In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-01-00209-CR ______________________________
CHRISTOPHER CHARLES ROBINSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 28633-B
Before Morriss, C.J., Grant and Ross, JJ. Opinion by Justice Ross
O P I N I O N
Christopher Charles Robinson appeals his conviction for felony failure to appear. Robinson pled guilty, as part of a plea agreement, to the failure to appear offense and to a separate charge of possession of cocaine with intent to deliver. The trial court sentenced him to five years' imprisonment for the failure to appear offense and twenty-five years' imprisonment for the possession offense, and ordered both sentences to run concurrently.
On the appeal of his conviction for failure to appear, Robinson contends his conviction constitutes a violation of his right to due process of law because it resulted from the trial court's error, at a hearing before his trial for the possession offense, in failing to suppress evidence associated with the possession charge. Robinson has also filed an appeal from his possession conviction, which we address by a separate opinion.
The record shows that, on November 6, 1998, the trial court held a hearing on Robinson's motion to suppress the evidence associated with the possession charge. The trial court overruled his motion. On November 20, 1998, Robinson requested a continuance of the trial set for that day. The trial court granted a three-day continuance. On November 23, 1998, Robinson failed to appear for trial.
Robinson contends that, had the trial court correctly ruled on his suppression motion in the possession case, there would have been no need for him to attend a trial on that charge. He contends his conviction for failure to appear should be overturned as a violation of his right to due process. The State contends this Court is without jurisdiction to consider this issue.
Under Tex. R. App. P. 25.2(b)(3), if the appellant is appealing from a judgment rendered on his plea of guilty under Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2002), and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice of appeal must specify: (1) that the appeal is for a jurisdictional defect, (2) that the substance of the appeal was raised by written motion and ruled on before trial, or (3) that the trial court granted permission to appeal.
In his notice of appeal, Robinson asserts his claim was raised by a pretrial written motion and ruled on before trial. He relies on the pretrial motion to suppress filed in the possession case. The only pretrial motion shown by the record that was filed in this case was a motion to recuse the trial judge, but Robinson does not rely on this motion as a basis for his appeal. Because his motion to suppress filed in the possession case was not a pretrial motion filed in this case, this Court does not have jurisdiction to consider his claim.
Even if his pretrial motion to suppress in the possession case was sufficient to confer jurisdiction on this Court in this case, and even if the trial court erred in failing to suppress the evidence in the possession case-a question we have this day in No. 06-01-00208-CR, Chris Robinson v. The State of Texas, resolved against him-Robinson still had to make his due process challenge in the trial court. See Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990); Ennis v. State, 71 S.W.3d 804, 811 (Tex. App.-Texarkana 2002, no pet.). He did not; therefore, he has waived the issue on appeal.
The appeal is dismissed for want of jurisdiction.
Donald R. Ross
Justice
Date Submitted: August 6, 2002
Date Decided: August 27, 2002
Do Not Publish
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00087-CR
______________________________
CHARLES EDWARD MARZEK, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th Judicial District Court
Hopkins County, Texas
Trial Court No. 9915654
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Charged with aggravated assault (Tex. Penal Code Ann. § 22.02 (Vernon Supp. 2010)), Charles Edward Marzek, Jr., entered into a plea agreement in 2000 wherein he was given deferred adjudication and was placed on community supervision. The following year, Marzek was determined to have failed to comply with the terms of community supervision; he was adjudged guilty and his punishment was assessed at ten years confinement and a fine, but this sentence was probated and he was once again placed on community supervision. As the result of allegations that he had committed a subsequent criminal offense, his community supervision was revoked in 2010 and he was sentenced to ten years confinement.
Marzek appeals the judgment revoking community supervision on the following grounds: (1) He maintains that the trial court erred in admitting a certified application for a protective order in violation of the Confrontation Clause. (2) He complains that the trial court erred by requiring the appearance and examination of specific witnesses after the State had announced that it had rested its case. (3) He contends that the trial court abused its discretion in finding that he violated conditions of community supervision by failing to pay fees and fines. Because there was no violation of the Confrontation Clause, Marzek failed to preserve complaints as to the appearance and questioning of additional witnesses, and sufficient evidence supported the courts decision to revoke community supervision, we affirm the trial courts judgment.
I. No Violation of the Confrontation Clause
In addition to allegations of failure to pay fees, the State alleged Marzek violated condition A of his community supervision by committing Assault Family Violence against his girlfriend, Amanda Pruitt. In support of this allegation, the State introduced a certified copy of an application for protective order containing Pruitts affidavit in which she claimed Marzek
grabbed me by my jaw/throat and squeezed as he was pushing me to the back door. . . . he then slapped me on the right side of my face and slammed my head in to the icebox. It hurt my right ear and he then grabbed my throat and pulled me up straight up . . . . He then slammed my left side of my head through the folding doors. He told me to get out and if I took anything that wasnt mine he would burn me in my truck . . . . He told me I would make good tree fertilizer. He then asked me if I needed an ambulance, I said yes he said ok, let me find my knife.
The disturbance prompted a telephone call to the police, who arrested Marzek and helped initiate the process for Pruitt to obtain a protective order. Marzek agreed to the entry of a protective order, which included among its findings that Marzek had committed family violence and [was] likely to commit family violence in the future. Marzeks counsel objected to introduction of the exhibit, stating, [I]ts a certified copy, but I do object on the basis that there is some information in there that I wish that I could cross-examine the person who made out the affidavit. Its my understanding that that person is not here today, and based on that, I do object to that coming in.[1]
Marzek argues that the trial court erred in admitting the application for protective order containing Pruitts affidavit and that its admission violated his Sixth Amendment right to confront witnesses against him. We review a trial courts decision to admit evidence under an abuse of discretion standard. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). Although we defer to a trial courts determination of historical facts and credibility, we review a constitutional legal ruling . . . de novo. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006). A trial courts ruling to admit evidence will not be reversed so long as it falls within the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on rehg).
In all criminal prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against him. U.S. Const. amend. VI; see also Tex. Const. art. I, § 10. The admission of a testimonial, out-of-court statement from a declarant who does not appear at trial violates the Confrontation Clause unless the declarant was unavailable to testify at trial and the defendant had a prior opportunity for cross-examination. Davis v. Washington, 547 U.S. 813, 821 (2006); Crawford v. Washington, 541 U.S. 36, 68 (2004).
At the first stage of the evidentiary hearing (during which the application for protective order was introduced), Pruitt was not present. Marzek testified that he did not assault Pruitt and that he only agreed to the entry of the protective order because he believed it best for both of them to leave each other alone. He argued that he did not understand the full import of his acquiescence to the protective order because he was not represented by counsel. The trial court stated,
This is a court concern -- great concern by the Court. Somebody is not telling the truth here and its very, very serious. So Im going -- I want the deputies that appeared that night -- I want them here next Tuesday morning. I want -- I want both deputies. I want Ms. Pruitt and . . . any other witness -- potential witness.
And well see whatbecause this is really serious, and so justice must be done.
Without objection, the proceedings were recessed to allow the witnesses to appear.
When the hearing resumed, Pruitt was called to testify. On taking the stand, she recanted the statements made in her affidavit and claimed that Marzek had not struck her. Because Pruitt was then made available, testified at trial, and was cross-examined by Marzek, there was no Confrontation Clause violation. Melendez-Diaz v. Massachusetts, __ U.S. __, 129 S. Ct. 2527, 2531 (2009); Crawford, 541 U.S. at 5354; see Briggs v. State, 789 S.W.2d 918 (Tex. Crim. App. 1990). Thus, the trial court did not abuse its discretion in admitting the application for protective order.
II. Marzek Failed to Object to Appearance and Testimony of Additional Witnesses
Marzek complains that the trial court active[ly] participat[ed] in prosecuting Marzek in such a manner that undermined the proper functioning of the adversarial process by asking that additional witnesses appear after the State had rested.[2] As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion . . . . Tex. R. App. P. 33.1(a)(1). Our review of the record fails to reveal any objection to either the trial courts request that additional witnesses be called or to the testimony of any of the additional witnesses. Because Marzek failed to preserve this point of error, it is overruled.[3]
III. Sufficient Evidence Supported the Trial Courts Judgment
We review the trial courts decision to revoke community supervision for an abuse of discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); In re T.R.S., 115 S.W.3d 318, 320 (Tex. App.Texarkana 2003, no pet.). The trial court does not abuse its discretion if the order revoking community supervision is supported by a preponderance of the evidence; in other words, the greater weight of the credible evidence would create a reasonable belief that the defendant has violated a condition of his community supervision. Rickels, 202 S.W.3d at 76364; T.R.S., 115 S.W.3d at 320. In conducting our review, we view the evidence in the light most favorable to the trial courts ruling. Cardona v. State, 665 S.W.2d 492 (Tex. Crim. App. 1984); T.R.S., 115 S.W.3d at 321.
In a revocation hearing, the trial judge is the sole trier of the facts and determines the credibility of the witnesses and the weight to be given to the testimony. T.R.S., 115 S.W.3d at 320. The judge may accept or reject any or all of a witness testimony. Id. at 321 (citing Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987)). Thus, we defer to the trial courts resolution of disputed facts and to any reasonable inferences which can be drawn from those facts. Cantu v. State, 253 S.W.3d 273, 282 (Tex. Crim. App. 2008). If a single ground for revocation is supported by a preponderance of the evidence and is otherwise valid, then an abuse of discretion is not shown. Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980); T.R.S., 115 S.W.3d at 321 (citing Stevens v. State, 900 S.W.2d 348, 351 (Tex. App.Texarkana 1995, pet. refd)).
Marzek only challenges the trial courts finding that he failed to pay fees as alleged in the States motion to revoke community supervision. The States motion alleged Marzek failed to pay his community supervision fee fifty-two times, and his fines, court costs, court-appointed attorney fee, and restitution seventy-three times, in the span of seven years. Marzek complains this was due to an inability to pay. In any event, after receiving a settlement in a personal injury lawsuit, Marzek paid the total arrearage of $15,241.00. His community supervision officer affirmed that all of Marzeks fees and fines were paid in full.
Marzek does not challenge the courts finding that he violated his community supervision by committing family violence against Pruitt. Deputy Stacy Green, who was dispatched to the scene of the domestic disturbance, found a sobbing Pruitt claiming [t]hey [had] started arguing. And that he had slapped her and hit her and pushed her against the -- against the wall and put her head into a door. Green took photographs (which were admitted without objection) depicting injuries to Pruitt and the screen door broken by Pruitts head. [Pruitt] had also stated that [Marzek] had grabbed her by the throat and pushed her into the ice box, or refrigerator. Green testified that Pruitt had bruises and markings on her face and throat. Statements made to Green were corroborated by the audiotape recording from the arrest, also admitted without objection. On the recording, a distraught Pruitt told officers that Marzek had struck her, rammed her head through the screen door, and had grabbed her by the neck. In that recording, Pruitt claimed she was afraid for her life. Marzeks version of the story to the police was that Pruitt had caused herself to hit the refrigerator and door.
Although Pruitt took the stand to testify in favor of Marzek, the trial court was within its discretion to reject the testimony that conflicted with the other evidence as an attempt to save her abuser. Based on the photographs, the application for protective order, the audiotape recording of Marzeks arrest, and Greens testimony, the trial court was within its discretion to find by a preponderance of the evidence that the State met its burden to prove Marzek had committed family violence. We overrule Marzeks last point of error.
IV. Conclusion
We affirm the trial courts judgment.
Bailey C. Moseley
Justice
Date Submitted: January 24, 2011
Date Decided: January 25, 2011
Do Not Publish
[1]We determine that the objection, although not terribly precise, was sufficient to raise an issue of an alleged violation of a Constitutional right to confront an adverse witness.
[2]We observe that it seems a bit paradoxical that when the affidavit of Pruitt was introduced, Marzeks counsel expressed his wish to cross-examine Pruitt, yet Marzek now complains on appeal of the trial courts sua sponte requirement that Pruitt and others be brought in to testify (allowing that opportunity for cross-examination).
[3]Had the error been preserved, this Court would conduct an analysis such as the one completed by our sister court in Smith v. State, 290 S.W.3d 368, 37075 (Tex. App.Houston [14th Dist.] 2009, pet. refd).