Opinion
No. 05-10-01134-CR
01-31-2012
CHRISTOPHER SEAN LYTLE, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed January 31, 2012.
On Appeal from the 59th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 057862
MEMORANDUM OPINION
Before Justices FitzGerald, Murphy, and Myers
Opinion By Justice Myers
Appellant, Christopher Sean Lytle, was convicted of aggravated sexual assault of a child and sentenced to thirty-one years in prison. In one issue, he argues that the trial court deprived him of his Sixth Amendment right to confrontation. We affirm.
Discussion
Appellant alleges that the trial court "erred by allowing the State to prove its case through the use of hearsay and testimony introduced in violation of the Confrontation Clause." Appellant specifically complains about testimony from three individuals, Bobbie Wieck, Elizabeth Stewardson, and Jo Angeli Kasper, regarding outcry statements made by the child-complainant during interviews and counseling sessions held at the Grayson County Child Advocacy Center. The record shows that Wieck was an interviewer at the center, Stewardson was a psychotherapist, and Kasper a therapist. Appellant also complains about "associated records contained in State's exhibit 2," which included a "Team Intake Worksheet" and nearly one hundred pages of counseling notes, disclosure forms, consent forms, and session summaries. In support of his argument, appellant calls our attention to Crawford v. Washington, 541 U.S. 36, 59 (2004) (defendant's right to confrontation under Sixth Amendment violated when witness permitted to relate out-of-court "testimonial" hearsay statements unless the declarant unavailable and defendant had prior opportunity to cross-examine declarant), and Davis v. Washington, 547 U.S. 813, 822 (2006) (statement "testimonial" if the circumstances, viewed objectively, show it was not made "to enable police assistance to meet an ongoing emergency" and "the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution").
The "Team Intake Worksheet" states that, during an interview with Wieck,
[Child-complainant], age 11, stated that [appellant] raped her. When asked what she meant, she said that he took her pants off and his clothes off got [sic] on top of her and moved up and down. She denied that his penis went inside her. She also talked about him making her wath [sic] porn on the computer and stated that would be the two of them.
Appellant failed to object to the testimony of the three outcry witnesses based on any alleged violation of the Confrontation Clause. To preserve error, a defendant must lodge a timely, specific objection. See Tex. R. App. P. 33.1. Even constitutional error may be waived by failure to raise the issue at trial. Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990). Specifically, a defendant waives his constitutional right to confront witnesses if he does not object at trial to the denial of that right. Holland v. State, 802 S.W.2d 696, 700 (Tex. Crim. App. 1991); Eustis v. State, 191 S.W.3d 879, 885 (Tex. App.--Houston [14th Dist.] 2006, pet. ref'd); Whitfield v. State, 137 S.W.3d at 687, 692 (Tex. App.--Waco 2004, no pet.); Thacker v. State, 999 S.W.2d 56, 61 (Tex. App.--Houston [14th Dist.] 1999, pet. ref'd). Although appellant objected on the basis of hearsay, hearsay objections do not preserve error on a Confrontation Clause claim. See Eustis, 191 S.W.3d at 885-86; Saldivar v. State, 980 S.W.2d 475, 496 (Tex. App.--Houston [14th Dist.] 1998, pet. ref'd). "Hearsay objections and objections to violations of the constitutional right to confront witnesses are neither synonymous nor necessarily coextensive." Eustis, 191 S.W.3d at 886 (citing Holland, 802 S.W.2d at 700; Thacker, 999 S.W.2d at 61). Therefore, appellant failed to preserve error regarding his Confrontation Clause complaint as it pertains to the testimony of Bobbie Wieck, Elizabeth Stewardson, and Jo Angeli Kasper.
For example, on April 13, 2010, thirteen days before the start of trial, defense counsel filed "Defendant's Objection to State's Notice of Intention to Use Child Abuse Victim's Hearsay Statement and Motion in Limine for State to Designate Outcry Witness and Limit the Testimony of Impermissible Hearsay."
Furthermore, even if appellant had preserved error on this issue, his argument would fail because there was no violation of the Confrontation Clause. Crawford's holding applies only when the extrajudicial testimonial statements of a witness who does not testify at trial are sought to be admitted. See Crawford, 541 U.S. at 59. But when, as in this case, the declarant appears for cross-examination at trial, the Confrontation Clause does not restrain the use of her prior testimonial statements. See id. at 59 n.9; Crawford v. State, 139 S.W.3d 462, 465 (Tex. App.--Dallas 2004, pet. ref'd); Eustis, 191 S.W.3d at 886; Hanson v. State, 180 S.W.3d 726, 731 (Tex. App.--Waco 2005, no pet.). The Confrontation Clause, in other words, does not bar admission of a statement provided the declarant is present at trial to defend or explain it. See Eustis, 191 S.W.3d at 886. In this case, the child-complainant testified at trial and was available for cross-examination regarding the statements about which appellant complains. As a result, the trial court did not violate appellant's rights under the Confrontation Clause by admitting the complained-of statements.
The record also shows that defense counsel lodged a brief Confrontation Clause objection to the admission of State's exhibit two. According to the record, just after the State offered exhibit two for admission, defense counsel made the following objection:
We're not objecting to the authentication. What we are objecting to is the contents of these records. They contain statements by people who are not witnesses in the case. They contain statements by Brooke Pinkston, Candice Ray, and a Corrina Walker. There are also records in there from a Jo Angeli Kasper, but she's here to testify. These other witnesses are not. We believe those statements constitute hearsay and they also violate the confrontation clause.The trial court reviewed the exhibit before ultimately overruling appellant's objections, but excluded some unspecified portions of the exhibit that the court did not believe were "statements made by the patient to the therapist," e.g., "mostly insurance stuff, Medicaid," and "a crime victim application." When an exhibit contains both admissible and inadmissible evidence, the objection must specifically refer to the material that is objectionable in order "to apprise the trial court of the exact objection." Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995). The trial court should never be required to sift through challenged evidence to segregate admissible evidence from excludable evidence. Jones v. State, 843 S.W.2d 487, 492 (Tex. Crim. App. 1992), abrogated on other grounds by Maxwell v. State, 48 S.W.3d 196 (Tex. Crim. App. 2001). In those instances where an exhibit contains both admissible and inadmissible evidence, a trial court may .safely admit it all or exclude it all, and the losing party, no matter who he is, will be made to suffer on appeal the consequences of his insufficiently specific offer or objection.. Id.
State's exhibit two contains numerous documents, some of them standard patient consent or disclosure forms that are non-testimonial in nature. Cf. Segundo v. State, 270 S.W.3d 79, 106 (Tex. Crim. App. 2008) ("boilerplate statements" in "Board of Pardons and Paroles Proclamation of Revocation and Warrant of Arrest" form were non-testimonial under Crawford). The exhibit also includes black and white photocopies of photographs of children's toy figurines and finger paintings, which are likewise non-testimonial. Appellant's trial objection referred to unspecified statements from several individuals who did not testify at trial, but the objection was insufficient to make the court aware of which statements in or what portions of the documents he believed violated the Confrontation Clause. Therefore, appellant failed to preserve any Confrontation Clause objection to State's exhibit two. We overrule appellant's issue.
As noted earlier, the "Issues Presented" section of appellant's brief also contains a hearsay allegation, but appellant briefs and argues only the Confrontation Clause issue. To the extent appellant is arguing that the trial court erred by "allowing the State to prove its case through the use of hearsay . . . testimony," appellant's failure to brief this issue constitutes a waiver of the argument. See Tex. R. App. P. 38.1(i) (an appellate brief must "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record."); Salazar v. State, 38 S.W.3d 141, 147 (Tex. Crim. App. 2001) (dismissing appellant's issues because "his brief presents no authority in support of his argument"); Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000) (failure to cite relevant authority waives error).
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We affirm the trial court's judgment.
LANA MYERS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101134F.U05