing in the record contradicts the judgment's recitation that Godwin actually waived his right to trial by jury. See id. The asserted error did not harm Godwin. See id. at 348-49; Tex. R. App. P. 44.2(b). We overrule issue one. In his second issue, Godwin argues the trial court erred by admitting hearsay evidence from Deputy Hunter about what transpired behind the restaurant before Hunter's arrival. The State responds that appellant's brief fails to provide appropriate citations to the record, the citations he provides do not relate to the issues raised, and the State and this Court should not have to "scour the record and guess at which statements appellant believed were admitted in error." The State also argues Godwin did not preserve error because he failed to make timely objections. Godwin references Deputy Hunter's testimony concerning what Wal-Mart employees told him. Godwin also complains of Deputy Hunter's testimony that Cranford told him Godwin possessed tax forms belonging to other individuals and was using the forms to commit identity theft and that the constables told Deputy Hunter that Godwin was behind the wheel of the vehicle when they arrived. With respect to Deputy Hunter's testimony regarding the male and female, the record indicates that Deputy Hunter testified regarding what he was told by Wal-Mart's employees at Wal-Mart. With respect to Deputy Hunter's testimony that Cranford told him Godwin possessed tax forms that did not belong to him and was using them to commit identity theft, Deputy Hunter spoke with Cranford after he took her to the scene behind the restaurant, obtained her written consent to search the vehicle, and found the tax documents. The testimony does not relate to Godwin's hearsay issue regarding what transpired with the constables behind the restaurant before Deputy Hunter's arrival. Even if the testimony concerning what the Wal-Mart employees told Hunter related to Godwin's stated issue, the testimony was admissible because it explained how Godwin became a suspect in the investigation. See Dinkins v. State, 894 S.W.2d 330, 347-48 (Tex.Crim.App. 1995). With respect to what Cranford said, Godwin's attorney asked Hunter on cross-examination if he had taken a statement from Cranford about "everything relevant to this crime[,]" and the officer responded, "[N]o sir. Not as far as the possession charge, no." Godwin's attorney asked Deputy Hunter if he took "any statements at all[,]" and Hunter said "No." On further redirect examination, the State asked Deputy Hunter if he talked to Cranford about the tax forms and what she told him. When Godwin's attorney objected on hearsay grounds, the State argued "the door was opened by defense counsel's extensive questions about what Ms. Cranford told this officer." The trial court overruled the objection. Generally, when evidence is necessary to explain a matter "opened up" by the other party, a court may decide to admit evidence which would otherwise be inadmissible. See Tex. R. Evid. 107; see, e.g., Credille v. State, 925 S.W.2d 112, 116-17 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd). The trial court acted within its discretion in admitting the evidence here. With respect to Deputy Hunter's testimony that Godwin was behind the wheel when the constables arrived, the record indicates the trial court sustained Godwin's hearsay objection and Godwin has not identified any error by the trial court in responding to this objection. The record also reflects that Deputy Hunter had previously offered the same testimony without any objection from Godwin. Godwin failed to preserve his complaint regarding that testimony. Tex. R. App. P. 33.1(a). We overrule issue two. The trial court's judgment is affirmed. AFFIRMED.
Godwin's counsel objected on hearsay grounds to the testimony regarding what Deputy Hunter was told about Cranford's role in the incident, and the trial court overruled the objection and refused counsel's request for a running hearsay objection.
In Godwin's discussion of his hearsay issue, he refers to Deputy Hunter's testimony regarding Godwin's admissions after the authorities detained him. The record reflects that Godwin's counsel's stated objection concerned whether the State had laid the proper predicate and whether Godwin made the statements during custodial interrogation. He does not make that challenge on appeal. Admissions are not hearsay, and Godwin did not lodge a hearsay objection at trial. See Tex. R. Evid. 801(e)(2); Bell v. State, 938 S.W.2d 35, 54 (Tex.Crim.App. 1996) (The grounds of objection raised on appeal must comport with the objections made before the trial court.); Tex. R. App. P. 33.1(a).
Godwin also objected at trial to lack of ability to confront the witness. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Godwin's issue does not assert that the trial court erred by overruling his Crawford objection.