NO. 07-10-00340-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MARCH 20, 2012
BILLY L. JOHNSON, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2008-421,067; HONORABLE JIM BOB DARNELL, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Billy L. Johnson, appeals his convictions for aggravated sexual
assault, indecency with a child, sexual assault, and aggravated sexual assault of a
child. Appellant also appeals the resulting sentences of 50 years incarceration for the
two aggravated offenses, and 20 years incarceration for the other two offenses. We will
affirm the judgment of the trial court.
Background
As a result of allegations made by Chelsey Sapp, appellant’s sister-in-law,
appellant was charged with committing aggravated sexual assault on or about
November 21, 2003, indecency with a child on or about November 21, 2002, sexual
assault on or about June 9, 2008, and aggravated sexual assault of a child on or about
February 1, 2004. During trial, the State offered evidence of a number of different
incidents occurring between appellant and Sapp over a period covering approximately
six years. During the State’s closing arguments, the State informed the jury that the
dates of the offenses contained in the indictment were “probably not when the assaults
occurred.” The case was submitted to the jury who found appellant guilty of each of the
four counts alleged in the indictment.
During the punishment phase of the trial, the State sought to offer evidence that
appellant had failed to comply with the terms and conditions of his pretrial release.
However, because the probation officer that actually supervised appellant on his pretrial
release was unavailable, the State offered the testimony of another probation officer.
The trial court overruled appellant’s objection to the evidence, and the witness was
allowed to testify. The jury returned a verdict sentencing appellant to 50 years
incarceration for the aggravated sexual assault and aggravated sexual assault of a child
convictions, and 20 years incarceration for the indecency with a child and sexual assault
convictions.
Appellant presents two issues by his appeal. By his first issue, appellant
contends that the trial court erred in admitting testimonial evidence prepared by a
witness whom appellant was not afforded the opportunity to cross-examine. By his
second issue, appellant contends that the trial court committed constitutional error when
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it failed to compel the State to elect the evidence it relied on to prove each of the
offenses alleged in the indictment.
Right of Confrontation
By his first issue, appellant contends that the trial court erred in admitting
testimonial evidence prepared by a witness whom appellant was not afforded the
opportunity to cross-examine in violation of the Confrontation Clause of the Sixth
Amendment of the United States Constitution, and Article I, Section 10, of the Texas
Constitution. Specifically, appellant challenges the admission of the testimony of Billy
Wootan relating to chronological notes, or “chronos,” prepared by Steve Timmons, the
probation officer supervising appellant’s pretrial supervision bond.
To preserve claims of error in the admission of evidence for appellate review, the
complaining party must have made a timely and specific objection during trial, and the
failure to object waives any error in the admission of the evidence. See TEX. R. APP. P.
33.1(a); Fancher v. State, 659 S.W.2d 836, 839 (Tex.Crim.App. 1983); Salas v. State,
486 S.W.2d 956, 957 (Tex.Crim.App. 1972). This is true even though the error may
concern a constitutional right of the defendant. See Muniz v. State, 851 S.W.2d 238,
255-56 (Tex.Crim.App. 1993); Russell v. State, 665 S.W.2d 771, 777 (Tex.Crim.App.
1983). "[T]he purpose of requiring [an] objection is to give to the trial court or the
opposing party the opportunity to correct the error or remove the basis for the
objection." Martinez v. State, 22 S.W.3d 504, 507 (Tex.Crim.App. 2000).
An objection on the basis of hearsay does not preserve error on Confrontation
Clause grounds. Paredes v. State, 129 S.W.3d 530, 535 (Tex.Crim.App. 2004).
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Further, even when a defendant objects under both the Texas Rules of Evidence and
the Confrontation Clause, an objection which does not specify on which basis it is
asserted is not sufficiently specific to preserve error. Cantu v. State, 939 S.W.2d 627,
634 (Tex.Crim.App. 1997).
In the present case, during presentation of evidence in the punishment phase of
trial, the State sought to introduce the testimony of Wootan. Appellant, in a hearing
outside the presence of the jury, objected, stating, “I would add a hearsay objection,
Judge, since – if the chronos were in fact documented by another officer, I would make
a hearsay – confrontation clause objection.” The trial court overruled appellant’s
objection. Appellant asked the trial court’s permission to take the witness on voir dire
when he began his testimony. The trial court then stated, “All he is going to be testifying
to is being the custodian of those records[,] I would assume.”1 Subsequently, appellant
reiterated his hearsay objection on three occasions, and his only requests for a running
objection related to this hearsay objection.
On appeal, appellant’s first issue is solely based on an alleged violation of his
confrontation rights. However, an objection on the basis of hearsay does not preserve
error on Confrontation Clause grounds. Paredes, 129 S.W.3d at 535. It is clear from a
review of the record that any objection raised by appellant on confrontation grounds was
1
This statement by the trial court is significant in assessing whether the grounds
of the objection were apparent to the trial court from the context of the objection since
this statement makes it clear that the trial court was considering appellant’s objection to
relate to Wootan’s testimony being hearsay rather than being a violation of the
appellant’s confrontation rights. See Heidelberg v. State, 144 S.W.3d 535, 538
(Tex.Crim.App. 2004) (whether the specific grounds for an objection are apparent from
the context must be based on a review of each situation individually).
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not sufficiently specific to preserve error. See Cantu, 939 S.W.2d at 634. Further,
given the context of the discussion regarding Wootan’s testimony, appellant’s brief
mention of confrontation was not sufficiently specific to bring the objection to the
attention of the trial court at a time when the trial court could have corrected any error.
See Martinez, 22 S.W.3d at 507.
Thus, we conclude that appellant failed to preserve any objection to the
admission of Wootan’s testimony on the basis of a violation of appellant’s right to
confront witnesses against him. Consequently, we overrule appellant’s first issue.
Election of Evidence
By his second issue, appellant contends that the trial court committed
constitutional error when it failed to compel the State to elect which evidence it relied on
to prove each of the offenses alleged in the indictment.
Generally, when a defendant is alleged to have committed one act of intercourse
in an indictment but the evidence shows more than one act of intercourse in a sexual
assault trial, in the face of a timely request by the defendant, the State must elect the
act upon which it relies for conviction. See Phillips v. State, 130 S.W.3d 343, 349
(Tex.App.—Houston [14th Dist.] 2004), aff’d, 193 S.W.3d 904 (Tex.Crim.App. 2006). A
defendant’s request for an election is timely if it is made once the State rests its case-in-
chief. See O’Neal v. State, 746 S.W.2d 769, 772 (Tex.Crim.App. 1988). A defendant’s
failure to timely request an election may be strategic and, as such, may be waived or
forfeited. See Cosio v. State, 353 S.W.3d 766, 775 (Tex.Crim.App. 2011).
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At a pretrial hearing on the State’s motion to quash appellant’s subpoena for
disclosure of grand jury information, appellant’s counsel stated that “cases of
aggravated sexual assault are categorically frequently fuzzy about dates, and the
indictments wildly mismatch the proof offered at trial. Some sort of election may be
required.” We conclude that this statement does not constitute a request for the State
to elect the evidence upon which it would rely. First, the statement is speculative
regarding evidence that the State may offer during trial. Second, even were we to
accept this statement as a request for an election, it was not timely since it was made
before trial had even begun rather than at the close of the State’s case-in-chief. See
O’Neal, 746 S.W.2d at 772.
However, appellant’s contention is that his pretrial assertion that an election may
be required when considered in conjunction with objections made during the charge
conference amount to a motion for election. The specific charge objections upon which
appellant relies are an objection to the inclusion of a limitations instruction because “its
effect in a case where the indicted offense covers six years is to confuse the jury and to
encourage them to consider different alleged offenses committed at widely varied times
over a multiple year period, again, harming Defendant’s right to jury unanimity,” and an
objection to the omission of an instruction requiring a guilty verdict to be based on “a
unanimous verdict on which specific criminal acts the Defendant committed, if any.” We
do not construe these objections as amounting to a request for the State to make an
election of evidence. Even when we consider appellant’s pretrial assertion that an
election may be required in conjunction with his charge conference objections, we
cannot conclude that it was a sufficiently clear request for the State to make an election.
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Considering the significant strategic considerations influencing a defendant’s
decision whether to request the State to elect the evidence upon which it will rely to
prove the allegations contained in the indictment, see Cosio, 353 S.W.3d at 775
(discussing strategic factors relevant to a defendant’s decision whether to request an
election), we conclude that a request for election must be timely asserted, and
sufficiently clear to allow the court to reasonably conclude that the defendant intends to
forfeit the strategic advantages of not requesting an election. In the present case,
appellant’s “request” was not timely asserted, and was not sufficiently clear to allow the
court to reasonably conclude that appellant intended to forfeit the strategic advantages
of not requesting an election. Consequently, we overrule appellant’s second issue.
Conclusion
Having overruled both of appellant’s issues, we affirm the judgment of the trial
court.
Mackey K. Hancock
Justice
Quinn, C.J., concurring with result.
Do not publish.
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Billy L. Johnson v. State
Combined Opinion