Wayne Lee Horton v. State ( 2017 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-16-00092-CR
Wayne Lee HORTON,
Appellant
v.
The STATE of Texas,
Appellee
From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. B15406
Honorable Stephen B. Ables, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: January 11, 2017
AFFIRMED
Wayne Lee Horton appeals his conviction for family violence assault (enhanced). We
affirm the trial court’s judgment.
BACKGROUND
Horton was charged with assault against his wife, a member of his family as designated by
Family Code section 71.003. See TEX. PENAL CODE ANN. § 22.01(a), (b)(2)(A) (West Supp. 2016);
see also TEX. FAM. CODE ANN. § 71.003 (West 2014). The indictment alleged that, on or about
November 11, 2014, Horton “did . . . intentionally and knowingly cause bodily injury to Stephanie
04-16-00092-CR
Anne Horton, a member of the Defendant’s family . . . by striking her on her face and nose.” The
indictment further alleged that Horton was previously convicted of the offense of “Family
Violence Assault (Enh.),” as well as two felony DWI offenses. Horton pled not guilty.
Prior to trial, the complainant, Horton’s wife, signed a non-prosecution statement and
refused to cooperate when the prosecutor declined to drop the charges. At trial, the State’s main
witness was Stephanie’s ten-year old daughter, K.W., who testified that she saw Horton hit her
mother in the face and nose. In addition, three administrators at K.W.’s school testified that K.W.
told them she “saw her stepdad hit her mom,” and “saw [her] stepdad slap [her] mom across the
face.” The State also presented expert testimony on the dynamics of domestic violence. Horton
did not testify, but presented the testimony of an officer who investigated a claim by K.W. that she
was not receiving her insulin at home; he found the allegation untrue and closed the case. Horton
stipulated to his prior conviction for family violence assault. The jury found Horton guilty. Horton
pled true to the enhancements and was sentenced to 35 years’ imprisonment. Horton now appeals.
ANALYSIS
On appeal, Horton argues the trial court erred in admitting “backdoor hearsay” and in
permitting testimony that violated his Sixth Amendment confrontation right.
Hearsay
During direct examination by the State, K.W. testified as follows:
Q: Do you remember a time about this time last year where you went in and
you saw Nurse Jane and Ms. Wallace?
A: Yes.
***
Q: Were you pretty upset?
A: Yes.
-2-
04-16-00092-CR
Q: Can you tell the jury, did you see something happen?
A: Yes, sir.
Q: Can you tell the jury what you saw?
A: I saw my stepdad hit my mom.
***
Q: Where did your stepdad hit your mom?
A: Everywhere.
Q: Did he hit her in the face?
A: Yes.
Q: Did he hit her in the nose?
A: Yes.
***
Q: Did it make your momma cry?
A: Yes.
K.W. continued testifying, giving her mother’s name and her stepdad’s name, identifying Horton
in court, and stating the city where they lived at the time.
During defense counsel’s cross-examination of K.W., the following occurred:
Q: Okay. And so when you told us earlier that you saw Wayne hit your mom
in the face, what were you doing?
A: I was outside. And when I walked in, my mom was crying, and I asked her
what happened, and she —
Defense Counsel: Objection, hearsay.
The Court: Overruled.
After the trial court overruled Horton’s hearsay objection, there was no further testimony about
what K.W.’s mother may have told her; the questioning shifted back to K.W. playing outside.
-3-
04-16-00092-CR
Horton contends the trial court abused its discretion in overruling his hearsay objection
because K.W.’s testimony indirectly revealed to the jury what her mother told her without
repeating the words verbatim, and thus amounted to “backdoor hearsay.” Horton cites no legal
authority to support his backdoor hearsay argument, and has therefore inadequately briefed this
issue. TEX. R. APP. P. 38.1(i); Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000). Even
if the issue were properly presented, the record shows that no hearsay statement, either direct or
indirect, was admitted immediately before or after the objection. See TEX. R. EVID. 801(d)
(defining hearsay as an out-of-court statement offered into evidence to prove the truth of the matter
asserted); see Hajjar v. State, 176 S.W.3d 554, 564 (Tex. App.—Houston [1st Dist.] 2004, pet.
ref’d) (holding “no hearsay evidence was directly or indirectly admitted because what the
appellant’s son had revealed to [the investigating officer] was never introduced into evidence
. . . .”). Backdoor hearsay consists of a “question and answer” that presents the jury with
information from unsworn, out-of-court sources. Id. Here, no answer revealing the contents of
her mother’s statement was given by K.W. at that time. See Head v. State, 4 S.W.3d 258, 262
(Tex. Crim. App. 1999) (when determining whether evidence indirectly conveys the contents of
an out-of-court statement so as to constitute backdoor hearsay, the reviewing court limits itself to
the state of the evidence at the time the trial court made the ruling on admissibility; the trial court
cannot be asked to speculate on what evidence may be introduced later). Finally, any error was
rendered harmless by Horton’s subsequent elicitation of the contents of the same out-of-court
statement when he later asked K.W., “So is it possible that you didn’t see Mr. Wayne hit your
mom and its [sic] just what your mom told you?” and K.W. answered, “Yes, and I believe my
mom.” See Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (error in the admission of
evidence is cured where the same evidence is admitted later without objection); see also Shaw v.
State, 122 S.W.3d 358, 364 (Tex. App.—Texarkana 2003, no pet.) (if the fact to which the hearsay
-4-
04-16-00092-CR
relates is sufficiently proved by other competent and unobjected-to evidence, the admission of the
hearsay is harmless).
Confrontation Right
As noted in part above, the following exchange occurred during Horton’s cross-
examination of K.W.:
Q: Okay. So is it possible that your mom told you something that happened?
A: Yes. That was another day when I saw it.
Q: We are just going to talk about that day, okay? So is it possible that you
didn’t see Mr. Wayne hit your mom and it’s just what your mom told you?
A: Yes, and I believe my mom.
Horton asserts that the last question and answer quoted above amounted to a violation of
his Sixth Amendment confrontation right because he was deprived of the opportunity to cross-
examine Stephanie Horton concerning what she told K.W. U.S. CONST. amend. VI. Horton
contends K.W.’s answer violated Crawford because the out-of-court statement by Stephanie
Horton was testimonial in nature, she was unavailable to testify, and he did not have a prior
opportunity to cross-examine Stephanie. See Crawford v. Washington, 541 U.S. 36, 68 (2004).
However, Horton himself elicited the complained-of testimony and failed to preserve any error by
objection in the trial court. See Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004)
(claim of Confrontation Clause violation must be preserved by trial court objection); see also TEX.
R. APP. P. 33.1(a). Therefore, nothing is presented for our review.
Based on the foregoing analysis, we overrule Horton’s issues on appeal and affirm the trial
court’s judgment.
Rebeca C. Martinez, Justice
DO NOT PUBLISH
-5-