Tatum v. State

LEE ANN DAUPHINOT, Justice,

dissenting.

I agree with the majority that the adjudication of Appellant should be affirmed, but I would affirm the adjudication on the basis that the petition to adjudicate alleged failure to pay probation fees as a ground for adjudication, and the State proved this ground with testimony of a live witness. I respectfully dissent from the majority’s analysis of Appellant’s complaints about the admission of the Michigan documents because (1) as to adjudication, Appellant’s complaint falls outside article 42.12, section 5(b), and (2) as to punishment, Appellant adequately preserved his complaints. I *366would hold that the trial court reversibly erred by admitting the documents, violating Appellant’s constitutional right to confront the witnesses against him, and would remand for a new punishment hearing.

We should either address directly Appellant’s constitutional complaints about the admission of the Michigan evidence at the adjudication phase, because they are squarely before this court, or we should not reach them at all, because it is unnecessary in resolving this case. We should in no event dismiss them. As I have stated previously,

The cornerstone of the restricted appeal from an adjudication hearing is not that the right to appeal is a legislatively created right, as this court has erroneously stated in the past. Rather, it is that the constitutionally-grounded right to appeal may be regulated by the legislature. Specifically, ’“in this state, the right of appeal is conferred only by the Constitution, with such exceptions or limitations as the legislature directs by statute.” Constitutional guarantees of due process and equal protection require that once the right to appeal a criminal conviction exists, it must be fairly applied.1

The legislature has prohibited a defendant’s questioning the decision to' adjudicate.2 The legislature has not prohibited his challenging the procedure, that is, the propriety of the conduct of the adjudication hearing. Were we to continue blindly to adhere to the notion that there are no constitutional limits to the legislature’s authority to regulate appeals, we would be forced to find that the legislature could write into every statute it passes that there could be “no appeal challenging the constitutionality of this statute.”

To hold that the legislature may suspend all constitutional guarantees to persons on deferred adjudication community supervision invites capricious and arbitrary decisions, to adjudicate.3 The law is well established that, in a criminal case, defendants are entitled to due process in community supervision4 and parole revocation5 hearings. Similarly, section 5(b) “does not deprive this Court of jurisdiction to determine if a ‘hearing’ was held that satisfied the requirements of substantive and procedural due process.”6 As an appellate *367court, we must ensure that constitutional protections are honored. In doing so, we are obligated to entertain claims regarding a denial of a constitutional right, including the right of confrontation of witnesses.7

The courts have already recognized that a defendant may challenge the impartiality of the judge and the fairness of the adjudication proceeding.8 Courts have also recognized that a defendant is entitled to effective representation by counsel at a hearing on the State’s petition to proceed to adjudication.9 The constitutional right to confront witnesses against the defendant is a no less compelling right. I would hold that the trial court erred in admitting and considering the Michigan documents contained in State’s Exhibit One. Clearly their admission deprived Appellant of his constitutional right of confrontation. But I would also hold that the error is harmless at the adjudication phase, because the adjudication could correctly be based on Appellant’s failure to pay fees.

I would address the merits of Appellant’s complaint at punishment. As the State concedes, when Appellant first lodged his objection, he made it abundantly clear that his hearsay objection was an objection to the violation of his right to confront the witnesses implicated in State’s Exhibit One,

I’m going to be objecting to State’s Exhibit No. 1. And I would point out just as a bit of a housekeeping chore, the evidence will show that [Appellant], immediately after being placed on probation, moved to Michigan. The State has not subpoenaed the Michigan probation officer. And I’m left to conclude that they’re going to try to prove their case through these business records that they’re introducing.
So I’m going to object to the business records as being hearsay. And I have a two prong argument as to that. Certainly the defendant agrees that business records can be an exception to hearsay. Generally business records are for matters that are considered reliable such as invoices. But it is an impermissible stretch of business records to use those records to substitute for a testimonial witness. In this case, a probation officer.
Let’s take the example of business records of a police officer. Those can qualify, made at or near the time by a person with knowledge, so on and so forth. So now do we do away with police officers testifying? I think not.
The State is attempting to get[ ] around calling an out-of-state witness. I would suggest to the court that were this a capital murder case, the State would have that probation officer here. In the case at bar, the witness — the probation officer is not unavailable, but rather the State is taking a shortcut.

*368Also note that in the business records affidavit that the State is seeking to introduce, there is no language in that affidavit that swears to the truthfulness of the data in the — State’s Exhibit No. 1. Therefore, without cross examination of the probation officer, there is nothing to test the reliability of the data.

The second prong of my argument is that to introduce the documents and not have a probation officer here is denial of the defendant’s right to confront his accuser's which goes against the U.S. Constitution [Six]th Amendment, Texas Constitution Article 1[,] Section 10, [and] Texas Code of Criminal Procedure Article 1.05.

Furthermore, to not have the probation officer here is denial of the defendant’s right to cross-examine witnesses[,] which is a violation of U.S. Constitution [Six]th Amendment, Texas Constitution Article 1[,] Section 10, Texas Code of Criminal Procedure Article 1.05, and further violation of Texas rules of evidence ... 508, 607, 608, 609, 610, 611, 612, 613, and 615.

[[Image here]]

... I would [also] argue that Crawford applies to the case in bar, in that the State is attempting to use a business record to sit in the witness chair and testify against the defendant without the defendant being given the right to cross-examine that witness. In other words, the State is trying to get business records to go around having the accuser take the stand.
When there is ... testimonial evidence, it should be subjected to cross-examination. I would argue that the probation officer’s notes set out in State’s Exhibit No. 1 go beyond the application meant for a business record. They are in fact testimonial. And therefore, the substance of Crawford could very well apply in this case.
It’s for those reasons that I would object to State’s Exhibit No. 1.

The trial court was and this court is well aware of the nature of Appellant’s complaint regarding the Michigan documents. He wanted live witnesses to cross-examine. The job of both the trial court and the appellate court is to ensure that constitutional safeguards are afforded the defendant. “We should be particularly careful to avoid dismissing substantive arguments on overly technical procedural grounds” or because of the absence of “magic words.”10

Because the majority chooses to base its opinion on dismissal and forfeiture rather than addressing Appellant’s substantive arguments, I must respectfully dissent from its thoughtful opinion.

. Small v. State, 977 S.W.2d 771, 776-77 (Tex.App.-Fort Worth 1998, no pet.) (Dau-phinot, J., concurring) (footnotes omitted) (citing Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S.Ct. 1497, 1500, 16 L.Ed.2d 577 (1966); Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim. App.1992); Millican v. State, 145 Tex.Crim. 195, 167 S.W.2d 188, 191 (1943) (op. on reh’g)).

. See Tex.Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp.2004-05).

. Of course, a writ of habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure is always available, but it seems an unnecessary burden to place on the Texas Court of Criminal Appeals. Id. art. 11.07 (Vernon 2005).

. See Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759-60, 36 L.Ed.2d 656 (1973); Ruedas v. State, 586 S.W.2d 520, 523 (Tex.Crim.App. [Panel Op.] 1979).

. See Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972).

. Eldridge v. State, 731 S.W.2d 618, 619 (Tex. App.-Houston [1st Dist.] 1987, no pet.); see Gilbert v. State, 852 S.W.2d 623, 625-26 (Tex. App.-Amarillo 1993, no pet.) ("[A]rt.42.12, § 5(b) ... is not intended to preclude challenges to all of the rulings a trial court may potentially make in the course of a deferred adjudication proceeding.... The adjudication hearing must provide a defendant with minimum substantive and procedural due process protection.”); see also Homan v. Hughes, 708 S.W.2d 449, 452 (Tex.Crim.App.1986) (“Nothing in Art. 42.12 ... prohibits appeal of matters unrelated to the determination of guilt after a deferred adjudication. In fact, a plain *367reading of the germane section indicates just the opposite.”); Earley v. State, 855 S.W.2d 260, 261-63 (Tex.App.-Corpus Christi 1993), pet. dism’d, improvidently granted, 872 S.W.2d 758 (Tex.Crim.App.1994) (reversing trial court's revocation of straight probation in one case, deferred adjudication probation in two other cases, and a conviction in a fourth case because the trial judge predetermined the sentences, violating due course of law and due process); De Leon v. State, 797 S.W.2d 186, 187 (Tex.App.-Corpus Christi 1990, no pet.) ("[A] body of decisional law has developed to allow a defendant to raise limited challenges to the trial court's decision to adjudicate.”).

. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004).

. See, e.g., Earley, 855 S.W.2d at 262-63.

. See, e.g., Lopez v. State, 96 S.W.3d 406, 416 (Tex.App.-Austin 2002, pet. ref'd).

. In re L.M.I., 119 S.W.3d 707, 719 (Tex. 2003) (Owen, J., concurring and dissenting), cert. denied, Dueñas v. Montegut, 541 U.S. 1043, 124 S.Ct. 2175, 158 L.Ed.2d 733 (2004).