NO. 07-10-00349-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
AUGUST 29, 2012
LAQUINTIN JOHNSON, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2010-426,465; HONORABLE CECIL G. PURYEAR, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant LaQuintin Johnson appeals from his conviction by jury of the offense of
burglary of a habitation 1 and the resulting sentence of twenty years of imprisonment.
Appellant challenges his conviction through three issues. We will affirm.
Background
At trial, the State presented evidence to show that near midnight on March 24,
2009, the victim, a twenty-four-year-old woman, was watching television in her home in
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Tex. Penal Code Ann. § 30.02(a)(1) (West 2010). This is a second degree
felony punishable by imprisonment for a term of not more than 20 years or less than 2
years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.33 (West 2003).
Lubbock. Her front door was unlocked while she awaited the arrival of houseguests.
Instead of the guests she expected, three men entered her home. Two of them had
their faces covered, one wearing a bandanna and a cap, the other wearing pantyhose
over his face and surgical plastic gloves. These two men proceeded to sexually assault
the victim while the third man ran through the house taking items, including a laptop
computer and other electronic items. When they left, the victim called 9-1-1 and her
guests, who soon arrived to find her distraught. Police later spoke with the victim’s
sister, who also lived in the residence but was away at the time. That conversation led
police to appellant, who previously had dated the sister.
Appellant provided police two written sworn statements. In the first statement, he
described his previous dating relationship with the victim’s sister and acknowledged
attending parties at the residence. He denied any involvement in the burglary but
implicated others including Danny Wilson and Kevin Price. He told police that after the
burglary he saw items including a laptop computer belonging to the victim’s sister, his
former girlfriend, in the possession of a man who said he bought them from Wilson and
Price.
Appellant’s second statement contains the acknowledgement he was not
“completely truthful” in his first statement. The second statement related a version of
the events in which appellant described being present in an apartment when Wilson,
Price and others decided to retrieve some property Wilson said had been stolen from
him. Appellant further related how the group left in two cars, with him a passenger in
one, and appellant was surprised when the house at which the group stopped was that
of his former girlfriend. He described his unsuccessful efforts to dissuade Wilson and
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others from taking items from the house, and described his later efforts to recover items
so he could return them to his former girlfriend.
Appellant also testified at trial, giving a third version of the events. He
acknowledged to the jury that both of his statements to police contained untruths, but
swore he was telling the truth to the jury, still denying he planned the burglary of the
home.
Another witness testified she was present in the apartment when the burglary
was planned and that appellant was a leader in the planning. She also indicated her
belief appellant led the group to the house of his former girlfriend.
Wilson and Price were among those charged with offenses arising from the
burglary. By the time of trial in this case, Price had plead guilty to burglary of the
residence and sexual assault of the victim, and had been sentenced.
The charge to the jury authorized appellant’s conviction under the law of parties.
Appellant’s issues on appeal do not challenge the sufficiency of the evidence supporting
his conviction.
Analysis
Issue One - Confrontation Clause
Appellant’s first issue presents a claim his confrontation rights were violated at
his trial. During its case-in-chief, the State called Kevin Price to the stand. Price was
not a cooperative witness. After answering some preliminary questions and responding
affirmatively to a question asking if Danny Wilson and other individuals were involved in
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the events that lead to his guilty plea, Price was asked about appellant’s involvement.
At that point he refused to answer the prosecutor’s further questions concerning the
events at the residence, saying, “[e]verything that was said at my hearing is on paper. If
that’s what y’all need. Y’all got it. Other than that, I don’t have nothing to say.”
The prosecutor objected to Price’s refusal to respond to questions, and asked to
“impeach” him with prior statements he made to police. The trial court allowed the State
to do so. Appellant raised no objection. The prosecutor proceeded to read from Price’s
statements, a few sentences at a time, periodically asking Price, “Isn’t that true?” The
record indicates no response from Price to those inquiries. After this method of
presentation of evidence continued for a period occupying some four pages of the
reporter’s record, appellant objected, stating, “At this point let me object to the form of
the impeachment, as well as to the reading of the document, and the witness is refusing
to answer. I would object under those grounds.” The court overruled the objection.
Appellant a short time later added an objection “Rule 613 of the Rules of Evidence.” He
also asked for and received a running objection on these bases. The State continued to
read from Price’s statements and ask questions to which Price did not respond. Price’s
statements described appellant’s leading role in the instigation of the burglary of the
residence, although Price said appellant did not actually enter the home that evening.
The statements confirmed that Price and Wilson were the two who sexually assaulted
the victim.
When the prosecutor then asked Price to identify an exhibit consisting of a
transcript of his testimony during the sentencing phase of his trial, Price threw the
transcript down, causing the court to order him removed from the courtroom. At that
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point the State offered into evidence Price’s two statements to police. Appellant’s
counsel stated, “Judge, of course, with the recitations and the Court’s rulings, we have
no further objections.” The court overruled the objection and admitted the two
statements.
The State then offered the transcript of Price’s sentencing phase testimony.
Appellant’s counsel objected on the basis of hearsay, and raised an objection under the
Confrontation Clause, noting appellant had no counsel present to cross-examine Price
at his trial. The court overruled that objection and admitted the transcript, though the
State later withdrew it and the transcript was not given to the jury.
Appellant’s first issue presents the contention the trial court erred by allowing the
State to read Price’s statements to the jury after Price refused to answer the
prosecutor’s questions, because doing so violated his right to confront and cross-
examine the witnesses against him as guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution and Article I, Section 10 of the Texas
Constitution. U.S. Const. amends. VI, XIV; Tex. Const. art. I, § 10.
The State points out the issue raised on appeal does not comport with the
objection appellant made at trial to the reading of Price’s statements, and thus is not
preserved for our review. We must agree.
“[F]ailure to object in a timely and specific manner during trial forfeits complaints
about the admissibility of evidence. This is true even though the error may concern a
constitutional right of the defendant." Saldano v. State, 70 S.W.3d 873, 889
(Tex.Crim.App. 2002) (footnote omitted); see Briggs v. State, 789 S.W.2d 918, 923
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(Tex.Crim.App. 1990) (noting constitutional error may be waived). General rules of
preservation must be followed to preserve error on Confrontation Clause grounds. See
Paredes v. State, 129 S.W.3d 530, 535 (Tex.Crim.App. 2004) (finding Confrontation
Clause argument not preserved because of failure to object on that ground in trial
court). See also Reyna v. State, 168 S.W.3d 173, 176-77 (Tex.Crim.App. 2005) (also
applying error preservation requirement with regard to Confrontation Clause argument);
Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App. 2004) (to preserve contention
for appellate review, appellate complaint must comport with objection in trial court);
Martinez v. State, 91 S.W.3d 331, 335-36 (Tex.Crim.App. 2002) (party complaining on
appeal of trial court's admission, exclusion, or suppression of evidence "must, at the
earliest opportunity, have done everything necessary to bring to the judge's attention the
evidence rule [or statute] in question and its precise and proper application to the
evidence in question”).
In Parades, the Court of Criminal Appeals found a Confrontation Clause
argument on appeal not preserved by a hearsay trial objection. 129 S.W.3d at 535.
The same must be said of appellant’s objections based on “the form of impeachment,”
the “reading of the statement,” the “witness refusing to testify,” and “Rule 613 of the
Rules of Evidence.” Such objections did not bring to the trial court’s attention that
appellant was asserting his rights under the Confrontation Clause. Tex. R. App. P.
33.1(a)(1). This would especially be true here when it is recalled that Price was on the
witness stand at the time the objections were raised.
Appellant argues his failure to object on Confrontation Clause grounds to the
State’s reading of Price’s statements should be excused because, though Price was on
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the stand and ostensibly subject to his cross-examination, appellant was “robbed” of
that opportunity when the trial court later had him removed from the courtroom. But
neither did appellant raise an objection to that action of the trial court. If his appellate
complaint actually is that the trial court’s error was failing to tender him the opportunity
to conduct cross-examination before having Price removed from the courtroom, and that
the error violated his Confrontation Clause rights, under the rules that govern our
review, the record must show a timely complaint made to the trial court. Tex. R. App. P.
33.1(a). Appellant’s only objection on confrontation grounds was raised to the
admission of the transcript of Price’s punishment testimony at his trial. We see no way
the objection made at that time can fairly be applied to the State’s earlier reading of
Price’s statements while he was still on the stand. Agreeing with the State that it is not
preserved for our review, we overrule appellant’s first issue.
Issues Two and Three - Exclusion of Testimony
In appellant’s second and third issues, he contends the trial court abused its
discretion by preventing him from presenting exculpatory evidence for the jury’s
consideration, thereby denying him due process of law under the Fifth, Sixth and
Fourteenth Amendments to the United States Constitution. U.S. Const. amends. V, VI,
XIV.
During appellant’s case-in-chief, he called two witnesses outside the presence of
the jury. Victor Lee Herrera testified to a conversation he had with Kevin Price about a
year before appellant’s trial, while Herrera and Price were incarcerated in the Lubbock
County Jail. Herrera described his conversation with Price as follows:
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Well, the conversation occurred because one of the other inmates had
recognized who [Price] was and he had asked him if he was the guy that raped
the girl. And he said he was. And I recognized that he was involved with
[appellant’s] case and I asked him what [appellant] had to do with the case and
he told me [appellant] didn’t have anything to do with it, that he was just trying to
get out of trouble.
The State did not cross-examine Herrera and the trial court did not permit the
testimony in front of the jury.
The second witness was Jeremy Lawson, who was being held in the Lubbock
County jail at the time of appellant’s trial. Lawson told the court that during lunch at the
jail that day, he saw appellant speaking with another man. From pictures shown him on
the stand, Lawson identified the other man as Gary Wilson. Gary Wilson is Danny
Wilson’s brother, and also was involved in the burglary. Lawson said Gary Wilson was
“serving chow” and, when appellant was returned to the jail during lunch, Lawson
noticed, appellant and Gary Wilson began a conversation. Lawson said he did not hear
all their conversation, and did not hear any of what appellant said, but did overhear
Gary Wilson say to appellant that “he [knew] that [appellant] didn’t set up whatever –
whatever had went down [sic], he knew he wasn’t the one who had set it up . . . .”
The State objected to Lawson’s testimony on the bases of hearsay and
relevance. The trial court sustained the State’s objection to hearsay, and did not permit
Lawson to testify before the jury.
A trial court’s ruling admitting or excluding evidence is reviewed on appeal for
abuse of discretion. Ramos v. State, 245 S.W.3d 410, 418 (Tex.Crim.App. 2008);
Montgomery v. State, 801 S.W.2d 390, 391 (Tex.Crim.App. 1990) (op. on reh’g). The
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ruling will be upheld on appeal if it is reasonably supported by the record and is correct
under any theory of law applicable to the case. Ramos, 245 S.W.3d at 418.
Hearsay is a “statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tex.
R. Evid. 801(d). Hearsay testimony is generally inadmissible at trial unless the
statement falls within a recognized exception to the hearsay rule. Tex. R. Evid. 802;
McCarty v. State, 257 S.W.3d 238, 239 (Tex.Crim.App. 2008).
We agree with the State the trial court did not abuse its discretion in excluding
the proffered testimony of Herrera and Lawson. Appellant called Herrera and Lawson
to testify to out-of-court statements of Price and Gary Wilson, for the purpose of proving
the truth of their assertions exculpating appellant. The testimony of both was hearsay.
Appellant does not object to the characterization of the proffered testimony as
hearsay, but argues the testimony nonetheless should have been admitted under
Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), in
exercise of his fundamental right to present a defense. The Court in Chambers
established “no new principles of constitutional law.” “Rather,” the Court said, it held
“quite simply that under the facts and circumstances of this case the rulings of the trial
court deprived Chambers of a fair trial.” 410 U.S. at 302-03. In Chambers, the
Mississippi trial court, under evidentiary rules in effect in that state at the time, refused
Chambers permission to cross-examine McDonald, a witness Chambers had called,
regarding McDonald’s repudiation of his sworn confession to the murder for which
Chambers was being tried. Id. at 295-96. The trial court also excluded hearsay
testimony of three proffered witnesses to statements McDonald had made in their
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hearing, again under evidentiary rules then in effect. Id. at 298-99. The Court found the
proffered hearsay statements “bore persuasive assurances of trustworthiness” and were
“within the basic rationale of the exception for declarations against interest.” Id. at 302. 2
Further noting that the excluded testimony was critical to Chambers’ defense, the Court
cautioned that “the hearsay rule may not be applied mechanistically to defeat the ends
of justice.” Id. at 313. Despite its conclusion that Chambers had been denied a fair trial
by the exclusion of testimony, the Court noted, that the accused, as well as the State,
“must comply with established rules of procedure and evidence designed to assure both
fairness and reliability in the ascertainment of guilt and innocence.” Id. In Miller v.
State, 36 S.W.3d 503 (Tex.Crim.App. 2001), the Court of Criminal Appeals drew from
Chambers the statement, “[a] defendant has a fundamental right to present evidence of
a defense as long as the evidence is relevant and is not excluded by an established
evidentiary rule.” 36 S.W.3d at 507 (citing Chambers, 410 U.S. at 302); see Hidrogo v.
State, No. 11-09-00310-CR, 2011 Tex.App. LEXIS 2585 (Tex.App.—Eastland April 7,
2011, no pet.) (mem. op., not designated for publication) (applying Chambers and
Miller).
Appellant does not identify an exception to the hearsay rule applicable, or even
arguably applicable, to the testimony of Herrera and Lawson concerning the statements
of Price and Gary Wilson. As evidence of appellant’s guilt or innocence, the proffered
testimony bore weak assurances of trustworthiness, both because the jailhouse
2
Mississippi recognized a hearsay exception for declarations against interest,
but limited the exception to declarations against pecuniary interest. McDonald’s
statements would have been against his penal interest. Chambers, 410 U.S. at 299-
300.
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statements were made by co-defendants and because neither witness was able to give
more than the briefest summary of what Price and Wilson said. For both those reasons,
and because of the vague nature of the statements of Price and Wilson, as described
by Herrera and Lawson, the relevance of the proferred testimony is doubtful. Finally,
the testimony of Herrera and Lawson hardly can be called critical to appellant’s defense.
Kevin Price testified at trial and Gary Wilson was that day in the Lubbock County Jail,
both apparently available and able to tell the jury appellant “didn’t have anything to do
with it” and “wasn’t the one who had set it up,” if indeed such would have been their
testimony.
For those reasons, we cannot agree appellant’s fundamental right to present a
defense was contravened by the trial court’s exclusion of Herrera’s and Lawson’s
testimony. We find no abuse of discretion in the trial court’s ruling and resolve
appellant’s second and third issues against him.
Attorney’s Fees
We note that by its judgment the trial court ordered appellant to repay $5317.50
paid his court-appointed attorney. Article 26.05(g) of the Texas Code of Criminal
Procedure provides, “[i]f the court determines that a defendant has financial resources
that enable him to offset in part or in whole the costs of the legal services provided, . . .
the court shall order the defendant to pay during the pendency of the charges or, if
convicted, as court costs the amount that it finds the defendant is able to pay." Tex.
Code Crim. Proc. Ann. art. 26.05(g) (West 2011). Key factors in determining the
propriety of ordering reimbursement of costs and fees are the defendant's financial
resources and ability to pay. Mayer v. State, 309 S.W.3d 552, 556 (Tex.Crim.App.
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2010). "Without evidence to demonstrate appellant's financial resources to offset the
costs of the legal services, the trial court erred in ordering reimbursement of appointed
attorney fees." Mayer v. State, 274 S.W.3d 898, 901 (Tex.App.--Amarillo 2008), aff'd,
309 S.W.3d at 558. The record here does not indicate the trial court had evidence
appellant had the ability to repay attorney’s fees. We conclude the evidence supporting
this portion of the judgment is insufficient. We accordingly modify the judgment to
remove the order that appellant repay $5317.50 attorney’s fees, and, having overruled
appellant’s issues, affirm the judgment of the trial court as modified.
James T. Campbell
Justice
Do not publish.
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