Summary
involving similar trial court objections to hearsay and personal knowledge
Summary of this case from Torres v. StateOpinion
No. 05-06-01358-CR
Opinion issued January 24, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 296th Judicial District Court, Collin County, Texas, Trial Court Cause No. 296-80208-03.
OPINION
In this appeal, the sole issue raised is whether appellant was denied his right to confrontation of the witnesses against him pursuant to the Sixth Amendment of the United States Constitution when the trial court, over timely objection, allowed a State's witness to offer testimonial hearsay evidence, offered for the truth of the matter asserted, without ever providing an opportunity for the appellant to cross-examine the witness who made this out-of-court statement. Because the hearsay objection made at trial does not preserve error on constitutional Confrontation Clause grounds, nothing is presented for our review. Consequently, we affirm.
Background
Appellant Brian Christopher O'Neal was indicted for possession, with intent to deliver, of a controlled substance, namely gamma hydroxybutyric acid (GHB), in an amount of more than four hundred (400) grams. See Tex. Health Safety Code Ann. § 481.112(a), (f) (Vernon 2003). Appellant pleaded not guilty to the charge before a jury. After hearing evidence on the appellant's guilt or innocence, the jury found appellant guilty. The trial court assessed appellant's punishment at twenty-five years' imprisonment. This appeal ensued. On appeal, appellant contends the State's chemist's expert testimony that, in his opinion, the substance submitted to the laboratory for testing was GHB was improperly admitted into evidence at trial because it violated appellant's Sixth Amendment right of confrontation. Briefly, the evidence shows that appellant agreed to sell an undercover officer more than twenty gallons of GHB, packaged in 5-gallon cans. On appellant's way to the place agreed upon for the exchange, he was stopped by two other officers. Those officers saw the gas cans in his vehicle and asked appellant how much "G" he had. Appellant admitted he had about twenty gallons. The officers seized the liquid and took it to the Texas Department of Public Safety (DPS) crime laboratory for testing. During the trial, the State called Kenneth Evans, a section supervisor for the DPS crime laboratory in Garland, Texas. The criminalist, Heather Lynch, who actually weighed and tested the substance was no longer employed by the State of Texas and lived in Washington state at the time of trial. Consequently, the State presented Lynch's supervisor, Evans, as its expert at trial. Evans reviewed Lynch's reports and, based on those reports, testified about the receipt, chain of custody, weight, and volume of the substance seized from appellant at the time of his arrest. Evans also testified to the operational capacity of the instrument Lynch used and the reliability of the scientific analysis of the substance seized. When the State elicited from Evans his expert opinion of the character of the substance, the following exchange occurred among the prosecutor, witness Evans, defense counsel, and the trial judge:[Prosecutor]: Are you also able to form an opinion as to the — as to what this substance was that was tested, based on your review of Heather Lynch's reports?
[Witness]: Yes, I am.
[Prosecutor]: And what is that review?
[Defense counsel]: We are going to object at this point, Your Honor, as apparently this is coming from some hearsay source. He has no personal knowledge of this whatsoever.
The question itself indicated that he would form his opinion by reading it, by reading something which is not in evidence. And he has also not indicated that he personally saw any of this evidence tested.
[Court]: I sustain the objection and I will allow you to make a — lay a foundation, if you can.
[Prosecutor]: Okay. Your Honor, an expert witness is permitted to give a present opinion based on underlying facts and data which can be inadmissible itself. And we are not offering the report, which would be hearsay. And I have a case that I would be happy to tender to the Court and Mr. Farkas [defense counsel] that supports that assertion; that his present opinion is a legal — as an expert may be based on otherwise inadmissible hearsay.
[Court]: And the Court overrules the objection based upon that representation.
You may answer, sir.
[Witness]: The results of the analysis and based on my interpretation of the data that was contained within Heather Lynch's notes, the substance contained gamma hydroxybutyric acid, also known as GHB.No further objection was lodged by the defense during the remainder of Evans's testimony. Appellant's complaint on appeal is not that the testimony was hearsay but, rather, is that he was denied his Sixth Amendment right to confront and cross-examine witnesses against him. At no time in the trial court did appellant claim that his Sixth Amendment right or his right to confront witnesses had been violated. Appellant is correct that the reports in question are "testimonial." This court has previously held that similar reports and certificates are "testimonial" within the meaning of the analysis set forth in Crawford v. Washington, 541 U.S. 36 (2004). See Deener v. State, 214 S.W.3d 522, 526 (Tex.App.-Dallas 2006, pet. ref'd). In the same opinion, however, this court also held that the constitutional right of confrontation is a forfeitable right — not a waivable-only right — and must be preserved by a timely and specific objection at trial. Deener, 214 S.W.3d at 527 (citing Tex. R. App. P. 33.1). This was the law before Crawford and remains the law after Crawford. See Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App. 2000) (hearsay objection at trial did not preserve error on Confrontation Clause grounds); Bunton v. State, 136 S.W.3d 355, 369 (Tex.App.-Austin 2004, pet. ref'd) ( Crawford makes clear that the federal constitutional right to confront one's accusers is neither new nor novel). Moreover, a party raising an appellate issue that fails to comport with a trial objection has preserved nothing for review. See Tex. R. App. P. 33.1; Sorto v. State, 173 S.W.3d 469, 476 (Tex.Crim.App. 2005). In urging this court to hold error is unpreserved, the State articulates:
It is simply not enough for the trial objection to serve as inspiration for an innovative argument on appeal. See Wainwright v. Sykes, 433 U.S. 72, 90 (1977) (the trial is the "main event," not a "tryout on the road" to appellate reversal). Because Appellant did not present this appellate issue to the trial court for a ruling, he has not preserved error.We agree with the State. Nothing is presented for our review; consequently, we affirm.