Swartz, Jeffrey Shane v. State ( 2013 )

AFFIRM; Opinion Filed March 7, 2013.
In The
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No. 05—12-00005—CR
JEFFREY SHANE SWARTZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 382nd Judicial District Court
Rockwall County, Texas
Trial Court Cause No. 2-11—346
MEMORANDUM OPINION
Before Justices Moseley, Francis, and Lang
Opinion By Justice Moseley
A jury convicted Jeffrey Shane Swartz of causing injury to an elderly individual. See TEX.
PENAL CODE ANN. § 22.04(a) (West Supp. 2012). He pleaded true to an enhancement allegation and
the jury assessed punishment at fifteen years’ imprisonment and a $10,000 fine. Swartz raiSes two
issues on appeal: (1) the trial court erred by admitting the Victim’s written statement to police as a
prior consistent statement; and (2) the admission of the statement violated his right to confrontation.
The background of the case and the evidence adduced at trial are well known to the parties; thus, we
do not recite them here in detail. Because all dispositive issues are settled in law, we issue this
memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We affirm the trial court’s judgment.
While recuperating from surgery, Swartz was staying with the complainant, Shirley
lvlcl'énight~ his seventy-seven year old grandmother. They had argued for several days because the
air conditioning was not working in the house. McKnight testified that one morning she went into
the kitchen and Swartz told her he had called adult protective services to get her out ofthe house.
He then slapped her face and grabbed her phone when she reached for it and threw it across the
room. He grabbed her and banged her head against the counter three times. McKnight escaped and
ran to a neighbor’s house.
McKnight testified she gave a written statement to police on the day of the assault and
identified the document, although it was not offered in evidence at that time. Swaitz’s attorney
cross-examined McKnight about her written statement. Defense counsel asked her whether she told
the police everything that was in her statement and whether grabbing the phone out ofher hand and
slapping her face were important facts. McKnight stated on redirect that she included in her written
statement that Swartz slapped her and grabbed the phone out of her hand.
After McKnight testified, the State called Deputy Michael Manning, who had taken
McKnight‘s statement. On cross-examination, Manning said that McKnight never indicated to him
that Swartz had grabbed the phone out of her hand. Manning identified McKnight’s written
statement on redirect and testified that McKnight said in her statement that Swartz grabbed the phone
out of her hand and threw it. The State then offered the written statement as a prior consistent
statement based on the cross-examination ochKnight and Manning. Swartz’s only objection was
hearsay, which the trial couIt overruled.
The written statement was offered to rebut an implied charge of recent fabrication or
improper motive raised by Swartz’s cross-examination of McKnight and Manning. Thus, the State
contends it was not hearsay. See TEX. R. EVID. 801(c)(1)(B); Hammons v. State, 239 S.W.3d 798,
804~05 (Tex. Crim. App. 2007). However, Swartz argues that the State failed to satisfy the
requirement that the prior statement was made before the alleged motive to falsify arose. He
contends there was evidence that McKnight knew Swartz wanted her out of the house.
On cross—examination, McKnight testified she suspected Swartz and his mother were trying
to have her committed to get her out of the house. She testified she did not remember telling a
neighbor that she was going to put Swartz away before he could put her away.
McKnight’s testimony was unclear about when her suspicion arose and there was evidence
she did not want Swartz to get into trouble. Moreover, McKnight did not call the police on the date
ofthe incident and she had to be subpoenaed to testify at trial. In light of the record. we conclude
the trial court’s implied ruling that the statement was not hearsay is not outside the zone of
reasonable disagreement. We conclude the trial court did not abuse its discretion by overruling the
hearsay objection. See Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). We overrule
Swartz’s first issue.
Swartz’s second issue complains that admission of the written statement violated his right
ofconfrontation. Swartz did not raise this objection in the trial court and may not raise it for the first
time on appeal. See TEX. R. APP. P. 33.1(a); Crawford v. State, 139 S.W.3d 462, 464 (Tex.
AppwwDallas 2004, pet. ref“ d). His counsel conceded at oral argument that the confrontation clause
claim was not preserved for appeal. We overrule Swartz’s second issue.
We affirm the trial court’s judgment.
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JUDGMENT
JEFFREY SHANE SWARTZ, Appellant Appeal from the 382ml Judicial District
Court of Rockwall County, Texas.
No. 05-12—00005-CR V. (Tr.Ct.No. 2-] L346).
Opinion delivered by Justice Moseley,
THE STATE OF TEXAS, Appellee Justices Francis and Lang participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 7, 2013.