Summary
holding no violation of Confrontation Clause occurred when defendant "had a full opportunity to question the informant regarding her telephone call with [the defendant] and any statements she made to the detective"
Summary of this case from Nuncio v. StateOpinion
NO. 09-14-00174-CR
07-27-2016
CHARLES EDWARD RICE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court Jefferson County, Texas
Trial Cause No. 13-16753
MEMORANDUM OPINION
Appellant Charles Edward Rice appeals his conviction for delivery of a controlled substance, namely cocaine, in an amount of less than one gram. In two issues, Rice contends that the trial court erred in permitting the State, over defense counsel's objection, to elicit testimony by a law enforcement officer consisting of incriminating hearsay statements made by an informant about Rice. For the reasons set forth below, we affirm the judgment of the trial court.
Background
At trial, a detective with the Jefferson County Narcotics Task Force testified that on August 28, 2012, he was contacted by a confidential informant, who advised him that "she knew a subject that would sell her crack cocaine" and that the subject's name was "Charles Rice." At the detective's request, the informant called Rice, and Rice told the informant "to meet him at the Family Dollar on West Port Arthur Road in Port Arthur, Texas, and that he would sell [her] the crack cocaine."
Following the informant's telephone call with Rice, the detective and his partner drove the informant to the Family Dollar store to meet with Rice. Prior to the transaction, the detective searched the informant to make sure she had no drugs on her person. He also gave the informant money to purchase narcotics from Rice and placed a hidden audio recording device on the informant's body. Upon arriving in the parking lot of the Family Dollar store, the detective observed Rice standing near the front of the store. The detective parked and then watched the informant exit the vehicle, walk to the front of the store where Rice was standing, and speak to Rice. The detective testified that although he could not hear the conversation between Rice and the informant, Rice appeared to point to a Dodge truck parked in the store's parking lot. The detective explained that prior to the transaction, the informant had advised him that Rice drove a Dodge truck and had provided him with a description of Rice's truck, which matched the Dodge truck in the parking lot. After Rice made the gesture towards the Dodge truck, the detective watched the informant walk over to that truck, open the door, and retrieve something out of it. The informant then walked back to the detective's vehicle and got in. The detective testified that he and his partner then drove the informant to another location, where the informant handed him a substance that appeared to be crack cocaine. Thereafter, the detective searched the informant again and retrieved the audio recording device.
Following the transaction, the detective took the substance that the informant had given him back to his office, where he weighed it and performed a field test on it. Based on the field test, the substance tested positive for the presence of cocaine. Thereafter, the detective placed the substance in a sealed bag and envelope and took it to the Jefferson County Crime Laboratory for further testing. The detective identified State's Exhibit 1, which was later admitted into evidence through a different witness, as the crack cocaine that the informant handed to him after the transaction and that he later field-tested and submitted to the crime lab.
The informant also testified at trial. The informant testified that on August 28, 2012, she contacted the detective and informed him that she "had a man" from whom she "could buy a hundred dollars['] worth of . . . crack cocaine." She testified that the man's name was "Charles Rice[,]" and she positively identified Rice, who was sitting in the courtroom, as the person to whom she was referring. The informant testified that after she provided this information to the detective, she called Rice "to purchase $100 worth of crack cocaine." During that call, Rice told the informant that he would meet her at the "Family Dollar on West Port Arthur Road."
The informant testified that after she called Rice, the detective and his partner picked her up in their vehicle, searched her, and gave her money to purchase narcotics from Rice. The detective also placed a hidden audio recording device on her body. The informant testified that as she and the detectives pulled into the Family Dollar store's parking lot, she observed Rice standing by the front doors of the store. She then exited the detective's vehicle, walked over to Rice, and handed him the money that the detectives had given her. When she gave the money to Rice, Rice told her, "[t]he dope's on the seat" or "[i]t's on the seat[.]" She testified that she understood Rice to mean that the drugs were on the seat of a gray truck that was parked in front of them and that she recognized the truck as one of two trucks that Rice "normally drives." The informant walked over to the gray truck and found multiple loose rocks of what appeared to be crack cocaine on the seat. She retrieved the rocks and then walked back to the detective's vehicle. Once inside the vehicle, she gave the rocks to the detective. The informant testified that following the transaction, the detectives searched her again.
The State also presented testimony from the detective's partner, who testified that he rode with the detective and the informant to the Family Dollar store and videotaped a portion of the transaction from his position in the backseat of the detective's vehicle. A copy of the video recorded by the detective's partner, as well as a copy of the audio recording from the device that the informant wore during the transaction, were admitted into evidence by the State and played for the jury. The jury also heard testimony from a forensic scientist with the Jefferson County Regional Crime Laboratory, who testified that she tested the substance contained in State's Exhibit 1 and determined that it contained 0.48 grams of cocaine.
The audio portion of the video recorded by the detective's partner was not admitted at trial.
Following the conclusion of the evidence, the jury found Rice guilty of the offense of delivery of a controlled substance as alleged in the indictment. After Rice pled "true" to four enhancement allegations in the indictment, the trial court assessed Rice's punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of ten years. This appeal followed.
Admission of Statements Made by the Confidential Informant
In two issues, Rice contends that the trial court erred by allowing the detective to testify during the guilt-innocence phase of trial regarding certain incriminating statements made by the informant about Rice. Specifically, Rice complains about the following testimony by the detective:
Q. [BY PROSECUTOR] Okay. Now, moving to August 28th of 2012, were your duties on that date the same as they are presently?
A. Yes, ma'am.
. . . . .
Q. Okay. Do you remember having a [confidential informant] work with you on that particular day?
A. Yes, ma'am.
. . . . .
Q. And on that particular day, did [the informant] call you or come meet with you?
A. Yes. Yes, ma'am.
Q. And what did you ask [the informant] to do on that particular day?
A. [The informant] advised me that she --
[DEFENSE COUNSEL]: Objection, hearsay.
THE COURT: Overruled, sir.
Q. (BY [PROSECUTOR]) Continue.
A. [The informant] advised me that she knew a subject that would sell her crack cocaine.
Q. Okay. And what did you have -- when you found out that information, what did you have [the informant] do?
A. Make a phone call to that -- to that person.
Q. Okay. At that time did you know that person's name?
A. Charles Rice.
Q. Okay. And what did -- so, she called Mr. Rice? Did she call Mr. Rice?
A. Yes, ma'am.
Q. Okay. And what did you do after that phone call?
A. During the conversation he requested that we meet him at the Family Dollar.
[DEFENSE COUNSEL]: Again, your Honor, I'm going to object that it's hearsay. I don't know if he was a party -- if he was a party to the conversation, if he's relating what he was advised by [the informant].
THE COURT: Overruled, sir.
[DEFENSE COUNSEL]: Violates the right to confront and cross-examine, as well, your Honor.
THE COURT: I understand. Overruled. Go ahead.
Rice contends that the trial court erred by allowing the detective to testify that the informant told him that "she knew a subject that would sell her crack cocaine" and that the subject's name was "Charles Rice." In addition, he contends that the trial court erred by allowing the detective, who did not personally hear the informant's telephone conversation with Rice, to testify that during that telephone conversation, Rice told the informant "to meet him at the Family Dollar on West Port Arthur Road in Port Arthur, Texas, and that he would sell [her] the crack cocaine." Rice argues that these portions of the detective's testimony constituted hearsay and that the trial court's admission of such testimony violated the Texas Rules of Evidence. In addition, Rice argues that the trial court's admission of these portions of the detective's testimony violated his Sixth Amendment right of confrontation and his due process right "to a trial conducted within the rules of evidence[.]" We address each of Rice's arguments in turn.
A. He advised -- he advised to meet him at the Family Dollar on West Port Arthur Road in Port Arthur, Texas, and that he would sell [her] the crack cocaine.
Q. (BY [PROSECUTOR]) Okay. Could you hear that conversation?
A. I could not.
A. Hearsay
Rice first contends that the challenged testimony by the detective constituted inadmissible hearsay because it contained out-of-court statements made by the informant that were offered to prove the truth of the matter asserted—namely, that the informant could purchase crack cocaine from Rice and that Rice intended to sell crack cocaine to the informant. Rice argues that because the State failed to establish that the challenged testimony falls within an exception to the hearsay rule, the trial court's admission of such testimony violated the Texas Rules of Evidence. He further argues that the erroneous admission of such testimony affected his substantial rights and that we should therefore reverse this cause for a new trial. In response, the State argues that the detective's testimony was not hearsay because it was not offered for the truth of the matter asserted, but was instead offered to show the detective's "understanding of the details of the exchange of money for drugs[.]" The State also argues that even if the admission of such testimony was error, the error was harmless and does not warrant reversal.
Assuming, without deciding, that the trial court erred in admitting the challenged testimony over Rice's hearsay objections, we conclude that Rice was not harmed by the admission of such testimony. A violation of the evidentiary rules that results in the erroneous admission of evidence is non-constitutional error. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); Cordero v. State, 444 S.W.3d 812, 819 (Tex. App.—Beaumont 2014, pet. ref'd). Such errors "must be disregarded" if they do not affect a defendant's "substantial rights[.]" Tex. R. App. P. 44.2(b); accord Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011). An error affects a substantial right if "the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). However, we will not overturn a criminal conviction for a non-constitutional error if, after examining the record as a whole, we have fair assurance that the error did not influence the jury or influenced the jury only slightly. Barshaw, 342 S.W.3d at 93.
In this case, the record reflects that after the admission of the challenged testimony, the informant testified, without objection, regarding the statements she made to the detective about Rice and her telephone call with Rice to arrange the drug deal. Specifically, the jury heard testimony from the informant that on August 28, 2012, she met with the detective and told him that she "had a man" from whom she "could buy a hundred dollars['] worth of . . . crack cocaine." When asked the name of the man, the informant responded, "Charles Rice[,]" and positively identified Rice, who was seated in the courtroom, as the person to whom she was referring. The informant testified that after she spoke with the detective, she called Rice "to purchase $100 worth of crack cocaine[,]" and that during that call, Rice agreed to meet her at the Family Dollar store on West Port Arthur Road.
As a general rule, the improper admission of evidence is rendered harmless when other properly admitted or unobjected-to evidence is admitted to prove the same fact. Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (concluding that any error in admitting hearsay evidence was harmless in light of other properly admitted evidence proving the same fact); Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) ("Our rule . . . is that overruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling."); Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986) ("Inadmissible evidence can be rendered harmless if other evidence at trial is admitted without objection and it proves the same fact that the inadmissible evidence sought to prove."); Russell v. State, 290 S.W.3d 387, 399 (Tex. App.—Beaumont 2009, no pet.) ("Generally, improperly admitted evidence is rendered harmless when other properly admitted or unobjected-to evidence is admitted to prove the same fact."). Thus, if the record shows that the fact to which an erroneously admitted hearsay statement relates "is sufficiently proved by other competent and unobjected[-]to evidence, . . . the admission of the hearsay is properly deemed harmless and does not constitute reversible error." Anderson, 717 S.W.2d at 627. Here, the informant's unobjected-to testimony regarding her statements to the detective and her telephone conversation with Rice established the same facts that the challenged portions of the detective's testimony sought to prove. Having reviewed the record as a whole, we conclude that even assuming the challenged portions of the detective's testimony were hearsay, any error resulting from the admission of such testimony was harmless and did not affect Rice's substantial rights. See Tex. R. App. P. 44.2(b); see also Brooks, 990 S.W.2d at 287; Leday, 983 S.W.2d at 718; Anderson, 717 S.W.2d at 627, 628.
B. Right to Confrontation
Rice also complains that the trial court's admission of the challenged portions of the detective's testimony violated his Sixth Amendment right of confrontation. He argues that because the record does not show beyond a reasonable doubt that the error did not contribute to his conviction, we must reverse this cause and remand it for a new trial.
We first examine whether Rice preserved his Confrontation Clause complaint for appellate review. The record reflects that when the State sought to elicit testimony from the detective about his initial contact with the informant on August 28, 2012, Rice objected solely on the basis of hearsay. After the trial court overruled Rice's hearsay objection, the detective testified that "[the informant] advised me that she knew a subject that would sell her crack cocaine" and that the subject's name was "Charles Rice." Rice made no objection to this portion of the detective's testimony based on an alleged violation of the Confrontation Clause. A defendant fails to preserve error regarding an alleged violation of his constitutional right to confront witnesses if he does not timely and specifically object on that basis at trial. Holland v. State, 802 S.W.2d 696, 700 (Tex. Crim. App. 1991); Eustis v. State, 191 S.W.3d 879, 885-86 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd). Although Rice objected on the basis of hearsay, his hearsay objection did not preserve error with respect to his Confrontation Clause claim. See Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) ("An objection on hearsay does not preserve error on Confrontation Clause grounds."); Eustis, 191 S.W.3d at 886 ("Hearsay objections and objections to violations of the constitutional right to confront witnesses are neither synonymous nor necessarily coextensive."). Having considered and overruled Rice's hearsay objection, the trial court had no notice of any other ground for exclusion. See Holland, 802 S.W.2d at 700. We therefore conclude that Rice failed to preserve error with respect to his complaint that this portion of the detective's testimony violated his rights under the Confrontation Clause. See Tex. R. App. P. 33.1(a).
On the other hand, Rice did make a timely and specific objection based on an alleged violation of the Confrontation Clause when the detective testified regarding the content of the informant's telephone conversation with Rice. The record reflects that when the State asked the detective what he did after the informant called Rice, the detective testified: "During the conversation he requested that we meet him at the Family Dollar." Rice not only objected to this testimony on the basis of hearsay, but also on the ground that the testimony "[v]iolates the right to confront and cross-examine[.]" The trial court overruled each of these objections. We conclude that Rice adequately preserved error with respect to his complaint that the detective's testimony regarding the content of the informant's telephone call with Rice violated his right to confront witnesses under the Confrontation Clause. See Tex. R. App. P. 33.1(a). We therefore address the merits of Rice's Confrontation Clause complaint as it pertains to that portion of the detective's testimony.
The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" U.S. CONST. amend. VI. This constitutional guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380 U.S. 400, 406 (1965); Woodall v. State, 336 S.W.3d 634, 641 (Tex. Crim. App. 2011). "The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Maryland v. Craig, 497 U.S. 836, 845 (1990).
To implicate the Confrontation Clause, an out-of court statement must: (1) have been made by a witness who is absent from trial, and (2) be "testimonial" in nature. Crawford v. Washington, 541 U.S. 36, 50-52, 59 (2004); Woodall, 336 S.W.3d at 642. If those threshold requirements are met, the statement is inadmissible unless: (1) the declarant is unavailable to testify, and (2) the defendant had a prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 59; Woodall, 336 S.W.3d at 642. However, when the declarant appears for cross-examination at trial, "the Confrontation Clause places no constraints at all on the use of [the declarant's] prior testimonial statements." Crawford, 541 U.S. at 59 n.9; see also California v. Green, 399 U.S. 149, 162 (1970); Woodall, 336 S.W.3d at 642. Thus, the Confrontation Clause "does not bar admission of a statement so long as the declarant is present at trial to defend or explain it." Crawford, 541 U.S. at 59 n.9; accord Eustis, 191 S.W.3d at 886.
Rice's complaint under the Confrontation Clause concerns the detective's testimony that during the informant's telephone conversation with Rice, Rice advised the informant "to meet him at the Family Dollar on West Port Arthur Road in Port Arthur, Texas, and that he would sell [her] the crack cocaine." Rice essentially argues that because the detective admitted that he could not hear the informant's telephone conversation with Rice when the call was made, it is evident that the informant told the detective what Rice said during the call. Further, Rice contends that because the informant's statements about what Rice said during the call "described the very offense for which [Rice] was being tried[,]" there "can be no doubt" that the informant's statements were testimonial in nature, and the trial court's admission of such statements violated his Sixth Amendment right to confront the witnesses against him. We disagree.
Assuming, without deciding, that the challenged statements were testimonial in nature, we conclude that they do not implicate the Confrontation Clause. As Rice notes throughout his brief, it is evident from the record that the declarant for the out-of-court statements of which Rice complains was the informant. The informant, however, was present at trial and testified. During his cross-examination, Rice had a full opportunity to question the informant regarding her telephone call with Rice and any statements she made to the detective. We therefore conclude that no violation of the Confrontation Clause occurred. See Crawford, 541 U.S. at 59 n.9; Green, 399 U.S. at 162; Woodall, 336 S.W.3d at 642.
C. Due Process
Rice also contends that the admission of the challenged portions of the detective's testimony violated his "due process rights . . . to a trial conducted within the rules of evidence[.]" Rice, however, did not preserve this complaint for our review. To preserve error, the record must show that there was a timely request, objection, or motion that "stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context[.]" Tex. R. App. P. 33.1(a). Further, "[t]he point of error on appeal must comport with the objection made at trial." Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). Even constitutional errors may be forfeited if no proper objection is made at trial. Id.; Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990).
Here, Rice did not object to the challenged portions of the detective's testimony on the basis that it violated his right to due process, and he did not otherwise raise his due process complaint at the trial court level. Further, there is nothing in the record to indicate that either the trial judge or the prosecutor understood Rice's objections to the challenged testimony to be complaints of a denial of due process. We therefore conclude that Rice failed to preserve his due process complaint for appellate review. See Tex. R. App. P. 33.1(a); Clark, 365 S.W.3d at 339-40 (concluding that defendant's evidentiary objections did not preserve error relating to alleged violation of due process where the defendant did not object on due process grounds and nothing in the record put the trial judge or prosecutor on notice that the defendant was complaining about a due process violation); Temple v. State, 342 S.W.3d 572, 599 n.8 (Tex. App.—Houston [14th Dist.] 2010), aff'd, 390 S.W.3d 341 (Tex. Crim. App. 2013) (concluding that the defendant failed to preserve complaint that his due process rights were violated by the trial court's erroneous admission of hearsay evidence where the defendant failed to object at trial based on a violation of due process); Mitchell v. State, 238 S.W.3d 405, 409 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) (concluding that defendant's hearsay objection at trial did not preserve error on his due process claim).
We overrule Rice's first and second issues. Having found no reversible error, we affirm the judgment of the trial court.
AFFIRMED.
/s/_________
CHARLES KREGER
Justice Submitted on February 13, 2015
Opinion Delivered July 27, 2016
Do not publish Before McKeithen, C.J., Kreger and Johnson, JJ.