Opinion
Nos. 05-05-00251-CR, 05-05-00252-CR
Opinion Filed April 25, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F04-19396-Ps; F04-19397-PS. Affirm.
Before Justices MORRIS, BRIDGES, and FRANCIS.
OPINION
Dequalon Barnes pleaded guilty to two aggravated robbery with a deadly weapon offenses. A jury assessed punishment at ten years in prison in each case. In a single issue, appellant contends the trial court erred in admitting his Texas Youth Commission records as evidence during the punishment phase of the trial. We affirm. Jesse Rivera and his granddaughter went to visit one of Rivera's friends. Outside of the house, appellant and two or three other young men approached Rivera, demanded his keys, and pointed an automatic pistol at his face. Rivera grabbed his granddaughter and ran to his friend's house. The young men were unable to unlock the car door but left with Rivera's keys and wallet. That same evening, Helen Perry noticed a vehicle following her as she returned home from church. When she got out of the car, appellant and two other young men approached her. One of the other men took her car keys and purse at gunpoint and then all three men drove away in her car. A few months later, Lillian Williams and her thirteen-year-old stepson, John, stood on the front steps of a relative's house. Appellant, brandishing a crowbar, demanded Lillian's car keys and took her car and purse. Appellant, age sixteen at the time of the offenses, was charged with aggravated robbery in the Perry and Williams cases. He was identified as one of the young men who robbed Rivera, but was not indicted in the Rivera case. The State presented evidence of appellant's prior adjudications for terroristic threat, assault, and theft. Pamela Robertson, appellant's parole officer, told the jury that after his release from TYC, she supervised him for three weeks until he stopped reporting. Appellant violated his probation after his terroristic threat adjudication and twice more after his assault adjudication. After the final violation, appellant was sent to TYC where he was to remain until he was twenty-one years old. After serving two and one-half years of that sentence, appellant broke the bones in his hands and was paroled from TYC. Appellant's mother, Carla Slade, and his aunt, Tiffany Slade, asked the jury to place appellant on probation. Carla and Tiffany testified appellant was kidnapped when he was two years old by his godmother and was not returned to his home until two years later. They described appellant's emotional problems since the kidnapping but told the jury his attitude had improved greatly while he had been in jail, awaiting trial. Tiffany testified she was aware appellant had molested boys, engaged in sexual acts with peers, and had been involved in fights with other inmates during his incarceration at TYC. Appellant was seventeen years old at the time of his trial and was certified to stand trial as an adult. In his sole issue, appellant contends that the trial court erred in admitting his TYC records over his timely specific objections, the error was of a constitutional nature, and was not harmless beyond a reasonable doubt. Because the objection at trial does not comport with the argument on appeal, error is not preserved for our review, and, even if properly preserved, we cannot conclude error contributed to the sentence beyond a reasonable doubt. During Tiffany's testimony, the State made several references to the contents of appellant's TYC records. Appellant questioned only the lack of foundation for the admission of the records. Then, during the testimony of Pamela Robertson, appellant's parole officer, the following transpired:
THE STATE: Are you aware, through your records or through evaluations that have been done on him or investigative reports, I guess, subsequent to his release from TYC, that there were numerous infractions, almost 300 during his time at the state school?ROBERTSON: Okay. Probably so. Like I said
THE DEFENSE: Judge, I'm going to object. This is speculation. She said she knows about three visits that she had with him. She said that she doesn't know what's in all these records. And she started out by saying probably, indicating that she is assuming what the prosecutor is saying is correct.THE COURT: What's your legal objection? THE DEFENSE: Speculation on her part.
THE COURT: Well, she answered the question. It's up to the jury what they want to take from that; what weight they want to give it.During the testimony of Carla Slade, the following evidence was adduced:
THE STATE: Okay. Now, let's talk about when you're — you said you told this jury, I guess, when you were crying earlier about all the things you [sic] son endured in the Texas Youth Commission?WITNESS: Yes, I did.
THE STATE: Were you aware that your son committed at least 299 infractions where he was written up during his tenure at Texas youth commission just
THE DEFENSE: Your Honor — I'm going to object, Your Honor. Would he have had a parole officer that has verified any records or anything of that night?
THE STATE: Your honor, I'll be happy to offer a certified copy of these — these records. We'll offer them as State's 12.
THE DEFENSE: We'll certainly object on the fact the person the custodian of records is not here for cross-examination purposes and violates the confrontation clause as set forth in Crawford versus Washington.THE COURT: Overruled. Admitted. As shown above, appellant's objection at trial was that the custodian of records was not available for cross-examination. On appeal, however, he complains that he was not able to cross-examine the individuals named in the specific incidents of misconduct described in the TYC records, relying on Russeau v. State, 171 S.W.3d 871 (Tex.Crim.App. 2005). Because the objection at trial does not comport with the argument on appeal, error, if any, is not preserved. See Guevara v. State, 97 S.W.3d 579, 583 (Tex.Crim.App. 2003). See Tex.R.App.P. 33.1(a). Moreover, assuming appellant's objection to the admission of the TYC records was properly preserved and the trial court erred in admitting the records, we conclude the admission of the records did not contribute to his punishment beyond a reasonable doubt. See Tex.R.App.P. 44.2(a). The harm analysis for a confrontation clause violation is a three-prong process. Young v. State, 891 S.W.2d 945, 948 (Tex.Crim.App. 1994). First, we assume the damaging potential of the cross-examination was fully realized. Shelby v. State, 819 S.W.2d 544, 547 (Tex.Crim.App. 1991). Second, with that assumption in mind, the record is reviewed in light of the following factors: (1) the importance of the witness's testimony in the prosecution's case; (2) whether the testimony was cumulative; (3) the presence or absence of corroborating evidence; (4) the extent of cross-examination otherwise permitted; and (5) the overall strength of the prosecution's case. See id. Finally, in light of the first two prongs, we review the entire record. Alexander v. State, 949 S.W.2d 772, 775 (Tex.App.-Dallas 1997, pet. ref'd). Carla testified to appellant's past failures to comply with probation requirements. Certified copies of appellant's criminal record were admitted into evidence, including the offenses of terroristic threat, aggravated assault, and theft. Tiffany told the jury she had knowledge of several offenses appellant committed while incarcerated at TYC where he molested boys, engaged in sexual acts with peers, and had been involved in fights with other inmates. Robertson told the jury appellant complied with his parole conditions for only three weeks following his release from TYC and then quit reporting. Appellant committed three violent offenses while he was on parole from TYC. In the Rivera and Perry cases, appellant and his cohorts pointed a gun at their victims as they took their possessions. In the Williams case, appellant used a crowbar to effectuate the robbery and then took Williams's car. Aggravated robbery is a first-degree felony punishable by five years to ninety-nine years or life imprisonment and a fine of up to $10,000. Tex. Pen. Code Ann. §§ 12.32, 29.03 (Vernon 2003). The jury sentenced appellant to ten years in prison in each case, a term of years clearly at the lower end of the punishment range for aggravated robbery. After reviewing the entire record and balancing the applicable factors, even if the trial court erred in admitting the TYC records, we conclude beyond a reasonable doubt that the error did not contribute to the punishment. We resolve appellant's issue against him. We affirm the trial court's judgments.