Opinion
No. 05-10-01286-CR No. 05-10-01287-CR No. 05-10-01288-CR
01-25-2012
TOMMY LYNN STEWART, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion issued January 25, 2012
On Appeal from the 382nd Judicial District Court
Rockwall County, Texas
Trial Court Cause Nos. 2-09-465, 2-09-466 & 2-09-467
MEMORANDUM OPINION
Before Justices Morris, Francis, and Lang-Miers
Opinion By Justice Francis
Tommy Lynn Stewart appeals his convictions for three counts of continuous sexual abuse of a child. After finding appellant guilty, the jury assessed punishment at three life sentences. In one issue, appellant claims the trial court abused its discretion when it excluded certain evidence. We affirm.
On August 21, 2009, Officer Knox Oakley of the Rockwall County Sheriff's Office responded to a call from Debbie Reynolds about her two grandchildren, P.S. and L.S. According to Reynolds who had custody of the children, P.S. told her appellant had "sexually touched" her. She indicated appellant also had assaulted her sister, L.S., and their friend, H.S. After speaking briefly with P.S. and L.S., Officer Oakley drove to H.S.'s home and spoke with her mother. The following morning, H.S.'s mother called the sheriff's office to report that H.S. told her mother she too had been sexually assaulted by appellant.
Appellant was charged with continuous sexual abuse of P.S., L.S., and H.S., all three of whom were under the age of fourteen years at the time of the abuse. Appellant elected to have a jury trial. During guilt/innocence, appellant asked for a hearing outside the jury's presence to make a bill of review. Appellant sought to introduce copies of call sheets from the Rockwall County Sheriff's Office reflecting calls made by appellant's wife over a ten-week period beginning September 17, 2009 through November 25, 2009 in which she reported harassing behavior by Reynolds. Appellant claimed the call sheets were part of his defensive strategy that the complainants had a motive or bias to fabricate the charges against appellant. The State objected on the grounds the call sheets were hearsay and unsubstantiated. In response, appellant argued they were corroborated. The trial court refused to allow the copies of the call sheets. After the trial concluded, the jury found appellant guilty of all three counts.
In his only issue, appellant claims the trial court abused its discretion by refusing to admit the copies of the call sheets. On appeal, appellant contends the exhibits were admissible under the business records exception and the sealed documents exception to the hearsay rule and the trial court's ruling violated his right to confront witnesses and his right to due process.
We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. See Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). A trial court abuses its discretion when it acts outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1991) (op. on reh'g).
During the hearing on the bill of review, appellant offered the exhibits. The State objected on the grounds they were "hearsay" and "unsubstantiated." In response, appellant claimed they were "corroborated." Appellant did not, however, respond to the State's hearsay objection. Nor did he argue the records were admissible as exceptions to the hearsay rule under either the business records or sealed document exceptions. The trial court could have concluded the exhibits were inadmissible because they were hearsay. See Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (trial court did not err in excluding evidence when defendant made proffer of evidence but failed to articulate valid ground for why evidence was admissible in face of State's objection). Furthermore, appellant did not raise the confrontation or due process rights violations he now complains of on appeal. Because these arguments were not raised in the trial court, he has failed to preserve them for our review. See Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005) (because appellant's trial objection did not comport with issue raised on appeal, he failed to preserve complaint); see also Reyna, 168 S.W.3d at 179 (because defendant "did not clearly articulate . . . the Confrontation Clause demanded admission of the evidence, the trial judge 'never had the opportunity to rule upon' this rationale."). Under these circumstances, we cannot conclude the trial court erred in excluding the call sheets. We overrule appellant's single issue on appeal.
We affirm the trial court's judgments.
MOLLY FRANCIS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101286F.U05