Summary
In Sanders, a police officer began testifying about the substance of a co-defendant's interview, that the two defendants used the proceeds from their convenience store robbery to drive a van and buy drugs at a "narcotics location."
Summary of this case from McQueen v. StateOpinion
No. 06-10-00128-CR
Date Submitted: February 28, 2011.
Date Decided: March 3, 2011. DO NOT PUBLISH.
On Appeal from the 202nd Judicial District Court Bowie County, Texas, Trial Court No. 09 F 363 202.
Before MORRISS, C.J., CARTER and MOSELEY, JJ. Memorandum Opinion by Justice CARTER.
MEMORANDUM OPINION
Reginald Sanders was convicted by a Bowie County jury of aggravated robbery and, after evidence of numerous prior convictions was presented, he was assessed punishment of fifty years' imprisonment. On appeal, he claims hearsay evidence of his co-defendant was admitted, in violation of Crawford v. Washington. While we agree with Sanders that hearsay evidence was presented to the jury, we find no harm ensued. Further, no Crawford issue was preserved, and we overrule Sanders' appellate point of error.
I. Facts
Around 5:30 the morning of February 26, 2009, Tenzing Sherpa was finishing his shift as clerk of a convenience store in Texarkana. Some regular customers came in, as did two men, one of whom was Sanders. Sherpa noticed the two men go to the restroom; at one point, one of the regular customers, Toncie Reed, spoke to Sanders. Reed testified he knew Sanders and identified him as being at the store that morning. After the other customers left, Sanders and his partner exited the store. Sanders remained outside while the other man returned. Sherpa described Sanders' conduct while outside the store as being on the lookout; he said he made eye contact with Sanders at one point, and observed Sanders to appear "fidgety" and "on alert," as he looked into the store, then around the area outside the store. Sanders' partner, who was in the store, threatened Sherpa with a hammer and demanded money; the robbers left with about $400.00. Detective Scott Sartor investigated the robbery; based on Reed's statement, Sartor contacted Sanders, who admitted going to the store, but denied being involved in the robbery. Sartor had also been investigating other robberies where a hammer was used or exhibited. One witness in one of those other robberies identified a suspect, Anthony Washington. At Sanders' trial, Sartor related some information he obtained from Washington. This is the basis of Sanders' appellate complaint.II. Preservation of Error
Before analyzing Sanders' point of error, we must determine the arguments that were sufficiently preserved for our review. Preservation is a systemic requirement that a first-level appellate court should review on its own merits. Archie v. State, 221 S.W.3d 695, 698 (Tex. Crim. App. 2007). However, "we will not be hyper-technical in our examination of whether error was preserved." Id. The State argues that Sanders' appellate argument does not comport with the objection he lodged at trial. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Even an imprecise objection preserves error when "the specific grounds were apparent from the context." TEX. R. APP. P. 33.1(a)(1)(A); see Taylor v. State, 939 S.W.2d 148, 155 (Tex. Crim. App. 1996) ("Where the record makes clear that the trial court understood an objection and its legal basis, a trial court's ruling on that objection will be preserved for appeal, despite an appellant's failure to clearly articulate the objection."); Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). However, in certain circumstances more precision is required to adequately preserve a complaint for appellate review. For example, an offer of evidence to attack a witness' credibility could be construed as being made pursuant to a rule of evidence or under the Confrontation Clause. Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005). Such an objection is not sufficiently specific to preserve error. Id. "An objection on hearsay does not preserve error on Confrontation Clause grounds." Id. (citation omitted). Detective Sartor was questioned about information he obtained in the course of his investigation; when he began to divulge what co-defendant Washington told Sartor, Sanders objected that such testimony would be hearsay. When Sanders' objections were overruled, Sartor said the co-defendant in this case told him the two robbers, after the robbery, returned to a "narcotics location" where they had been before the crime. Sanders again objected to hearsay (the trial court did not rule on this objection, instead instructing the State to rephrase the question). Sartor then testified Washington told him the two robbers returned to the "narcotics location" and used the proceeds from the robbery to buy drugs for themselves and the person who had driven them to the store. To this point in the trial, Sanders had only objected to hearsay; he made no mention of a Confrontation Clause violation or to Crawford. To the extent he complains about the admission of hearsay by the trial court, we address that allegation.III. Hearsay Evidence
Based on Reed's identification of Sanders in the store before the robbery, Sartor interviewed Sanders. In describing his investigation, Sartor discussed another suspect, Washington, who had been arrested in the case. After three hearsay objections, and instructions from the State and the trial court that he could not testify to what he was told by another person, Sartor gave the following testimony:The — I'm trying to think of the best way to word this. We were advised during several interviews that a van had been seen in more than one of the robberies that we worked on. In this particular case, we were advised there was a van that left the scene from the parking lot of Albertsons, which is directly behind this particular store.
. . . .
We were able to later determine that these individuals left the scene of the robbery together and went to a narcotics location in the Beverly area, that these two individuals had initially arrived at and met at [sic] earlier that morning, traveled from that particular location to the Grab and Go, and we were able to determine that they went back to that location. In the course of Mr. Sanders' investigation, he admitted that they did leave a location together and get in a van, so the two statements appeared to be consistent that they did meet up at one location and go back to that location.
. . . .
During the course of the investigation, another suspect in this particular case is where I got this information, advised me that they met at the same location.This last statement drew another hearsay objection from Sanders, and the trial court ordered the State to rephrase the question.
Q [Attorney for the State] As a result of the information that you received from any individual, just detail what, without saying what that person said, what your investigation revealed, where they went and what they did.
A [Sartor] My investigation revealed that the two individuals went back to a narcotics location, and the — money from the robbery was used to purchase narcotics for all the parties involved, meaning both the two people that went and participated in the robbery and the driver of the vehicle.Sartor went on to say that in his experience, it was common for proceeds of robberies to be used to buy drugs. He then described how Washington had become a suspect. Although he couched his testimony in terms of what he learned in the course of his investigation, we agree with Sanders that some of Sartor's testimony was essentially a recitation of what co-defendant Washington told Sartor. Sanders testified to the jury that in the course of Sartor's investigation, "another suspect in this particular case . . . advised me that they met at the same location," i.e., a "narcotics location" the two robbers had visited prior to the robbery. Also, just before this statement, when Sartor first described the information he obtained that the robbers were at the particular location, Sartor compared this "information" and said that Sanders told Sartor he and another man left a location together in a van, "so the two statements appeared to be consistent that they did meet up at one location and go back to that location." From the context of Sartor's testimony, it is clear the "two statements" to which he refers are those of Sanders and Washington. Sartor testified to statements made by a nontestifying witness, and Sartor's testimony was offered for the proof of the matter asserted: that Washington was with Sanders before, during, and after the robbery and that they used the crime's proceeds to buy drugs. See TEX. R. EVID. 801(d). As such, this part of Sartor's testimony was improper. Improper admission of hearsay evidence amounts to nonconstitutional error. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); Dunn v. State, 125 S.W.3d 610, 614 (Tex. App.-Texarkana 2003, no pet.). Any nonconstitutional error which does not affect substantial rights must be disregarded. See TEX. R. APP. P. 44.2(b). We may not reverse a defendant's conviction for nonconstitutional error if, after examining the record as a whole, we have a fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury's verdict. Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004). In determining harm, we consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, and the character of the alleged error and how it might be considered in connection with other evidence in the case. Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005). Here, direct and substantial evidence was presented supporting the verdict. Two witnesses identified Sanders as being present at the store the morning of the robbery. Even Sanders admitted that he was present at the store during the time of the robbery, but denied involvement in the robbery. Reed, who was personally acquainted with Sanders, was present in the store the morning of the robbery and observed Sanders inside the store and exchanged greetings with him. Reed later identified Sanders from a photographic lineup and again at trial. Store clerk Sherpa identified Sanders as having returned outside the store watching events unfold while the other man robbed Sherpa; Sherpa described Sanders as appearing to be on lookout during the robbery. The two men left together and ran away. The indirect hearsay statement of Washington was not particularly important to the State's case. The State did not mention the robbers' return to a house in closing arguments. After examining the record as a whole, we conclude that the erroneous admission of hearsay evidence did not have a substantial and injurious effect or influence in determining the jury's verdict.
IV. Confrontation Issue Was Not Preserved
Sanders' appellate brief also argues that Sartor's introduction of hearsay evidence violated Sanders' Confrontation Clause rights as articulated in Crawford. However, Sanders never objected to the above-discussed testimony on grounds of Crawford, limitation of cross-examination rights, or confrontation. All of the testimony discussed above was objected to only as hearsay; such an objection does not preserve an issue of the Sixth Amendment right of confrontation. Reyna, 168 S.W.3d at 179. Sanders never mentioned confrontation or the Sixth Amendment until the State asked the following question:Q [Attorney for the State] All right. And in regard to this case, you received information from [Washington] in the course of your investigation which implicated — .
[Sanders' Attorney] Judge, I'm going to object to anything that Anthony Washington told this man in the course of his investigation. It is hearsay and the result of hearsay testimony. We have no right to cross[-]examine or confront Mr. Washington.No further testimony was received; the jury was sent out, and the parties made arguments to the trial court. At the conclusion of this discussion, the State agreed to abandon this line of questioning. When the jury returned, the State passed Sartor for cross-examination, and no further reference to statements of Washington was made. Since no evidence was introduced having to do with Washington's statement after Sanders' confrontation objection, there is nothing about which he can complain on appeal, and nothing for us to review. We overrule Sanders' point of error and affirm the judgment and sentence of the trial court.
541 U.S. 36 (2004).
Sanders argues in his brief that Sartor's testimony about what he learned from Washington unfairly affiliated Sanders with these other robbery investigations to which Sartor referred. From the record as a whole, though, we find that Sartor's mention of these other robberies referred to information he obtained through witnesses other than Washington and as part of other ongoing investigations in which Sartor was involved.
"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." The State makes no attempt to argue that Washington's statement was admissible as a co-conspirator during the course of a conspiracy. TEX. R. EVID. 801(e)(2)(E).