No. 10-06-00200-CR
Opinion delivered and filed September 19, 2007. DO NOT PUBLISH.
Appeal from the County Court Navarro County, Texas Trial Court No. 57281. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA (Chief Justice GRAY concurs in the judgment of the Court without a separate opinion).
FELIPE REYNA, Justice.
Terry Ray James was convicted in justice court of making an unsafe lane change. He appealed to the county court where he was again convicted following a trial de novo before a jury. James claims in five issues that: (1) the court erred by denying him the right to cross-examine his accuser; (2) the court erred by denying him the opportunity to make a closing argument; (3) the court erred by denying him the right to confront the witnesses against him; (4) his conviction is impermissibly based on hearsay; and (5) the court erred by denying his motion for an instructed verdict of not guilty. We will affirm.
Motion for Instructed Verdict
James contends in his fifth issue that the court erred by denying his oral motion for an instructed verdict of not guilty. We construe this contention as a challenge to the legal sufficiency of the evidence to support the conviction. See Canales v. State, 98 S.W.3d 690, 693 (Tex.Crim.App. 2003). At the conclusion of the prosecutor's direct examination of the State's sole witness, James made an oral motion for an instructed verdict, arguing: (1) the State had failed to prove "a prima facie case"; (2) the witness's testimony was based on "hearsay and innuendo"; and (3) he was being denied "the constitutional right to cross-examine or confront this witness." Neither James's motion for instructed verdict nor his brief clearly states which elements of the State's case he is challenging. See Aguilar v. State, 202 S.W.3d 833, 837 (Tex.App.-Waco 2006, pet. ref'd). Nevertheless, we will in the interest of justice consider the issue presented. See TEX. R. APP. P. 38.9; Aguilar, 202 S.W.3d at 837. In reviewing a claim of legal insufficiency, we view all of the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential element beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Sells v. State, 121 S.W.3d 748, 753-54 (Tex.Crim.App. 2003). James argued in the motion that the State had failed to prove "a prima facie case." The elements for the offense of making an unsafe lane change are that the defendant: (1) was driving on a roadway divided into two or more clearly marked lanes, and (2) moved from his lane of travel when that movement could not be made safely. See TEX. TRANSP. CODE ANN. § 545.060 (Vernon 1999). DPS Trooper C.A. Stapleton was the State's sole witness. Trooper Stapleton testified that he was dispatched to the scene of an accident on Interstate 45 on the date in question. When he arrived, he saw a silver Kia automobile, a semitrailer, and a pickup truck parked on the shoulder of the northbound lanes. The driver of the semi told Stapleton that James was driving the Kia and that, as they were driving in a northerly direction on the interstate, James "turned in front of him, changes lanes too soon, and then slammed on the brakes." The semi rear-ended James's Kia. The driver of the pickup provided a similar description of the incident, telling Trooper Stapleton that he saw James "pull over quickly in front of the truck-tractor and slam on his brakes." James was angry when the trooper arrived at the scene. James told him that the semi driver had previously cut him off and that he had caught up to the semi "to let the driver know that he was writing his license plate down." However, the driver of the pickup told Trooper Stapleton that James was parked on the shoulder and that the semi and his pickup passed James without incident, only to be overtaken by him a few minutes later. According to Trooper Stapleton, the semi driver and the pickup driver both stated that James made an abrupt lane change and slammed on his brakes, which caused a collision. Viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found beyond a reasonable doubt that James moved from his lane of travel when that movement could not be made safely. Accordingly, the evidence is legally sufficient, and we overrule James's fifth issue. Cross-Examination and Confrontation
James contends in his first and third issues respectively that the court erred by denying him the right under the federal and state constitutions to cross-examine his accuser and to confront the witnesses against him. Under the United States Constitution, "[t]he Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination." Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S. Ct. 989, 998, 94 L. Ed. 2d 40 (1987); accord Curry v. State, 228 S.W.3d 292, 296 (Tex.App.-Waco 2007, pet. filed); Shpikula v. State, 68 S.W.3d 212, 220 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). Texas courts have consistently interpreted the right of confrontation under the state constitution as providing the same protections afforded by the federal constitution. See, e.g., Lagrone v. State, 942 S.W.2d 602, 614 (Tex.Crim.App. 1997); Gomez v. State, 183 S.W.3d 86, 91 (Tex.App.-Tyler 2005, no pet.). James was permitted to physically face and cross-examine the sole witness who testified against him. Therefore, he was not denied his state or federal constitutional right to confront and cross-examine his accuser or the witnesses against him. See Ritchie, 480 U.S. at 51, 107 S. Ct. at 998; Curry, 228 S.W.3d at 296; Shpikula, 68 S.W.3d at 220; see also Lagrone, 942 S.W.2d at 614; Gomez, 183 S.W.3d at 91. Accordingly, we overrule James's first and third issues. Hearsay
James contends in his fourth issue that his conviction is impermissibly based on hearsay. We have already described the pertinent portions of Trooper Stapleton's testimony. He testified about out-of-court statements made by both the semi driver and the driver of the pickup, which both fit within the general definition of hearsay. See TEX. R. EVID. 801(d). However, assuming without deciding that this testimony does not fit within any exception to the hearsay rule, we hold that James's general "objection" at the conclusion of the trooper's direct examination was not sufficiently specific or timely to preserve this issue for appellate review. See TEX. R. APP. P. 33.1(a)(1); TEX. R. EVID. 103(a)(1); Neal v. State, 150 S.W.3d 169, 175 (Tex.Crim.App. 2004). To the extent James's complaint may be construed as a more general contention that a conviction may not be based on hearsay evidence, we reject this complaint. "Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay." TEX. R. EVID. 802; see also Poindexter v. State, 153 S.W.3d 402, 406 n. 15 (Tex.Crim.App. 2005). Accordingly, we overrule James's fourth issue. Closing Argument
James contends in his second issue that the court erred by denying him the opportunity to make a closing argument. After James rested his case, the court read the charge to the jury and then sent the jurors to deliberate. No closing arguments were presented. Neither side objected to this procedure. Because James did not object, he did not preserve this issue for appellate review. See TEX. R. APP. P. 33.1(a)(1). Accordingly, we overrule James's second issue. We affirm the judgment.