Beatty, Tracy Lane ( 2015 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-59,939-03
EX PARTE TRACY LANE BEATTY, Applicant
ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS
IN CAUSE NO. 241-0978-04-A IN THE 241ST JUDICIAL DISTRICT COURT
SMITH COUNTY
A LCALA, J., filed a concurring statement.
CONCURRING STATEMENT
I join this Court’s order dismissing the subsequent application for a writ of habeas corpus
filed by Tracy Lane Beatty, applicant. I conclude that, even if his case were not procedurally
barred, applicant has failed to plead facts that would adequately show that his conviction
would have been reversed on appeal had appellate counsel’s brief complained of the trial
court’s evidentiary ruling.
Applicant’s first ground states, “[Applicant] was denied the effective assistance of
counsel on direct appeal in violation of his Sixth Amendment right to counsel.” Here,
Beatty- 2
applicant contends that appellate counsel was ineffective by failing to complain on appeal
that the trial court erred in its admission of hearsay testimony that tended to prove the
complainant had revoked her consent for applicant to live in her home, which was evidence
of the underlying burglary used to establish capital murder. The complainant made a
statement to her neighbor indicating that she had told applicant that he must leave her home.
The State offered the neighbor’s testimony to this effect for the purpose of proving the no-
effective-consent element of the burglary offense. Therefore, it is a statement about a
statement offered for the truth of the matter asserted, or hearsay-within-hearsay. This
evidence was admissible so long as each layer of hearsay independently satisfied some
exception to the hearsay rule. T EX. R. E VID . 805 (“Hearsay within hearsay is not excluded
by the rule against hearsay if each part of the combined statements conforms with an
exception to the rule.”). To preserve error with respect to a hearsay-within-hearsay
complaint, the trial court must be placed on notice of an objection as to each layer of
hearsay.1
Here, there are two out-of-court statements. The first is the complainant’s statement
to applicant telling him to leave her house. The second is the complainant’s statement to her
1
Preservation of error regarding double-hearsay is controlled by the requirement of specific
objections and the requirement that each layer of hearsay must be admissible under an exception.
TEX . R. APP . P. 33.1(a)(1); Sanchez v. State, 354 S.W.3d 476, 485-86 (Tex. Crim. App. 2011) (citing
TEX . R. EVID . 805 and holding that hearsay-within-hearsay is inadmissible unless each part of the
combined statements falls within an exception to the hearsay rule); see also Martin v. State, 151
S.W.3d 236, 240 (Tex. App.—Texarkana 2004, pet. ref’d) (holding error not preserved where
counsel did not specifically object to embedded hearsay).
Beatty- 3
neighbor informing her that she had told applicant to leave the house. Trial counsel objected
specifically to the second statement—the complainant’s statement to her neighbor—but
counsel did not alert the trial court that he was raising a hearsay objection as to the first
statement. The objection was “to any statement that was allegedly said to Betty McCarty
[neighbor] by Carolyn Click [complainant].” Because trial counsel made no hearsay
objection to the admissibility of the first statement and thus failed to preserve error, appellate
counsel could not have raised that point of error on direct appeal. In light of his recognition
that error was not preserved, appellate counsel explained that trial counsel’s failure to
preserve this complaint was the reason that he did not present it on appeal. I conclude that,
because trial counsel’s hearsay objection was inadequate to preserve his complaint about the
hearsay-within-hearsay that served to prove the no-effective-consent element of burglary,
appellate counsel did not render deficient performance by failing to assert that complaint on
appeal.
Furthermore, applicant has failed to plead adequate facts showing that, even if the trial
court had abused its discretion in admitting the evidence, this Court would have found the
admission of the evidence to be harmful in light of other evidence in the record showing that
applicant was no longer permitted to live with the complainant. For example, applicant told
someone that the complainant had asked him to move out of her home and that she had
packed a suitcase for him in an effort to kick him out. Because that evidence supports the
underlying burglary, applicant is unable to meet the second prong of Strickland that requires
Beatty- 4
him to show that, but for counsel’s deficient performance, there was a reasonable probability
of a different outcome on appeal. See Ex parte Santana, 227 S.W.3d 700, 705 (Tex. Crim.
App. 2007).
Because applicant has failed to plead facts that would show a likelihood of success
on the merits of any of the grounds he has presented in his subsequent application, I concur
in the Court’s judgment dismissing his application. Although I remain open to reconsidering
this Court’s precedent disallowing subsequent applications for writs of habeas corpus on the
basis of ineffective assistance of initial habeas counsel, given the present circumstances, I
do not reach that issue in this case.
Filed: October 14, 2015
Do Not Publish