Gardner v. State

Full title: SCOTT ARTHUR GARDNER, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jul 15, 2005

Nos. 05-04-00587-CR, 05-04-00588-CR (Tex. App. Jul. 15, 2005)

Opinion

Nos. 05-04-00587-CR, 05-04-00588-CR

Opinion Filed July 15, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 292nd Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F02-45405-Sv and F02-45407-SV. Affirm.

Before Justices WHITTINGTON, FITZGERALD, and RICHTER.

MEMORANDUM OPINION

MARTIN RICHTER, Justice.

Scott Arthur Gardner appeals his two jury convictions for aggravated sexual assault of a child under fourteen years of age. In two issues, Gardner complains the trial judge erred in allowing his wife's testimony concerning an "incident" with her sister. Specifically, he complains of the following portion of the prosecutor's examination of his wife

Q. When did [Gardner] tell you that he touched your sister . . .?

A. He never did.

Q. You never had a discussion about that and you told him that he needed to get help, do something about it?

A. The night he went to the hospital I said to him `My sister said that she woke up and you were standing in her room.'

At trial, Gardner objected to this testimony on the basis of hearsay but the judge overruled his objection. Now, he asserts the judge erred in allowing this testimony because it violated his right of confrontation under the Sixth Amendment of the United States Constitution and article 1, section 10 of the Texas Constitution. Although recognizing that an objection at trial that does not comport with the complaint on appeal does not preserve error, see Guevara v. State, 97 S.W.3d 579, 583 (Tex.Crim.App. 2003), Gardner argues his hearsay objection was sufficient to put the trial court on notice of a complaint under the Confrontation Clause. See Tex.R.App.P. 33.1(a) (to preserve error, objection must be timely and specific unless specific grounds are apparent from the context). However, in Paredes v. State, 129 S.W.3d 530, 535 (Tex.Crim.App. 2004), the Texas Court of Criminal Appeals found an objection solely on the basis of hearsay did not preserve error on Confrontation Clause grounds. Accordingly, we reject Gardner's argument and resolve his issues against him. We affirm the trial court's judgments.