Kenneth Andre Thompson v. State ( 2012 )

Opinion issued June 7, 2012

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-10-00637-CR

———————————

Kenneth Andre Thompson, Appellant

V.

The State of Texas, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Case No. 1217654

MEMORANDUM OPINION

          A jury convicted appellant Kenneth Andre Thompson of aggravated robbery, see Tex. Penal Code Ann. § 29.03 (West 2011), and the trial court found that a firearm had been used during the commission of the offense. Thompson pleaded true to an enhancement paragraph alleging a prior conviction for aggravated robbery.  The jury sentenced him to 30 years in prison and assessed a $1,000 fine.  In two issues, Thompson argues that the trial court erred by permitting the State to elicit backdoor hearsay, which is also known as inferential hearsay, over his objections and in violation of the Rules of Evidence and the Confrontation Clause. We modify the judgment to correct unrelated errors concerning Thompson’s plea and the jury’s finding on the enhancement paragraph, and we affirm the judgment as modified.

Background

          Three repairmen were working all day on the air conditioning system of a church in Houston.  The workers observed that they were being watched by a small group of people in an empty lot next to the church.  At the end of the day, one of the repairmen, M. Jukola, began to return his tools to his truck while the other repairmen finished inside.  As he walked back and forth, he kept the truck door closed, but unlocked.  On his last trip to the truck, Jukola saw a man reach inside the truck’s rear passenger door to grab two cases of tools and then start to walk away.  Jukola caught up to the man to ask what was going on. The man turned around and said, “Get away.  I’ll shoot,” or similar words, and then he flashed a revolver.  Jukola recognized the man as someone whom he had seen earlier loitering in the nearby parking lot.  The man turned and walked away with the tool cases.

          Jukola shouted for his fellow repairmen who were still inside the church.  One of them, L. Diggs, came outside to see the man walking away with the tools.  While calling 911, Diggs followed the man down the street and saw him enter the fourth house down from the church.  Diggs did not see the man’s face.

When the police arrived in response to Diggs’s 911 call, the owner of the house, P. Jones, consented to a search, but the police did not find the suspect there, nor did they find the tools or a revolver.  The police scoured the neighborhood but did not find the man matching the description provided to them.  As part of the police investigation, Officer E. Arjona performed a “location check,” which he described as a “detailed log of any kind of incident, phone numbers, individuals that may live at the house . . . .  [I]t’s like a database of information of who’s there, who frequents.”  Based on this information, Officer Arjona identified Thompson as a suspect.

About a week after the robbery, Officer Arjona prepared a photo array of six people, including Thompson, and he showed the array to Jukola.  Jukola immediately identified Thompson’s photo as depicting the robber.  After Thompson was charged with the robbery, Officer Arjona returned to the neighborhood and spoke with Jones, the owner of the house that Diggs had identified to police.  He questioned Jones about Thompson living there.  That interview led Officer Arjona to conclude that Thompson was the right suspect.

          Jukola, Diggs, Officer Ajona, and another police officer testified at Thompson’s trial.  The State subpoenaed Jones, but Jones refused to cooperate and did not testify at trial. Nevertheless, the State questioned Officer Arjona about his interview of Jones after Thompson was charged with the robbery. The first line of questioning occurred during direct examination:

STATE:       At some point after the defendant is charged, do you go back to the house . . . ?

ARJONA:    Yes, I did.

STATE:       And when you go back to the house, do you speak with anyone?

ARJONA:    Yes, I did.

STATE:       Tell us who you spoke with.

ARJONA:    I spoke to a gentleman by the name of [P.], who claims he lived and owned —

DEFENSE:  Objection, Your Honor, to anything that Mr. [P.] said as hearsay.

STATE:       Judge, I think he’s specifically talking about [P.] Jones at this point.

COURT:      Overruled.

STATE:       Who did you meet with when you went to the house?

ARJONA:    [P.] Jones.

STATE:       Okay.  And did [P.] Jones identify himself as the homeowner?

ARJONA:    Yes.

STATE:       Did you talk to [P.] Jones about whether or not the defendant lived at the home?

DEFENSE:  Again, Your Honor, I’m going to object.  Not only is it hearsay, but it denies me the right to cross-examine Mr. Jones unless he testifies.

STATE:       Judge, I haven’t asked him about anything Mr. Jones said.  All I asked him was if he spoke to him.

COURT:      Overruled.

STATE:       Did you speak with [P.] Jones about whether or not the defendant had lived at that location?

ARJONA:    Yes.

STATE:       You can’t go into what Mr. Jones said.  Okay?  And by that time, you certainly had the defendant identified by photo and by name.

ARJONA:    Yes.

STATE:       Okay.  Without going into what Mr. Jones said, after speaking with him, did it confirm your opinion as to whether or not you have the right person?

ARJONA:    Yes.

STATE:       On that day in speaking with Mr. Jones and going out to the neighborhood, did you continue to attempt to locate the defendant?

ARJONA:    Yes.

On cross-examination, Thompson’s counsel asked Officer Arjona what evidence he had to suspect Thompson as the robber, besides Jukola’s identification.  Officer Arjona replied, “That’s all I have, sir.”  Once Thompson’s counsel passed the witness, the State’s counsel approached the bench to argue that Thompson’s counsel had “opened the door” for rebuttal because Jones’s statements to Officer Arjona constituted other evidence that Thompson was the robber.  During the bench discussion, counsel for the State said, “I’m not going to ask [Officer Arjona] specifically what Mr. Jones said.”  Thompson persisted in his objection, saying, “I’ll just put my objection on the record.  Number one, it’s hearsay.  Number two, it denies me my right to confront and cross-examine Jones.”  The trial court responded, “[The State] just told you it’s not going to come in.”  The trial court did not expressly rule on the objection.  The State then resumed its examination of Officer Arjona, and the following line of questioning took place:

STATE:       Now, defense counsel asked you a question as to whether or not this identification . . . of the defendant by Mr. Jukola was the only evidence tying the defendant to that case.  You remember that question?

ARJONA:    Yes.

STATE:       You remember speaking with [P.] Jones?

ARJONA:    Yes, I do.

STATE:       Okay.  And certainly the defendant or from what you learned in doing your location check, that the defendant was associated with that house.

ARJONA:    That’s correct.

STATE:       Okay.  Mr. Jones knew the defendant?

ARJONA:    Yes.

STATE:       Would it be fair to say that him and the defendant are friends?

ARJONA:    That’s correct.

STATE:       Or would it be friends or family?  Do you know?

ARJONA:    I don’t know if they’re friends or family.

STATE:       Without going into what Mr. Jones said, okay, did your conversation with him corroborate the identification that Mr. Jukola made of the defendant, Kenneth Thompson?

ARJONA:    Yes.

The State then passed the witness.

The jury convicted Thompson of aggravated robbery.  It found true an enhancement allegation for a prior aggravated robbery, and it sentenced Thompson to 30 years in prison and assessed a $1,000 fine.

Analysis

          In his first issue on appeal, Thompson argues that the State improperly elicited backdoor hearsay when Officer Arjona testified about Jones’s out-of-court statements.  See, e.g., Schaffer v. State, 777 S.W.2d 111, 114 (Tex. Crim. App. 1989) (“[W]here there is an inescapable conclusion that a piece of evidence is being offered to prove statements made outside the courtroom, a party may not circumvent the hearsay prohibition through artful questioning designed to elicit hearsay indirectly.”).  Thompson argues that because he was unable to cross-examine Jones about the statements concerning whether he lived at the house, Officer Arjona’s indirect testimony regarding those statements violated the rule against hearsay, Tex. R. Evid. 802, and the Confrontation Clause.  In his second issue, he argues that the trial court abused its discretion in admitting the testimony.

The State argues that Thompson failed to object to the testimony when it was elicited to rebut a false impression created during cross-examination, and therefore the issue is not preserved for appellate review.  The State further argues that even if the issue was preserved, Officer Arjona’s testimony was not hearsay, and even if it was, the admission of that testimony was harmless.

Ordinarily, to preserve error, there must be a timely, specific objection and an adverse ruling by the trial court. Tex. R. App. P. 33.1.  Even constitutional error may be waived by failure to object at trial.  Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990). A defendant waives his constitutional right to confront witnesses if he does not timely object to testimony on that ground.  See Holland v. State, 802 S.W.2d 696, 700 (Tex. Crim. App. 1991); Campos v. State, 186 S.W.3d 93, 98 (Tex. App.—Houston [1st Dist.] 2005, no pet.).  A general hearsay objection does not preserve error on the ground that the testimony violates the Confrontation Clause.  Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005).

The record reflects that during the State’s direct examination of Officer Arjona concerning his interview with Jones, Thompson’s counsel objected, “Not only is it hearsay, but it denies me the right to cross-examine Mr. Jones unless he testified.” This objection reflects two distinct grounds for the objection: hearsay and the right to cross-examine.  Although Thompson’s objection does not expressly refer to the Confrontation Clause, the essence of a Confrontation Clause violation is that it denies a criminal defendant the procedural right to cross-examine witnesses against him.  See Crawford v. Washington, 541 U.S. 36, 61, 124 S. Ct. 1354, 1370 (2004) (observing the Confrontation Clause guarantees that the reliability of evidence may be tested “in the crucible of cross-examination”).  Unlike Reyna v. State, 168 S.W.3d 173 (Tex. Crim. App. 2005), and Austin v. State, 222 S.W.3d 801 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d), the inability to cross-examine was distinctly articulated as a ground for objection separate from the hearsay objection.  Thus, the objections on hearsay and Confrontation Clause grounds were made with “sufficient specificity to make the trial court aware of the complaint.”  See Tex. R. App. P. 33.1(a)(1)(A).

With respect to the testimony that the State elicited on direct examination, Thompson’s sufficiently specific objections paired with the trial court’s adverse ruling preserves the hearsay and Confrontation Clause issues for our review.  Tex. R. App. P. 33.1(a).  We hold that Thompson did not waive appellate review of the testimony elicited on direct examination.  See Tex. R. App. P. 33.1(a).  However, when the State approached the bench for permission to question Officer Arjona for rebuttal purposes, Thompson did not obtain a ruling on his renewed objections.  Nor did he object during the State’s re-direct examination when Officer Arjona testified about speaking with Jones.  Because Thompson did not timely object or obtain a ruling with respect to the re-direct testimony, we hold that the hearsay and Confrontation Clause issues are not preserved as to that testimony.  See id.; see also Tex. R. Evid. 802 (“Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay.”).

          Assuming without deciding that the trial court erroneously admitted Officer Arjona’s testimony on direct examination in violation of the Rules of Evidence and the Confrontation Clause, such errors are subject to a harm analysis.  See Tex. R. App. P. 44.2; Clay v. State, 240 S.W.3d 895, 905–06 & n.12 (Tex. Crim. App. 2007) (conducting harmless error analysis on hearsay); Rubio v. State, 241 S.W.3d 1, 3 (Tex. Crim. App. 2007) (“[A]ny Confrontation Clause violation, once proven, is subject to harmless error analysis.”).  We will reverse the conviction “unless we determine beyond a reasonable doubt that the error did not contribute to the appellant’s conviction.”  Rubio, 241 S.W.3d at 3.  “If there is a reasonable likelihood that the error materially affected the jury’s deliberations, then the error was not harmless beyond a reasonable doubt.”  Id.  We calculate the probable impact of the error in light of all other available evidence. Id.

When a trial court erroneously admits backdoor hearsay, but the matter asserted by the out-of-court statement is otherwise established through other admitted evidence, no harm is done to the party challenging the hearsay.  See Clay, 240 S.W.3d at 905–06 (holding that erroneously admitted hearsay “established little, if anything, negative about appellant that was not also well established by the properly admitted evidence” and was therefore harmless); Burks v. State, 876 S.W.2d 877, 898 (Tex. 1994) (holding that erroneously admitted backdoor hearsay was harmless because other testimony proved same facts); Jones v. State, 843 S.W.2d 487, 499 n.14 (Tex. Crim. App. 1992) (observing that potential error of admitting backdoor hearsay was harmless because jury heard other similar evidence), overruled on other grounds, Maxwell v. State, 48 S.W.3d 196, 198 (Tex. Crim. App. 2001). The same rule applies with respect to evidence elicited in violation of the Confrontation Clause.  See Davis v. State, 203 S.W.3d 845, 853–56 (Tex. Crim. App. 2006) (observing that testimony admitted in violation of Confrontation Clause was cumulative of other admitted evidence and holding that error was harmless beyond a reasonable doubt).

In this case, the alleged error that was preserved for review is that Officer Arjona provided on direct examination backdoor hearsay establishing that Jones told him that Thompson lived at the house, and that this error also violated Thompson’s right to confront witnesses under the Confrontation Clause.  However, Officer Arjona’s re-direct testimony established substantially the same fact, and any possible error in admitting that testimony was not preserved for appellate review.  In light of the testimony elicited on re-direct examination without a contemporaneous objection, we conclude that there is no reasonable likelihood that the alleged error of admitting substantially the same testimony on direct examination materially affected the outcome of the jury’s deliberations.  See Rubio, 241 S.W.3d at 3. Thus, assuming that the trial court erred in admitting backdoor hearsay on direct examination in violation of the Confrontation Clause, we hold that the alleged error was harmless.  See Clay, 240 S.W.3d at 905–06 & n.12; Davis, 203 S.W.3d at 853–56; Burks, 876 S.W.2d at 898; Jones, 843 S.W.2d at 499 n.14; Tex. R. App. P. 44.2(a).

          We overrule Thompson’s two issues.

Modification of the Judgment

          The judgment reflects a plea of “N/A” with respect to the first enhancement paragraph and a finding of “N/A” with respect to the same.  However, the reporter’s record reflects that Thompson pleaded “true” with respect to a single enhancement paragraph, which alleged that Thompson previously had been convicted of aggravated robbery, and that the jury found that the allegations in the enhancement paragraph were “true.” The parties have not brought to this court’s attention the discrepancy between the judgment and the reporter’s record. Nevertheless, “[a]n appellate court has authority to reform a judgment to include an affirmative finding to make the record speak the truth when the matter has been called to its attention by any source.”  French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (citing Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d)); accord Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (observing that appellate court has the power to reform the judgment to make the record speak the truth when it has the necessary data and information); see also Tex. R. App. P. 43.2(b).  We conclude that the record supports modification of the judgment because it does not reflect that Thompson pleaded “true” to the first enhancement paragraph and that the jury found the same to be “true.”  Accordingly, we modify the judgment to reflect Thompsons’ plea of “true” and the jury’s finding of “true” with respect to that enhancement paragraph.

Conclusion

We modify the trial court’s judgment to reflect that Thompson pleaded “true” to the first enhancement paragraph and that the jury found the same to be “true.”  We affirm the judgment of the trial court as modified.

                                                                      Michael Massengale

                                                                      Justice

Panel consists of Justices Keyes, Higley, and Massengale.

Do not publish.   Tex. R. App. P. 47.2(b)